FOURTH DIVISION
Plaintiffs-Appellants, v. K MART CORPORATION, Defendant-Appellee (Confidential Investigative Consultants,
Inc., Defendant). Honorable Dorothy Kirie Kinnaird, Judge
Presiding. JUSTICE HALL delivered the opinion of the
court: I. BACKGROUND This case involves K mart Corporation's
(defendant's) use of private investigators at its distribution center in
Manteno, Illinois. Plaintiffs are 55 current or former employees of K mart
Corporation. The claims against Confidential Investigative Consultants, Inc.,
were dismissed. Summary judgment was granted in favor of defendant. On appeal, plaintiffs contend that: (1)
defendant invaded their privacy through an unauthorized intrusion upon their
seclusion; (2) defendant invaded their privacy by publicizing private facts
concerning them; (3) defendant intentionally inflicted emotional distress upon
them; and (4) defendant violated the Private Detective, Private Alarm, Private
Security, and Locksmith Act of 1993 (225 ILCS 446/1 et seq. (West
1996)). For the foregoing reasons, we affirm in part and reverse in part and
remand with instructions. The following facts are relevant to this appeal.
Plaintiffs are or were employed at defendant's distribution center (center), in
Manteno, Illinois. Defendant's center receives, stores, and supplies
merchandise. The center is a 1.5 million-square-foot warehouse. Approximately
500 persons are employed at the center. During the summer of 1992, the center began
receiving merchandise valued at several million dollars. Since its opening, the
center has experienced theft, vandalism, and sabotage. Defendant also had
concerns about the sale and use of drugs at the center. In August 1992, an on-site security audit of the
center was conducted. Confidential Investigative Consultants, Inc. (CIC), was
interviewed to determine if it could provide undercover investigative services
to monitor acts of vandalism and drug use at the center. CIC was a licensed
investigative security company located in Chicago, Illinois. CIC performed
undercover investigative and security work. Ed Gunther, vice president of CIC,
and George McElroy, general manager of the center, met twice in August 1992,
regarding CIC's ability to perform an undercover investigation. Gunther and McElroy agreed that an undercover
investigator posing as an employee would be placed in the center. Periodic
reports detailing the investigator's observations were to be sent to a post
office box registered in CIC's name and located in Frankfort, Illinois, to
maintain confidentiality. McElroy requested that CIC's investigation be
discussed with him only. CIC sent Al Posego (Posego), an undercover
investigator, to the center. Posego posed as a janitor at the center. In his
deposition, Posego stated that he was specifically told that the focus of
defendant's concern was theft, sabotage, safety, and drug use. Posego held a
"blue card," a permit issued by the State of Illinois which signifies that an
individual has been trained in investigative and security work. In November 1992, Janet Posego (Ms. Posego),
Posego's wife, began working as an undercover investigator for defendant. Ms.
Posego posed as an employee in the repack department. Ms. Posego also held a
blue card from the State of Illinois. In her deposition, Ms. Posego stated that
her role as undercover investigator at the center was to gather information on
theft and drug use. The Posegos submitted handwritten reports to CIC
by mail every few days. These reports were then forwarded to defendant. The
Posegos wrote the reports from memory based on the events they observed and
conversations they participated in or overheard. The reports contained
information including, but not limited to: (1) employee family matters
(i.e., the criminal conduct of employees' children, incidents of
domestic violence and impending divorces); (2) romantic interests/sex lives
(i.e., sexual conduct of employees in terms of number/gender of
sexual partners); (3) future employment plans (i.e., which
employees were looking for new jobs and which employees were planning to quit
without giving notice); (4) complaints about defendant (i.e.,
the quality of the company and employee's view that defendant was "screwing
people up"); and (5) personal matters and private concerns (i.e.,
employee's prostate problems, paternity of employee's child,
characterization of certain employees as alcoholics because they drank
"frequently"). In early 1993, McElroy informed Chad Yager, the
center's loss control manager, of the presence of the undercover investigators
at the center. Yager began overseeing the investigation. The first copies of the
investigative reports received by Yager contained information regarding union
activity at the center. Yager then told CIC that he did not want information
regarding union activity in the reports. Such references were then edited. At
this point, John Gemmaka, the director of human resources, was made aware of the
investigation. In February 1993, defendant terminated Gemmaka
based on allegations unrelated to this appeal. After Gemmaka's termination,
Gemmaka exposed the undercover investigative operation to one of the plaintiffs,
Lewis Hubble. Hubble subsequently researched Posego's background and confronted
Posego about his status as an undercover investigator. Posego admitted that he
and Ms. Posego were private investigators posing as employees for the purposes
of observing theft and drug use at the center. Posego informed Gunther that his role as an
undercover agent had been exposed. Gunther then notified defendant. By April
1993, CIC's operation had been terminated. In 1993, Local 705 of the International
Brotherhood of Teamsters began organizing a campaign about the Manteno
distribution center. A few weeks prior to the election, teamster officials
contacted employees regarding the undercover investigation that had been
conducted at the center. Teamster officials then met with employees and
disclosed copies of the reports to them. The investigative reports were not
received from any representative of defendant. According to union officials, the
reports were received from an anonymous source. The parties cross-motioned for summary judgment.
