NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 23, 2011*
Decided April 1, 2011
Before
FRANK H. EASTERBROOK, Chief Judge
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
Nos. 10‐3290 & 10‐3304
TAMMI P. BOWDEN and Appeals from the United States District
NANCY J. GAGEN, Court for the Northern District of Illinois,
Plaintiffs‐Appellants, Eastern Division.
v. Nos. 07 C 975, 07 C 979
KIRKLAND & ELLIS LLP, Rebecca R. Pallmeyer,
Defendant‐Appellee. Judge.
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP. P.
34(a)(2)(C).
Nos. 10‐3290 & 10‐3304 Page 2
O R D E R
In this consolidated appeal, Tammi Bowden and Nancy Gagen challenge the grants
of summary judgment on their respective actions claiming, among other things, that their
former employer, the law firm Kirkland & Ellis LLP, intercepted and monitored their
personal phone calls in violation of the Electronic Communications Privacy Act, 42 U.S.C.
§§ 2510‐2522. We affirm the district court’s judgments.
This appeal arises from lawsuits that Bowden and Gagen both filed against Kirkland,
asserting various employment discrimination claims. Bowden is an African‐American
woman who worked as a legal secretary at the firm between 1996 and 2007. She believes
that she received unfavorable work assignments, fewer opportunities, and greater scrutiny
from her supervisors because of her race; she subsequently claimed racial discrimination
and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e‐2,
2000e‐3, and 42 U.S.C. § 1981. Gagen is a white woman who worked as a document
specialist at the firm from 2002 until 2006, when she was fired for disclosing confidential
information about firm personnel issues to an individual at another law firm. She claimed
that her discharge was in fact retaliation for her supporting Bowden in her discrimination
claims.
After almost a year of discovery, Bowden and Gagen amended their complaints to
allege that the firm intercepted and eavesdropped on hundreds of phone calls made from
Bowden’s personal cellphone and Gagen’s landline, in violation of the Electronic
Communications and Privacy Act, 18 U.S.C. § 2510‐2522, and the Illinois Eavesdropping
Act, 720 ILCS 5/14‐2. The two women based their claims primarily on discrepancies that
they identified in call records for their personal phones. Bowden, for instance, testified that
her cellphone bills did not include calls that she remembers making on her cellphone while
she was at work; but records of these same calls, she urges, suspiciously appeared on logs
for her desk phone at Kirkland.
In the discovery that ensued, Bowden and Gagen found further anomalies that, they
believed, reflected Kirkland’s deliberate wrongdoing. For example, there were additional
inconsistencies in the women’s telephone billing records, which, their expert witnesses
suggested, reflected the possibility that a firm with the right equipment and expertise could
have intercepted and rerouted their calls. Bowden and Gagen also introduced evidence that
in 2007 Kirkland destroyed a computer server, which, they believe, contained records of
phone calls from 2005 and 2006 that would help them prove their claim of interception. But
Kirkland’s representatives–its general counsel, its telecommunications department
Nos. 10‐3290 & 10‐3304 Page 3
manager, and its head of human resources—all testified that the firm did not intercept any
of the women’s phone calls and did not have the technical capability to even do so.
In 2007 counsel for Bowden (whose case had been assigned to Judge Pallmeyer) and
Gagen (whose case had been assigned to Judge Lindberg) asked the district court to
consolidate their cases. The Executive Committee of the Northern District of Illinois granted
the request in part, consolidating both actions before Judge Pallmeyer for the purpose of
discovery. Over the next two and a half years, the parties carried out discovery, and
Bowden and Gagen amended their complaints to add claims of telephone interception
under both federal and state law. Towards the end of 2008, Bowden and Gagen fired their
lawyers and began to appear pro se, although Gagen later retained counsel once again in
fall 2009. In December 2009 Judge Pallmeyer granted Kirkland’s request to consolidate both
women’s cases for purposes of summary judgment on their interception and eavesdropping
claims, and in early 2010 she extended the consolidation to include the discrimination
claims. Bowden and Gagen did not object in either instance. Shortly thereafter Kirkland
moved for summary judgment on both the interception and employment‐discrimination
claims.
