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ACUFF v. IBP
December 22, 1999
GERI ACUFF, ET AL., PLAINTIFFS,
IBP, INC., DEFENDANT.
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.
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
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.
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.
A. Plaintiffs Who Facially Have Failed to Create a Disputed Issue of
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
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
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
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.
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