SMITH v. DEVERS

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Docket Number

Civil Action No. 01-T-551-N

Motions

Motion for summary judgment : Granted

Attorney(S)

Steven P. Floyd, Guy R. Willis Associates, Millbrook, AL, Joseph (Jay) Brady Lewis, Law Offices of Jay Lewis, Montgomery, AL, for plaintiff, Felicia Lee Smith. Michael Baird Beers, Constance T. Buckalew, Angela Christine Taylor, Beers, Anderson, Jackson, Nelson, Hughes Patty, PC, Montgomery, AL, for defendants, Mike Devers and Mike Devers Insurance Agency Inc. Jay Daniel St. Clair, Bradley, Arant, Rose White, Birmingham, AL, for defendant State Farm Insurance Co.

Judges

Myron Herbert Thompson

Acts

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Smart Summary

Factual and Procedural Background

Plaintiff Felicia Lee Smith filed suit against defendants Mike Devers and Mike Devers Insurance Agency, Inc., alleging illegal wiretapping of her personal telephone conversations in violation of 18 U.S.C.A. §§ 2510-2520, as well as related state-law claims of invasion of privacy and intentional infliction of emotional distress. Smith was employed as an administrative sales assistant at the insurance agency from August 2000 until January 2001, when she left after suspecting that Devers intercepted, recorded, and examined her personal phone calls using a hidden tape recorder attached to the business telephone line. Defendants contend Smith resigned under threat of termination due to performance issues and claim that any phone monitoring was conducted for quality assurance purposes in the ordinary course of business, with employees notified via an agent handbook. Smith denies receiving such notice and disputes defendants' characterization of the monitoring and her consent. The case is before the court on defendants' motions for summary judgment.

Legal Issues Presented

Whether the defendants' interception and recording of Smith's telephone conversations violated the federal wiretapping statute, 18 U.S.C.A. §§ 2510-2520.
Whether the business-extension exemption to the wiretapping statute applies to the alleged interception.
Whether Smith consented to the interception and recording of her phone conversations.
Whether the defendants are liable under Alabama state law for invasion of privacy based on the alleged interception.
Whether Smith's claim for intentional infliction of emotional distress should survive summary judgment.

Arguments of the Parties

Plaintiff's Arguments

Smith alleges that defendants illegally intercepted and recorded her personal telephone conversations without her consent, violating federal wiretapping laws.
She denies receiving any notice or handbook informing her of phone monitoring, thus contesting any implied consent.
Smith contends that Devers' knowledge of her private domestic matters is circumstantial evidence that he listened to the recorded conversations.
She asserts that the interception constituted a wrongful intrusion on her privacy causing emotional distress.