The district court granted Kirkland’s motions. In comprehensive companion
opinions, the court concluded that Bowden and Gagen failed to create an issue of material
fact in their claims for race discrimination or retaliation, and failed to put forth any non‐
speculative evidence that Kirkland engaged in the alleged interception activities. Regarding
the latter conclusion, the court noted that Bowden’s and Gagen’s claims were “on their face,
improbable. . . . the stuff of a John Grisham novel,” and explained that they failed to
produce “any evidence to support their sweeping allegations beyond a few anomalous but
inconclusive records.”
We consolidated Bowden’s and Gagen’s appeals for purposes of briefing and
decision. Both women now target the district court’s grant of summary judgment on their
federal interception claims. By omitting any challenges to the district court’s rulings on their
discrimination, retaliation, or state‐law eavesdropping claims, Bowden and Gagen have
waived them. See LaBella Winnetka, Inc. v. Vill. of Winnetka, 628 F.3d 937, 943 (7th Cir. 2010).
Gagen and Bowden first argue that Judge Pallmeyer lacked authority to rule upon
Gagen’s claims. They insist that the Executive Committee assigned Gagen’s case to Judge
Pallmeyer—who was already presiding over Bowden’s case—for the limited purpose of
conducting consolidated discovery, and that Judge Pallmeyer therefore lacked authority to
dispose of Gagen’s case on summary judgment.
Nos. 10‐3290 & 10‐3304 Page 4
This argument is meritless. The Executive Committee did consolidate the claims
before Judge Pallmeyer for the purpose of discovery, see N.D. Ill. R. 40.1(d), 40.4(d), but it
also contemplated that the case could close before discovery’s end: the case was to be
reassigned back to the judge before whom it was previously pending “if. . . [it] is not closed
while it is pending before Judge Pallmeyer.” Because Judge Pallmeyer retained authority to
adjudicate the case until the close of discovery—and expert discovery was ongoing—her
decision to grant summary judgment was within her discretion. Moreover, Gagen’s counsel
did not object to an extension of the consolidation before Judge Pallmeyer as it related to
Gagen’s claims, and thus Gagen waived any challenge to Judge Pallmeyer’s authority to
adjudicate her case. See Delapaz v. Richardson, _ F.3d _, 2011 WL 547483, at *3 (7th Cir. Feb.
14, 2011); Hicks v. Midwest Transit, Inc., 500 F.3d 647, 652 (7th Cir. 2007).
Bowden and Gagen also argue that Judge Pallmeyer abused her discretion when she
set concurrent briefing schedules on Kirkland’s summary‐judgment motions and refused to
grant more than a two‐week extension to their deadline to respond to Kirkland’s motions.
By this point in the litigation Bowden had discharged her lawyer and appeared pro se,
though Gagen was represented by counsel. The court’s rulings, they urge, unreasonably
burdened them in that they prevented Bowden—who had voluntarily assumed sole
responsibility for preparing a joint brief on their interception and eavesdropping
claims—from having enough time to respond to Kirkland’s motion on her discrimination
and retaliation claims.
Judge Pallmeyer acted within her broad discretion in setting the briefing schedule.
See FED. R. CIV. P. 56; Griffin v. Foley, 542 F.3d 209, 217 (7th Cir. 2008). At the hearing on this
issue, she acknowleged that concurrent briefing schedules imposed some burden on Bowden
and Gagen, but she appropriately justified her ruling by noting the prolonged nature of
discovery that had already taken place, the prior extensions of time she had allowed for
filing dispositive motions, and the additional two‐week extension she granted so that the
parties had more time to file their responses. The judge was entirely reasonable in trying to
move this case along. See Daniels v. Brennan, 887 F.2d 783, 787 (7th Cir. 1989).
