Pattee v. Georgia Ports Authority

• Court: U.S. District Court — Southern District of Georgia
• Writing for the Court: B. Avant Edenfield
• Citation: Pattee v. Georgia Ports Authority, 512 F.Supp.2d 1372 (S.D. Ga. 2007)
• Decision Date: 16 April 2007
• Docket Number: No. 406CV028.,406CV028.
• Parties: Roger Allen PATTEE and Kimberly Ann Pattee, Plaintiffs, v. GEORGIA PORTS AUTHORITY; Douglas J. Marchand, individually and in his official capacity as Executive Director of the Georgia Ports Authority; and David A. Schaller, individually and in his official capacity as Deputy Executive Director of the Georgia Ports Authority, Defendants.

512 F.Supp.2d 1372

Roger Allen PATTEE and Kimberly Ann Pattee, Plaintiffs, v. GEORGIA PORTS AUTHORITY; Douglas J. Marchand, individually and in his official capacity as Executive Director of the Georgia Ports Authority; and David A. Schaller, individually and in his official capacity as Deputy Executive Director of the Georgia Ports Authority, Defendants.

No. 406CV028.

United States District Court, S.D. Georgia, Savannah Division.

April 16, 2007.

COPYRIGHT MATERIAL OMITTED

A. Lee Parks, Andrew Y. Coffman, Eleanor Mixon Attwood, Steven E. Wolfe, Parks, Chesin & Walbert, PC, Atlanta, GA, for Plaintiffs.

Bradley J. Watkins, Whelchel, Brown, Readdick & Bumgartner, G. Todd Carter, Brown, Readdick, Bumgartner, Carter, Strickland & Watkins, LLP, Brunswick, GA, for Defendants.

ORDER

B. AVANT EDENFIELD, District Judge.

I. INTRODUCTION

Roger Pattee brought this action against his former employer, The Georgia Ports Authority (GPA), after being fired from his position with the Georgia Port Police (GPP) at the Port of Savannah (the Port). Doc. # 1, exh. 1 at 3. He claims GPA officials David Schaller and Douglas Marchand fired him after emails he sent to government officials precipitated an investigation into security at the Port. Id. at 27. As trial approaches, both parties have moved in limine for the Court to exclude certain evidence. Doc. ## 61-62, 63.

II. BACKGROUND¹

Pattee served as a GPP officer at the Port of Savannah from 1997 until 3/8/04. In 3/03, out of concern for the Port's security, Pattee sent an email outlining perceived Port security flaws to the Sheriff of Clayton County, Georgia, who was also a member of Georgia's Homeland Security Task Force. Eventually the email was forwarded to the Office of the Inspector General (OIG) of the State of Georgia. The OIG conducted an investigation of the Port, and Pattee cooperated with the OIG in that investigation. As part of his cooperation, Pattee disclosed fellow GPP officers' names and contact information in violation of GPA policy. Two officers who were contacted by OIG complained to Schaller about Pattee's disclosures. Schaller called in Pattee to investigate the disclosures and interrogated him in a GPA meeting room. Two other GPA officials — Major Thomas Thompson and Investigator James Boatright — unbeknownst to Pattee, listened to the meeting from a side office via a speaker-phone turned on in the meeting room.

The defendants claim Pattee lied during this meeting and was fired for lying. They wish to present Boatright's and Thompson's testimony to bolster their version of what transpired at the meeting. Pattee disputes the defendants' version of the meeting and claims that the eavesdropping violated state and federal law, and thus the eavesdroppers' testimony should be excluded (thus turning what happened at the meeting into a swearing match between himself and Schaller).

Pattee² also moves the Court to exclude the testimony of G. Paris Sykes — the defendants' lawyer at the time of Pattee's termination — insisting that any advice Sykes gave defendants is legally irrelevant.

Finally, Pattee moves the Court to exclude evidence that Pattee performed his duties poorly. He argues that the defendants' sole argument throughout this litigation has been that Pattee was fired for lying during the meeting with Schaller. So, the defendants, Pattee maintains, should not be allowed to present at trial a panoply of other reasons for his termination.

Plaintiff claims out-of-pocket medical expenses that would have been covered by GPA insurance had he not been fired. Those expenses, he contends, are recoverable damages. The defendants, counter that Pattee's damages are limited to the insurance premiums; if his medical expenses were not covered by insurance, the defendants argue, it is because he failed to buy insurance after his termination. Thus, defendants seek to exclude evidence of his expenses.