Defendants' Arguments

Defendants argue that the recording device qualifies under the business-extension exemption because the interception was through the telephone extension furnished by the telephone company and used in the ordinary course of business.
They contend Smith received an agent handbook detailing phone monitoring for quality assurance, constituting implied consent to the interception.
Defendants maintain that the monitoring was necessary for assessing employee performance and that no interception occurred before Smith left, as the equipment was inoperable.
They deny any wrongful intrusion or intentional infliction of emotional distress, emphasizing the limited scope of the latter tort under Alabama law.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Celotex Corp. v. Catrett, 477 U.S. 317 (1986)	Summary judgment burden-shifting framework under Rule 56.	Outlined the initial burden of the moving party and the requirement for the non-moving party to show a genuine issue of material fact.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)	Standard for determining whether a genuine issue of material fact exists at summary judgment.	Court must view evidence in the light most favorable to the non-moving party and not weigh evidence or determine truth.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986)	Requirement to draw all reasonable inferences in favor of the non-moving party at summary judgment.	Supported the court's approach to viewing facts favorably toward Smith.
Epps v. St. Mary's Hospital of Athens, Inc., 802 F.2d 412 (11th Cir. 1986)	Eleventh Circuit interpretation of the business-extension exemption to the wiretapping statute.	Held that the telephone extension itself is the intercepting device, supporting the defendants' argument on the device used.
United States v. Harpel, 493 F.2d 346 (10th Cir. 1974)	Supporting precedent that telephone extensions may be considered intercepting devices.	Used to bolster the court's acceptance of the telephone extension as the intercepting device.
United States v. Murdock, 63 F.3d 1391 (6th Cir. 1995)	Holding that use of a recorder attached to a phone extension defeats the business-extension exemption.	Not followed by this court due to conflicting Eleventh Circuit precedent.
Deal v. Spears, 980 F.2d 1153 (8th Cir. 1992)	Similar holding to Murdock regarding recording devices and exemption applicability.	Not adopted here because of binding Eleventh Circuit law.
Watkins v. L.M. Berry Co., 704 F.2d 577 (11th Cir. 1983)	Distinction between business and personal calls for wiretapping exemption purposes; personal calls may only be intercepted to determine nature, not content.	Applied to conclude that wholesale interception of personal calls is not protected under the business-extension exemption.
Hogin v. Cottingham, 533 So.2d 525 (Ala. 1988)	Elements and scope of the tort of invasion of privacy in Alabama, including intrusion by listening devices.	Guided the court's analysis of the invasion of privacy claim, establishing a triad of elements to be proven.
Moore v. Spiller Associated Furniture, Inc., 598 So.2d 835 (Ala. 1992)	Defines the narrow scope of intentional infliction of emotional distress under Alabama law.	Supported the court's grant of summary judgment on this claim due to lack of evidence of outrageous conduct or use of intercepted information.
Kizziah v. Golden Rule Ins. Co., 536 So.2d 943 (Ala. 1988)	Reinforces the limited application of the tort of outrage in Alabama.	Further supported dismissal of the intentional infliction of emotional distress claim.

Court's Reasoning and Analysis

The court began by outlining the summary judgment standard, emphasizing that the evidence must be viewed in the light most favorable to Smith, the non-moving party. The court then analyzed the federal wiretapping statute, noting that the defendants do not dispute that the intercepted conversations qualify as "wire communications" but rely on two statutory exemptions: business-extension and consent.

Regarding the business-extension exemption, the court examined the statutory definition of an intercepting device and concluded, consistent with Eleventh Circuit precedent (Epps), that the telephone extension furnished by the telephone company is the intercepting device, not the recording equipment attached to it. However, the court found that the exemption only protects interception of calls in the ordinary course of business and that wholesale recording of personal calls exceeds this scope. Because Smith alleges that her personal calls were recorded in full, the exemption does not shield the defendants from liability for those interceptions.

Turning to consent, the court noted that interception is lawful if one party consents. Defendants argue that Smith's receipt of an agent handbook describing phone monitoring constitutes implied consent. Smith denies receiving such notice and disputes consent. The court held that this factual dispute precludes summary judgment on the consent issue, which must be resolved at trial.

For the invasion of privacy claim under Alabama law, the court identified three elements: wrongful intrusion, into private affairs, causing outrage or mental suffering. The court found genuine factual disputes as to whether the information was private and whether defendants intruded wrongfully, precluding summary judgment.

Regarding intentional infliction of emotional distress, the court emphasized Alabama's narrow application of this tort, requiring conduct "so out of bounds" as to cause severe distress. Since there was no evidence that defendants used or disclosed the intercepted information significantly, the claim did not meet this high standard and summary judgment was granted in favor of defendants on this claim.

Holding and Implications

The court issued the following rulings:

(1) Summary judgment is granted in favor of defendants on the intentional infliction of emotional distress claim.

(2) Summary judgment is denied as to the federal wiretapping claims and the invasion of privacy claim, leaving those issues for trial.

The direct effect of this decision is that the defendants are dismissed from liability on the emotional distress claim but remain potentially liable on the wiretapping and invasion of privacy claims. The court's decision does not establish new precedent but applies existing Eleventh Circuit and Alabama law to the facts presented.

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FELICIA LEE SMITH, v. MIKE DEVERS and MIKE DEVERS INSURANCE AGENCY, INC., Defendants.

ORDER

MYRON H. THOMPSON, United States District Judge.

