Fields v. Atchison, Topeka, and Santa Fe Ry. Co.

Decision Date25 November 1997
Docket NumberCiv. A. No. 95-4027-GTV.,Civ. A. No. 95-4026-GTV.
Citation985 F.Supp. 1308
PartiesEarl S. FIELDS, Plaintiff, v. The ATCHISON, TOPEKA, AND SANTA FE RAILWAY COMPANY, Terry Reardon, Burton L. Buser, Paul Hoferer, and John Does 1-10, Defendants, and Linda McVICKER, Plaintiff, v. Burton L. BUSER, and John Does 1-10, Defendants.
CourtU.S. District Court — District of Kansas

Jean A. Lamfers, Lamfers & Maneke, L.C., Kansas City, MO, for Earl S. Fields, Linda McVicker.

Nola Wright Viola, Frieden, Haynes & Forbes, Topeka, KS, James S. Pigg, Fisher, Patterson, Sayler & Smith, Topeka, KS, Paul R. Hoferer, Burlington Northern Santa Fe Railroad, Ft. Worth, TX, for Atchison, Topeka and Santa Fe Ry. Co.

Nola Wright Viola, Frieden, Haynes & Forbes, Topeka, KS, James S. Pigg, Fisher, Patterson, Sayler & Smith, Topeka, KS, for Terry Reardon.

James S. Pigg, Fisher, Patterson & Smith, Topeka, KS, for Paul Hoferer.

Jonathan B. Phelps, Phelps-Chartered, Topeka, KS, for Burton L. Buser.

MEMORANDUM AND ORDER

VAN BEBBER, Chief Judge.

Plaintiffs bring this action for damages alleging defendants violated Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq., and the Kansas Wiretap Act, K.S.A. 22-2518, and invaded their privacy by intercepting, using, and/or disclosing the contents of plaintiffs' private telephone communications. The case is before the court on defendants Hoferer, the Atchison, Topeka, and Santa Fe Railway Company (Santa Fe), and Reardon's motion for summary judgment (Doc. 206). These defendants seek summary judgment on Fields' invasion of privacy claim, his claims brought pursuant to the state and federal wiretap statutes, and his claim for punitive damages. For the reasons set forth, defendants' motion for summary judgment (Doc. 206) is granted in part and denied in part:

1. Summary judgment is granted to defendants Hoferer, Reardon, and Santa Fe as to the invasion of privacy claim.

2. Summary judgment is granted to defendants Hoferer, Reardon, and Santa Fe as to the claim for punitive damages.

3. Summary judgment is granted to defendant Hoferer as to the claims brought pursuant to the state and federal wiretap statutes.

4. Summary judgment is denied to defendants Santa Fe and Reardon as to the claims brought pursuant to the state and federal wiretap statutes.

I. Factual Background

The following facts are either uncontroverted or based on evidence viewed in a light most favorable to the plaintiff. Immaterial facts and facts not properly supported in the record are omitted.

In January 1995, defendant Terry Reardon was superintendent of the Eastern Division of defendant the Atchison, Topeka and Santa Fe Railway Company. Plaintiff Fields was an assistant superintendent who reported to Reardon. Santa Fe employed defendant Paul Hoferer as an attorney in its Topeka, Kansas office. On January 25, 1995, Reardon received a letter by mail dated January 22, 1995 and an audio cassette tape. The letter was addressed to Santa Fe's CEO, Robert Krebs. Copies of the letter and the tape were also sent to Santa Fe's employees Terry Reardon, Jim Hankins, and Steve Hefley and a non-employee Burton Buser. The letter read that it was from "Some dedicated employees of Santa Fe, Newton and Kansas City, Kansas." The letter conveyed the following: there existed a "love affair" between Sandy Fields and co-employee, Linda McVicker; Fields had expressed to McVicker that he "would like to have physical and bodily harm done to Buser," who had "an on-going relationship with McVicker and stands in the way of Fields"; and Fields stated to McVicker that it "was nice Santa Fe Company was providing the love line for their conversations as it saved them hundreds of dollars." Finally, the letter read: "We came by a tape of several conversations between Fields and McVicker that we feel shows what is going on here."

On January 25, 1995, Reardon and Hefley met and listened to excerpts from the tape. That evening, Reardon listened to the tape again. Reardon informed his supervisor, David Dealy, that he had received and listened to the tape. Reardon reported to Dealy that, due to the contents of the tape, he believed Fields and McVicker were having an affair and that Fields had not been truthful about this relationship. Reardon's suspicions were based on the following events occurring in 1994. In December 1994, Reardon learned that Fields and McVicker were allegedly having an affair. Reardon asked Fields if this was true; Fields denied the accusation. From Reardon and Dealy's conversation, it was decided that Fields should be terminated if Field's voice could be verified as the one on the tape.

