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Diane Borchers v. Franciscan Tertiary Province of

December 7, 2011


Appeal from the Circuit Court of Du Page County. No. 09-L-445 Honorable Paul Noland, Judge, Presiding.

JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.

Presiding Justice Jorgensen and Justice Hudson concurred in the judgment and opinion.


¶ 1 After the plaintiff, Diane Borchers, found out that her former employer, the defendant Franciscan Tertiary Province of the Sacred Heart, Inc., d/b/a Mayslake Village, Inc. (Mayslake), had accessed her personal e-mail account and printed out over 30 personal e-mails, she brought suit against Mayslake, alleging violations of title II of the federal Electronic Communications Privacy Act of 1986 (the Stored Communications Act) (18 U.S.C. § 2701 et seq. (2006)) and the tort of intrusion upon seclusion. Later she added as individual defendants two employees of Mayslake: her former boss, Michael Frigo, and his administrative assistant, Katherine Maxwell. Mayslake filed a motion for summary judgment and the trial court granted it, finding that the plaintiff had not produced sufficient evidence that the defendants acted intentionally. The trial court also granted the individual defendants' motion to dismiss the complaint as to them on the grounds that they were not named as defendants until after the statute of limitations had run, and the cause of action as to them did not "relate back" to the filing of the original complaint. The plaintiff appealed. We affirm in part and reverse in part, and remand for further proceedings.


¶ 3 The following facts are drawn from deposition testimony and other evidence the parties submitted in connection with Mayslake's motion for summary judgment. Mayslake is a not-for-profit corporation that operates Mayslake Village, a facility providing housing to low- and moderate-income senior citizens. The plaintiff began working for Mayslake about 1994, serving as the facility's food service director. In that capacity she planned menus, ordered food, took inventory, served, cleaned, hired and trained the food service staff, and supervised the dining room service and special events. Her office, which had a computer, was in a separate room in the kitchen area. As part of her job, she placed orders for food via the Internet, and occasionally responded to e-mails from vendors or other employees via e-mail. Mayslake issued the plaintiff a Compuserve e-mail account to use for work.

¶ 4 In 1999, Mayslake issued a written policy regarding the use of its computers. The policy repeatedly stated throughout that it applied to information that was "entered, created, received, stored or transmitted via MAYSLAKE technology resources." Nothing in the policy stated that it extended to any other information. Pertinent sections of the policy read as follows:

"1. Other Than Occasional Personal Use, MAYSLAKE Technology Resources May Be Used Only For Legitimate, Business-Related Reasons

Other than occasional personal use, MAYSLAKE technology resources may be used only for legitimate business-related reasons. Occasional personal use means minimal and infrequent use that does not interfere with MAYSLAKE business or the availability of technology resources. All use of MAYSLAKE technology resources (including personal use) is subject to this Policy.

MAYSLAKE technology resources may not be used to conduct personal business of any kind. *** All information that is entered, created, received, stored or transmitted via MAYSLAKE technology resources, including all e-mail messages, are and will remain MAYSLAKE property. ***

2. No Expectation of Privacy

Users should have no expectation of privacy in connection with the entry, creation, transmission, receipt, or storage of information via MAYSLAKE technology resources. Users waive any right to privacy in information entered, created, received, stored or transmitted via MAYSLAKE technology resources, and consent to access and disclosure of such information by authorized MAYSLAKE personnel.

As with all other MAYSLAKE property, MAYSLAKE technology resources and all information entered, created, transmitted, received or stored via MAYSLAKE technology resources is subject to inspection, search and disclosure without advance notice by persons designated or acting at the direction of the Administrator, or as may be required by law or as necessary to ensure the efficient and proper administration and operation of MAYSLAKE's technology resources. For example, authorized persons may inspect, search and disclose such information to investigate theft, disclosure of confidential business or proprietary information, personal abuse of the system, or to monitor work flow or productivity. *** Because MAYSLAKE is sensitive to employee concerns, it will make every effort to ensure that all such inspections are conducted professionally and ethically. Users, however, must recognize that authorized persons have the ability to track and monitor all information sent internally and externally to MAYSLAKE via technology resources." (Emphasis in original.)

¶ 5 In April 2004, Mayslake decided to switch from its dial-up Internet service with Compuserve to a high-speed service with Comcast. During the transition, the plaintiff downloaded AOL onto her work computer and used her personal AOL account to handle work-related e-mails. Prior to this, she had never accessed her personal AOL account from her work computer. Mayslake issued the plaintiff a Comcast e-mail address on May 19, 2004. Thereafter, she used only the Comcast account for work-related e-mails. Although an icon for AOL remained on her computer desktop screen, she testified that she did not access her personal AOL account while at work after that, except possibly for one occasion in January 2007.