Plaintiff Felicia Lee Smith brings this lawsuit against defendants Mike Devers and Mike Devers Insurance Agency, Inc., charging illegal wiretapping of her personal conversations in violation of 18 U.S.C.A. §§ 2510- 2520, and charging related state-law claims of invasion of privacy and intentional infliction of emotional distress. Jurisdiction is proper under 28 U.S.C.A. §§ 1331 (federal question) and 1367 (supplemental). This case is currently before the court on defendants' motions for summary judgment, which, for the reasons that follow, are granted in part.

I. SUMMARY-JUDGMENT STANDARD

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Under Rule 56, the party seeking summary judgment must first inform the court of the basis for its motion, and the burden then shifts to the non-moving party to demonstrate why summary judgment would not be proper. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553 (1986); see also Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115-17 (11th Cir. 1993) (discussing burden-shifting under Rule 56). The non-moving party must affirmatively set forth specific facts showing a genuine issue for trial and may not rest upon the mere allegations or denials of its pleadings. Fed.R.Civ.P. 56(e).

The court's role at the summary judgment stage is not to weigh the evidence or to determine the truth of the matter, but rather to determine only whether a genuine issue exists for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511 (1986). In doing so, the court must view the evidence in the light moat favorable to the non-moving party and draw all reasonable inferences in its favor.Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356 (1986).

II. FACTS

Viewed in the light most favorable to Smith, the relevant facts are as follows. Devers is a independent contractor for State Farm Insurance Company, selling insurance products as the owner of defendant Mike Devers Insurance Agency, Inc., in Millbrook, Alabama. Smith was hired by the insurance agency in August 2000 as an administrative sales assistant.

In January 2001, Smith left the insurance agency after learning that her personal phone calls were being intercepted, recorded, and examined by Devers. Smith, who was going through a serious domestic matter with her husband at the time, became suspicious of Devers, who seemed to have more information about the matter than she had ever related to him. Smith is in possession of one or two tapes that contain recorded conversations between Smith and other persons. The conversations were allegedly recorded through the use of a hidden tape recorder, located in Devers's office, that was attached to the business telephone line.

Devers and his insurance agency contend that Smith resigned under the threat of termination in response to a decrease in her performance over the months leading to January 2001. According to Devers, he had told Smith as of late December or early January that she was not working out at the insurance agency and that he would have to let her go. However, he promised to keep her on until the end of January to give her time to find another job.

Devers contends that Smith voluntarily offered information about her domestic situation to him and to other co-workers. Smith denies telling Devers anything about the situation, except that she was having problems with her husband, in response to Devers's query as to why she was crying at work one day. She certainly denies ever discussing the intricacies of the situation with Devers, including her suspicion of extramarital activity on the part of her husband, details which Devers nevertheless knew.

Devers, for his part, submits that the nature of the business required some phone monitoring for quality assurance. His business rested primarily on the ability of his associates to market insurance products by telephone; therefore, it was crucial, in order for him to maintain profitability, to monitor the sales calls to gauge his employees' performance. He claims that each employee was provided a copy of the Agent's Staff Handbook, which detailed the need for telephone monitoring and revealed its use to the employees. According to Devers, the monitoring equipment was not hidden in his office, but rather was an open and obvious incident of work at the insurance agency. Devers also claims that no monitoring took place before Smith left the insurance agency, as the recording equipment was inoperable and not repaired until after January 2001. However, as Smith claims to have possession of a tape on which her conversations were taped by Devers and the insurance agency, her version of the facts must be credited at the summary-judgment phase.

III. DISCUSSION A. Federal Wiretapping Statute

The intentional interception of wire, oral, or electronic communications is prohibited, subject to statutory exemptions. 18 U.S.C.A. § 2511(1)(a). 18 U.S.C.A. § 2520 authorizes the recovery of civil damages by any person whose communication is intercepted in violation of the law. Devers and his insurance agency do not contest that the conversations allegedly intercepted were "wire communications" within the meaning of the statute. Rather, they raise defenses based on two exemptions to liability under § 2511: business-extension and consent.

