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December 22, 1999


The opinion of the court was delivered by: Mihm, District Judge.


This matter is before the Court on Defendant, IBP, Inc.'s ("IBP"), Motion for Summary Judgment. For the reasons stated herein, the Motion is GRANTED IN PART and DENIED IN PART. The parties' Motions for Oral Argument are DENIED.

I. Factual Background

Plaintiffs in this case claim that IBP intruded upon their seclusion when it allegedly surreptitiously videotaped Plaintiffs receiving medical treatment in the nurse manager's office ("NMO") at IBP's Joslin, Illinois, facility. Plaintiffs further claim that IBP violated several statutory provisions in the Illinois Compiled Statutes when it conducted its video surveillance of the NMO and request that this Court recognize implied rights of action under each of the statutes.

On or about October 15, 1997, Rick Nimrick ("Nimrick"), IBP's complex personnel manager at the Joslin facility, informed Glen Bote ("Bote"), an area security manager for IBP, that there was a problem with items disappearing from the NMO. Bote subsequently had security employees place a camera in the ceiling tiles of the NMO, and the camera began operating on October 15th. The camera was attached to a VCR, which when running would record whatever was captured on the camera. There is no evidence that the camera had audio capabilities. Additionally, there is no evidence that the camera was hooked up to a monitor for purposes of contemporaneous viewing.

The NMO constitutes a single room in the Health Services Department. Other rooms in the Health Services Department include an examination room, a common area, and a bathroom. IBP nurses work in the Health Services Department and provide healthcare at the workplace for employees. While the camera was in operation in the NMO, the nurses allegedly treated some patients in that room. According to IBP, when it installed the camera in the NMO, Nimrick, Bote, and the employees that installed the camera were unaware that employee examinations were taking place in the NMO.

On or about October 24, 1997, the camera captured an IBP employee going through a desk drawer in the NMO. The following day, the employee was shown the videotape of himself going through a desk drawer and was immediately terminated from his employment. After the employee was terminated, word spread quickly around the Joslin facility that IBP was conducting video surveillance in the NMO. According to IBP, the camera was out of operation as of October 25, 1997; however, it was not removed from above the ceiling tiles until October 29, 1997. According to Plaintiffs, there is sufficient evidence for a reasonable trier of fact to conclude that the camera continued running through October 29, 1997.

IBP has now moved for summary judgment on Plaintiffs' common law claims of intrusion upon seclusion and on claims that IBP violated various statutory provisions of the Illinois Compiled Statutes. Two Plaintiffs, Thomas Hoffman and Joseph Lannen, have previously been dismissed with prejudice from this action.

This Order follows.

II. Summary Judgment Standard

A motion for summary judgment will be granted where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. See Fed.H.Civ.P. 56(c). The moving party has the responsibility of informing the Court of portions of the record or affidavits that demonstrate the absence of a triable issue. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party may meet its burden of showing an absence of material facts by demonstrating "that there is an absence of evidence to support the non-moving party's case." Id. at 323, 106 S.Ct. 2548. Any doubt as to the existence of a genuine issue for trial is resolved against the moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Cain v. Lane, 857 F.2d 1139, 1142 (7th Cir. 1988).

If the moving party meets its burden, the non-moving party then has the
burden of presenting specific facts to show that there is a genuine issue
of material fact. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
Federal Rule of Civil Procedure 56(e) requires the non-moving party to
go beyond the pleadings and produce evidence of a genuine issue of fact
for trial. See Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548. This Court
must then determine whether there is a need for trial —  whether,
in other words, there are any genuine material factual issues that can
properly be resolved only by a finder of fact because they may be
reasonably resolved in favor of either party. See Anderson, 477 U.S. at
250, 106 S.Ct. 2505.

III. Discussion

A. Plaintiffs Who Facially Have Failed to Create a Disputed Issue of Material Fact

Before the Court begins its analysis of IBP's Motion for Summary Judgment and Plaintiffs' Response thereto, there is some housekeeping that must take place. Plaintiffs' counsel concedes in the Response that the following Plaintiffs cannot create a disputed issue of material fact regarding whether they were examined or treated in the NMO during the relevant time frame: (1) Aaron Youngberg; (2) Randy Vinson; (3) Servio Mercado; (4) Patsy Boyer; (5) Condillard Howard; and (6) Shari Myles. Accordingly, these six Plaintiffs are DISMISSED WITH PREJUDICE from this action.

