Appeal from the Circuit Court of Cook County Honorable Mary Mulhern, Judge Presiding
The opinion of the court was delivered by: Justice McNULTY
Michael Morris, an Ameritech employee, appeals from the dismissal of his complaint charging Ameritech with eavesdropping on him and inspecting records of his telephone use, thereby invading his privacy. We affirm summary judgment on the charge of eavesdropping because Morris did not present admissible evidence that Ameritech knew any of its employees eavesdropped on Morris. We also affirm judgment on the invasion of privacy count because federal law authorized Ameritech's use of its records to protect its right not to pay employees for time they falsely claimed to have spent working.
In 1995 Morris worked for Ameritech as an installer. Merilyn Barrett, a security manager for Ameritech, conducted surveillance of Morris's home on April 12, 1995. She saw Morris's truck in his driveway around 10:20 a.m., and again from 12:45 p.m. until 1:50 p.m.
Barrett looked up phone records detailing calls made from Morris's home during his work hours in February and March 1995. The message unit detail (MUD) records showed numerous calls during normal work hours those months. Some days Morris made no calls, and many days the calls came in a single cluster near noon, so that he might have made the calls over his lunch break. But on some days Morris made calls throughout the day.
Most of the calls took little time. Three-fourths of the calls took less than five minutes. But one call in particular stood out. On March 27, 1995, one call from Morris lasted from 10:13 a.m. until 12:15 p.m.
When Morris arrived for work on May 8, 1995, his supervisor told him to meet with Barrett. Morris contacted a union representative, and Morris and the union representative met with Barrett. Barrett confronted Morris with evidence he had falsified work records and that he had been home, not working, during some of the hours he claimed to have worked.
Ameritech held a formal dismissal hearing on May 15, 1995. Kenneth Larimer, from Ameritech's labor relations department, ran the meeting, attended by Morris, Morris's supervisor, and a union representative. Barrett did not attend the meeting. The following day Ameritech fired Morris. Ameritech rehired Morris later in 1995 and assigned him to work as an installer out of an office farther from his home.
In May 1996 Morris sued Ameritech for invasion of privacy by eavesdropping and inspecting the MUD records, and for eavesdropping in violation of section 14-2 of the Criminal Code of 1961 (Code) (720 ILCS 5/14-2 (West 1994)). Ameritech moved for summary judgment on the count for violating the Code, and it moved to dismiss the invasion of privacy count.
Ameritech appended excerpts of depositions from Barrett and Morris to the summary judgment motion. Morris appended several depositions and affidavits to his response. In his deposition Morris testified that in the meeting on May 8, 1995, Barrett asked if the two-hour phone call on March 27 involved the hospitalization of one of Morris's children and whether he discussed purchasing his son a car. Morris answered that he did not remember the call. Barrett persisted, asking further questions suggesting the subject of the phone call. Morris subsequently remembered a call to his ex-wife in which they discussed hospitalizing their son for drug rehabilitation and purchasing him a car. Morris suggests that a fact finder could infer that Barrett must have learned the subject of the two-hour call by eavesdropping.
In his affidavit Morris swore that Larimer, at the meeting on May 15, 1995, "us[ed] the personal information Barrett had known." Morris said Larimer repeatedly asked him about "what else was going on in [his] personal life which could have caused [him] to be home during the day so often." But the following colloquy occurred at Morris's deposition:
"Q: Now, isn't it true when Mr. Larimer started asking you about the reasons that you were going home and falsifying records, you also stated to him that your wedding of April 15th was growing near and you were having problems with the kids and your ex-wife?
Q: And at this meeting you did become emotionally distraught?
Q: And specifically what private facts are you saying were disclosed at the dismissal panel hearing and by whom?
A: In regards to my son's hospitalization.
Q: So those - you're speaking of the things that you brought out when you were distraught at the dismissal panel hearing?
Q: That you told to the people at the dismissal panel hearing?
Larimer testified in his deposition that, at the meeting on May 15, Morris volunteered information about his personal problems when asked to explain the falsified work records. Larimer believed that Morris said the two-hour phone call concerned hospitalization of Morris's son.
Morris, in his affidavit, swore that his fiancée and his ex-wife both complained of hearing clicks on their phone lines. He added that an Ameritech security investigator said, during a training seminar, that Ameritech's security personnel routinely listen to phone calls of employees under investigation. Morris admitted that Ameritech instructed technicians to disengage ...