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Johnson v. K Mart Corp.

January 13, 2000

EARNEST JOHNSON ET AL., PLAINTIFFS-APPELLANTS,
v.
K MART CORPORATION, DEFENDANT-APPELLEE (CONFIDENTIAL INVESTIGATIVE CONSULTANTS, INC., DEFENDANT).



The opinion of the court was delivered by: Justice Hall

Appeal from the Circuit Court of Cook County Honorable Dorothy Kirie Kinnaird, Judge Presiding.

I. BACKGROUND

This case involves K mart Corporation's (defendant's) use of private investigators at its distribution center in Manteno, Illinois. Plaintiffs are 55 current or former employees of K mart Corporation. The claims against Confidential Investigative Consultants, Inc., were dismissed. Summary judgment was granted in favor of defendant.

On appeal, plaintiffs contend that: (1) defendant invaded their privacy through an unauthorized intrusion upon their seclusion; (2) defendant invaded their privacy by publicizing private facts concerning them; (3) defendant intentionally inflicted emotional distress upon them; and (4) defendant violated the Private Detective, Private Alarm, Private Security, and Locksmith Act of 1993 (225 ILCS 446/1 et seq. (West 1996)). For the foregoing reasons, we affirm in part and reverse in part and remand with instructions.

The following facts are relevant to this appeal. Plaintiffs are or were employed at defendant's distribution center (center), in Manteno, Illinois. Defendant's center receives, stores, and supplies merchandise. The center is a 1.5 million-square-foot warehouse. Approximately 500 persons are employed at the center.

During the summer of 1992, the center began receiving merchandise valued at several million dollars. Since its opening, the center has experienced theft, vandalism, and sabotage. Defendant also had concerns about the sale and use of drugs at the center.

In August 1992, an on-site security audit of the center was conducted. Confidential Investigative Consultants, Inc. (CIC), was interviewed to determine if it could provide undercover investigative services to monitor acts of vandalism and drug use at the center. CIC was a licensed investigative security company located in Chicago, Illinois. CIC performed undercover investigative and security work. Ed Gunther, vice president of CIC, and George McElroy, general manager of the center, met twice in August 1992, regarding CIC's ability to perform an undercover investigation.

Gunther and McElroy agreed that an undercover investigator posing as an employee would be placed in the center. Periodic reports detailing the investigator's observations were to be sent to a post office box registered in CIC's name and located in Frankfort, Illinois, to maintain confidentiality. McElroy requested that CIC's investigation be discussed with him only.

CIC sent Al Posego (Posego), an undercover investigator, to the center. Posego posed as a janitor at the center. In his deposition, Posego stated that he was specifically told that the focus of defendant's concern was theft, sabotage, safety, and drug use. Posego held a "blue card," a permit issued by the State of Illinois which signifies that an individual has been trained in investigative and security work.

In November 1992, Janet Posego (Ms. Posego), Posego's wife, began working as an undercover investigator for defendant. Ms. Posego posed as an employee in the repack department. Ms. Posego also held a blue card from the State of Illinois. In her deposition, Ms. Posego stated that her role as undercover investigator at the center was to gather information on theft and drug use.

The Posegos submitted handwritten reports to CIC by mail every few days. These reports were then forwarded to defendant. The Posegos wrote the reports from memory based on the events they observed and conversations they participated in or overheard. The reports contained information including, but not limited to: (1) employee family matters (i.e., the criminal conduct of employees' children, incidents of domestic violence and impending divorces); (2) romantic interests/sex lives (i.e., sexual conduct of employees in terms of number/gender of sexual partners); (3) future employment plans (i.e., which employees were looking for new jobs and which employees were planning to quit without giving notice); (4) complaints about defendant (i.e., the quality of the company and employee's view that defendant was "screwing people up"); and (5) personal matters and private concerns (i.e., employee's prostate problems, paternity of employee's child, characterization of certain employees as alcoholics because they drank "frequently").

In early 1993, McElroy informed Chad Yager, the center's loss control manager, of the presence of the undercover investigators at the center. Yager began overseeing the investigation. The first copies of the investigative reports received by Yager contained information regarding union activity at the center. Yager then told CIC that he did not want information regarding union activity in the reports. Such references were then edited. At this point, John Gemmaka, the director of human resources, was made aware of the investigation.

In February 1993, defendant terminated Gemmaka based on allegations unrelated to this appeal. After Gemmaka's termination, Gemmaka exposed the undercover investigative operation to one of the plaintiffs, Lewis Hubble. Hubble subsequently researched Posego's background and confronted Posego about his status as an undercover investigator. Posego admitted that he and Ms. Posego were private investigators posing as employees for the purposes of observing theft and drug use at the center.

Posego informed Gunther that his role as an undercover agent had been exposed. Gunther then notified defendant. By April 1993, ...


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