Plaintiffs' counsel also concedes that Eric Taylor, Guy Thompson, and Debra Baker should be dismissed from the lawsuit because they cannot create a disputed issue of material fact. However, the Court is unable to dismiss these individuals from the lawsuit since they were never named as Plaintiffs in the Second Amended Complaint.

Lastly, the Court addresses Plaintiffs' counsel's contention that Julie Stearns ("Stearns") has created a disputed issue of material fact. This contention is problematic since Stearns was never named as a Plaintiff in the Second Amended Complaint. Therefore, whether Stearns could create a disputed issue of material fact is irrelevant.

Therefore, the only Plaintiffs who were named in the Second Amended Complaint and claim that there are disputed issues of material fact are: (1) Geri Acuff; (2) Fred McGee; (3) Cheryl Cowan; (4) Sharee Murphy; (5) Bobby Jo Barker; (6) Chris Liras; (7) Theresa Carbo; (8) Thomas Walls; (9) Myrna Rodriguez; (10) Blaz Rosales; (11) Florene Branham; (12) Myrna Ruiz; and (13) Candice Christianson.

B. Intrusion Upon Seclusion Claims

The Illinois Appellate Court is split among the First, Third, Fourth, and Fifth Districts on the issue of whether Illinois recognizes the tort of intrusion upon seclusion. See, e.g., Davis v. Temple, 284 Ill. App.3d 983, 220 Ill.Dec. 593, 673 N.E.2d 737, 744 (5th Dist. 1996) (recognizing the cause of action, but affirming dismissal of claim on substantive grounds); Melvin v. Burling, 141 Ill. App.3d 786, 95 Ill.Dec. 919, 490 N.E.2d 1011, 1013 (3rd Dist. 1986) (recognizing the cause of action); Kelly v. Franco, 72 Ill. App.3d 642, 28 Ill.Dec. 855, 391 N.E.2d 54, 57 (1st Dist. 1979) (refusing to recognize the cause of action); Bureau of Credit Control v. Scott, 36 Ill. App.3d 1006, 345 N.E.2d 37, 40 (4th Dist. 1976) (refusing to recognize the cause of action). It appears that the Second District has yet to address this issue. Furthermore, the Illinois Supreme Court has yet to be faced with a factual scenario requiring it to resolve the conflict among the district courts. See Lovgren v. Citizens First Nat'l Bank of Princeton, 126 Ill.2d 411, 128 Ill.Dec. 542, 534 N.E.2d 987, 989 (1989). Similarly, the Seventh Circuit has yet to be presented with a factual scenario requiring it to determine the law it believes the State's highest court would adopt were it to decide the issue. See Brazinski v. Amoco Petroleum Additives Co., 6 F.3d 1176, 1183-84 (7th Cir. 1993).

IBP contends that this Court should not recognize the tort of intrusion upon seclusion, arguing that the Illinois Supreme Court would not recognize the tort if it were forced to resolve the conflict among the appellate districts. See Allen v. Transamerica Ins. Co., 128 F.3d 462, 466-67 (7th Cir. 1997) (a federal court is to imagine itself as the state supreme court rather than an intermediate court of the state); Wood v. Allstate Ins. Co., 21 F.3d 741, 743-44 (7th Cir. 1994) (same), IBP asserts that "the Illinois Supreme Court in Lovgren and the Seventh Circuit in Brazinski both have had opportunities to recognize the cause of action . . . but failed to recognize such a valid cause of action in Illinois when confronted with the issue. . . ." (Dft.Mem. at 15). However, IBP has overstated the precedential value of Lovgren and Brazinski. In Lovgren, the supreme court stated, "We do not find it necessary . . . to resolve these differences [among the appellate districts]" because the alleged facts "[did] not satisfy the elements of [the] tort of unreasonable intrusion. . . ." Lovgren, 128 Ill.Dec; 542, 534 N.E.2d at 989. Similarly, in the Seventh Circuit case of Brazinski, the court of appeals was not faced with a factual scenario that required it to decide whether the Illinois Supreme Court would recognize such a tort. See Brazinski, 6 F.3d at 1183-84. Therefore, contrary to IBP's argument, neither the Seventh Circuit nor the Illinois Supreme Court have rejected the tort of intrusion upon seclusion.

