Dorris v. Absher, No. 97-6206

• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)
• Writing for the Court: GILMAN
• Citation: 179 F.3d 420
• Parties: Pamela A. DORRIS, et al., Plaintiffs-Appellees, v. Charles ABSHER and Della Absher, Defendants-Appellants.
• Docket Number: No. 97-6206
• Decision Date: 02 June 1999

179 F.3d 420 Pamela A. DORRIS, et al., Plaintiffs-Appellees,
v.
Charles ABSHER and Della Absher, Defendants-Appellants. No. 97-6206. United States Court of Appeals,
Sixth Circuit. Submitted Jan. 28, 1999.
Decided June 2, 1999.

Appeal from the United States District Court for the Middle District of Tennessee at Nashville. Nos. 96-00337; 96-00793--Todd J. Campbell, District Judge.

ON BRIEF: Vanessa R. Comerford, Hughes & Coleman, Nashville, Tennessee, for Appellants. William J. Shreffler, Blackburn, Slobey, Freeman & Happell, Nashville, Tennessee, for Appellees.

Before: MARTIN, Chief Judge; RYAN and GILMAN, Circuit Judges.

OPINION

GILMAN, Circuit Judge.

Charles Absher, the Director of Rabies Control for Sumner County, Tennessee, secretly recorded conversations among four of his employees by placing a tape recorder in their common office. He then disclosed the recordings to his wife and others, and used the same in an attempt to discharge two of the employees. All four employees subsequently brought suit against Charles Absher and his wife, Della Absher, based upon the Abshers' alleged violations of the "wiretapping statute," 18 U.S.C. § 2510-2522. This statute generally prohibits the unauthorized recording, disclosure, or use of electronically intercepted communications. The district court granted summary judgment in favor of the employees and awarded a total of $220,000 in damages against the Abshers, an amount it arrived at by multiplying the $10,000 liquidated-damage figure set forth in the statute times the number of alleged violations. For the reasons set forth below, the judgment of the district court is AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion.

I. BACKGROUND

Charles Absher and the four employees all worked at the Rabies Control Center in Gallatin, Tennessee. The center consists of one large room, which all employees share, and an adjoining bathroom that is also used for storage. On two occasions several days apart, Charles Absher placed a tape recorder on the top shelf of a cabinet in the storage room/bathroom of the Rabies Control Center and secretly recorded the conversations of the four employees. The conversations were of a highly personal nature, and included harsh criticism of Charles Absher. No one other than the four employees was present during the conversations, and the conversations stopped whenever a car pulled into the building's driveway or the telephone was being used.

Charles Absher subsequently played the recordings on two occasions. First, he played them for his wife, Della Absher, and a friend, Irene McCreary, at the Abshers' residence. Second, he played the tapes for his friends Charles and Clarice Talley at the Talleys' residence. Based on the information contained in the recordings, Charles Absher dictated and his wife transcribed termination notices for employees Pamela Dorris and Marty Scruggs. The notices summarized the reasons for the terminations, using information derived from the tapes. Absher presented the notices to the two employees on March 28, 1996, and informed Pamela Dorris that if she did not leave the premises immediately, he would have her removed by a police officer. That same afternoon, however, Sumner County Executive Thomas Marlin met with the discharged employees and rescinded the terminations. The two employees thus lost neither pay nor any benefits. All of these events took place within a span of eight days in March of 1996.

Shortly thereafter, all four employees brought suit against Charles Absher, Della Absher, and the county based upon alleged violations of the wiretapping statute. They also brought claims for violations of 42 U.S.C. § 1983 (prohibiting the deprivation of federal constitutional rights under color of state law) and for the intentional infliction of emotional distress. All claims against the county have since been settled. After the employees' actions were consolidated, the district court granted summary judgment in their favor under the wiretapping statute. The employees then voluntarily dismissed their civil rights and intentional infliction of emotional distress claims.