¶ 6 The plaintiff's supervisor in 2007 was Michael Frigo, who was a vice president of Mayslake. Frigo reported to the board of directors. Father Larry Dreffein was the president of that board. Maxwell was Frigo's administrative assistant.

¶ 7 In January 2007, the plaintiff reported to Mayslake personnel that Frigo had engaged in sexual harassment. In February 2007, the plaintiff contacted the Equal Employment Opportunity Commission about the sexual harassment and spoke with a lawyer. Mayslake conducted an internal investigation and told the plaintiff that it had concluded that there was no evidence of sexual harassment. The plaintiff testified that her working relationship with Frigo was good until she filed the sexual harassment claim, but it deteriorated after that.

¶ 8 Friday, March 16, 2007, was the last day that the plaintiff performed her regular duties for Mayslake. At the end of that day, she went home and did not return to her job thereafter. At various points in time, she advised Mayslake employees that she was taking sick leave due to mental health problems and she submitted doctor's notes. In April 2007, the plaintiff began receiving short-term disability, and in July 2007 she began receiving long-term disability. In June 2007 Mayslake hired someone else to fill the position of food service director. Also in June 2007, the plaintiff's charge of sexual harassment was officially filed.

¶ 9 At some point between April 11 and April 30, 2007,*fn1 Maxwell went to the computer located in the plaintiff's office, clicked on the AOL icon, and accessed the plaintiff's personal e-mail account. She read part or all of various e-mails that the plaintiff had sent to or received from friends, family members, and others since the plaintiff's last day of work, and printed out more than 30 of them. According to the deposition testimony of Frigo and Maxwell, this occurred in the following manner.

¶ 10 A few weeks after the plaintiff left work, Frigo received reports from the plaintiff's assistant in the kitchen, Brenda Gordon, who was running the food service in the plaintiff's absence, that she was overwhelmed. Gordon asked that someone check the plaintiff's voicemail and e-mail to make sure that orders and previously booked special events did not fall through the cracks. Frigo told Gordon that he would have someone take care of it. Frigo then asked Maxwell to go to the plaintiff's office and check her regular mail, her voicemail, and her e-mail. Frigo did not tell Maxwell that she should limit her search to work-related items, but he assumed that she would.

¶ 11 Maxwell went to the plaintiff's office. In checking the plaintiff's e-mail, she hit "start" on the computer, clicked on the Internet Explorer icon, and saw a screen that had an icon for AOL as well as one for Comcast. She testified that she clicked on the AOL icon, thinking that it was a work-related account (the evidence relating to this is explored further below). Clicking on the icon accessed the account without any preliminary login or password being required. Maxwell saw an in-box for the account: a screen that listed the e-mails that had been received and that showed, for each e-mail, the date the e-mail was received, the sender, and a subject line. The dates listed for the e-mails were after the plaintiff had left work. Many of the senders were unknown to Maxwell, but a few were other Mayslake employees.

¶ 12 Maxwell initially testified that, in the AOL account in-box, she opened and read only those e-mails that she thought related to Mayslake's food service because they were from a food service employee or the subject line appeared to be related to food service. However, she later explained that she also read part or all of the e-mails that had no subject line, or that were to or from people she did not know, in case they related to a private party or catering. Including both the AOL and the Comcast accounts, she read part or all of about 80% of all the e-mails she saw, ignoring only those that clearly pertained to food industry events that were already past. There were no e-mails that she did not open because she could tell from the subject line that they were personal. Maxwell initially stated that if she determined that an e-mail was not related to food service, she deleted or closed it. If it was related to food service, she printed the e-mail and gave it to Frigo. Later, however, she testified that she printed the e-mails from the plaintiff's AOL account because "they were awful"-they contained "awful language" or were "vile" and "not professional." Maxwell admitted that most of the e-mails she printed had been sent by the plaintiff to other people, and thus would not have been in the in-box of the plaintiff's AOL account. When asked if she looked at parts of the plaintiff's AOL account besides the in-box, she could not recall. She gave the printed e-mails to Frigo because "[h]e needed to see them." Maxwell agreed that the plaintiff had not authorized her to view the e-mails. She also agreed that the 36 e-mail printouts from the plaintiff's AOL account shown to her at her deposition were the e-mails she printed out. Although she also checked the plaintiff's Comcast account on the food service computer and saw "boatloads" of e-mails there, the 36 e-mails from the AOL account were the only e-mails that she printed out. In its answers to interrogatories, Mayslake confirmed that there were no printouts of any e-mails from the food service computer other than these 36.

