Nelson v. Salem State College

• Decision Date: 13 April 2006
• Citation: 446 Mass. 525,845 N.E.2d 338
• Parties: Gail NELSON v. SALEM STATE COLLEGE & others.<SMALL><SUP>1</SUP></SMALL>
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

845 N.E.2d 338

446 Mass. 525

Gail NELSON v. SALEM STATE COLLEGE & others.¹

Supreme Judicial Court of Massachusetts, Essex.

Submitted December 8, 2005.

Decided April 13, 2006.

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Jeffrey M. Feuer (Lee D. Goldstein with him), Cambridge, for the plaintiff.

David R. Kerrigan, Assistant Attorney General (Meredith A. Wilson, Assistant Attorney General, with him) for the defendants.

The following submitted briefs for amici curiae:

Wayne Soini, Boston & Jaime DiPaola for American Federation of State, County & Municipal Employees, Council 93, AFL-CIO.

Mark P. Fancher, of Detroit, Michigan, for Maurice and Jane Sugar Law Center for Economic and Social Justice.

Marc Rotenberg & Marcia Hofmann, of the District of Columbia, for Electronic Privacy Information Center.

Jeremy Gruber, of New Jersey, for National Workrights Institute.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, & CORDY, JJ.

IRELAND, J.

After being videotaped by a hidden camera during the summer and fall of 1995 as she changed clothes and applied sunburn medication to her upper chest area and neck in an open area of her workplace, the plaintiff, Gail Nelson, filed a complaint averring that the defendants, Salem State College (college) and several employees of the college, violated her right to privacy. In her amended complaint, the plaintiff alleged that the defendants' making, use, possession, or viewing of the videotapes of the plaintiff violated her right to privacy under G.L. c. 214, § 1B; she asserted a claim under 42 U.S.C. § 1983 (2000), pursuant to the Fourth Amendment to the United States Constitution, alleging that the defendants' video surveillance of her workplace without a warrant violated her right to privacy; and she alleged that the college and the Commonwealth were negligent in training and supervising the individual defendants and by permitting the installation and operation of the video camera in her workplace.² A judge in the Superior Court granted summary judgment for the defendants on all counts, and the plaintiff appealed. We transferred the case to this court on our own motion. Because we conclude that all material facts have been established; that the plaintiff had no objectively reasonable expectation of privacy; that the defendants, public employees, are entitled to common-law immunity; that the law governing videotaping was not clearly established in 1995 and, thus, that there was no negligent supervision or training of the defendants' employees; and that the defendants are entitled to judgment as a matter of law, we affirm.³

Facts. Because this is a fact-driven case, we present the relevant facts in detail, viewed in the light most favorable to the plaintiff.

In 1995, the plaintiff worked in the small business development center (SBDC), a program of the college. The plaintiff worked as a receptionist and an administrative assistant to the SBDC's director, the defendant Frederick Young. The SBDC offered counselling to persons interested in developing small businesses. The SBDC was open to the general public weekdays from 9 A.M. to 5 P.M., and it served approximately 250 to 300 clients during the summer of 1995.

The SBDC shared the office space with two other programs run by the college, the Downtown Center and the Salem State College Institute for Learning and Retirement (ILR). The three programs employed six full-time employees, including the plaintiff; three part-time employees; and a number of volunteers. In addition, an ILR-sponsored program brought approximately fifty to sixty persons, and sometimes up to one hundred persons, to the office for weekly meetings.

All of the employees and some of the volunteers had keys to the office and were permitted to enter the office after regular business hours, as needed. While the plaintiff was employed by the SBDC in 1995, she did not know all of the people who were authorized to enter the office after regular business hours. Visitors were not required to stop at the reception desk before proceeding to the rear of the office.

The SBDC was located in downtown Salem on two floors at 197 Essex Street, a street containing small shops, which is closed to most vehicular traffic. The upstairs level of the office, a long, narrow rectangle, opened directly onto Essex Street. Its front wall was comprised of a large plate glass window and door. From the window on Essex Street or on entering the office, one could see three or four desks, including an unobstructed view of the plaintiff's desk.⁴

Three-quarters of the way into the office, toward the rear along the left side was another work area (the rear work area) where there was a desk and chair used by the ILR staff, including volunteers. No one could see into the rear work area from the street or from the left front portion of the office because it was separated from the front of the office by one of two six-foot high partitions.