1. Business-Extension Exemption

An intentional interception of a wire communication is prohibited, as previously stated, by § 2511(1)(a). An "interception" under the statute is defined as "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." 18 U.S.C.A. § 2510(4). According to the statute, an "electronic, mechanical, or other device" is

any device or apparatus which can be used to intercept a wire, oral, or electronic communication other than — (a) any telephone or telegraph instrument, equipment or facility, or any component thereof, (i) furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business . . . ."

18 U.S.C.A. § 2510(5). The language in § 2510(5)(a) is known as the "business extension" exemption because it, in simple terms, ratifies the use of additional extensions on business phones to intercept or monitor calls if that interception or monitoring is performed in the ordinary course of business.

To qualify for the business-extension exemption, the device or apparatus must be "telephone or telegraph equipment" furnished to the monitor by a provider of wire communication, that is, the telephone company. 18 U.S.C.A. § 2510(5)(a). Smith challenges the applicability of the business-extension exemption, focusing on the use of the recording device to intercept and monitor her conversation. According to Smith, this intercepting device does not qualify as a "telephone or telegraph instrument" under the language of the exemption and was not provided to Devers by the telephone company. Therefore, the intercepted phone conversations cannot be purified by recourse to this section, and the interception was in violation of the wiretapping statute.

However, other courts that have dealt with the recording of employee conversations have identified the phone extension itself as the intercepting mechanism, with the recorder serving a distinct recording function. Epps v. St. Mary's Hospital of Athens, Inc., 802 F.2d 412, 415 (11th Cir. 1986); United States v. Harpel, 493 F.2d 346, 350 (10th Cir. 1974). Therefore, the court finds that the interception was via the telephone extension, equipment furnished by the telephone company.

Other Courts of Appeals have held that the use of a recorder attached to a phone extension defeats the provisions of the business-extension exemption, finding that the intercepting mechanism, including the recorder, was not a "electronic, mechanical, or other device," as contemplated by the exemption. United States v. Murdock, 63 F.3d 1391, 1394 (6th Cir. 1995); Deal v. Spears, 980 F.2d 1153, 1157-58 (8th Cir. 1992). However, this court is bound by the decisions of the Eleventh Circuit, which has clearly held that the relevant intercepting device, even when the conversation is recorded, is the business extension itself. Epps, 902 F.2d at 415. The Murdoch court noted that this Eleventh Circuit precedent conflicted with its decision. 63 F.3d at 1394.

The "ordinary course of business" language serves to further restrict the ability of a person to intercept calls under the business-extension exemption. If the call intercepted is a business call, then the monitoring of it is in the ordinary course of business. Watkins v. L.M. Berry Co., 704 F.2d 577, 582 (11th Cir. 1983). If the call is a personal call, it is not necessarily in the ordinary course of business, and no interception is allowed beyond that needed to determine whether the call is personal or business-related. Id. at 583. A personal call can be intercepted "to determine its nature but never its contents." Id. Restricting the ability of someone to intercept personal calls to only this extent allows employers to crack down on unauthorized use of business phones, a legitimate business goal, without unnecessarily infringing on the privacy of their workers. Id. Implicit in this business-personal dichotomy of phone calls is the focused nature of the inquiry. It would not be enough for the general policy of taping calls to be justifiable as part of the ordinary course of business. Watkins, 704 F.2d at 581. The interception of the particular calls must also be in the ordinary course of business to prevent liability under the federal wiretapping statute via the business-extension, exemption. Id.

Based on the limited amount of facts before the court, it seems that Devers and the insurance agency engaged in the recording of every conversation on certain phone lines within certain time periods, preserving those conversations on tape for, presumably, later review. Both personal and business calls, therefore, were completely intercepted. It is quite apparent that the complete interception of personal phone calls of an employee is not and can never be protected behavior under the business-extension exemption. That exemption allows only the interception sufficient to determine the personal nature of the call. Therefore, Devers and the insurance agency must rely on the consent of Smith to the recording in order to escape liability. Needless to say, summary-judgment is not appropriate on this basis.

