Here’s a cautionary tale for employees who secretly tape-record their conversations at work — in Illinois, at least, it’s considered eavesdropping, and it can lose you your job (and more)!
Christina Argyropoulos worked for the Alton Police Department in a jail in Southern Illinois. She complained to the department after encounters with a fellow officer that she considered to be sexual harassment, leading to measures to separate the two officers and an official investigation of the allegations. As the investigation continued, “Argyropoulos’s job performance became the subject of considerable criticism,” including complaints that she “failed to properly perform prisoner searches and often failed to complete booking of prisoners who arrived during her shift.”
On April 28, 2003, she was summoned into a meeting with her commanding officers, Cpt. Lane and Lt. Adams. Supposing that the meeting concerned the harassment allegations, she was confronted instead about her slipping job performance. Yet she must have known something was up, because she was packing concealed audio equipment:
“The meeting quickly took on a confrontational tone, as Lane repeatedly asked Argyropoulos, raising his voice with each repetition, whether she knew the purpose of the meeting. After initially answering that she did not, Argyropoulos yielded to Lane’s persistent incredulity-e.g., ‘You have no idea why you’re here?’ – by speculating that Lane had called the meeting to discuss the progress of the sexual harassment investigation. Lane reacted angrily to this answer, slamming his hands on the table that separated him from Argyropoulos and directing her to sit down and ‘shut the goddamn door.’ Unbeknownst to Lane and Adams, Argyropoulos had concealed a tape recorder in her clothing. At this point in the meeting, because she felt physically threatened and ‘terrified,’ Argyropoulos secretly activated the recorder.” (Emphasis supplied.)
(N.B.: At the point when she entered the room, there is no suggestion that she was already apprehensive about her personal safety, so why the hidden tape recorder? Also at this point, according to the opinion, she had already consulted a lawyer. I can only hope that the lawyer didn’t know about her plans ahead of time.)
When word of the covert tape recording leaked to the department, officers descended on Argyropoulos’s home with a search warrant, located the recorder and audiotapes (which she at first falsely denied owning), and arrested her under 720 Ill. 5 Comp. Stat. 5/14-2(a)(1)(A) for felony eavesdropping. That statute provides that a person commits eavesdropping when he “[k]nowingly and intentionally uses an eavesdropping device for the purpose of hearing or recording all or any part of any conversation . . . unless he does so . . . with the consent of all of the parties to such conversation.” She was immediately fired from her job as well.
In her subsequent lawsuit, charging Title VII sex harassment and retaliation (for the arrest and termination), Argyropoulos attempted to portray the tape recording as a protected activity under 42 U.S.C. § 2000e-3(a), but the district court — and then the Seventh Circuit — disagreed:
“Argyropoulos reasons that, because her aim was to obtain evidence of discrimination, she operated under the protective umbrella of Title VII-i.e., she engaged in statutorily protected activity-when she secretly recorded the meeting with her superiors. Thus, she argues, the City’s admission that the recording triggered her arrest and termination is direct evidence of the requisite causal connection.
“This argument fails because it rests upon a transparently overbroad view of the scope of the statute’s protection. Although Title VII indubitably protects an employee who complains of discrimination, [citing Burlington Northern] the statute does not grant the aggrieved employee a license to engage in dubious self-help tactics or workplace espionage in order to gather evidence of discrimination.”
She also argued that the eavesdropping fell under a statutory affirmative defense (for tape-recording evidence of an impending act of violence — hence, the emphasis on her supposedly feeling “physically threatened and ‘terrified'”), but that didn’t fly either:
“Because the criminality of her conduct depends on whether she harbored a ‘reasonable suspicion’ that she faced the threat of imminent physical harm from Lane and/or Adams, Argyropoulos argues, she has cast doubt on the City’s explanation for her arrest and termination.
“This argument goes to the merits, rather than the honesty, of the City’s explanation, and thereby misses the point of the pretext inquiry. To show pretext, Argyropoulos needed to show not just that the City exercised poor judgment, but that it acted in bad faith, i.e., dishonestly, when it arrested and fired her. Merely showing that she might have been able to raise a meritorious defense to the eavesdropping charge is hardly tantamount to showing bad faith.”
Or, and as for the felony rap, “[a]t oral argument, Argyropoulos’s counsel informed the court that she eventually pleaded guilty to an unidentified lesser offense.”
This case resembles one posted here last week from the Tenth Circuit, Vaughn v. Epworth Villa, No. 07-6005 (10th Cir. Aug. 19, 2008), which affirmed summary judgment in a retaliation case where a nurse, in probable violation of HIPAA, passed confidential and unredacted patient information along to the EEOC. In both cases, the respective courts hold that the employer was entitled to fire the employees for misconduct.
So in Illinois, lawyers should neither encourage nor condone clients who secretly tape-record around their workplaces. And lawyers everywhere representing employees should remember, always, that courts do not reward sneaks and liars.