Beyond the rear work area, at the far end of the office, there was a storage closet. However, due to the layout of the office and a five- to six-foot space between the office partitions, the rear work area was visible to employees, SBDC clients, ILR participants, and members of the general public who approached the partition from the front of the office or passed through the rear of the office to the storage closet or to the stairs leading to the office's only bathroom, a large meeting room, four locked private counselling offices, and an open work area where the computers and a photocopier were located.

Although the plaintiff's duties for the SBDC did not require her to be on the premises before 8:30 A.M. or after 5 P.M., Young was aware that, on occasion, the plaintiff arrived early or was in the office after hours, in part because she also did some volunteer work for the ILR. At times during the day, the plaintiff was alone in the office.

On learning that a former client of the SBDC who was under investigation for alleged criminal activity had gained unauthorized access to SBDC after normal business hours, the defendants became concerned about security. They decided to install a hidden video camera in an emergency light fixture located on the rear wall of the office.⁵ Although the defendants were concerned about unauthorized entries into the office after regular business hours, and although defendants Vincent O'Connell and Janice Fuller, the public safety officers employed by the college who were responsible for installing the video camera, could have set the camera to operate only after business hours, they programmed the camera to run twenty-four hours a day, seven days a week. Pointed at the front door, the camera recorded the length of the office, the large plate glass window, and the door. It also recorded part of the rear work area farthest from the storage closet. The camera could not record that part of the rear work area directly below it. There was no audio recording. The videotaping continued until at least the middle of August, 1995.⁶

For three weeks in July and August of 1995, the plaintiff had a severe sunburn on her chest and neck. Several times a day, including times when the front door was unlocked, she left the area of her own desk and went to the rear work area where she unbuttoned her blouse and applied a prescribed ointment. She did this when no one else was on the street-level floor or when no clients or visitors were expected, but while others may have been downstairs. On several occasions that summer, the plaintiff also changed clothes in the rear work area before and after regular business hours when no one else was in the office and the front door was locked. The plaintiff's activities were in the area under surveillance by the defendants, but the tape recordings that were preserved do not show any images of these activities. On the plaintiff's learning of the secret videotaping, this litigation commenced.

Analysis. 1. Standard of review. "The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law." Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120, 571 N.E.2d 357 (1991), citing Mass. R. Civ. P. 56(c), 365 Mass. 824 (1974). "An order granting or denying summary judgment will be upheld if the trial judge ruled on undisputed material facts and his ruling was correct as a matter of law." Commonwealth v. One 1987 Mercury Cougar Auto., 413 Mass. 534, 536, 600 N.E.2d 571 (1992), citing Community Nat'l Bank v. Dawes, 369 Mass. 550, 556, 340 N.E.2d 877 (1976).

2. Section 1983 claim.⁷ The plaintiff alleged that the defendants violated her Fourth Amendment right to privacy and asserted a claim under 42 U.S.C. § 1983 (2000). The defendants raised a qualified immunity defense with respect to this claim. In the United States Court of Appeals for the First Circuit, qualified immunity claims have been evaluated under a three-part test:

"First, we ask whether, `[t]aken in the light most favorable to the party asserting the injury, . . . the facts . . . show the officer's conduct violated a constitutional right.' [Riverdale Mills Corp. v. Pimpare, 392 F.3d 55, 61 (1st Cir. 2004)] .... If so, the second question is `whether that constitutional right was clearly established at the time of the ... violation.' [Whitfield v. Melendez-Rivera, 431 F.3d 1, 7 (1st Cir.2005)] .... The third question is `whether a reasonable officer, similarly situated, would understand that the challenged conduct violated the clearly established right at issue.' Riverdale Mills [Corp., supra] at 61." (Citations omitted.)

Borges Colon v. Roman-Abreu, 438 F.3d 1, 18-19 (1st Cir.2006).

Rather than grapple with the Fourth Amendment issue first, the judge, noting that "the constitutional issue ... is difficult and unresolved," first addressed the second...