Muick, Albert J. v. Glenayre Electronics ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-3299
Albert J. Muick,
Plaintiff-Appellant,
v.
Glenayre Electronics,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of Illinois.
No. 98 C 3187--Harold A. Baker, Judge.
Submitted October 9, 2001--Decided February 6, 2002
Before Posner, Manion, and Rovner, Circuit
Judges.
Posner, Circuit Judge. Muick, at the
time an employee of Glenayre Electronics,
was arrested on charges of receiving and
possessing child pornography in violation
of federal law. At the request of federal
law enforcement authorities, Glenayre
seized from Muick’s work area the laptop
computer that it had furnished him for
use at work and held it until a warrant
to search it could be obtained. He was
later convicted and imprisoned. He has
now sued his former employer, claiming
that Glenayre, acting under color of fed
eral law, seized "proprietary and
privileged personal financial and contact
data" contained in files in the computer,
in violation of the Fourth and Fifth
Amendments. He also charges that Glenayre
violated rights conferred on him by
Illinois law. The district court had
diversity as well as supplemental
jurisdiction over these claims.
The district judge rightly granted
summary judgment to Glenayre on Muick’s
federal claims. The only basis for a
federal suit against Glenayre, that is, a
suit for damages for violation of a
federal constitutional right, is the
Bivens doctrine, which the Supreme Court
has held to be inapplicable to corporate
defendants even when they are acting
under color of federal law. Correctional
Services Corp. v. Malesko, 122 S. Ct. 515
(2001). And in any event Glenayre was not
acting under color of federal law. The
federal agents wanted Glenayre to give
them the laptop right away but it refused
until the search warrant was issued (and
so it had no choice) because the computer
contained confidential corporate
information. It was happy to take
thecomputer away from Muick, for obvious
reasons--it doubtless would have done so
even if not asked to by the government--
but it was not happy to turn the computer
over to the government. It held on to it
for as long as it could, for purely
selfish reasons. An agency relationship
is created by voluntary agreement and
obligates the agent to act on behalf of
the principal. There was no agreement,
express or implied, between the
government and Glenayre to appoint the
latter an agent of the former; nor did
Glenayre behave as if there were such an
agreement. Cf. Hanania v. Loren-Maltese,
212 F.3d 353, 357 (7th Cir. 2000).
Anyway Muick had no right of privacy in
the computer that Glenayre had lent him
for use in the workplace. Not that there
can’t be a right of privacy (enforceable
under the Fourth Amendment if the
employer is a public entity, which
Glenayre we have just held was not) in
employer-owned equipment furnished to an
employee for use in his place of
employment. If the employer equips the
employee’s office with a safe or file
cabinet or other receptacle in which to
keep his private papers, he can assume
that the contents of the safe are
private. O’Connor v. Ortega, 480 U.S.
709, 718-19 (1987); Shields v. Burge, 874
F.2d 1201, 1203-04 (7th Cir. 1989);
Leventhal v. Knapek, 266 F.3d 64, 73-74
(2d Cir. 2001); United States v. Taketa,
923 F.2d 665, 673 (9th Cir. 1991);
Schowengerdt v. General Dynamics Corp.,
823 F.2d 1328, 1335 (9th Cir. 1987);
Gillard v. Schmidt, 579 F.2d 825, 828 (3d
Cir. 1978); compare United States v.
Bilanzich, 771 F.2d 292, 297 (7th Cir.
1985). But Glenayre had announced that it
could inspect the laptops that it
furnished for the use of its employees,
and this destroyed any
reasonableexpectation of privacy that
Muick might have had and so scotches his
claim. O’Connor v. Ortega, supra, 480
U.S. at 719; United States v. Simons, 206
F.3d 392, 398-99 (4th Cir. 2000);
Schowengerdt v. United States, 944 F.2d
483, 488-89 (9th Cir. 1991); American
Postal Workers Union v. U.S. Postal
Service, 871 F.2d 556, 560-61 (6th Cir.
