Court Upholds Recording of Co-Worker’s Rant

CHICAGO (CN) - A former Merrill Lynch employee who threatened and yelled at a co-worker in a Thanksgiving phone call cannot sue over a recording of the rant, the 7th Circuit ruled.

In 2005, longtime Merrill Lynch employee Mary Carroll complained of gender or sexual orientation harassment by several co-workers. The complaint ultimately cost two Lynch employees their jobs, causing a supervisory position to open up. Though Carroll did not apply for the position, she reported feeling "overlooked" when it was given to someone else.

Later that year, Carroll began to feel that Jim Kelliher, another Merill Lynch employee who was not involved with Carroll's complaint, was encroaching on her job duties.

Carroll called Kelliher's home phone number at 9 p.m. on Thanksgiving. Carroll's yelling, which she herself later described as "enraged" and "irrational," allegedly scared Kelliher's wife Pat into recording the conversation.

When the call ended, Pat Kelliher urged her husband to call the police.

Pat later explained her reasoning for recording the call: "I felt that, you know, this person was going to come to our house, throw a brick through our window, that they were going to do something that night. And I got scared. And I wanted - that if we had to involve the police that I could say 'You know what? This person, I don't know who they are, but this is what's scaring me.'"

Jim Kelliher reported the incident to Merrill Lynch the next day and played the recording at the request of his supervisors. Kelliher also reported the threatening call to the police. Carroll was fired three months later.

Carroll filed her own police report and sued the Kellihers and Merrill Lynch for recording the conversation without her consent.

Though Illinois eavesdropping law prohibits secretly recording phone conversations, U.S District Judge Rebecca Pallmeyer dismissed the case in light of the statute's "fear of crime" exemption.

Because Kelliher had a reasonable suspicion to believe that Carroll was about to commit a crime against her or her husband, recording the conversation was legal, Pallmeyer.

On appeal, Carroll challenged the determination that Kelliher's fear was reasonable. Carroll suggested an economic motive behind the recording: fear that Carroll would jeopardize Kelliher's job.

But the 7th Circuit found Tuesday that "these two fears are not mutually exclusive."

"All agree - even Carroll - on the threatening and abusive nature of the call," Judge Joel Flaum wrote for a three-judge panel. "Given this agreement, Pat Kelliher's fear of crime is reasonable. Carroll's own testimony establishes this: she acknowledges that she was 'enraged,' 'all riled up,' and had 'fucking snapped'; and that she used profanity."

Carroll also cannot rely on the state's decision not to prosecute her. The reasonableness of Kelliher's fear does not hinge on a subsequent assessment by authorities of the threat, according to the ruling.

Furthermore, Carroll cannot sue under the portion of the statute that criminalizes uses of an illegally obtained recording.

"Nothing in this statement [from Sen. Kirk Dillard before the Illinois General Assembly] and - more importantly, nothing in the text - limits the fear of crime exemption to the particular use of re-playing the recording to assist in a criminal prosecution," Flaum concluded. "Consequently, because the fear of crime exemption applies to all parts of the eavesdropping act and because Pat Kelliher's recording falls within this exemption, Jim Kelliher and other Merrill Lynch employees did not violate the eavesdropping act when they re-played the recording of Ms. Carroll's call for Carroll's supervisors at Merrill Lynch."

Illinois' eavesdropping law has broad applications. Last May, the 7th Circuit blocked portions of the law that made it a felony to record on-duty law enforcement officers, citing First Amendment concerns.

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