Opinion
Civil Action No. 00-941.
April 3, 2001
ORDER
Before the Court is a Motion for Summary Judgment or Alternatively for Partial Summary Judgment filed by the City of Hammond, Roddy Devall and Kenny Corkern. This matter involves claims by Terry Zaffuto ("Zaffuto") and Susan Zaffuto ("Susan") against the City of Hammond Roddy Devall and Kenny Corkern. Zaffuto's claims are under the provisions of Title VII of the Civil Rights Act of 1964 and are based on his allegation that he was retaliated against for engaging in a protected activity. Zaffuto and Susan, his wife, also claim that their Constitutional rights were violated when a private telephone communication was intercepted and disseminated without their permission. Therefore, there is an action brought pursuant to 42 U.S.C. § 1983. The Court has reviewed the pleadings, memoranda and the relevant law and finds that the motion shall be granted with respect to the Title VII claim, but denied with respect to the § 1983 claim for the reasons that follow.
Background
Terry Zaffuto is a classified Civil Service employee with the City of Hammond Police Department and currently holds the rank of Lieutenant. Defendants Devall and Corkern had immediate and successively higher supervisory power over Zaffuto. Zaffuto's Title VII claim is related to a lawsuit brought by Lt. Debbie Norwood ("Norwood") in another section of the United States District Court for the Eastern District of Louisiana. As part of those proceedings, Norwood verbally identified Zaffuto as a witness who would support her claim of gender bias in her employment to the Equal Employment Opportunity Commission ("EEOC"). Zaffuto worked under Norwood's supervision. Also, on September 14, 1999, Zaffuto was identified as a witness expected to testify on her behalf in response to interrogatories submitted to Norwood.
In October of 1999, Zaffuto was suspended 240 hours in connection with a claim that Officer Tony Cuti assaulted a pre-trial detainee, Terrell Ciprian, who allegedly is closely associated with Asst. Chief Corkern. Ciprian had previously also claimed to have been abused by Norwood. Plaintiffs claim that Zaffuto was disciplined for the pre-textual reason that he lied about what he observed and failed to report the incident; thus, they claim that the discipline was in retaliation for Zaffuto's anticipated testimony with respect to the Norwood discrimination claim.
The § 1983 claim arises out of the interception of a personal telephone call between Zaffuto and Susan. It is unclear when the interceptions occurred; the Court assumes for purposes of this motion that the recordings were discovered by the plaintiffs within a year of this suit being filed. It was routine for the Police Department to record telephone conversations; however, it was not routine to disseminate personal conversations between an employee and his spouse. It is not clear whether the conversation was recorded inadvertently or whether it was disseminated for any legitimate reason. Both Lt. Paul Miller and Detective Dennis Peavy testified to hearing the taped conversation between Zaffuto and his wife. Both testified that it was Corkern that played the tape for them, and the conversation was not one involving a criminal investigation or official police business.
In memoranda filed with the Court and in the Pretrial Order, there have been a number of other allegations both legal and factual discussed. However, after a conference with the parties, and as a result of relevant time periods, the factual and legal issues have distilled to those matters discussed above. Any other factual claims supporting the action are not relevant to this analysis of plaintiffs' claims.
Analysis
Title VII
In order to support a retaliation claim under Title VII, Zaffuto has the burden of establishing that: (1) he engaged in activity protected by Title VII; (2) an adverse employment action occurred; and (3) there was a causal connection between the participation in the protected activity and the adverse employment action. See Dollis v. Rubin, 77 F.3d 777, 781 (5th Cir. 1995). Furthermore, "Title VII was designed to address ultimate employment decisions, not to address every decision made by employers that arguably might have some tangential effect upon those ultimate decisions." Id. at 781-82. Ultimate employment decisions include hiring, discharging, promoting, compensating, or granting leave, but not "events such as disciplinary filings, supervisor's reprimands, and even poor performance by the employee — anything which might jeopardize employment in the future." Mattem v. Eastman Kodak Co., 104 F.3d 702, 707-08 (5th Cir. 1997).
Pretermitting questions of fact, the issue is whether as a matter of law, a 240 hour suspension is an "ultimate employment decision" in light of Mattern and its progeny. It should be noted that Zaffuto was promoted to Lieutenant after the suspension. He also presently holds the title of "Firing Range Instructor"; this promotion also occurred after the suspension.
Zaffuto was not demoted or discharged, and he has progressed in his career path. The Mattern court expressly listed "supervisor's reprimands" to which the suspension can be likened as not qualifying as an ultimate employment action. Although the suspension was without pay, thus involving compensation, he has received a permanent promotion and pay increase since the suspension. Moreover, Title VII was not designed to address every decision made by employers that arguably might have some tangential effect upon one's job. Dollis, 77 F.3d at 781 (5th Cir. 1995). A suspension is not an ultimate employment decision as it is not permanent or "ultimate". It is temporary discipline that certainly in this case did not affect the career and employment status of Zaffuto. Thus, the motion for summary judgment in this regard must be granted.
Section 1983 Claim
In order to sustain a cause of action under 42 U.S.C. § 1983 for the violation of plaintiffs' constitutional right to privacy, plaintiffs must demonstrate that they had a "constitutionally protected reasonable expectation to privacy." Kee v. City of Rowlett Texas, F.3d 2001 WL 301034 (5th Cir. March 28, 2001). Thus, plaintiffs must prove that they had a justifiable, reasonable or a legitimate expection of privacy that was invaded by government action.
It is undisputed that the Hammond Police Department has a recording system relating to the need to preserve and accurately record messages concerning emergencies or police business. A system that indiscriminately and routinely records all activities on established designated lines is not comparable to the selective use of recording equipment. Knight v. Department of Police, 619 So.2d 1119 [ 619 So.2d 1116] (La.App. 4th Cir. 1993), citing Jandeck v. Village of Brookfield, 520 F. Supp. 815 (N.D.Ill. 1981). However, there are questions of fact in this case as to whether the Police Department specifically targeted the plaintiffs and whether the dissemination of the phone call recording between the plaintiffs was in any way related to official police business. Therefore, there is a question of fact as to whether there was an unlawful and invasive intrusion of the privacy rights of the plaintiffs.
The Court is also pretermitting any decision as to whether the dissemination of private phone calls was an unlawful policy or custom by the City of Hammond under Monell v. Dept. of Social Services, 436 U.S. 658, 690 (1978). This issue involves questions of fact relating to the reason for the dissemination of the private phone call and that whether the decision was made by a policy maker for the city.
Although the Court is not dismissing this claim, certainly any damages to compensate plaintiffs for this alleged wrong would be minimal. Accordingly,
IT IS ORDERED that the Motion for Summary Judgment is GRANTED with respect to the Title VII claims and DENIED with respect to the § 1983 claims.