Skip to content

Legal Report March 2010


The U.S. Supreme Court has agreed to hear dozens of cases in its 2009-2010 session. One such case will have wide-reaching implications for expectations of privacy in the workplace. However, the Court also declined to hear thousands more cases. This means that those not granted review by the Court remain unchanged. Some of the cases the Court rejected have implications for security professionals and managers in general.

Granted Review

The U.S. Supreme Court has agreed to hear a case brought by police officers who claim that their employers illegally read their private text messages. The outcome of the case will affect how employers deal with communications and privacy rights in the workplace.

PRIVACY. In October 2001, the city of Ontario, California, contracted with Arch Wireless to provide a wireless text messaging service for police. The city did not write a specific text-messaging policy but instead referred to its existing policy, which stated that all city-owned computers and electronic devices were to be used for city business only. The use of such equipment for personal reasons was explicitly prohibited.

A year before they received the text messaging service, police officers signed a form acknowledging that they had no expectation of privacy when they used the city’s computer systems. When the text messaging system was provided to the officers, city officials noted that the text messages were considered e-mail and were, therefore, public information and would be subject to auditing by the city.

Under the city’s contract with Arch Wireless, each text messaging account was limited to 25,000 characters a month. After an account reached this limit, the city was required to pay additional charges. Lieutenant Steve Duke was in charge of the city’s contract and responsible for securing payment for those accounts that exceeded the character limit. If an employee used more than the allotted characters, Duke would ask that employee to write a check for the extra amount. Duke told the officers that they had to pay the overages or the city would audit the accounts to ensure that all the correspondence was work-related.

One of the officers, Jeff Quon, regularly exceeded the character limit for his account. Quon paid for the overages each time.

In an August 2002 meeting, Duke announced that he was tired of “being a bill collector” in regards to the text-messaging accounts. The chief of police told Duke to audit the transcripts of the accounts to determine whether the messages were work-related. The chief noted that if all of the texts were used for city business, the police department needed to consider increasing the amount of characters allowed per person.

The city obtained the transcripts from Arch Wireless and then began an audit. In the case of Quon, the city found that he had exceeded his monthly character allotment by an average of 15,000 characters. The chief turned the transcripts of Quon’s texts over to internal affairs, which launched its own investigation. Internal affairs found that Quon frequently sent personal messages to his wife and to his girlfriend. These messages were often sexually explicit.

Quon, his wife, and his girlfriend sued the city claiming that it had violated their Fourth Amendment right to be free from unreasonable search and seizure. Quon argued that he had an expectation of privacy in sending and receiving the text messages. The city argued that its policy regarding employee use of city equipment made it clear that employees had no expectation of privacy when using city computer systems.

The city requested summary judgment—a hearing based on the facts of a case without a trial. The U.S. District Court for the Central District of California granted the summary judgment. Quon appealed.

The U.S. Court of Appeals for the Ninth Circuit overturned the district court’s decision. The appeals court found that the city’s formal policy was sound but that Quon had a reasonable expectation of privacy because of Duke’s informal policy. According to the court, after Duke made it clear that he would not audit the messages as long as the officers paid for the overages, Quon could reasonably expect that his messages would remain private.

The court also noted that had the city wanted to determine whether the officers needed a higher character allotment, there were several other options for achieving this goal. For example, the city could have warned the officers that an audit would be held the next month and that they should send and receive only work-related messages. The court also suggested that the city view transcripts of officers’ messages after the officers had a chance to redact any personal communication. (Quon v. Arch Wireless, U.S. Court of Appeals for the Ninth Circuit, No. 07-55282, 2008)

Review Denied

The Court refused to hear dozens of cases on employment issues and general negligence. Examples of such cases include the following opinions on sexual harassment, defamation, and false imprisonment.

HARASSMENT. In 1999, Michelle Monteagudo began working at AEELA in Hato Rey, Puerto Rico, as a secretary in the human resources department. Almost immediately, Monteagudo’s supervisor, Juan Francisco Arce-Diaz, began asking her out on dates and touching her. Monteagudo repeatedly told Arce Diaz that she was not interested in dating him and that his advances made her uncomfortable.

AEELA’s sexual harassment policy required that incidents be reported to either the director of human resources or to the executive director. Monteagudo did not report the harassment because both of these people were friends with Arce-Diaz outside of work.

The harassment continued for several months. One night, after a group of employees went out to a local bar after work, Arce-Diaz forced himself on Monteagudo. She pushed him away and went home without further incident. However, the next day at work, Arce-Diaz treated Monteagudo differently. He doubled her workload and adopted a cold attitude toward her.