Apparently, it bears emphasis to state again that the interception and later preservation of conversation itself violates the law. For purposes of the business-extension exemption, it is immaterial, despite the arguments of the defendants, whether Devers or anyone at the insurance agency actually listened to the tapes. However, this evidence might bear on the consent issue, in order to determine whether Devers and the insurance agency overstepped the consent granted to them by Smith as a consequence of her employment to monitor her phone conversations, both personal and business. If Smith gave valid consent to the wholesale taping of her phone conversations, with the understanding that the tapes of her personal conversations would be disregarded upon realization that they were indeed personal, then the question of whether Devers actually listened to those conversations has relevance.

2. Consent Exemption

It is not unlawful for a person to intercept a phone conversation when one of the parties to that conversation has given her consent to the interception. 18 U.S.C.A. § 2511(2)(d). The defendants contend that Smith received an agent handbook that detailed the use of phone monitoring equipment in the business for quality-assurance purposes, and that her receipt of this material operates as an implied consent to the practice, rendering the practice of interception legal under the statute. However, because Smith denies receiving the agent handbook and contends that she was not on notice of the practice of recording phone conversations in the business, the consent issue cannot properly be decided on summary judgment. Rather, it must be left to trial to determine the scope of Smith's consent, if any, to the monitoring of her telephone calls and the extent to which Devers's actions overstepped the scope of her consent. Watkins, 704 F.2d at 582.

B. Invasion of Privacy

Alabama recognizes the tort of invasion of privacy, which is implicated by a "wrongful intrusion into one's private activities in such a manner so as to outrage or to cause mental suffering, shame or humiliation to a person of ordinary sensibilities." Hogin v. Cottingham, 533 So.2d 525, 530-31 (Ala. 1988) (citations omitted). The Hogin court specifically noted that invasion of privacy of this sort may lie for "unwarranted intrusion by means of a listening device." Id. at 530.

Therefore, to prove the tort of invasion of privacy in this setting, the plaintiff must show that the defendant (1) wrongfully intruded (2) upon her private affairs (3) such that a person of ordinary sensibilities would be outraged or suffer mental suffering, shame, or humiliation. An intrusion is judged "wrongful" based on the means used to effect the intrusion and the defendant's purpose in obtaining the private information. Id. at 531.

Smith contends that Devers listened to her personal conversations and thereby learned of her domestic troubles with her husband. While she has no direct proof that Devers listened to the conversations, Smith points to Devers's extensive knowledge of her situation despite her unwillingness to discuss it with him as circumstantial evidence that he listened to her private conversations. The defendants contend that the details of Smith's domestic situation were far from secret in the workplace, and that Smith related these details to co-workers freely, even without their request or interest.

This evidence could create a question as to whether the information allegedly intercepted by Devers was indeed private information. However, this evidence does not necessitate summary judgment on the invasion-of-privacy claim.

A trial question exists as to whether the defendants intruded upon the private affairs of Smith such as to cause her emotional distress or embarrassment. Given the allegations and proof submitted in this case, the invasion-of-privacy claim cannot be resolved on summary judgment.

C. Intentional Infliction of Emotional Distress

The Alabama state-law tort of outrage (also known as intentional infliction of emotional distress) applies in an extremely narrow sphere of cases, in which the conduct is so out of bounds of any normal concept of decency as to cause severe emotional distress. Moore v. Spiller Associated Furniture, Inc., 598 So.2d 835 (Ala. 1992). The tort lies only for "the most reprehensible situations." Kizziah v. Golden Rule Ins. Co., 536 So.2d 943, 948 (Ala. 1988). Under this very limited notion of the tort, where, as here, there is no indication that the intercepted private information was used or disclosed in any significant way, this claim should not be submitted to a jury. Summary judgment therefore will be granted.

IV. CONCLUSION

For the foregoing reasons, it is ORDERED that:

(1) Defendants Mike Devers and Mike Devers Insurance Agency, Inc.'s motions for summary judgment, filed November 1 and December 28, 2001 (Doc. nos. 23 32), are granted to the extent that summary judgment is entered in favor of defendants on the intentional-infliction-of-emotional-distress claim.

(2) The motions are denied in all-other respects.