Reardon called Fields and asked him to come to his office in Kansas City. Prior to this meeting, Reardon met with Hoferer and played the tape for Hoferer. On January 26, 1995, Fields met with Reardon, Hoferer, and Santa Fe special agent Tom Moore. Reardon said that there was something he wanted Fields to listen to and began to play the tape. Fields immediately recognized that the tape was a recording of McVicker and himself. Reardon asked if it was, in fact, Fields on the tape; Fields confirmed that it was. Fields asserts that he advised Reardon that the tape was the result of an illegal wiretap of a private phone conversation. He then asked Reardon how he came to have the tape. Reardon responded that the tape had been received by mail. Reardon told Fields that he believed Fields had lied and that he could not trust him anymore. Reardon then gave Fields the choice of resignation or termination. When Fields refused to resign, Reardon fired him.

Other statements made at this meeting are disputed by the parties. Reardon and Hoferer testified that during this meeting, Fields informed Reardon that he did not care how much of the tape was played and that Reardon could play as much of the tape as he wanted. Moore testified that, after the tape was played for a few minutes, Fields was asked how much more of the tape he wanted to hear. Fields said he did not care and the tape was shut off. Finally, Fields testified that he did not recall consenting to the playing of the tape, and he claims he asked for the tape to be turned off. Hoferer testified that he did not form any opinion about the legality of listening to or using the tapes at the time of Fields' termination. Despite having no formed opinion, Hoferer believed that it was perfectly legal to play the tapes.

Santa Fe's phone system permits its employees with an access number to call from an outside phone and access the Santa Fe system to place long distance calls. Although Fields had access to the phone system in January 1995, defendants do not allege that the recorded call was made on Santa Fe's system. Furthermore, Santa Fe does not monitor employee phone conversations made on its system.

Additional facts will be provided as necessary.

II. Summary Judgment Standards

A moving party is entitled to summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). One of the principal purposes of summary judgment is to isolate and dispose of factually unsupportable claims or defenses, and Rule 56 should be interpreted in a way that accomplishes this purpose. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). The court's proper inquiry is whether there is a need for a trial; in other words, whether "there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).

The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. This burden may be discharged by "showing" that there is an absence of evidence to support the nonmoving party's case. Celotex, 477 U.S. at 325, 106 S.Ct. at 2553-54. Once the moving party has properly supported its motion for summary judgment, the burden shifts to the nonmoving party, who "may not rest on mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256, 106 S.Ct. at 2514. Thus, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. See id. The court reviews the evidence on summary judgment under the substantive law and based on the evidentiary burden that the party will face at trial on the particular claim. See id. at 254, 106 S.Ct. at 2513.

III. Discussion
A. Consent

Defendants contend that Fields' invasion of privacy claims and his claims under the federal and state wiretap statutes are barred because he consented to the playing of the tape at the January 26, 1995 meeting. The court disagrees. Defendants do not dispute that defendants Reardon and Santa Fe, through its agents, listened to and disclosed the contents of the tape prior to contacting Fields. Defendants also admit that Fields was unaware of what the recording was until he actually heard it at the January 26, 1995 meeting. (See Defs.' Mot. for Summ. J., at 25). Fields could not have given his knowing consent to the playing of the tape at or prior to the January 26, 1995 meeting.

B. Invasion of Privacy Claims

Fields claims defendants violated his privacy rights by listening to the recorded conversation after they knew the conversations were of a private nature and illegally recorded. Defendants contend that merely receiving unsolicited tapes and listening to them is not sufficient to support a claim of invasion of privacy.

"The Kansas Supreme Court has recognized a cause of...

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    ...P.C. , 128 F.3d 10 (1st Cir. 1997); and claims for punitive damages were stricken in Fields v. Atchison, Topeka & Santa Fe Railroad , 985 F.Supp. 1308 (D.Kan. 1997). Robertson v. Hessler , 13 So.3d 1214 (La. App. 2009). Drawings rendered by an architect based on measurements and conclu sion......
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    ...P.C., 128 F.3d 10 (1st Cir. 1997); and claims for punitive damages were stricken in Fields v. Atchison, Topeka & Santa Fe Railroad, 985 F.Supp. 1308 (D.Kan. 1997). Robertson v. Hessler , 13 So.3d 1214 (La. App. 2009). Drawings rendered by an architect based on measurements and conclu sions ......

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