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Illinois employer in hot water for checking private e-mails

An Illinois employer may be liable for violating state and federal privacy laws by accessing personal e-mails through an AOL account a former employee had left active on her work computer.

That was the conclusion reached last week by the Illinois Appellate Court in Borchers v. Franciscan Tertiary Province of the Sacred Heart.

In 1994, Diane Borchers began working as the food service director for Mayslake Village, Inc., a not-for-profit corporation that provides housing to low- and moderate-income senior citizens. Her job involved planning menus, ordering food, taking inventory and managing food services staff.

Mayslake Village provided Borchers with a computer which she used to place food orders via the Internet. The employer also provided Borchers with an e-mail account in order to communicate with vendors and employees. Mayslake’s written policy concerning workplace computers permitted “occasional personal use” apart from legitimate business-related uses.

In 2004, Mayslake switched from its dial-up Internet service with CompuServe to a high-speed service with Comcast. During the transition, Borchers downloaded AOL onto her work computer and used her personal AOL account to handle work-related e-mails.

Mayslake eventually issued Borchers a Comcast e-mail address. Although an icon for AOL remained on her computer desktop screen, from that point on Borchers used the Comcast account for work-related e-mails.

The end of Borchers’ tenure at Mayslake began in early 2007 when she reported to human resources that she was being sexually harassed by her supervisor, Michael Frigo. Mayslake conducted an internal investigation and determined that there was no evidence of harassment.

Of course, the relationship between Borchers and Frigo chilled considerably in the wake of the sexual harassment investigation. Evidently, the stress became too much for Borchers and she left work on March 16, 2007, never to return.

Borchers went on disability for mental health problems, but she wasn’t through with her former employer. In June 2007, Borchers filed a sexual harassment charge with the Equal Employment Opportunity Commission.

Meanwhile, Mayslake was in the process of transitioning to a new food service director. When Borchers’ temporary replacement became overwhelmed with all the details of the job, Frigo directed his administrative assistant, Katherine Maxwell, to check Borchers’ old e-mails to make sure nothing was slipping through the cracks.

At some point between April 11 and April 30, 2007 (before Borchers filed a formal charge with the EEOC), Maxwell went to Borchers’ old office and turned on the computer. There to greet Maxwell was the AOL icon giving her access to all of Borchers’ personal e-mail.

Now, even though Frigo and Maxwell later testified that they were only interested in work-related communications, Maxwell proceeded to click on the AOL icon and access Borchers’ personal e-mail account. Maxwell read part or all of various e-mails that Borchers had sent to or received from friends, family members and even her lawyer since her last day of work, and printed out 36 of them.

The e-mails addressed Borchers’ feelings of anxiety, stress, despair, betrayal, anger, and depression relating to the circumstances of her departure from Mayslake. Some e-mails expressed spiteful feelings toward Frigo and others at Mayslake. Other e-mails indicated that Borchers was in no hurry to return to work and intended to take full advantage of disability benefits. 

Maxwell passed the copies of the e-mails up the chain of command, later explaining that she just felt that her bosses needed to see them. The e-mails were later handed over to Mayslake’s lawyers who dutifully disclosed them in Borchers’ sexual harassment case before the EEOC.

There must have been some pretty damaging material in those e-mails because Borchers withdrew her sexual harassment complaint shortly after their disclosure.

But Borchers still wasn’t through with Mayslake. She sued in state court, alleging violations under the federal Stored Communications Act as well as claiming intrusion upon seclusion under Illinois law.

Mayslake argued that Maxwell had not acted with wrongful intent when she accessed Borchers’ personal e-mail and a state judge granted the employer summary judgment on that basis.

However, last Wednesday the Illinois Appellate Court revived Borchers’ privacy lawsuit, concluding that it was not so clear that Frigo acted with a pure heart when he directed Maxwell to check Borchers’ e-mail, or that Maxwell was entirely innocent when she clicked on that AOL icon and scrolled through the messages.

The court was quick to point out that Frigo and Maxwell were well aware of Borchers’ sexual harassment allegations against Frigo at the time the e-mails were accessed. In addition, Maxwell testified that she knew that Borchers used her Comcast e-mail account for work-related purposes. Despite this knowledge, Maxwell clicked on the AOL icon to open that e-mail account and made the further decision to open and read part or all of the individual e-mails she saw in Borchers’ in-box.

Of course, there was also the undisputed fact that Maxwell printed out 36 e-mails that had nothing to do with business-related communications about food orders, vendor accounts and special event plans, the purported objects of her investigation.

“All of this circumstantial evidence is sufficient to raise an issue of the credibility of Frigo’s and Maxwell’s statements about their intent with respect to the accessing, printing, and sharing of the plaintiff’s personal e-mails, and such credibility issues are properly resolved by the trier of fact,” the court said.

– Pat Murphy

patrick.murphy@lawyersusaonline.com

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