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Mary Carroll v. Merrill Lynch

October 16, 2012

MARY CARROLL, PLAINTIFF-APPELLANT,
v.
MERRILL LYNCH, JIMKELLIHER, AND PATKELLIHER, DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 07-CV-01575-Rebecca R. Pallmeyer, Judge.

The opinion of the court was delivered by: Flaum, Circuit Judge.

ARGUED SEPTEMBER 24, 2012-

Before BAUER, FLAUM, and HAMILTON, Circuit Judges.

On Thanksgiving Day at about 9:00 PM, Mary Carroll telephoned one of her co-workers, Jim Kelliher. Hearing Ms. Carroll loudly yelling at her husband over the phone, Jim Kelliher's wife Pat Kelliher began listening in on the call and decided to record the conversation. The call ultimately cost Carroll her job, and she sued under the Illinois eavesdropping statute for the recording and re-playing of the call. The district court granted defendants' motion for summary judgment, concluding that the recording fell within the statute's fear of crime exemption. Because Ms. Carroll offers no evidence creating a genuine issue of material fact and defendants are entitled to judgment as a matter of law, we affirm.

I. Background

A. Factual Background

In 2005, Mary Carroll and Jim Kelliher were co-workers at Merill Lynch. That same year, Ms. Carroll lodged a complaint with human resources that led to the firing of two other Merrill Lynch employees. Restructuring of employment responsibilities followed and a supervisory position opened up. Although Carroll said she was not interested in the position and did not apply, she nevertheless felt "overlooked" when Merrill Lynch hired someone else.

In October 2005, Ms. Carroll felt that Jim Kelliher-who apparently was not involved with Carroll's previous human resources complaint-was performing some of her job duties. Around 9:00 PM on Thanksgiving in 2005, Ms. Carroll called Jim Kelliher on his home phone to confront him about this perceived encroachment. As Carroll later admitted, she was "all riled up," "angry," and "enraged." She also described her behavior as "inappropriate[]" and "irrational[]," explaining to co-workers that she had "fucking snapped." Carroll even recognized the startling nature of her call, admitting that, if she had received a similar call, she would have felt "threatened."

Pat Kelliher overheard Carroll's loud accusations blaring from the phone. Becoming concerned, she began listening in on the phone call from another receiver in a different room. As Ms. Carroll's rant continued, Pat Kelliher became increasingly concerned and upset. She pushed the "record" button on her answering machine and recorded the rest of the call. Pat Kelliher later explained why she made the recording:

Because I was scared. You know, it was late on Thanksgiving night. It was past 9:00 o'clock at night. There's somebody on the other end yelling at my husband and using profanity, and I hear my husband saying, "I don't know what you're talking about." "Can you please explain?" I hear him, you know, in a calm voice. I hear an escalation in the voice of the person who was calling. I had no clue who this person was. I got scared that somebody was very angry for an unknown reason that I could tell in the part that I listened to, and I felt that, you know, this person was going to come to our house, throw a brick through our window, that they were going to do something that night. And I got scared. And I wanted-that if we had to involve the police that I could say "You know what? This person, I don't know who they are, but this is what's scaring me."

When the call finally ended, Pat Kelliher told her hus-band, "I'm scared and I think we should call the police."

Despite Pat Kelliher's concerns, the Kellihers did not call the police that night. Jim Kelliher did call his supervisor at Merrill Lynch, though, and reported Ms. Carroll's phone call. The next day, at his supervisors' request, Jim Kelliher played the recording. After work that day, the Kellihers reported Carroll's call to the police.

Two months later, in January 2006, Ms. Carroll filed her own police report, accusing the Kellihers of violating the Illinois eavesdropping statute. The following month, Merrill Lynch fired Carroll for her conduct on the call, and she then filed this suit against Jim Kelliher, Pat Kelliher, and Merrill Lynch. Among other claims, her complaint alleged civil violations of the eavesdropping statute arising from Pat Kelliher's recording of the ...


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