Summary judgment was granted in favor of defendant. This appeal
followed. II. ANALYSIS A. Standard of
Review In summary judgment cases, a reviewing court
conducts a de novo review of the evidence. Espinoza v. Elgin,
Joliet & Eastern Railway Co., 165 Ill. 2d 107, 113, 649 N.E.2d 1323
(1995). The reviewing court must construe all evidence strictly against the
movant and liberally in favor of the nonmoving party. Espinoza, 165
Ill. 2d at 113. Where the pleadings, depositions, and affidavits show that there
is no genuine issue of material fact, the moving party is entitled to judgment
as a matter of law. First of America Trust Co. v. First Illini Bancorp,
Inc., 289 Ill. App. 3d 276, 283, 681 N.E.2d 45 (1997). If reasonable
persons could draw different inferences from undisputed facts, summary judgment
should be denied. Smith v. Armor Plus Co., 248 Ill. App. 3d 831, 839,
617 N.E.2d 1346 (1993). B. Intrusion Upon
Seclusion Plaintiffs contend that defendant invaded their
privacy by intruding upon their seclusion. As a preliminary matter, we note that
the Illinois Supreme Court has never explicitly recognized a cause of action for
intrusion into seclusion. Dwyer v. American Express Co., 273 Ill. App.
3d 742, 745, 652 N.E.2d 1351 (1995). In Lovgren v. Citizens First National
Bank, 126 Ill. 2d 411, 534 N.E.2d 987 (1989), the supreme court discussed
this tort as articulated by the Restatement (Second) of Torts (1977) and Prosser
& Keeton on Torts (W. Keeton, Prosser & Keeton on Torts §117 (5th ed.
1984)), but stated that its discussion did not imply a recognition of the action
by the court. Lovgren, 126 Ill. 2d at 416-17. There is a conflict among
the appellate court districts as to whether the intrusion into seclusion tort is
actionable in Illinois. Lovgren, 126 Ill. 2d at 417-18. This conflict
has not been resolved. Lovgren, 126 Ill. 2d at 417. In 1979, this
district declined to recognize a cause of action for intrusion upon seclusion.
See Kelly v. Franco, 72 Ill. App. 3d 642, 391 N.E.2d 54 (1979). This
court noted that the law in Illinois was inconsistent on this issue and held
that even if it were to recognize the cause of action, the plaintiff's
allegations were insufficient to support a cause of action for unreasonable
intrusion upon seclusion. Kelly, 72 Ill. App. 3d at 646-47. The third district recognized the intrusion upon
seclusion tort in Melvin v. Burling, 141 Ill. App. 3d 786, 490 N.E.2d
1011 (1986). In Melvin, the court set out four elements that a
plaintiff must plead and prove to state a cause of action for intrusion upon
seclusion: (1) an unauthorized intrusion or prying into the plaintiff's
seclusion; (2) an intrusion that is offensive or objectionable to a reasonable
person; (3) the matter upon which the intrusion occurs is private; and (4) the
intrusion causes anguish and suffering. Melvin, 141 Ill. App. 3d at
789. See also the second district case of Benitez v. KFC National Management
Co., 305 Ill. App. 3d 1027, 714 N.E.2d 1002 (1999), recognizing a cause of
action for unreasonable intrusion upon the seclusion of another. Since the third district's decision in
Melvin, the first district has applied Melvin's four elements
without directly addressing the issue of whether a cause of action for intrusion
upon seclusion exists in this state. In Mucklow v. John Marshall Law School,
176 Ill. App. 3d 886, 531 N.E.2d 941 (1988), Miller v. Motorola, Inc.,
202 Ill. App. 3d 976, 560 N.E.2d 900 (1990), and again in Dwyer v.
American Express Co., 273 Ill. App. 3d 742, 652 N.E.2d 1351 (1995), this
district found that the plaintiff's allegations did not satisfy the first
element of Melvin, but failed to express a view as to the conflict
regarding the recognition of the intrusion upon seclusion cause of action.