Monteagudo eventually complained to the director of the department about the amount of work she was expected to do. The director slammed his hand down on Monteagudo’s desk and told her that if she filed a complaint of any kind, she would be fired. Monteagudo soon resigned her position, claiming that she felt she had no choice given the intolerable working conditions.

She filed a sexual harassment lawsuit against the company. A jury found that, while AEELA had a policy for dealing with sexual harassment, employees at the company did not feel free to use the system. Monteagudo also testified that she had not been offered information on the sexual harassment policy. Further, there was no evidence that supervisors underwent training on the policy. The jury awarded Monteagudo $966,000 in compensatory and punitive damages. AEELA appealed the decision.

The U.S. District Court for the District of Puerto Rico upheld the lower court’s verdict. On appeal, the U.S. Court of Appeals for the First Circuit also agreed. The court noted that Arce-Diaz was acting in a supervisory capacity and should have been informed that his actions were illegal. The court also pointed out that the existence of a written policy is not sufficient; a company must also offer proof that it took actions, in good faith, to prevent sexual harassment in the workplace. (AEELA v. Monteagudo, U.S. Court of Appeals for the First Circuit, No. 07-2341, 2009)

DEFAMATION. Blake Moore was a surgeon at Williamsburg General Hospital in Kingstree, South Carolina. Moore, who treated both adults and children in his work at the hospital, filed complaints with senior administrators about patient care. He claimed that mistakes had been made in dosing medication and that human tissue samples had been mishandled.

After Moore filed these complaints, state social services removed his three adopted children into protective custody based on allegations that Moore physically and sexually abused them. After several investigations, the state removed the children from Moore’s home permanently and terminated the parental rights of Moore and his wife.

Based on the state’s decision, the hospital suspended Moore’s privileges, meaning that he could not practice at the hospital. The hospital, in a letter of explanation, noted that they could not allow Moore access to patients because of the allegations of sexual misconduct. Moore requested numerous hearings to review the decision, and the hospital granted these hearings, but it repeatedly upheld its decision.

Moore sued the hospital for, among other things, defamation and intentional infliction of emotional distress. The hospital claimed that it was immune from these claims under a state law that protects medical facilities that participate in “professional review actions.” The law was designed to keep medical professionals from moving from place to place and concealing their misdeeds.

Moore claimed that the allegations of sexual abuse had nothing to do with his professional duties and that the hospital’s decision was not a “professional review action.” The U.S. District Court for the District of South Carolina determined that the hospital did have immunity in the case because Moore’s actions outside the workplace could affect patient treatment. Moore appealed.

The U.S. Court of Appeals for the Fourth Circuit agreed with the lower court. The appeals court ruled that the hospital’s action met both the letter and intent of the law. In the written opinion of the case, the court noted: “If plaintiff’s view were accepted…peer review committees would never, under any circumstances, be permitted to conclude that even the most advanced cases of alcohol addiction, illegal substance abuse, incipient dementia, or as here, sexual misconduct toward children on the part of someone with a pediatric practice could affect professional competence.” (Moore v. Williamsburg Regional Hospital, U.S. Court of Appeals for the Fourth Circuit, No. 037-1966, 2009)

FALSE IMPRISONMENT. Sharon McNulty was shopping in a J.C. Penney store at a mall in Ridgeland, Mississippi, in March 2005. McNulty, an African-American, is disabled and was using a shopping cart for support as she walked about the store. She had already purchased some items from another store so she had two large shopping bags in her cart when she entered the J.C. Penney store.

McNulty repeatedly entered the fitting room with items of clothing. Her activities drew the attention of an employee who notified Eric Greene, the store security officer. Greene watched McNulty via security camera for the rest of her visit.

McNulty selected several items and put them on top of the shopping bags already in her cart. McNulty proceeded to the counter and bought the clothes. However, she failed to pay for one item, which had became attached to the front of the cart. McNulty then left the store with the item still affixed to the cart.

Greene followed McNulty outside and then escorted her to the security office where she was detained until a police officer arrived. The officer then arrested McNulty for shoplifting. She was later found not guilty of the offense.

McNulty filed a lawsuit against J.C. Penney, claiming that, among other things, false imprisonment and malicious prosecution. McNulty says that the item she was accused of stealing was attached to the cart without her knowledge. J.C. Penney employees knew this, according to McNulty, but proceeded with shoplifting charges anyway.

J.C. Penney requested summary judgment, claiming that there was probable cause for McNulty’s arrest and that the security officer acted properly. A federal district court granted the summary judgment. On appeal, the U.S. Court of Appeals for the Fifth Circuit agreed with the lower court. (McNulty v. J.C. Penney, U.S. Court of Appeals for the Fifth Circuit, No. 08-60571, 2008)

This column should not be construed as legal or legislative advice.