Ali v. Douglas Cable Communications

929 F. Supp. 1362

Jan ALI and John Ham, Plaintiffs, v. DOUGLAS CABLE COMMUNICATIONS, Limited Partnership, Reavis D. Gibb, Jeffrey L. Scheidegger, and Devon Plumberg, Defendants.

No. 94-1146-SAC.

United States District Court, D. Kansas.

May 24, 1996.

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Ruth M. Benien, Benien & Kaplan, Chtd., Kansas City, KS, for plaintiffs.

Randall J. Forbes, Nola Wright Viola, Frieden, Haynes & Forbes, Topeka, KS, for defendants.

Anne L. Baker, Thomas E. Wright, Wright, Henson, Somers, Sebelius, Clark & Baker, Topeka, KS, for movant.

MEMORANDUM AND ORDER

CROW, District Judge.

The case comes before the court on the defendants' motion for summary judgment (Dk.159). The plaintiffs bring this action alleging the defendants violated the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq., by monitoring and recording their telephone calls at work. The plaintiffs further claim that the defendants terminated their employment in retaliation for their complaints about this monitoring of telephone calls and for their reports of a co-worker's theft of commissions and fraudulent reports of business transactions. The plaintiffs also have claims for negligent infliction of emotional distress, intentional infliction of emotional distress, defamation, and invasion of privacy. The defendants seek summary judgment on all claims.

SUMMARY JUDGMENT STANDARDS

A court grants a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure if a genuine issue of material fact does not exist and if the movant is entitled to judgment as a matter of law. The court is to determine "whether there is the need for a trial — whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law will ... preclude summary judgment." Id. There are no genuine issues for trial if the record taken as a whole would not persuade a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). "There are cases where the evidence is so weak that the case does not raise a genuine issue of fact." Burnette v. Dow Chemical Co., 849 F.2d 1269, 1273 (10th Cir.1988).

The initial burden is with the movant to "point to those portions of the record that demonstrate an absence of a genuine issue of material fact given the relevant substantive law." Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir.), cert. denied, 506 U.S. 1013, 113 S.Ct. 635, 121 L.Ed.2d 566 (1992). If this burden is met, the nonmovant must "come forward with specific facts showing that there is a genuine issue for trial as to elements essential to" the nonmovant's claim or position. Martin v. Nannie and the Newborns, Inc., 3 F.3d 1410, 1414 (10th Cir.1993) (citations omitted). The nonmovant's burden is more than a simple showing of "some metaphysical doubt as to the material facts," Matsushita, 475 U.S. at 586, 106 S.Ct. at 1356; it requires "`presenting sufficient evidence in specific, factual form for a jury to return a verdict in that party's favor.'" Thomas v. International Business Machines, 48 F.3d 478, 484 (10th Cir.1995) (quoting Bacchus Industries, Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991)). The court views the evidence of record and draws all reasonable inferences in the light most favorable to the nonmovant. Id. A party relying on only conclusory allegations cannot defeat a properly supported motion for summary judgment. White v. York Intern. Corp., 45 F.3d 357, 363 (10th Cir.1995).

More than a "disfavored procedural shortcut," summary judgment is an important procedure "designed `to secure the just, speedy and inexpensive determination of every action.' Fed.R.Civ.P. 1." Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986). At the same time, a summary judgment motion does not empower a court to act as the jury and determine witness credibility, weigh the evidence, or choose between competing inferences. Windon Third Oil and Gas v. Federal Deposit Ins. Corp., 805 F.2d 342, 346 (10th Cir.1986), cert. denied, 480 U.S. 947, 107 S.Ct. 1605, 94 L.Ed.2d 791 (1987).

STATEMENT OF UNCONTROVERTED FACTS

The court considers the following facts to be uncontroverted for purposes of this motion only.

