The former food services director of a nonprofit home for seniors has been permitted to proceed with a suit against her employer under the federal Stored Communications Act after her boss’s administrative assistant accessed her company computer during her absence and printed out more than 30 personal e-mail messages from her personal account.  An appellate court in Illinois has held that it was improper to dismiss the claim on a motion for summary judgment.  (Borchers v. Franciscan Tertiary Province of the Sacred Heart, Ct. of App., IL, Second Dist., No. 2-10-1257, 12/7/11.)

Mayslake Village, a facility providing housing for low- and moderate-income seniors, had issued a written policy on use of its computers. It said that “other than occasional personal use,” they could be used only for “legitimate business-related reasons.”  The policy also provided that employees could have “no expectation of privacy in connection with the entry, creation, transmission, receipt, or storage of information via Mayslake technology resources,” and that they “waive any right to privacy” and “consent to access and disclosure of such information by authorized Mayslake personnel.”

The food services director had downloaded her personal AOL e-mail account to her work computer and used it for business purposes while the home was converting from one Internet service provider to another in 2004.  She did not remove it from the computer after getting her new e-mail address for company work and testified that she did not use the AOL account on the office computer thereafter.

In 2007, she reported that her boss had engaged in sexual harassment against her and contacted the Equal Employment Opportunity Commission.  She testified that her working relationship with her boss then deteriorated, and that she left work a few months later because of the stress and mental health issues.  About a month after her last day in the office, after receiving reports that the person running food service in her absence was becoming overwhelmed, her boss asked his administrative assistant to check her computer to be sure that work-related projects were not being missed.

The assistant clicked on the AOL icon and read all of the e-mails on the personal account since the day she left, including messages to family and friends about her plan to seek disability payments and one message to her lawyer in the EEO case.  The assistant printed out a number of e-mails that, she said, contained “awful language” or were “vile” and “not professional” and gave them to her boss. 

The food service director did not become aware of the situation until after the home’s lawyer told her lawyer prosecuting the sexual harassment case that the home’s personnel had accessed e-mails on her office computer, including one between her and the lawyer.  The home’s lawyer delivered copies of 36 printed e-mails with the original notification.

The woman sued for violation of the Stored Communications Act and for “intrusion upon seclusion.”  The Communications Act is violated, the Court said, when a person intentionally and without authorization accesses another’s e-mail stored on a server.  Intrusion upon seclusion occurs when one person intentionally intrudes upon the solitude or seclusion of another in a manner that would be highly offensive to a reasonable person.  The trial court granted summary judgment after finding as a matter of fact that accessing the woman’s personal e-mails was “more likely an accident” than intentional.  The appellate court has reversed.

The home argued that because it accessed the woman’s computer under its computer use policy and because the administrative assistant had thought the AOL account could have been work-related, it did not intentionally access the woman’s e-mails. 

But the Court said that a party’s intent is a question of fact, not normally to be decided on a motion for summary judgment.   In this case, while the plaintiff did not have direct evidence of intent, the Court said it could be “gleaned from circumstances and actions, not simply words.”  It said that the boss and the assistant were aware of the sexual harassment allegations. The assistant testified that she knew the woman used her new Comcast account for work purposes, yet she clicked on the AOL account and read all or part of the personal e-mails she found there.  She decided to print out 36 of them, “none of which had to do with the ostensible purpose of her e-mail investigations, i.e.looking for business-related communications.”  The assistant also read messages sent by the woman, and printed many of them.  She did not print any of the “boatload” of food-service-related emails on her Comcast account.  Her boss read the e-mails and highlighted and made written comments on at least one of them.

“All of this circumstantial evidence is sufficient to raise an issue of the credibility” of the home’s witnesses, the Court said. It noted that in other cases evidence like this had been held to justify summary judgment in the plaintiff’s favor.

YOU NEED TO KNOW

Even the strongest computer usage policy can fail to protect an organization if it appears that the organization has used its access for improper and intentionally invasive purposes.