Mucklow, 176 Ill. App. 3d at 894; Miller, 202 Ill. App. 3d at
981; Dwyer, 273 Ill. App. 3d at 745-46. We now expressly recognize a cause of action for
the tort of invasion of privacy by intrusion upon seclusion in this state. We
adopt the four elements set forth in Melvin v. Burling, 141 Ill. App.
3d 786, 490 N.E.2d 1011 (1986). In the instant case, the circuit court entered
summary judgment in favor of defendant, finding that there was no unauthorized
intrusion because plaintiffs had voluntarily disclosed the complained-of
information to the investigators and that defendant's actions did not amount to
an offensive or objectionable intrusion. We find that the circuit court erred in
entering summary judgment in favor of defendant. We believe that a genuine issue
of fact exists regarding whether there was an unauthorized intrusion. It is
true, as defendant argues, that plaintiffs willingly provided these personal
details to the investigators. However, we believe that the means used by
defendant to induce plaintiffs to reveal this information were deceptive.
Specifically, we believe that the act of placing private detectives, posing as
employees, in the workplace to solicit highly personal information about
defendant's employees was deceptive. A disclosure obtained through deception
cannot be said to be a truly voluntary disclosure. Plaintiffs had a reasonable
expectation that their conversations with "coworkers" would remain private, at
least to the extent that intimate life details would not be published to their
employer. The evidence presented shows that defendant
placed undercover investigators posing as employees in the plant to obtain
information regarding theft, vandalism and drug use at the plant. The evidence
further shows that along with this information, the investigators compiled
information regarding employees' family problems, health problems, sex lives,
future work plans, and attitudes about defendant and reported this extremely
personal information to defendant. The investigators gathered this information
not only on defendant's premises, but also outside the workplace at social
gatherings. The investigators testified that they included anything and
everything that they heard in their reports. Defendant admitted that it had no
business purpose for gathering information about employees' personal lives. Yet,
defendant never instructed the investigators to change their practices or to
stop including the highly personal information in their reports. We find that a
material issue of fact exists regarding whether a reasonable person would have
found defendant's actions to be an offensive or objectionable intrusion. Thus,
summary judgment should not have been granted. C. Publication of Private
Facts Plaintiffs contend that defendant invaded their
privacy through the publication of private facts concerning them. A
successful cause of action for the public disclosure of private facts
requires the plaintiff to prove that: (1) publicity was given to the disclosure
of private facts; (2) the facts were private and not public facts; and (3) the
matter made public would be highly offensive to a reasonable person. Miller
v. Motorola, Inc., 202 Ill. App. 3d 976, 978, 560 N.E.2d 900. In
the instant case, the facts at issue were clearly private. They included
such things as employees' family matters, health problems, and sex lives. This
highly personal information was acquired through a deception and then reported
to plaintiffs' employer. We believe that an issue of fact exists regarding
whether a reasonable person would find it highly offensive that these personal
matters were made public to his employer. We next consider the publicity requirement.
Miller v. Motorola, Inc., is instructive. Miller, 202 Ill.
App. 3d 976, 560 N.E.2d 900 (1990). In Miller, the plaintiff alleged
that her employer had invaded her privacy when, without her authorization, the
employer told her coworkers that she had undergone mastectomy surgery. The lower
court in Miller dismissed the plaintiff's complaint, holding that she
failed to state a cause of action for invasion of privacy. However, on appeal,
the court held that egregious conduct resulting in disclosure to a limited
audience is actionable if "a special relationship exists between the plaintiff
and the 'public' to whom the information has been disclosed." (Emphasis
added.) Miller, 202 Ill. App. 3d at 980. According to Miller,
if the plaintiff is not a public figure, such a public may be
fellow employees, club members, church members, family, or neighbors.
Miller, 202 Ill. App. 3d at 980-81. We adopt the position of the court in
Miller. We too hold that the public disclosure requirement may be
satisfied by proof that the plaintiff has a special relationship with the
"public" to whom the information is disclosed. However, we also believe that the
rationale in Miller should be extended to include an employer as a
member of a particular public with whom a plaintiff may share a special
relationship. The evidence shows that personal details about plaintiffs' private
lives were disclosed to their employer by the investigators. We find that these
facts raise a genuine issue as to whether publicity was given to private facts.
