Arias v. Mutual Central Alarm Services, Inc.

182 F.R.D. 407, 14 I.E.R. Cas. (BNA) 1618, 1998 U.S. Dist. LEXIS 14414, 1998 WL 612865
CourtDistrict Court, S.D. New York
DecidedSeptember 11, 1998
DocketNos. 96 Civ. 8447(LAK), 96 Civ. 8448(LAK)
StatusPublished
Cited by6 cases

This text of 182 F.R.D. 407 (Arias v. Mutual Central Alarm Services, Inc.) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Arias v. Mutual Central Alarm Services, Inc., 182 F.R.D. 407, 14 I.E.R. Cas. (BNA) 1618, 1998 U.S. Dist. LEXIS 14414, 1998 WL 612865 (S.D.N.Y. 1998).

Opinion

MEMORANDUM OPINION

KAPLAN, District Judge.

The plaintiffs in this case seek recovery under Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (the “Act”), as amended, for allegedly unlawful eavesdropping by their employer on private conversations in the workplace for which plaintiffs used the employer’s telephones. The genesis of the dispute, however, has as much to do with the perils of marrying the boss’s granddaughter and then embarking on an extramarital relationship with a co-worker as it does with the law of privacy in the workplace. In the last analysis, no one involved in this sordid tale has anything to brag about.

Defendants move for summary judgment dismissing the complaint. Plaintiffs move for leave to amend the complaint.

Facts

As this is a motion for summary judgment, the facts must be viewed in the light most favorable to the non-moving parties. Defendants argue extensively that the plaintiffs knew of and consented to the alleged interception of their calls. It is quite obvious, however, that there are material issues of fact as to consent. Hence, the Court focuses only on the other ground advanced by the defendants as to which the following facts are undisputed.1

Mutual and Albero

In 1990, Norman Rubin, who had had prior experience in the business, formed Mutual Central Alarm Services, Inc. (“Mutual”)2 to provide central station alarm services — that is, it monitors burglar, fire and perhaps other alarms maintained in customer premises and alerts police or other emergency services when a signal is received.

On August 19, 1990, shortly after Mutual was formed, Rubin hired plaintiff Louis J. Albero as a bookkeeper and office manager.3 Albero was hired principally because of his relationship with Rubin’s granddaughter, ll-ene Kassman.4 While it is not clear from the record whether Albero and Kassman were married at the time Mutual hired Albero, [410]*410they were married during the events critical to this matter.

The Telephone Monitoring

Monitoring in the Central Station Alarm Industry

The central station alarm business involves sensitive communications between the alarm company and its customers. Information provided by customers to alarm companies would be of great assistance to burglars and other criminals, who often seek to enlist central station personnel in aid of their illegal activities. Alarm companies therefore have an important interest in the fidelity and discretion of their employees. Moreover, the risk of liability for central station companies should their employees fail to summon emergency help promptly after an event is reported is substantial. They are at risk also of claims by customers falsely or mistakenly asserting that an event was reported when in fact no such report was received. Complete records of calls made to and from central stations therefore are important tools for their operators to ensure that them personnel are not divulging sensitive customer information, that events are reported quickly to emergency services, and that customer claims regarding events are verifiable.5

These considerations have had a substantial effect on industry practices. Underwriters Laboratories, which sets standards for central station alarm companies, recommends that they record telephone line traffic.6 The New York City Fire Department requires that central station signaling units such as Mutual maintain automatic recording equipment on lines used to communicate with it.7 Hanover Insurance, a leading underwriter of burglary risks in the United States, regards the recording of telephone communications between the central station, the subscriber and emergency responders as “essential” and strongly recommends the practice.8 Not surprisingly, it is undisputed that “the industry wide practice” is to “monitor[ ] and tap[e] all incoming and outgoing telephone conversations to which the [alarm] company’s central station personnel [are] parties.”9

Mutual’s Practices

There is no doubt that Mutual employees used company telephones for personal as well as business calls. Indeed, in May 1992, Mutual circulated a memorandum to its employees stating that employees had abused the privilege. The memo insisted that no personal calls be made without approval of the shift manager and that employees’ family members be told to refrain from calling employees at work absent a pressing reason.10

When Mutual began operations in 1990, it acquired a Dictaphone 9102 machine which is capable of recording on ten different channels. Initially, it was connected to individual telephones in Mutual’s small office, although the record does not disclose the lines to which it was attached. Hence, the record does not disclose whether or to what extent personal calls of employees were recorded at the outset of Mutual’s operations.

In late 1993 or early 1994, the Dictaphone 9102 was connected to all ten telephone lines that come into Mutual’s premises.11 Since that date, all calls originating or received at Mutual — business or personal — have been recorded.

The procedure for recording, as one might expect, is entirely routine. The company has 30 reel-to-reel tapes, each capable of recording the telephone traffic for a 24 hour period. They are numbered consecutively from 1 to 30. A new tape is placed on the Dictaphone every day and records all conversations for 24 hours. After tape number 30 is recorded, Mutual begins recording again on tape number 1. Thus, recorded conversations are kept for 30 days and then erased by the [411]*411recording of a new day’s traffic over each tape.12

The Emergence of the Dispute

Arias’ Resignation and Threats

Mutual hired plaintiff Lourdes Rachel Arias in September 1993 as an administrative assistant.13 Some time in 1995, she began seeking a raise.14 Unable to obtain an increase, she resigned on August 23, 1995.15 Nevertheless, she made it plain that she expected Mutual to acquiesce in her collecting unemployment benefits, which of course would have an adverse effect on Mutual’s unemployment insurance payments, despite the fact that she had resigned. In her parting letter to Joel Cohen, Mutual’s president, she stated that she would be making a claim for unemployment benefits and that she did “not expect any opposition from you.”16 She made clear also that she would file an EEOC complaint if Mutual did not go along with her demand.17 Her letter took pains as well to point out that she did not hold Albero responsible for her situation.18

On September 6, Mutual had Albero fax a report to the appropriate unemployment insurance authority stating that Arias had resigned.19 Later that day, Arias telephoned Cohen to inquire whether Mutual had processed her unemployment claim and, if so, what it had said. Cohen responded that Mutual had reported that Arias had resigned.

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Bluebook (online)
182 F.R.D. 407, 14 I.E.R. Cas. (BNA) 1618, 1998 U.S. Dist. LEXIS 14414, 1998 WL 612865, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arias-v-mutual-central-alarm-services-inc-nysd-1998.