1989); see also Gossmeyer v. McDonald,
128 F.3d 481, 490 (7th Cir. 1997);
Sheppard v. Beerman, 18 F.3d 147, 152 (2d
Cir. 1994); United States v. Bunkers, 521
F.2d 1217, 1220 (9th Cir. 1975). The
laptops were Glenayre’s property and it
could attach whatever conditions to their
use it wanted to. They didn’t have to be
reasonable conditions; but the abuse of
access to workplace computers is so
common (workers being prone to use them
as media of gossip, titillation, and
other entertainment and distraction) that
reserving a right of inspection is so far
from being unreasonable that the failure
to do so might well be thought
irresponsible.
Muick’s state claims were dismissed
under Rule 12(b)(6), that is, for failure
to state a claim upon which relief could
be granted. He challenges the dismissal
of two of these claims, the first for
promissory estoppel. He alleges that
Glenayre "committed promissory estoppel
by assigning and transferring Plaintiff
to Defendant’s Milton Keynes UK
operation." (Milton Keynes is an English
city.) Although federal pleading
requirements (which of course are
applicable even when the claim pleaded
arises under state rather than federal
law) are lax, a claim of promissory
estoppel requires the allegation of a
promise, Fischer v. First Chicago Capital
Markets, Inc., 195 F.3d 279, 283 (7th
Cir. 1999); M.T. Bonk Co. v. Milton
Bradley Co., 945 F.2d 1404, 1408 (7th
Cir. 1991), here absent. See also Kiely
v. Raytheon Co., 105 F.3d 734, 735-36
(1st Cir. 1997) (per curiam).
The second state-law claim is for
invasion of the branch of the right of
privacy that is called the right of
seclusion and, among other things,
protects an individual from intrusive
surveillance. Restatement (Second) of
Torts sec. 652B and comments a, b (1977).
It is unsettled whether the common law of
Illinois recognizes such a claim, Lovgren
v. Citizens First Nat’l Bank of
Princeton, 534 N.E.2d 987, 989 (Ill.
1989); Johnson v. Kmart Corp., 723 N.E.2d
1192, 1195 (Ill. App. 2000), but since
it is generally recognized we may assume
for purposes of this appeal (and only for
those purposes) that Illinois will
recognize it, especially since Glenayre
does not argue the contrary. The claim is
unrelated to the contents of the laptop.
The complaint alleges only, so far as the
claim is concerned, that Glenayre,
"without right or cause, hired
Investigative Associates, a private
agency, to perform surveillance on the
Plaintiff, even though he was no longer
in the Defendant’s employ, thereby
violating his common-law Right to Privacy
by invading his seclusion." This is
conclusional and rather vague, but it
places the defendant on notice that it is
charged with having hired a detective
agency to investigate plaintiff in a
manner that infringed his right against
intrusive surveillance, and no more was
required to withstand a motion to dismiss
under Rule 12(b)(6). E.g., Scott v. City
of Chicago, 195 F.3d 950, 952 (7th Cir.
1999); Ryan v. Mary Immaculate Queen
Center, 188 F.3d 857, 860 (7th Cir.
1999). The claim may of course have no
merit. The surveillance may not have been
intrusive, cf. Hall v. InPhoto
Surveillance Co., 649 N.E.2d 83, 85-86
(Ill. App. 1995); Kelly v. Franco, 391
N.E.2d 54, 58 (Ill. App. 1979); Bank of
Indiana v. Tremunde, 365 N.E.2d 295, 298
(Ill. App. 1977), or Glenayre may have
had a valid interest in investigating its
former employee. Davis v. Temple, 673
N.E.2d 737, 744 (Ill. App. 1996); Mucklow
v. John Marshall Law School, 531 N.E.2d
941, 946 (Ill. App. 1988). Both things
may have been true. And the district
court (and ultimately we) may decide that
the line of authority in the Illinois Ap
pellate Court that rejects the tort of
seclusion altogether represents the
better guess as to the position the
state’s highest court will ultimately
take. But these are all matters to be
taken up in further proceedings on
remand. In all other respects the
judgment is affirmed.
Affirmed in Part, Vacated in Part,
and Remanded.