Bowden and Gagen next argue that Judge Pallmeyer also abused her discretion
when in February 2010 she denied their motions to amend their complaints to add new
claims and defendants, and to allege new methods of interception. But while leave to
amend a complaint should normally be granted when justice requires it, see FED. R. CIV. P.
15(a)(2), here the court reasonably refused to permit amendment. See Schor v. City of Chicago,
576 F.3d 775, 780 (7th Cir. 2009); Lac Courte Oreilles Band of Lake Superior Chippewa Indians of
Wis. v. United States, 367 F.3d 650, 668 (7th Cir. 2004). Bowden and Gagen sought to add
new parties only days before dispositive motions were due, and more than a year after the
Nos. 10‐3290 & 10‐3304 Page 5
deadline to amend complaints had passed. Moreover, the court reasonably concluded that
adding new defendants would unduly delay disposition of the case by triggering another
round of discovery or flurry of motions, and adding new theories of interception was
unnecessary given that their complaint sufficiently raised the claim of interception.
Finally, Bowden and Gagen challenge the district court’s rationale for granting
summary judgment on their interception claims. They disagree with the court’s conclusion
that their experts’ testimony and the inconsistencies in their phone records were insufficient
to permit a reasonable jury to infer that Kirkland engaged in an expensive, technologically
sophisticated conspiracy to intercept and monitor their private phone conversations. The
court also erred, they assert, by not recognizing that Kirkland’s destruction of its
server—and the data it contained—was bad faith; these data, they maintain, could have
helped them identify an issue of material fact concerning their claim. See Loudermilk v. Best
Pallet Co., LLC, _ F.3d _, 2011 WL 563765, at *2 (7th Cir. Feb. 18, 2011); Faas v. Sears, Roebuck
& Co., 532 F.3d 633, 644 (7th Cir. 2008).
In relevant part, the ECPA imposes civil liability on persons who intentionally
intercept, or try to intercept, a wire, oral or electronic communication; or who intentionally
disclose, use, or try to disclose or use the contents of a wire, oral, or electronic
communication, if they know or have reason to know that the information was obtained
through interception. See 18 U.S.C. §§ 2511(1), 2520(a); McCann v. Iroquois Mem’l Hosp., 622
F.3d 745, 751‐52 (7th Cir. 2010); Doe v. GTE Corp., 347 F.3d 655, 658 (7th Cir. 2003); Noel v.
Hall, 568 F.3d 743, 747 (9th Cir. 2009); DIRECTV, Inc. v. Pepe, 431 F.3d 162, 167 (3d Cir. 2005).
Thus to stave off summary judgment, Bowden and Gagen had to identify a fact issue
regarding whether anyone intercepted or tried to intercept their calls.
The district court properly granted summary judgment for Kirkland because
Bowden and Gagen failed to produce any evidence that anyone intercepted their phone
calls. See Singer v. Raemisch, 593 F.3d 529, 533 (7th Cir. 2010). As the court noted, testimony
from Bowden’s and Gagen’s two experts establishes only a “theoretical possibility” that the
firm could have committed the nefarious actions that Bowden and Gagen allege; their
strongest expert acknowledged as much when he qualified his conclusion and opined that
the evidence “could indicate the potential that interception may have occurred.” Their other
evidence—primarily discrepancies in phone records and correspondence from an employee
at a rival law firm—rests largely on speculation and conjecture and is unconnected to any
wrongdoing by Kirkland. And the district court correctly rejected the suggestion that
Kirkland deliberately destroyed evidence potentially relevant to this litigation; Bowden and
Gagen offered no evidence beyond mere conjecture to suggest that Kirkland’s destruction of
the server somehow reflected bad faith. See Faas, 532 F.3d at 644‐45. In short, they present
Nos. 10‐3290 & 10‐3304 Page 6
nothing more than their own unsubstantiated speculation to show Kirkland’s wrongdoing,
and conjecture alone is insufficient to defeat a motion for summary judgment. See Delapaz,
_ F.3d _, 2011 WL 547483, at *4.
AFFIRMED.
