Bowden v. Kirkland & Ellis LLP

432 F. App'x 596
CourtCourt of Appeals for the Seventh Circuit
DecidedApril 1, 2011
DocketNos. 10-3290, 10-3304
StatusPublished
Cited by2 cases

This text of 432 F. App'x 596 (Bowden v. Kirkland & Ellis LLP) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bowden v. Kirkland & Ellis LLP, 432 F. App'x 596 (7th Cir. 2011).

Opinion

ORDER

In this consolidated appeal, Tammi Bow-den and Nancy Gagen challenge the grants of summary judgment on their respective actions claiming, among other things, that their former employer, the law firm Kirkland & Ellis LLP, intercepted and monitored their personal phone calls in violation of the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510-2522. We affirm the district court’s judgments.

This appeal arises from lawsuits that Bowden and Gagen both filed against Kirkland, asserting various employment discrimination claims. Bowden is an African-American woman who worked as a legal secretary at the firm between 1996 and 2007. She believes that she received unfavorable work assignments, fewer opportunities, and greater scrutiny from her supervisors because of her race; she subsequently claimed racial discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2, 2000e-3, and 42 U.S.C. § 1981. Gagen is a white woman who worked as a document specialist at the firm from 2002 until 2006, when she was fired for disclosing confidential information about firm personnel issues to an individual at another law firm. She claimed that her discharge was in fact retaliation for her supporting Bowden in her discrimination claims.

[598]*598After almost a year of discovery, Bow-den and Gagen amended their complaints to allege that the firm intercepted and eavesdropped on hundreds of phone calls made from Bowden’s personal cellphone and Gagen’s landline, in violation of the Electronic Communications and Privacy Act, 18 U.S.C. § 2510-2522, and the Illinois Eavesdropping Act, 720 ILCS 5/14-2. The two women based their claims primarily on discrepancies that they identified in call records for them personal phones. Bowden, for instance, testified that her cellphone bills did not include calls that she remembers making on her cellphone while she was at work; but records of these same calls, she urges, suspiciously appeared on logs for her desk phone at Kirkland.

In the discovery that ensued, Bowden and Gagen found further anomalies that, they believed, reflected Kirkland’s deliberate wrongdoing. For example, there were additional inconsistencies in the women’s telephone billing records, which, their expert witnesses suggested, reflected the possibility that a firm with the right equipment and expertise could have intercepted and rerouted their calls. Bowden and Ga-gen also introduced evidence that in 2007 Kirkland destroyed a computer server, which, they believe, contained records of phone calls from 2005 and 2006 that would help them prove their claim of interception. But Kirkland’s representatives — its general counsel, its telecommunications department manager, and its head of human resources — all testified that the firm did not intercept any of the women’s phone calls and did not have the technical capability to even do so.

In 2007 counsel for Bowden (whose case had been assigned to Judge Pallmeyer) and Gagen (whose case had been assigned to Judge Lindberg) asked the district court to consolidate their cases. The Executive Committee of the Northern District of Illinois granted the request in part, consolidating both actions before Judge Pallmeyer for the purpose of discovery. Over the next two and a half years, the parties carried out discovery, and Bowden and Gagen amended their complaints to add claims of telephone interception under both federal and state law. Towards the end of 2008, Bowden and Gagen fired them lawyers and began to appear pro se, although Gagen later retained counsel once again in fall 2009. In December 2009 Judge Pallmeyer granted Kirkland’s request to consolidate both women’s cases for purposes of summary judgment on their interception and eavesdropping claims, and in early 2010 she extended the consolidation to include the discrimination claims. Bowden and Gagen did not object in either instance. Shortly thereafter Kirkland moved for summary judgment on both the interception and employment-discrimination claims.

The district court granted Kirkland’s motions. In comprehensive companion opinions, the court concluded that Bowden and Gagen failed to create an issue of material fact in their claims for race discrimination or retaliation, and failed to put forth any nonspeculative evidence that Kirkland engaged in the alleged interception activities. Regarding the latter conclusion, the court noted that Bowden’s and Gagen’s claims were “on their face, improbable .... the stuff of a John Grisham novel,” and explained that they failed to produce “any evidence to support their sweeping allegations beyond a few anomalous but inconclusive records.”

We consolidated Bowden’s and Ga-gen’s appeals for purposes of briefing and decision. Both women now target the district court’s grant of summary judgment on their federal interception claims. By omitting any challenges to the district [599]*599court’s rulings on their discrimination, retaliation, or state-law eavesdropping claims, Bowden and Gagen have waived them. See LaBella Winnetka, Inc. v. Vill. of Winnetka, 628 F.3d 937, 943 (7th Cir.2010).

Gagen and Bowden first argue that Judge Pallmeyer lacked authority to rule upon Gagen’s claims. They insist that the Executive Committee assigned Gagen’s case to Judge Pallmeyer—who was already presiding over Bowden’s case—for the limited purpose of conducting consolidated discovery, and that Judge Pallmeyer therefore lacked authority to dispose of Gagen’s case on summary judgment.

This argument is meritless. The Executive Committee did consolidate the claims before Judge Pallmeyer for the purpose of discovery, see N.D. Ill. R. 40.1(d), 40.4(d), but it also contemplated that the case could close before discovery’s end: the case was to be reassigned back to the judge before whom it was previously pending “if ... [it] is not closed while it is pending before Judge Pallmeyer.” Because Judge Pallmeyer retained authority to adjudicate the case until the close of discovery—and expert discovery was ongoing—her decision to grant summary judgment was within her discretion. Moreover, Gagen’s counsel did not object to an extension of the consolidation before Judge Pallmeyer as it related to Gagen’s claims, and thus Gagen waived any challenge to Judge Pallmeyer’s authority to adjudicate her case. See Delapaz v. Richardson, 634 F.3d 895, 899-900 (7th Cir.2011); Hicks v. Midwest Transit, Inc., 500 F.3d 647, 652 (7th Cir.2007).

Bowden and Gagen also argue that Judge Pallmeyer abused her discretion when she set concurrent briefing schedules on Kirkland’s summary-judgment motions and refused to grant more than a two-week extension to their deadline to respond to Kirkland’s motions. By this point in the litigation Bowden had discharged her lawyer and appeared pro se, though Gagen was represented by counsel.

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Related

Bowden v. Kirkland & Ellis, LLP
181 L. Ed. 2d 139 (Supreme Court, 2011)

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Bluebook (online)
432 F. App'x 596, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bowden-v-kirkland-ellis-llp-ca7-2011.