Labor & Employment Law

US Court of Appeals, 7th Circuit, holds secret tape-recording of superiors in jailer's harassment suit not protected activity

Source: Adjunct Law Prof Blog; Reproduced with permission. Copyright © 2008, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.

The 7th Circuit decision in Argyropoulous v. City of Alton, ___F.3d___(7th Cir. Aug. 26, 2008) is an important case. A woman jailer who surreptitiously tape-recorded a closed door meeting with two of her superiors in connection with a sexual harassment investigation she filed against the city of Alton, triggering both her arrest under the state's felony eavesdropping statute and her discharge, did not engage in protected activity under Title VII's anti-retaliation provision. While the jailer alleged that she engaged in protected activity under Title VII because she only sought to obtain evidence for her harassment suit, the Seventh Circuit held that her argument rested "upon a transparently overbroad view of the scope of the statute's protection." Although Title VII protects employees who complain about discrimination, "the statute does not grant the aggrieved employee a license to engage in dubious self-help tactics or workplace espionage in order to gather evidence of discrimination," wrote the court. The jailer also failed to show that she was performing her job satisfactorily and could not show that she was treated less favorably than similarly situated employees who engaged in similar misconduct. Moreover, the city discharged the jailer largely due to her behavior in the eavesdropping incident, which was not pretextual.

This case demonstrates that employees do not have carte blanc to commit misconduct in order to aide in the investigation of their case.

Mitchell H. Rubinstein

Harvey Randall comments: Concerning eavesdropping, Streed v Waterford-Halfmoon UFSD, [not officially reported] is a case involving the recording of a cordless telephone conversation between a teacher and a student by some unknown individual, who gave the tape to school district officials. Although the contents of the tape were never made public, the teacher, Marcia D. Streed, was suspended by the district for alleged "serious misconduct." Although Streed was subsequently reinstated and her suspension terminated, she sued charging, among other claims, that her right to due process was violated and her right to privacy invaded. State Supreme Court Justice William H. Keniry dismissed her petition, ruling that: 1. Streed's 14th Amendment right to due process was not violated because she was not terminated and lost neither salary nor benefits during her period of suspension; 2. Official communications concerning Streed's alleged "serious professional misconduct, even if false and defamatory," were privileged and thus "non-actionable" because they were made by district officials acting within the scope of their responsibilities; and 3. New York State law does not recognize actions based on alleged violations of personal privacy.

In Bartnicki v Vopper, USSC, 532 U.S. 514, the U.S. Supreme Court addressed the implications First Amendment freedom of speech rights in a case involving the disclosure of the contents of unlawfully intercepted communications. Again, the challenged disclosure involved what the parties conceded constituted an illegally intercepted cellular telephone conversation. The persons who made the disclosures, however, did not participate in the interception, but [presumably] knew that the interception was unlawful. The case arose in the context of collective bargaining. The Pennsylvania State Education Association, a union representing the teachers at the Wyoming Valley West High School, was engaged in "contentious" collective-bargaining negotiations that received extensive media attention." Gloria Bartnicki, acting as the union's chief negotiator, used the cellular phone in her car to call Anthony F. Kane, Jr. to discuss the status of the negotiations. An unidentified person intercepted and recorded that call. Having considered the competing interests at stake, -- personal privacy versus public disclosure of matters of public interest -- the Supreme Court said "we are firmly convinced that the disclosures made by respondents in this suit are protected by the First Amendment." In the words of the court, "[i]n this case, privacy concerns give way when balanced against the interest in publishing matters of public importance.... The right of privacy does not prohibit any publication of matter which is of public or general interest." The court's conclusion: "a stranger's illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern."

Full post as published by New York Public Personnel Law on September 19, 2008 (boomark / email).