Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 95 C 5611 James B. Zagel, Judge.
Before FLAUM, DIANE P. WOOD, and EVANS, Circuit Judges.
DIANE P. WOOD, Circuit Judge.
We have moved some distance from the days when an employee "sold his soul to the company store" when he was hired. Plaintiffs Thomas and Cynthia Schmidt may have thought otherwise, however, when defendant Ameritech Corporation decided to use its unique access to its Message Unit Detail, or MUD, records to investigate what Thomas was doing while he was on a leave of absence from his Ameritech job. Thomas and Cynthia began this suit for invasion of privacy in Cook County Circuit Court, but Ameritech removed it to federal court, claiming that Thomas's claims were preempted by section 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. sec. 185. After some additional procedural moves, the district court denied the Schmidts' motion to remand the case to state court and dismissed their action outright. We conclude that section 301 does not apply to this case, and as there was no independent basis for federal jurisdiction, the case must be remanded to state court for further proceedings.
Thomas Schmidt had a job with Ameritech as a Customer Service Technician; his wife, Cynthia Schmidt, was not an Ameritech employee, nor was Jeri Lynn Richie, who eventually became the third plaintiff in this case. Richie was the owner and operator of the "Reflections Salon of Beauty," where Cynthia Schmidt worked. Like most people with residential telephone service in the greater Chicago area, the Schmidts were customers of Ameritech. Included in the materials they received from Ameritech was the statement that "[c]ustomer information maintained by Ameritech is protected by law and can be released only through a court order."
On June 26, 1994, Thomas injured his knee and as a result took a disability leave of absence until August 4, 1994. On July 15, 1994, he had an MRI performed on the knee, and then he and Cynthia left for Canada on their honeymoon. During their time in Canada, Thomas periodically checked his residence for messages. In this way he learned on July 22 that his MRI results were available, but when he called his doctor he was told that the test results would not be released by telephone. He also learned that Herbert Mazanke, his supervisor at Ameritech, had left a message saying that he wanted the MRI results. Thomas therefore called Mazanke and left a message telling him that Thomas would give him the MRI results the following Monday, July 25. Back in Chicago, Thomas met with his doctor that Monday and was released to return to work on August 4, with a light duty restriction until August 18 when he could return to full duty. He reported this information to Mazanke the same day.
On August 4, Schmidt returned to work. Mazanke immediately called him into a meeting, where he was questioned about his disability and his whereabouts on July 21, 1994. Also present at this meeting was another member of Ameritech's management, Doug Kotlinski. Thomas was told that he was being suspended pending Ameritech's investigation into the circumstances of his disability leave. At another meeting on August 24, at which Mazanke and other Ameritech representatives were again present, Schmidt was told that Ameritech knew where he and his wife had gone and whom they had telephoned while they were away. He was told that they had obtained this knowledge by reviewing Ameritech's MUD records. The next day, Ameritech fired him.
It turned out that during the time the Schmidts were away, Ameritech monitored calls made to and from their residential telephone, as well as calls the Schmidts made using their residential telephone calling card, and it kept a log of those calls. Based on the information it gained through this monitoring, Ameritech contacted the kennel where the Schmidts had boarded their dog, and it contacted the resort in Canada where they were staying. During the same time period, Ameritech also accessed and used the personal telephone records of Jeri Lynn Richie, Cynthia's employer.
After he was fired, Thomas filed a grievance with the company. The grievance went to an arbitrator, who ordered him reinstated, but refused a year's back pay because he found that Schmidt had attempted to mislead Ameritech while he was on his Canadian trip. The Schmidts then filed a two-count complaint against Ameritech, Herbert Mazanke, and William Gerlich (collectively "Ameritech" for our purposes) in Cook County Circuit Court, alleging that Ameritech violated their state law right to privacy in two respects when it accessed the MUD records. Specifically, they claimed that Ameritech had "intruded upon their seclusion," as that term may be recognized in Illinois law, Lovgren v. Citizens First National Bank, 534 N.E.2d 987, 988 (Ill. 1989) (defining the tort of intrusion upon another's seclusion but reserving decision on whether the tort exists in Illinois); Thomas v. Pearl, 998 F.2d 447, 452 (7th Cir. 1993) (analyzing the tort as if it were recognized by Illinois); Brazinski v. Amoco Petroleum Additives Co., 6 F.3d 1176, 1183 (7th Cir. 1993) (noting that Illinois has not yet decided whether to recognize this tort), and that it had made private facts public, a second variety of a privacy claim Illinois law recognizes. Roe v. Cradduck, 555 N.E.2d 1155, 1157 (Ill. App. Ct., 5th Dist. 1990); Midwest Glass Company v. Stanford Development Corp., 339 N.E.2d 274, 277 (Ill. App. Ct., 1st Dist. 1975). Ameritech removed on the theory that the claim required interpretation of the collective bargaining agreement (CBA) between it and its employees and was therefore completely preempted by sec. 301. After the case reached federal court, the Schmidts amended their complaint to add Jeri Lynn Richie as a third plaintiff. On the same day, they filed a motion to remand the case to state court, arguing that the privacy claims did not implicate the CBA and that no other basis for federal jurisdiction was present (as there was no diversity of citizenship).
The district court agreed with Ameritech that the invasion of privacy claim was really a subject for the CBA, focusing on the company's right to investigate its workers to make sure they were complying with applicable regulations and the fact that these kinds of claims are normally grievable. Indeed, that is precisely what Thomas did, at least with respect to his firing. To the extent that Thomas did not raise other claims before the arbitrator, the district court found that he had failed to exhaust his remedies as required for a sec. 301 suit. The court rejected Cynthia's claims and Richie's claims, which it considered as within its supplemental jurisdiction, on the merits.
In keeping with the goal of maintaining a uniform national labor policy, the Supreme Court has given a broad preemptive sweep to sec. 301 of the LMRA. Acknowledging that lines must be drawn between bona fide state law claims that should not be preempted and those that fall within the statute, the Court explained how to ...