Carroll v. Lynch

• Decision Date: 16 October 2012
• Docket Number: No. 12–1076.,12–1076.
• Citation: 698 F.3d 561
• Parties: Mary CARROLL, Plaintiff–Appellant, v. Merrill LYNCH, Jim Kelliher, and Pat Kelliher, Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

698 F.3d 561

Mary CARROLL, Plaintiff–Appellant,

v.Merrill LYNCH, Jim Kelliher, and Pat Kelliher, Defendants–Appellees.

No. 12–1076.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 24, 2012.

Decided Oct. 16, 2012.

John C. Ireland (argued), Attorney, Aurora, IL, for Plaintiff–Appellant.

Carole Golinski Miller (argued), Attorney, Maynard, Cooper & Gale, Birmingham, AL, Peter E. Cooper, Attorney, Lawrence, Kamin, Saunders & Uhlenhop, Chicago, IL, for Defendants–Appellees.

Before BAUER, FLAUM, and HAMILTON, Circuit Judges.

FLAUM, Circuit Judge.

On Thanksgiving Day at about 9:00 pm, Mary Carroll telephoned one of her co-workers, Jim Kelliher. Hearing Ms. Carroll loudly yelling at her husband over the phone, Jim Kelliher's wife Pat Kelliher began listening in on the call and decided to record the conversation. The call ultimately cost Carroll her job, and she sued under the Illinois eavesdropping statute for the recording and re-playing of the call. The district court granted' motion for summary judgment, concluding that the recording fell within the statute's fear of crime exemption. Because Ms. Carroll offers no evidence creating a genuine issue of material fact and are entitled to judgment as a matter of law, we affirm.

I. Background

A. Factual Background

In 2005, Mary Carroll and Jim Kelliher were co-workers at Merrill Lynch. That same year, Ms. Carroll lodged a complaint with human resources that led to the firing of two other Merrill Lynch employees. Restructuring of employment responsibilities followed and a supervisory position opened up. Although Carroll said she was not interested in the position and did not apply, she nevertheless felt “overlooked” when Merrill Lynch hired someone else.

In October 2005, Ms. Carroll felt that Jim Kelliher—who apparently was not involved with Carroll's previous human resources complaint—was performing some of her job duties. Around 9:00 pm on Thanksgiving in 2005, Ms. Carroll called Jim Kelliher on his home phone to confront him about this perceived encroachment. As Carroll later admitted, she was “all riled up,” “angry,” and “enraged.” She also described her behavior as “inappropriate[ ]” and “irrational[ ],” explaining to co-workers that she had “fucking snapped.” Carroll even recognized the startling nature of her call, admitting that, if she had received a similar call, she would have felt “threatened.”

Pat Kelliher overheard Carroll's loud accusations blaring from the phone. Becoming concerned, she began listening in on the phone call from another receiver in a different room. As Ms. Carroll's rant continued, Pat Kelliher became increasingly concerned and upset. She pushed the “record” button on her answering machine and recorded the rest of the call. Pat Kelliher later explained why she made the recording:

Because I was scared. You know, it was late on Thanksgiving night. It was past 9:00 o'clock at night. There's somebody on the other end yelling at my husband and using profanity, and I hear my husband saying, “I don't know what you're talking about.” “Can you please explain?” I hear him, you know, in a calm voice. I hear an escalation in the voice of the person who was calling. I had no clue who this person was. I got scared that somebody was very angry for an unknown reason that I could tell in the part that I listened to, and I felt that, you know, this person was going to come to our house, throw a brick through our window, that they were going to do something that night. And I got scared. And I wanted—that if we had to involve the police that I could say “You know what? This person, I don't know who they are, but this is what's scaring me.”

When the call finally ended, Pat Kelliher told her husband, “I'm scared and I think we should call the police.”

Despite Pat Kelliher's concerns, the Kellihers did not call the police that night. Jim Kelliher did call his supervisor at Merrill Lynch, though, and reported Ms. Carroll's phone call. The next day, at his supervisors' request, Jim Kelliher played the recording. After work that day, the Kellihers reported Carroll's call to the police.

