Pocket Dialing Privacy?

04/12/2018 | Wage & Hour Violations

James Stephens unintentionally pocket-dialed his boss while conversing with his wife and lost his job because of it. Now, Stephens is suing his boss, Michael Coan, claiming that when the Coen eavesdropped on this conversation it was a violation of the Stephens’ right to privacy.

The day after listening to the conversation between Stephens and his wife, Michael Coan told Stephens he could resign or be fired. Stephens chose to resign. According to James Stephens, Coen often called after hours. After one of these calls, Stephens’s wife Gina had something to say about these frequent intrusions. While the couple was having that discussion, Stephens’s phone dialed Coan’s number from his pocket. Coan overheard the couple talking for about 12 minutes until Stephens realized his phone was connected on a call to his boss. He immediately hung up. The next day when Stephens came in to work he was given the ultimatum to resign or be fired from his six-figure position with the state of Georgia.

The Stephens sued Coan, a Georgia state employee, in his personal capacity, asserting that Coan invaded their right to privacy because he understood the call was inadvertent, and knowingly continued to listen to this private conversation. They claim Coan was legally obligated to hang up. The attorney representing the Stephens, David Guldenschuch said, “[y]ou may not use an electronic device to listen in to a conversation you know to be a private conversation.” According to the complaint, “[r]ather than simply hang up, (Coan) proceeded to violate Georgia law by intentionally acting in a clandestine manner and listening in to a private conversation between Mr. Stephens and his wife Gina inside the Stephens’ private residence.”

Coan’s lawyers filed a motion asking the court to dismiss the lawsuit, claiming Coan is shielded by immunity because as he was acting in his official capacity as a state supervisor and had the right to listen to the conversation of a subordinate employee.

The Sixth Circuit Court of Appeals (Kentucky is located in the 6th Circuit) decided a similar case in 2015. Huff v. Spaw, 794 F.3d 543 (6th Cir. 2015).  In that case, the court held that an individual whose pocket dial was intercepted and recorded by a private party did not have a reasonable expectation of privacy and could receive no remedy in a Title III action. 

In the Huff v. Spaw case, James Huff had inadvertently pocket dialed Carol Spaw, who listened to a conversation for 91 minutes between Huff, his wife, and a work colleague. James Huff and his wife Bertha Huff sued Carol Spaw on the grounds that Spaw had intercepted their conversation in violation of Title III of the Omnibus Crime Control and Safe Street Act of 1968. The district court ruled against the Huff couple, holding that both lacked a reasonable expectation that their conversation would not be intercepted. The Sixth Circuit Court of Appeals affirmed the decision against James Huff, but reversed the decision regarding Bertha Huff reasoning that she could not be held responsible for her husband’s pocket-dial.

Gina Stephens does not believe the conversation should have led to her husband losing his job. “If I’m talking to my husband just to kind of de-stress and we’re talking to one another…In my own home, then no I don’t think that should lead to termination.”

Now, a Georgia state court has to decide whether Coan was acting in his official capacity as a state supervisor. If this is the case, he could be granted immunity. If Coan is determined to have acted as a private person then the case will continue.