On the opposite end of the spectrum is Plaintiffs' argument why this Court should recognize the tort of intrusion upon seclusion. They proffer the following rhetorical question: "Had the [Lovgren court] not intended to adopt such a tort in the future, why would it take time to spell out the elements for such a tort and give examples?" Perhaps the answer to this question is that the Illinois Supreme Court could not determine whether the factual scenario presented on appeal supported the elements of the tort of intrusion upon seclusion unless it first explained what the tort is and what elements must be established. Furthermore, to ask this Court to read between the lines of the Lovgren decision for some signal that the supreme court plans to adopt the cause of action in the future is contrary to the court's admonishment: "We emphasize that our discussion of the tort of unreasonable intrusion into the seclusion of another, as enunciated by the Restatement and by Prosser, does not imply a recognition by this court of such a cause of action." Lovgren, 128 Ill.Dec. 542, 534 N.E.2d at 989 (emphasis added).

The parties' arguments on the issue of whether this Court should recognize the common law tort of intrusion upon seclusion are long on counting the number of Illinois state and federal district courts that have sided with their respective positions and long on creating subtle implications from court opinions where there, are none to be found. However, the parties' briefs are quite short and perfunctory on policy, which is at the heart of the issue of whether this Court believes that the Illinois Supreme Court will recognize the tort of intrusion upon seclusion when presented with the proper occasion to consider the matter.

Although both sides' arguments on this issue are lacking, the Court must determine whether the Illinois Supreme Court would recognize such a cause of action since, as revealed later in this Order, there are disputed issues of material fact in this case that would require the case to go forward if there were such a cause of action. The Court believes that the Illinois Supreme Court would recognize the tort, and, therefore, this Court recognizes it in this case. The Court's conclusion rests, in part, on the Illinois Constitution, which provides:

  Every person shall find a certain remedy in the laws
  for all injuries and wrongs which he receives to his
  person, privacy, property or reputation. He shall
  obtain justice by law freely, completely, and

Ill. Const., art. I, § 12. Illinois case authority is clear that this constitutional provision, despite its mandatory language, is an expression of philosophy that does not mandate the creation of a cause of action or remedy in each case where one does not exist. See, e.g., Bart v. Board of Education of City of Chicago, 256 Ill. App.3d 880, 197 Ill.Dec. 970, 632 N.E.2d 39, 43 (1st Dist. 1993) (collecting cases). Nevertheless, even though not a mandatory provision, it is a legislative expression of the philosophy that privacy, inter alia, is important in the State of Illinois. The Illinois legislature is even more specific with regard to the need for privacy in the provision of health care, as exemplified by the Illinois Nursing Act, 225 ILCS 65/10-5, et seq., and the Medical Patient Rights Act ("MPRA"), 410 ILCS 50/0.01, et seq. Accordingly, although the Illinois Supreme Court might not adopt the tort of intrusion upon seclusion to remedy every type of offensive intrusion in the workplace, this Court finds that the supreme court would, at a minimum, adopt this tort as a potential remedy for an employee who was surreptitiously videotaped by his employer while receiving medical treatment in the workplace.

1. Intent

IBP argues that even if this Court were to recognize the intrusion upon seclusion tort, the requisite intent is not present in this case for IBP to be held liable. In its Memorandum in Support of its Motion for Summary Judgment, IBP contends that none of the IBP employees involved in the installation of the camera intended to make an unauthorized intrusion; hence, the requisite intent is not present. In its Reply Brief, IBP steps its intent argument up a notch, arguing that for it to be held liable for the alleged intentional tort of one of its employees, the alleged tortfeasor must be the alter ego of the corporation or the corporation must have a policy to commit the intentional tort. IBP, in fact, goes so far to say that the Seventh Circuit has made this point of law very clear, citing to the case of Tacket v. General Motors Corp., 93 F.3d 332, 334-35 (7th Cir. 1996).

This argument is flawed for two reasons. First, the court in Tacket was addressing Indiana, not Illinois, law. The Court need not remind IBP that this is a diversity case where all of the material events alleged by Plaintiffs occurred in the State of Illinois. A cursory review of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), and its progeny reveals that it is Illinois law to which this Court must adhere, not the Seventh Circuit's interpretation of Indiana law. Second, even assuming the Tacket court were interpreting Illinois law, the issue in that case was whether the state worker's compensation remedies were the exclusive remedies for an employee injured by the intentional tort of a supervisor. As discussed immediately below, this issue was not properly raised by IBP in these summary judgment proceedings.