Douglas Cable Communications ("DCC") hired the plaintiff John Ham ("Ham") initially as a part-time customer service representative ("CSR") on November 18, 1991. DCC also initially hired the plaintiff Jan Ali ("Ali") in the same position on July 7, 1992. A CSR's principal duties include speaking with customers over the telephone about sales, complaints, collection of delinquent accounts, and follow-up. The defendant Reavis Gibb has been the operations manager for DCC since 1986. The defendant Jeffrey Scheidegger has worked for DCC since 1986 holding various positions, including controller, director of operations, and director of customer service. The defendant Devon Plumberg was a training supervisor for CSRs from August of 1992 through December of 1993.

In October of 1992, Ham complained to Patty Shaver,¹ Devon Plumberg and Jeffrey Scheidegger that he believed another CSR, Marcia Trickett, was manipulating the DCC computer system for her personal gain. Specifically, Ham complained that Trickett was stealing commissions from other CSRs and was creating bogus accounts for which she was paid commissions. At the request of Scheidegger and others, Ham compiled and produced documents which ostensibly substantiated what he was alleging. The DCC management reviewed these documents and also investigated the allegations. In Trickett's entries, they found evidence of suspicious circumstances and work inconsistent with training guidelines. Near the end of October and first part of November of 1992, Shaver informed Trickett that because of discrepancies in her work entries found by her co-workers she was being placed on a thirty-day probationary period and subjected to disciplinary measures, including additional reporting requirements, daily review of reported sales and adjustments, and monitoring of sales calls. The written disciplinary warning² ended with: "An administrative review will be conducted on December 8, 1992, to affirm Marcia has corrected the improprieties. Further deviations will result in disciplinary actions not excluding termination." (Dk.160, Ex. A).

Ham continued to complain to Scheidegger about Trickett's actions. Ham met with Scheidegger four or five times, produced additional documentation about his complaints, and asked why Trickett had not been disciplined or fired. Apparently frustrated by Scheidegger's responses to his questions and efforts, Ham threw papers up in the air and walked out of one of the meetings. In one or more of the meetings, Ham accused Scheidegger of not acting on his complaints because Trickett's bogus accounts benefitted DCC by increasing the availability of financing which was based on the number of customer accounts. At another meeting near March of 1993, Scheidegger told Ham "to shut the fuck up and sit down and not say another word about anything that's going on here, or you will lose your job." (Ham Dep. at 206). Ham described work as "crazy," "as soon as I walked in, I had to hard copy anything that anyone around had done. I was trying to prove what Marcia had done. I was trying to figure out why Jeff wasn't doing anything about what Marcia had done." (Ham Dep. at 171). Ali printed each of her sales and took the ones that did not close properly to Ham who investigated them.

Because the CSRs' principal contact with customers was over the telephone, DCC management monitored the CSRs' telephone conversations for purposes of training CSRs and improving customer service. Specifically, the supervisors used their extension telephones to monitor CSRs in the use of proper skills and to assist the CSRs with difficult customers. Some of the CSRs knew of the telephone monitoring because the supervisors had used it during their training, and other CSRs, like the plaintiffs, were not aware of it. Devon Plumberg testified that notices regarding the monitoring were posted on a bulletin board and on a computer "billboard." Others could not remember seeing the notice posted at either place. Ms. Plumberg testified that if the CSR received a personal call then she would stop monitoring that call. CSRs were not told that personal calls could not be made at their desk, and their supervisors knew that personal calls were being made and received at the CSRs' desks.

In early 1993, DCC management decided that recording CSR conversations for later review would be an aid in training and supervision and in participating in Home Box Office sponsored contests. Memoranda and staff agenda were distributed beginning in February of 1993 to the staff informing them first of the decision to add "recording mechanism to monitor CSR phone calls" and then the management's progress in acquiring the equipment and having it installed. (Dk.160, Ex. 15). In purchasing this equipment, DCC management contacted Wiltel which had provided DCC the telephone equipment it was using. Wiltel contracted with another company, Comtronics, in acquiring the ancillary equipment needed for recording the calls. Wiltel installed the recording equipment which was connected to an extension telephone which had access to the CRSs' different lines. The supervisor would set the equipment to...