III. ANALYSIS

A. Eavesdroppers' Testimony

Pattee claims that GPA officials "clearly violated the [law] and committed a felony" by listening to the Pattee-Schaller conversation through a speaker-phone, thus the officials' testimony should be excluded. Doc. # 62 at 4. The Court will focus on federal law to decide this federal evidentiary issue. Borden, Inc. v. Florida East Coast Ry. Co., 772 F.2d 750, 754 (11th Cir.1985) ("the admissibility of evidence in federal courts is governed by federal law"); see U.S. v. Proctor, 526 F.Supp. 1198, 1202 (D.Haw.1981) ("regardless of the law of the state in [the eavesdropping] area, the Court need not determine whether state law imposes `more rigorous requirements' than federal law"). The parties' arguments invoking Erie R.R. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), to establish that state law is relevant, are misplaced as this case is based on a federal question of constitutional law and thus federal law controls the litigation's substance and procedure entirely. See doc. # 67 at 10-11 (citing cases in federal court pursuant to diversity of citizenship in which courts excluded evidence pursuant to "substantive" state evidentiary rules).

A person violates federal law when he "intentionally intercepts ... any ... oral ... communication," where "`intercept' means the aural or other acquisition of the contents of any ... oral communication through the use of any electronic, mechanical, or other device." 18 U.S.C. § 2511(a); 18 U.S.C. § 2510(4) (hereafter, "Wiretap Act"). If an unlawful interception occurs, the contents of the interception and evidence derived therefrom are inadmissible in any trial. 18 U.S.C. § 2515; see also Fleming v. U.S., 547 F.2d 872, 874 (5th Cir.1977) ("[18 U.S.C. § 2515] should not be read in an overly literal fashion. The section's primary purpose is apparently to exclude evidence derived from illegal, rather than legal, wiretaps").

The Wiretap Act, however, is full of trap doors. For instance, no interception occurs where a telephone is the device used, the telephone is connected to a telecommunications service, and the telephone is being used in the ordinary course of business. 18 U.S.C. § 2510(5)(a). Furthermore, the law is not violated where an interception is made by a person acting under color of law and "one of the parties to the communication has given prior consent to such interception." 18 U.S.C. § 2511(2)(c).³ These exceptions are termed, respectively, the "business extension exemption" and the "consent exemption." Watkins v. L.M. Berry & Co., 704 F.2d 577, 581 (11th Cir.1983).

Both exemptions could apply in this case. If the defendants are able to show at trial that Schaller (the GPA official interrogating Pattee) consented to the eavesdropping, the consent exemption defeats Pattee's argument. If the defendants are able to show that the telephone used to eavesdrop was connected to a telecommunications service, the business extension exemption would likely defeat Pattee's argument.⁴

The defendants need not make either, showing, however, because the Wiretap Act also requires that, to qualify as an "oral communication," the person whose communication was intercepted must have "exhibit[ed] an expectation that such communication is not subject to interception under circumstances justifying such expectation." 18 U.S.C. § 2510(2). Courts have interpreted this requirement to mean that the speaker must have a reasonable expectation of privacy in the conversation. U.S. v. McKinnon, 985 F.2d 525, 527 (11th Cir. 1993); accord Kee v. City of Rowlett, Tex., 247 F.3d 206, 211 & n. 8 (5th Cir.2001).⁵ In actuality the section contains two slightly different requirements: (1) that the circumstances justify an expectation that the communication is not being intercepted and (2) that the speaker "exhibits" that expectation.

Pattee argues only that he had a "reasonable expectation of privacy" during the conversation with Schaller because "the meeting took place in a conference room, and Pattee and Schaller were the only persons in the room." Doc. # 62 at 5. Pattee never addresses the seemingly patent unreasonableness of expecting answers to a superior's questioning in an internal investigation of misfeasance to remain private.

If the proper inquiry, however, is whether Pattee had a reasonable expectation that the conversation would not be intercepted (as opposed to a reasonable expectation of privacy in the contents of the conversation), the circumstance of the meeting — an investigation into internal misfeasance — would not play into the equation. Instead, the Court would need to hear evidence on the surroundings in the room during the interrogation. For instance, if the phone was sitting on the middle of the desk with a red, "speaker-on" light glowing, it might be deemed unreasonable for Pattee to believe the conversation was not being intercepted.

Whatever standard applies, Pattee never "exhibited" his expectation as required by 18 U.S.C. § 2510(2). In other words, unless something is said to lead a listener to believe that statements are private (e.g. "just between you and me," "off the record," or "can we discuss this matter in private?") such statements do not qualify as "oral communications" under the Wiretap Act. 18 U.S.C. § 2510(2). In that Pattee points to no evidence showing that he exhibited any expectation, the Court denies his first in limine motion.

B. Attorney's Testimony

Pattee next seeks to exclude the testimony of G, Paris Sykes, defendants' attorney at the time of Pattee's firing. Doc. # 62 at 7-11. Pattee argues that Sykes's testimony about the advice he gave the defendants (that it would be lawful to terminate Pattee for lying) has no relevance, see F.R.Evid. 401, and that, even if relevant, the testimony should be excluded as prejudicial. See F.R.Evid. 403. Defendants respond that a punitive damages claim against them remains on the allegation that "their actions showed `reckless or callous indifference' to Pattee's rights." Doc. # 55 at 13; Pattee v. Ga....