It appears that IBP did not truly catch on to the worker's compensation exclusivity argument until it sought leave to file a Response to Plaintiff's Sur-Reply. In its Response to Plaintiffs' Sur-Reply, IBP cites Illinois case authority that establishes that a co-employee's intentional tort in the workplace may be attributable to the employer in only one of two ways: (1) the employer specifically commanded or authorized the co-employee to commit the intentional tort; or (2) the co-employee acted as the alter ego of the employer. See, e.g., Meerbrey v. Marshall Field & Co., Inc., 139 Ill.2d 455, 151 Ill.Dec. 560, 564 N.E.2d 1222, 1226 (1990). If the intentional tort does not meet one of these two situations, then the employee's sole remedy for his or her injury is under the Illinois Worker's Compensation Act.

If one assumes that a citation to a Seventh Circuit case interpreting Indiana worker's compensation law sufficiently raises the issue of worker's compensation exclusivity in Illinois, then at best IBP did not raise this argument until it filed its Reply, which is too late in the summary judgment process to raise this argument. Cf. United States v. Spaeni, 60 F.3d 313, 317 (7th Cir. 1995) (arguments raised on appeal for the first time in a reply brief are waived). of course, if the exclusivity rule of the Illinois Worker's Compensation Act is jurisdictional, then the Court would be bound to address the issue in spite of the fact that it was untimely raised by IBP. However, based on the Court's research, the exclusivity rule in Illinois is not jurisdictional. Instead, it is an affirmative defense that must be pleaded and proven by the employer. See Geise v. Phoenix Co. of Chicago, 159 Ill.2d 507, 203 Ill.Dec. 454, 639 N.E.2d 1273, 1275 (1994); Doyle v. Rhodes, 101 Ill.2d 1, 77 Ill.Dec. 759, 461 N.E.2d 382, 386-87 (1984); Sobczak v. Flaska, 302 Ill. App.3d 916, 236 Ill.Dec. 116, 706 N.E.2d 990, 994 (1st Dist. 1998).

Because IBP has waived its worker's compensation exclusivity rule argument, at least for purposes of its Motion for Summary Judgment, the Court will proceed under the general rule of corporate liability advanced by Plaintiffs and set forth in Illinois case law. Under Illinois law, "if an employee commits an intentional tort with the . . . purpose of furthering the employer's interest . . . respondeat superior may lie. . . ." Randi F. v High Ridge YMCA, 170 Ill. App.3d 962, 120 Ill.Dec. 784, 524 N.E.2d 966, 970 (1st Dist. 1988); see also Bremen State Bank v. Hartford Accident & Indemnity Co., 427 F.2d 425, 428 (7th Cir. 1970) ("Our reading of the cases leads us to conclude that the rule in Illinois is that the employer is liable for the negligent, willful, malicious, or criminal acts of its employees when such acts are committed during the course of employment and in furtherance of the business of the employer. . . ."). The Seventh Circuit has stated:

    Under Illinois law, the conduct of a servant is
  within the scope of employment if, but only if: (1) it
  is of the kind he is employed to perform; (2) it
  occurs substantially within the authorized time and
  space limits; and (3) it is actuated, at least in
  part, by a purpose to serve the master.

Duffy v. United States, 966 F.2d 307, 314 (7th Cir. 1992). There is sufficient evidence in the record from which a reasonable trier of fact could find that all three elements can be established by Plaintiffs, and IBP does not argue otherwise.

IBP, however, argues that intent is not present in this case even if Plaintiffs were to proceed under the theory of respondeat superior. As the basis for its argument, IBP relies on the "three most basic elements" of "intent" set forth in Prosser & Keeton on Torts:

  (1) it is a state of mind; (2) about the consequences
  of an act (or omission) and not about the act itself;
  and (3) it extends not only to having in the mind a
  purpose (or desire) to bring about a given consequence
  but also to having in mind a belief (or knowledge)
  that given consequences are substantially certain to
  result from the act. It is also essential that the
  state of mind of intent exists when the act occurs.

W. Page Keeton, et al., Prosser & Keeton on Torts, § 8, p. 34 (emphasis and footnotes omitted) ("Prosser & Keeton on Torts"). According to IBP, because it installed the camera in the NMO to catch a thief, it did not "intend" to intrude on anyone's seclusion. It further argues that Nimrick, Bote, and the employees who installed the camera had no notice that examinations and treatments were taking place in the NMO when the camera was installed.