Two months later, in January 2006, Ms. Carroll filed her own police report, accusing the Kellihers of violating the Illinois eavesdropping statute. The following month, Merrill Lynch fired Carroll for her conduct on the call, and she then filed this suit against Jim Kelliher, Pat Kelliher, and Merrill Lynch. Among other claims, her complaint alleged civil violations of the eavesdropping statute arising from Pat Kelliher's recording of the call and the subsequent use of the recording by Jim Kelliher and Ms. Carroll's supervisors at Merrill Lynch.¹

B. Procedural Background

Before the district court, defendants moved for summary judgment. They also moved to strike Carroll's response to the statement of undisputed facts and her statement of additional facts. The district court recognized deficiencies in these filings, which did not conform to Local Rule 56.1(b)(3), but nevertheless refused to strike the deficient pleadings and instead “attempted to identify disputes of fact.” Carroll v. Merrill Lynch, No. 1:07–cv–01575, 2011 WL 1838563, at *1 n. 1 (N.D.Ill. May 13, 2011). Where Ms. Carroll did “not offer a statement responsive to Defendants' facts,” though, the district court accepted defendants' version as true. Id.

Reaching the merits of the summary judgment motion, the district court held for defendants on all claims, finding no genuine dispute as to material fact. Id. at *24. Ms. Carroll now appeals only the district court's grant of summary judgment on her claim that Pat Kelliher's recording violates the Illinois eavesdropping statute.

II. Discussion

Defendants are entitled to summary judgment on the eavesdropping claims. We review motions for summary judgment de novo. Bennett v. Roberts, 295 F.3d 687, 694 (7th Cir.2002). Summary judgment is proper when, viewing all facts and inferences in favor of the nonmoving party, no genuine dispute as to material fact exists, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Hudson Ins. Co. v. City of Chi. Heights, 48 F.3d 234, 237 (7th Cir.1995).

Illinois law prohibits recording a telephone conversation without the consent of all parties. 720 ILCS 5/14–2(a)(1). It also prohibits the subsequent use or dissemination of any information obtained through an unauthorized recording. Id. at § 2(a)(3). The fear of crime exemption, however, allows unconsented recordings when: (1) the recording is made by or at the request of a person who is a party to the conversation; (2) under a reasonable suspicion that another party to the conversation is committing, is about to commit, or has committed a criminal offense against that person or a member of his or her immediate household; and (3) the recording may yield evidence of that criminal offense. Id. at § 3(i).

On appeal, Ms. Carroll principally challenges only the second element—whether Pat Kelliher had a reasonable suspicion to believe that Carroll was committing, was about to commit, or had committed a criminal offense against Pat Kelliher or someone in her immediate household.² She argues both that genuine disputes of material fact exist and that defendants are not entitled to judgment as a matter of law. Additionally, she argues that the fear of crime exemption does not apply to the statute's ban on use or dissemination of unauthorized recordings.

A. No Genuine Disputes of Material Fact Exist to Preclude Summary Judgment.

Not all disputes of fact preclude summary judgment. Such factual disputes must be both material and genuine. Fed.R.Civ.P. 56(a). The underlying substantive law governs whether a factual dispute is material: “irrelevant or unnecessary” factual disputes do not preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). And a factual dispute is genuine when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. Once the moving party puts forth evidence showing the absence of a genuine dispute of material fact, the burden shifts to the non-moving party to provide evidence of specific facts creating a genuine dispute. Hudson Ins. Co., 48 F.3d at 237. Mere “metaphysical doubt as to the material facts” is not enough. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

Ms. Carroll accuses the district court of making improper credibility determinations and failing to construe all factual disputes in her favor. According to Carroll, the district court improperly credited Pat Kelliher's testimony that a fear of crime motivated her to record the conversation. But nothing requires the district court to disbelieve defendants' proffered evidence simply because Ms. Carroll—without proof—asserts it is false. See Argyropoulos v. City of Alton, 539 F.3d 724, 732 (7th Cir.2008) (noting inferences “supported by only speculation or conjecture” do not create genuine issue of fact (citation omitted)); see also Koclanakis v. Merrimack Mut. Fire Ins. Co., 899 F.2d 673, 675 (7th Cir.1990). Indeed, the law requires just the opposite: Ms. Carroll cannot rest on “metaphysical doubt” that Pat Kelliher lied but must produce evidence so showing. See Matsushita Elec. Indus. Co., 475 U.S. at 586, 106 S.Ct. 1348. She has not done so.

Instead, all Ms. Carroll offers is the suggestion of an economic motive behind the recording. True, Pat Kelliher expressed some worry that Carroll might jeopardize her husband's job. This evidence does not contradict her testimony that she feared commission of a crime so it does not create a genuine issue of material fact. See Bd. of Trs. of Univ. of Ill. v. Ins. Corp. of Ir., Ltd., 969 F.2d 329, 334–35 (7th Cir.1992) (no genuine issue of material fact where non-moving party's evidence did not contradict that of moving party); see also Unterreiner v. Volkswagen of Am., Inc.,...