Walker v. Darby

• Citation: 911 F.2d 1573
• Decision Date: 20 September 1990
• Docket Number: No. 89-7199,89-7199
• Parties: Jessie WALKER, Plaintiff-Appellant, v. Thomas E. DARBY, Hugh L. Robinson, Jr., and Kenneth Day, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1573

911 F.2d 1573

5 Indiv.Empl.Rts.Cas. 1342

Jessie WALKER, Plaintiff-Appellant, v. Thomas E. DARBY, Hugh L. Robinson, Jr., and Kenneth Day Defendants-Appellees.

No. 89-7199.

United States Court of Appeals Eleventh Circuit.

Sept. 20, 1990.

John R. Benn, Florence, Ala., for plaintiff-appellant.

Frank W. Donaldson, U.S. Atty., James D. Ingram, Asst. U.S. Atty., Birmingham, Ala., for defendants-appellants.

Appeal from the United States District Court for the Northern District of Alabama.

Before JOHNSON and EDMONDSON, Circuit Judges, and PECKHAM ^*, Senior District Judge.

PECKHAM, Senior District Judge:

Appellant brought suit under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. Secs. 2510 et seq. for the alleged unauthorized interception of oral communications. The district court, 706 F.Supp. 1467, granted summary judgment in favor of appellees, finding that appellant had failed to present evidence sufficient to make out a prima facie case. ¹ Because we believe that a question of material fact remained for trial in this case, we reverse.

I. FACTS AND PROCEDURE.

Appellant Jessie Walker was employed as a letter carrier in the United States Post Office in Florence, Alabama. During the period leading up to the events underlying his claims, the relationship between Walker and three of his supervisors who are appellees in this action was extremely negative. Walker is black. The three supervisors--Superintendent of Mail Thomas E. Darby, Delivery Supervisor Kenneth Day, and Delivery Supervisor Hugh L. Robinson--are white. Walker and some of the other employees in the Florence Post Office believed that the three were engaged in a racially-motivated campaign to have Walker's employment terminated. ² Walker had filed several EEOC complaints against appellees; he had filed assault charges against Kenny Day.

It was against this backdrop that Rodney "Roscoe" Hollis, who was temporarily stationed at the Florence Post Office as a substitute letter carrier, approached Walker. Hollis, a good friend of Kenny Day, told Walker to be careful about what he said while standing near his workstation or "case," because Hollis believed that Day and the others were monitoring Walker's conversations. Hollis describes the following conversation which he says he had with Kenny Day:

[Day] come up to me and he said, "Roscoe, boy, you ought to see what we got up there in Darby's office." And I said "What?" But he never did come right out and say what. But he said, "Boy, you can sit in Darby's office and you can hear everything that nigger says." He said, "You can hear that nigger when he mumbles under his breath." Deposition of Rodney Hollis at 12.

After this conversation, Walker took note of two objects in the area around his case. He noticed an object attached to the wall above his case, and another intercom-like object with buttons sitting on a desk opposite from his case.

Rodney Hollis had also mentioned his conversation with Day to Alan Gray, an employee in the Florence Post Office, who was an officer of the local postal workers' union. Gray took it upon himself to walk by the area near Walker's case to investigate Hollis' allegations. He noticed a brown box with buttons on it attached to the wall above Walker's case.

Walker filed a complaint in federal district court on May 26, 1988, charging Darby, Day, and Robinson with illegal interception of his conversations and invasion of privacy. In December, 1988, appellees filed a motion to dismiss or, in the alternative, for summary judgment. As grounds for dismissal they argued that Walker's claims were based exclusively on conclusory allegations and hearsay testimony. They denied that any interception ever took place. The three submitted affidavits stating that the activity observed by Gamble and Hovater was merely the repair of an inoperative public address system to be used for paging employees. R1-38.

In his opposition to defendants' motion, Walker provided the district court with a significant amount of eyewitness testimony addressing Darby, Day, and Robinson's alleged installation of an intercom or other monitoring device. Everett Carter Gamble, another postal worker, testified at his deposition that he observed the three installing and testing "a little box speaker of some sort" diagonally across from Walker's case. He jokingly remarked to Darby, " 'You're gonna hear everything we say now, aren't you?' " to which Darby replied, in a joking manner, " 'Oh yeah, we've got it fixed up.' " Deposition of Carter Gamble at 6-9.