¶ 13 Maxwell testified that, at the time she accessed the plaintiff's AOL account on the food service computer, she believed that some Mayslake employees, including those in food service, had work-related AOL accounts. She believed this because, sometime in the past, she had been told this by a Mayslake employee who worked in the development office. However, as of the date of her deposition, she had never used an AOL e-mail address to e-mail anyone at Mayslake regarding work. Also, when asked what e-mail account she was aware that the plaintiff was using for work-related purposes at that time, Maxwell replied, "Comcast." Frigo and Dreffein also testified that they believed that some Mayslake employees had AOL accounts. However, at her deposition, Maxwell reviewed e-mails that she had sent out in February 2007 to Mayslake employees and confirmed that all of the e-mail addresses were at Comcast, and none were at AOL. In discovery, Mayslake was unable to produce any documents showing that anyone at Mayslake other than a single employee in the development office ever had a work-related AOL account.

¶ 14 Frigo testified that, later on the same day that he asked Maxwell to check the plaintiff's e-mail and voicemail, Maxwell brought him printouts of e-mails from the plaintiff's AOL account. He looked at a few of them and realized that they were "very personal" and "had nothing to do with Mayslake business." He did not know how to handle the situation, so he called Mayslake's attorney, Ronald Lipinski of Seyfarth Shaw. He later gave the printouts to Dreffein. Dreffein testified that he put the printouts in an envelope without looking at them and carried them to Lipinski in Chicago. While Dreffein was at Seyfarth Shaw's offices, he met with Lipinski and Joan Gale, the Seyfarth Shaw attorney who was representing Mayslake in connection with the plaintiff's sexual harassment claim.

¶ 15 On April 30, 2007, Lipinski sent a letter to the plaintiff's attorney. The letter stated that the enclosed printouts of e-mails, which included what appeared to be a communication between the plaintiff and her lawyer, had been obtained by "Mayslake personnel" who "accessed e-mails through the computer located in the kitchen office at Mayslake Village" pursuant to Mayslake's "computer usage policy." The letter stated that no copies of the e-mail to the plaintiff's lawyer had been retained. In addition, "other e-mails were copied by Mayslake personnel," and copies of those e-mails were also enclosed. Although a superficial reading of the letter might leave the reader with the impression that Mayslake and its lawyers had given all the copies of the e-mails to the plaintiff's attorney and had not retained any, a closer reading shows that Lipinski made that claim only with reference to the e-mail from the plaintiff to her attorney, and not about the remaining e-mails. Gale was copied on the letter.

¶ 16 Printouts of 36 e-mails were attached to Lipinski's April 30, 2007, letter to the plaintiff's attorney. Each appeared to be a printout of the e-mail itself, with a heading listing the sender(s), the recipient(s), the subject, and the date and time sent, followed by the body of the e-mail. The great majority of the e-mails were from the plaintiff to someone else; only three were e-mails sent to the plaintiff. The topic most frequently mentioned was the plaintiff's feelings of anxiety, stress, despair, betrayal, anger, and depression relating to the circumstances of her departure from Mayslake. The e-mails also focused on the plaintiff's health, including a sinus infection diagnosed on her last day at work and the physical effects of her anxiety and depression, and mentioned visits to her doctor and therapist. About 10 of the e-mails expressed spiteful feelings toward the defendants, particularly Frigo and Dreffein, with reference to their treatment of her and their difficulties staffing the dining room after the plaintiff left. One-quarter of the e-mails discussed the plaintiff's intention not to return to work and instead to take her sick leave and then seek disability benefits, so that she could maintain some income and insurance benefits as long as possible. The plaintiff justified this plan by saying that if she returned to work she could be fired at any time, that she did not feel she had any other options, and that this way she could "heal on my own time, but they pay for it." The plaintiff also discussed what happened at work that made her decide to leave, including the reaction to her sexual harassment claim and being forced to fire one of her workers, and her need to start a new life and some of the things she might do, including exercising, taking dance lessons, and painting her house. Three of the e-mails contained foul language relating to Frigo, Dreffein, and a private investigator the plaintiff believed had been photographing her one day. As noted, one of the e-mails was a communication from the plaintiff to her attorney.

ΒΆ 17 Many of the e-mails also mentioned personal matters that were unconnected to Mayslake, such as family news and plans for getting together with friends. Five of the e-mails were wholly personal and did not relate in any way to Mayslake. The subject lines of the e-mails included: "hello," "Re: mom," "Fwd: FW: Fwd: Coffee and Sex," and "Fwd: David Copperfield]-cool-try it-art(UNBELIEVABLE)." None of the e-mails Maxwell printed out contained any communication that might be ...

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