Plaintiffs make two arguments in response. Plaintiffs initially argue that the nurses who worked in the Health Services Department knew that examinations and treatments were conducted in the NMO; therefore, their knowledge must be imputed to IBP even though the nurses did not know about the videotaping. Plaintiffs also argue that the agents of IBP who viewed the tapes continued to videotape the NMO despite seeing employees soaking their hands in the NMO. Accordingly, Plaintiffs contend that even accepting IBP's assertion that Nimrick, Bote, and the employees who installed the camera did not know that the NMO was used for treatment, the requisite intent is still present because: (1) the nurses' knowledge is imputed to IBP; or (2) IBP continued to videotape even after those who viewed the tapes realized that medical treatment was being provided to employees in the NMO.

IBP offers no argument why the nurses' knowledge, particularly Cathy McCarter's ("McCarter"), should not be imputed to IBP. MeCarter was at the relevant times herein the nurse manager at IBP. She testified that she knew that examinations were being conducted in the NMO. (McCarter Dep. at 6-18). Under Illinois law:

    Corporations are artificial legal entities, and the
  only knowledge which a corporation can be said to have
  is the knowledge which is imputed to it under
  principles of agency law. . . . Thus, knowledge which
  a corporate agent receives while acting within the
  scope of his or her agency is imputed to the
  corporation if the knowledge concerns a matter within
  the scope of the agent's authority. . . .

Campen v. Executive House Hotel, Inc., 105 Ill. App.3d 576, 61 Ill.Dec. 358, 434 N.E.2d 511, 517 (1st Dist. 1982). Based on the three scope of employment factors set forth above, see Duffy, supra, the Court concludes that there is sufficient evidence in the record from which a reasonable trier of fact could conclude that McCarter was acting within the scope of her employment as nurse manager when she conducted or observed other nurses conducting examinations in the NMO. Because there is evidence that McCarter was acting within the scope of her authority when she knew examinations were taking place in the NMO, there is evidence that IBP, the corporate principal, had knowledge of this fact when the decision was made to conduct surveillance. Hence, a reasonable trier of fact could conclude, at a minimum, that IBP acted in the face of a known risk.

The Court also finds that Plaintiffs' second argument why the evidence could support a conclusion by the finder of fact that IBP had the requisite intent is meritorious. Norma Koopman ("Koopman"), the senior security officer at the Joslin, Illinois, facility, testified that when she viewed the videotapes, she saw some employees soaking their hands in the NMO. (Koopman Dep. at 8-9). Whether this is all that she saw on the videotapes or not, the Court believes that a reasonable trier of fact could conclude that Koopman, acting on behalf of IBP, was sufficiently placed on notice that something more than nurse managing was occurring in the NMO. Furthermore, during the class certification hearing, Acuff, a nurse at IBP and a Plaintiff in this lawsuit, testified that she was examined for a groin injury in the NMO on October 15, 1997, at approximately 5:30 p.m. For her examination, she had to pull her pants down to her knees. (Class Cert. Hrg.Tr. at 16). Given that the evidence in the record shows that the camera was installed and running by October 15, if the Court credits Acuff's testimony (which it must do at the summary judgment stage), there is a reasonable inference that she was captured on tape while being examined. Of course, the Court recognizes that both Koopman and Bote have asserted that they did not see anyone receiving treatment (other than soaking hands) and/or in a state of undress in the NMO, but that factual and credibility issue will be for the trier of fact to decide, not the Court at summary judgment.

Based on the testimony that medical examinations took place in the NMO during the relevant time and Koopman's and Bote's testimony that the tapes were viewed each day, a reasonable juror could conclude that IBP was on notice that examinations and/or medical treatments were taking place in the NMO when Koopman and Bote began viewing the tapes. Additionally, the camera continued to run until October 25 (IBP's version) or through October 29 (Plaintiffs' version).

Consequently, whether it is McCarter's knowledge or Bote's and Koopman's alleged knowledge that medical treatment was administered in the NMO that is imputed to IBP, a reasonable trier of fact could conclude that IBP had in mind a belief or knowledge that consequences other than catching an alleged thief were substantially certain to result from the videotaping. See Prosser & Keeton on Torts, § 8, at 34.

2. Analysis of Remaining Elements

The Illinois courts that have recognized the intentional tort of intrusion upon seclusion have used the following prima facie case:

  (1) an unauthorized intrusion or prying into the
  plaintiff's seclusion; (2) the intrusion must be
  offensive or objectionable to a reasonable man; (3)
  the matter upon which the intrusion occurs must be
  private; ...

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