Harold Hovater, a letter carrier whose case was located near Walker's, said he observed the three working with a maintenance person named Ed Grigsby to wire and test an intercom in the area. In his deposition, Hovater described the process, which he said took about forty-five minutes, as follows:

When they started testing the intercom, Mr. Darby, Mr. Day, and Robinson was in Mr. Darby's office. And Mr. Grigsby was talking over the intercom and he would ask them if they could hear okay and they would say yes, you know. And they would tell him to move around in certain positions in that area to see how far it would pick up....

... [A]fter they had him to test it Kenny [Day] and Robbie [Robinson] came out and done the same thing....

Q. Did they stand close to Mr. Walker's work or case area?

A. Yes, they did. [Deposition of Harold Hovater at 9-12.]

Hovater later describes being asked by Darby to write out a statement of what he had seen. He alleges that Darby told him, "if this wasn't dropped there would be some jobs at stake." Deposition of Harold Hovater at 13.

Other postal employees related admissions to them by appellee Robinson that conversations in the area near Walker's case were being monitored. Mike Nale, another letter carrier with a case near Walker's, states that Robinson told him to watch what he said in the area because "the place was wired." Deposition of Mike Nale at 9. Letter carrier William Thomas Childers stated that Robinson told him Day was recording conversations.

The district court granted summary judgment on February 10, 1989. On the same day, Walker filed a notice of this appeal.

II. DISCUSSION.

A. Standard of Review.

An appellate court reviews a district court's summary judgment rulings using the standard provided in Fed.R.Civ.P. 56 and the case law interpreting it. See, e.g., Brown v. City of Clewiston, 848 F.2d 1534, 1537 (11th Cir.1988); Kramer v. Unitas, 831 F.2d 994, 997 (11th Cir.1987). In other words, review is de novo.

Federal Rule of Civil Procedure 56(c) provides for the granting of summary judgment where there is no triable issue of material fact and where the moving party is entitled to summary judgment as a matter of law. The burden of establishing that there is no genuine issue of material fact lies with the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). However, once the moving party has met that burden by presenting evidence which, if uncontradicted, would entitle it to a directed verdict at trial, Federal Rule of Civil Procedure 56(e) shifts to the non-moving party the burden of presenting specific facts showing that such contradiction is possible. British Airways Board v. Boeing Co., 585 F.2d 946, 950-52 (9th Cir.1978), cert. denied, 440 U.S. 981, 99 S.Ct. 1790, 60 L.Ed.2d 241 (1979).

A party opposing summary judgment may not rest upon the mere allegations or denials in its pleadings. Rather, its responses, either by affidavits or otherwise as provided by the rule, must set forth specific facts showing that there is a genuine issue for trial. A mere "scintilla" of evidence supporting the opposing party's position will not suffice; there must be enough of a showing that the jury could reasonably find for that party. Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986).

B. Unauthorized Interception of Oral Communications.

Plaintiff invokes the private right of action contained in Sec. 2520 of the anti-wiretapping statute, 18 U.S.C. Secs. 2510 et seq. Section 2520 provides in pertinent part:

[A]ny person whose wire, oral or electronic communication is intercepted, disclosed, or intentionally used in violation of this chapter may in a civil action recover from the person or entity which engaged in that violation such relief as may be appropriate.

In order to recover under Sec. 2520, plaintiff must show that defendants violated Sec. 2511, which prohibits the interception, disclosure, or use of any wire or electronic communication. ³ Walker alleges only interception of communications. He does not allege disclosure or use of any communications. ⁴ As defined by 18 U.S.C. Sec. 2510(4), " 'intercept' means the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device." Walker alleges only the interception of his oral communications; he does not allege a violation with respect to wire or electronic communications. As defined by 18 U.S.C. Sec. 2510(2), " 'oral communication' means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation...."

Thus, in order for Walker's claim to survive summary judgment, the district court would have had to find that a question of material fact remained with respect to the following three elements: 1) whether Walker's communications were indeed intercepted by Darby, Day, and Robinson through the use of any electronic, mechanical or other device; 2) whether Walker had an expectation that his oral communications were not subject to interception; and 3) whether, if Walker had such an expectation, the expectation was justified under the circumstances. 18 U.S.C. Sec. 2510.

The district court believed that in order to raise a question of material fact...