914 F. Supp. 97
Decided January 18, 1996
JUDGE CHARLES R. WEINER
Defendant maintained an electronic mail communication system ("e-mail") in order to promote internal corporate communications between its employees. Defendant repeatedly assured its employees, including plaintiff, that all e-mail communications would remain confidential and privileged. Defendant further assured its employees, including plaintiff, that e-mail communications could not be intercepted and used by defendant against its employees as grounds for termination or reprimand.
In October 1994, plaintiff received certain e-mail communications from his supervisor over defendant's e-mail system on his computer at home.. In reliance on defendant's assurances regarding defendant's e-mail system, plaintiff responded and exchanged e-mails with his supervisor. Id. At some later date, contrary to the assurances of confidentiality made by defendant, defendant, acting through its agents, servants and employees, intercepted plaintiffs private e-mail messages made in October 1994. On January 17, 1995, defendant notified plaintiff that it was terminating his employment effective February 1, 1995, for transmitting what it deemed to be inappropriate and unprofessional comments over defendant's e-mail system in October, 1994.
Plaintiff claims that his termination was in violation of "public policy which precludes an employer from terminating an employee in violation of the employee's right to privacy as embodied in Pennsylvania common law." In support for this proposition, plaintiff directs our attention to a decision by our Court of Appeals in Borse v. Piece Goods Shop, Inc. In Borse, the plaintiff sued her employer alleging wrongful discharge as a result of her refusal to submit to urinalysis screening and personal property searches at her work place pursuant to the employer's drug and alcohol policy. After rejecting plaintiff's argument that the employer's drug and alcohol program violated public policy encompassed in the United States and Pennsylvania Constitutions, our Court of Appeals stated "our review of Pennsylvania law reveals other evidence of a public policy that may, under certain circumstances, give rise to a wrongful discharge action related to urinalysis or to personal property searches. Specifically, we refer to the Pennsylvania common law regarding tortious invasion of privacy."
The Court of Appeals in Borse, observed that one of the torts which Pennsylvania recognizes as encompassing an action for invasion of privacy is the tort of "intrusion upon seclusion." As noted by the Court of Appeals, the Restatement (Second) of Torts defines the tort as follows:
One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.Restatement (Second) of Torts § 652B. Liability only attaches when the "intrusion is substantial and would be highly offensive to the 'ordinary reasonable person.'" Although the Court of Appeals in Borse observed that "the Pennsylvania courts have not had occasion to consider whether a discharge related to an employer's tortious invasion of an employee's privacy violates public policy", the Court of Appeals predicted that in any claim where the employee claimed that his discharge related to an invasion of his privacy "the Pennsylvania Supreme Court would examine the facts and circumstances surrounding the alleged invasion of privacy. If the court determined that the discharge was related to a substantial and highly offensive invasion of the employee's privacy, [the Court of Appeals] believe that it would conclude that the discharge violated public policy." In determining whether an alleged invasion of privacy is substantial and highly offensive to a reasonable person, the Court of Appeals predicted that Pennsylvania would adopt a balancing test which balances the employee's privacy interest against the employer's interest in maintaining a drug-free workplace. Because the Court of Appeals in Borse could "envision at least two ways in which an employer's drug and alcohol program might violate the public policy protecting individuals from tortious invasion of privacy by private actors," the Court vacated the district court's order dismissing the plaintiff's complaint and remanded the case to the district court with directions to grant Borse leave to amend the Compliant to allege how the defendant's drug and alcohol program violates her right to privacy.
Applying the Restatement definition of the tort of intrusion upon seclusion to the facts and circumstances of the case sub judice, we find that plaintiff has failed to state a claim upon which relief can be granted. In the first instance, unlike urinalysis and personal property searches, we do not find a reasonable expectation of privacy in e-mail communications voluntarily made by an employee to his supervisor over the company e-mail system notwithstanding any assurances that such communications would not be intercepted by management. Once plaintiff communicated the alleged unprofessional comments to a second person (his supervisor) over an e-mail system which was apparently utilized by the entire company, any reasonable expectation of privacy was lost. Significantly, the defendant did not require plaintiff, as in the case of an urinalysis or personal property search to disclose any personal information about himself. Rather, plaintiff voluntarily communicated the alleged unprofessional comments over the company e-mail system. We find no privacy interests in such communications.
In the second instance, even if we found that an employee had a reasonable expectation of privacy in the contents of his e-mail communications over the company e-mail system, we do not find that a reasonable person would consider the defendant's interception of these communications to be a substantial and highly offensive invasion of his privacy. Again, we note that by intercepting such communications, the company is not, as in the case of urinalysis or personal property searches, requiring the employee to disclose any personal information about himself or invading the employee's person or personal effects. Moreover, the company's interest in preventing inappropriate and unprofessional comments or even illegal activity over its e-mail system outweighs any privacy interest the employee may have in those comments.
In sum, we find that the defendant's actions did not tortiously invade the plaintiff's privacy and, therefore, did not violate public policy. As a result, the motion to dismiss is granted.
ORDER
The motion of the defendant to dismiss is GRANTED.
The Complaint is DISMISSED WITH PREJUDICE.
Copyright © 2004 Dale A. Herbeck
Last update: 19 January 2004