Because the Abshers did not address the issue of damages in their response to the employees' motion for summary judgment, the district court held that the Abshers had waived their right to challenge the same. It then awarded the employees the full amounts that they had sought, which was based on the application of the $10,000 fixed sum set forth in the wiretapping statute to each illegal interception, disclosure, or use of the recorded oral communications. Employees Pamela Dorris and Marty Scruggs were awarded $50,000 apiece against Charles Absher on the theory that he had recorded them, disclosed the contents of the recording on two separate occasions, and used the contents of the recording twice (once by writing the termination notices and once by actually terminating them). They were also awarded $20,000 apiece against Della Absher on the theory that she had twice "used" the tapes, once by listening to them and again by writing the termination notices that her husband had dictated to her.

Pennie Hodges and David Scruggs, the other two employees, were awarded $30,000 each against Charles Absher on the theory that he had recorded them, and had then disclosed the contents of the tape twice. They were also awarded $10,000 each against Della Absher because she had "used" the tapes when she listened to them.

The total damages awarded against the Abshers amounted to $220,000. This consisted of $160,000 against Charles Absher and $60,000 against Della Absher. The Abshers now appeal, contending that they should not be held liable at all under the wiretapping statute, and that even if they are liable, the damages awarded against them were not properly calculated.

II. ANALYSIS

A. Standard of review

We review de novo the district court's grant of summary judgment. See, e.g., Smith v. Ameritech, 129 F.3d 857, 863 (6th Cir.1997). Summary judgment is appropriate when there are no issues of material fact in dispute and the moving party is entitled to judgment as a matter of law. See FED. R. CIV. PRO. 56(C). In deciding a motion for summary judgment, the court must view the evidence and draw all reasonable inferences in favor of the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The judge is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine issue for trial is presented when there is sufficient "evidence on which the jury could reasonably find for the [non-moving party]." Id. at 252.

B. Liability

1. Reasonable expectation of privacy

The Abshers contend that the employees did not have a legitimate expectation of privacy in the Sumner County Rabies Control Office, so that the wiretapping statute could not have been violated. Subject to the various qualifications and limitations set forth in the statute, § 2520 provides a private right of action to any person whose wire, oral, or electronic communication is illegally "intercepted, disclosed, or intentionally used...." The term "oral communication" is defined to mean "any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation.... " 18 U.S.C. § 2510(2) (emphasis added).

A person whose communication is illegally intercepted must have an expectation of privacy that is both subjectively and objectively reasonable. See, e.g., McKamey v. Roach, 55 F.3d 1236, 1239-40 (6th Cir.1995) (holding that there was no reasonable expectation of privacy in communications over a cordless telephone because such an expectation is not objectively reasonable). In the present case, the frank nature of the employees' conversations makes it obvious that they had a subjective expectation of privacy. After all, no reasonable employee would harshly criticize the boss if the employee thought that the boss was listening.

The essential question, therefore, is whether this expectation of privacy was objectively reasonable. We believe that the facts of this case make clear that it was. The conversations took place only when no one else was present, and stopped when the telephone was being used or anyone turned onto the gravel road that was the only entrance to the office. The record thus indicates that the employees took great care to ensure that their conversations remained private.

Moreover, the office was a small, relatively isolated space. The employees could be sure that no one was in the building without their knowledge. The Abshers rely on Kemp v. Block, 607 F.Supp. 1262 (D.Nev.1985), a case in which the employee-plaintiffs, who worked in a single room, were found to have had no reasonable expectation of privacy. In that case, however, the single room was part of a larger office complex, meaning that others could easily overhear their conversations. In contrast, the entire office in the present case consisted of a single room that could not be accessed without the employees' knowledge. We therefore conclude that the employees had a reasonable expectation of privacy in their workplace.

2. Charles Absher

Charles Absher raises no further defenses to liability under the statute. Even after viewing all of the facts and inferences in the light most favorable to him, we find no genuine issues of material fact that would preclude the entry of summary judgment against him. We thus affirm this portion of the district court's decision.

3. Della Absher

i. Not reaching the issue would be a miscarriage of justice

Although the four employees were entitled to summary judgment against Charles Absher, a serious question...