Therefore, we find that summary judgment should not have been
granted. D. Intentional Infliction of Emotional
Distress Plaintiffs contend that defendant is liable for
intentional infliction of emotional distress. A cause of action for intentional
infliction of emotional distress is stated when the plaintiff alleges facts that
establish: (1) the defendant's conduct was extreme and outrageous; (2) the
emotional distress suffered by the plaintiff was severe; and (3) the defendant
knew that severe emotional distress was certain or substantially certain to
result from such conduct. Miller v. Equitable Life Assurance Society,
181 Ill. App. 3d 954, 956, 537 N.E.2d 887 (1989); McGrath v. Fahey,
126 Ill. 2d 78, 86, 533 N.E.2d 806, 809 (1988). In the case sub judice, we believe that
the matter made public was private. We also believe that publicity given to
private facts would be highly offensive to a reasonable person. Therefore, it is
our position that there are genuine fact issues as to: (1) whether defendant's
conduct was extreme and outrageous; and (2) whether defendant knew that severe
emotional distress was certain or substantially certain to result from its
conduct. However, to advance a successful cause of action for the intentional
infliction of emotional distress and to overcome a ruling of summary judgment,
there must be a material issue of fact concerning all three elements of this
tort as set forth above. Plaintiffs have failed to establish that they suffered
severe emotional distress as required by element two. Here, plaintiffs merely
note feelings of stress or distrust. We believe that feelings of stress and
distrust neither satisfy this requirement nor constitute a question of fact
regarding the severity of emotional distress suffered by plaintiffs. See
Miller v. Equitable Life Assurance Society, 181 Ill. App. 3d 954, 957,
537 N.E.2d 887 (1989) (holding that the plaintiff-employee's "stress" was not
severe enough to establish cause of action for intentional infliction of
emotional distress where she alleged that her coworkers were inconsiderate,
uncooperative, unprofessional and unfair). Thus, because no fact issue
exists as to the severity of emotional distress suffered by plaintiffs, we
find that the circuit court properly entered summary judgment in favor of
defendant as it relates to plaintiffs' claim of intentional infliction of
emotional distress. E. Violation of the
Act Plaintiffs contend that defendant is in
violation of the Private Detective, Private Alarm, Private Security, and
Locksmith Act of 1993 (Act). Section 120 of the Act states, in pertinent
part: The intent of the General Assembly in enacting
this statute is to regulate persons and businesses licensed under this act in an
effort to protect the public. 225 ILCS 446/10 (West 1996). Section 15 of the Act clearly enumerates those
to whom the Act applies. Section 15 in relevant part states: Thus, in the instant case, the Act does not
extend to defendant because defendant is not a licensee under the Act. If the
Act provides a private right of action to plaintiffs, plaintiffs must begin by
filing a complaint against the appropriate party. We find that summary judgment
on this count was properly granted. F. National Labor Relations Act
Defendant alternatively contends that
plaintiffs' amended complaint is preempted by the National Labor Relations Act
(NLRA) 29 U.S.C. §151 et seq. (1994). The primary purpose of the NLRA
is to guarantee labor unions the right to act in concert. 29 U.S.C. §157 (1994).
Plaintiffs' right of unionization is not at issue here, and, therefore,
defendant's claim is without merit. Accordingly, we affirm the circuit court's grant
of summary judgment in favor of defendant with respect to plaintiffs'
allegations of intentional infliction of emotional distress and violation of the
Act. The summary judgment order entered on defendant's behalf, as it pertains to
plaintiffs' allegations of invasion of privacy through intrusion upon seclusion
and the publication of private facts, is reversed and remanded for proceedings
consistent with this opinion. Affirmed in part and reversed in part; cause
remanded with instructions. SOUTH, P.J., and WOLFSON, J.,
concur.
EARNEST JOHNSON et al.,
Appeal from the Circuit Court of Cook
County
"(a) The Department may refuse to issue, renew or restore, or may
suspend or revoke any license *** or may place on probation, reprimand, or
fine *** or take any other disciplinary action the Department may deem
appropriate *** [against] any person, corporation, or partnership licensed or
registered under this Act for any of the following reasons:
* * *
(3) Engaging in dishonorable,
unethical, or unprofessional conduct of a character likely to deceive,
defraud, or harm the public.
* * *
(5) Performing any services in a
grossly negligent manner or permitting any of licensee's registered employees
to perform services in a grossly negligent manner, regardless of whether
actual damage to the public is established." 225 ILCS 446/120 (West
1996).
"It is unlawful for any person to act as a private detective,
private security contractor, private alarm contractor, or locksmith, or to
advertise or assume to act as any one of these, or to use any other title
implying that the person is engaged in any of these practices unless licensed
by the Department." 225 ILCS 446/15 (West 1996).