United States District Court, Eastern District of Pennsylvania
May 23, 2000
CIRCUIT CITY STORES, INC.
The opinion of the court was delivered by: Joyner, District Judge.
MEMORANDUM AND ORDER
This case has been brought before the Court on motion of the
Defendant, Circuit City Stores for the entry of summary judgment
in its favor as to all of the Plaintiff's claims against it.
After carefully reviewing
the record evidence adduced by the parties and for the reasons
which follow, we shall grant the defendant's motion.
Christian Audenreid was employed by Circuit City in its store
in Allentown, Pennsylvania from 1990 until January, 1997. He
quickly progressed through the ranks, having been promoted from
his initial position as ACE sales counselor to sales lead in the
computer department to computer manager to sales manager to
operations manager. In late 1996, Plaintiff's store was audited.
The results of the audit reflected a below average performance in
the area of operations, excellent performance in warranty
compliance and poor performance in the area of inventory control.
In addition to these problems, the store was experiencing an
ongoing cash shortage problem. Investigation revealed that at
various cash registers around the store, merchandise was recorded
as having been returned for cash when in fact no merchandise had
been returned, with the result that cash was effectively being
stolen out of the registers. Whenever these instances of theft
occurred, the store's video surveillance system had been turned
Given that the video system could only be accessed by someone
who had access to Plaintiff's office, the loss prevention
department decided to place a camera in Mr. Audenreid's office in
an effort to determine how the surveillance system was being
deactivated. The gravamen of Plaintiff's claim is that he did not
know that the loss prevention department had placed this remote
surveillance camera in his office until he returned from vacation
and observed, on January 10, 1997, a device which appeared to be
a motion detector. Upon closer examination, Plaintiff found that
it was a camera connected by a coaxial cable leading to the store
manager's office. A few days later, Plaintiff also discovered a
tape of the OPS manager's office. Although Mr. Audenreid
discussed the presence of the camera with Joan Gale and Carla
Callahan in the company's Human Resource Department, apparently
no efforts were made to remove it.
In and about this same time, on January 13, 1997, the plaintiff
received a "Memo of Corrective Action" from Circuit City District
Manager Ralph LaSalle for discounting a refrigerator for the
parents of one of his store's sales associates on January 3rd in
violation of company policy. Although Plaintiff could have been
terminated for this action, he instead received only this warning
and a copy of this memorandum was placed in his personnel file.
It was at this time, however, that Circuit City determined that
Mr. Audenreid should be transferred to the position of Operations
Manager of the Montgomeryville Store in the hope that this change
would help him to develop further as a manager. Specifically, it
was the opinion of Defendant's upper level management that since
the plaintiff had spent his entire Circuit City career in the
Allentown store and had risen fairly quickly through the ranks,
he was having difficulty managing his former co-workers.
Plaintiff, however, rejected the transfer offer and instead filed
this lawsuit contending that he had been wrongfully discharged in
violation of both the Federal and Pennsylvania Wiretapping and
Electronic Surveillance Control Acts, 18 U.S.C. § 2510, et.
seq. and 18 Pa.C.S. § 5701, et. seq. and for his alleged
refusal to testify dishonestly before the National Labor
Relations Board with respect to a movement to organize Circuit
City's employees into a collective bargaining unit.
Standards Governing Summary Judgment Motions
The standards to be applied by the district courts in ruling on
motions for summary judgment are set forth in Fed. R.Civ.P. 56.
Under subsection (c) of that rule,
. . . The judgment sought shall be rendered
forthwith if the pleadings, depositions, answers to
interrogatories, and admissions on file, together
with the affidavits,
if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled
to a judgment as a matter of law. A summary judgment,
interlocutory in character, may be rendered on the
issue of liability alone although there is a genuine
issue as to the amount of damages.
Pursuant to this rule, a court is compelled to look beyond the
bare allegations of the pleadings to determine if they have
sufficient factual support to warrant their consideration at
trial. Liberty Lobby, Inc. v. Dow Jones & Co., 838 F.2d 1287
(D.C.Cir. 1988), cert. denied, 488 U.S. 825, 109 S.Ct. 75, 102
L.Ed.2d 51 (1988); Aries Realty, Inc. v. AGS Columbia
Associates, 751 F. Supp. 444 (S.D.N.Y. 1990).
Generally, the party seeking summary judgment always bears the
initial responsibility of informing the district court of the
basis for its motion and identifying those portions of the
pleadings, depositions, answers to interrogatories and admissions
on file, together with any affidavits, which it believes
demonstrate the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91
L.Ed.2d 265 (1986). In considering a summary judgment motion, the
court must view the facts in the light most favorable to the
non-moving party and all reasonable inferences from the facts
must be drawn in favor of that party as well. U.S. v. Kensington
Hospital, 760 F. Supp. 1120 (E.D.Pa. 1991); Schillachi v. Flying
Dutchman Motorcycle Club, 751 F. Supp. 1169 (E.D.Pa. 1990).
Where, however, "a motion for summary judgment is made and
supported [by affidavits or otherwise], an adverse party may not
rest upon the mere allegations or denials of the adverse party's
pleading, but the adverse party's response . . . must set forth
specific facts showing that there is a genuine issue for trial.
If the adverse party does not so respond, summary judgment, if
appropriate, shall be entered against [it]." Fed.R.Civ.P. 56(e).
The non-moving party must raise "more than a mere scintilla of
evidence in its favor" in order to overcome a summary judgment
motion and it cannot rely on unsupported assertions, conclusory
allegations, or mere suspicions or beliefs in attempting to
survive such a motion. Tziatzios v. U.S., 164 F.R.D. 410, 411,
412 (E.D.Pa. 1996) citing Celotex v. Catrett, supra, 477 U.S.
at 325, 106 S.Ct. at 2553-54, Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202;
Williams v. Borough of West Chester, 891 F.2d 458, 460 (3rd
1. Plaintiff's claims under the Wiretapping and Electronic
Surveillance Control Acts.
In Counts I and II of his complaint, Plaintiff invokes both the
federal and state wiretapping control acts in claiming that
Defendant unlawfully "intercepted, disclosed and/or used [his]
wire and oral communications." The focus and purpose of the
Wiretapping and Electronic Surveillance Control Acts is the
protection of privacy and the language of these statutes is
virtually identical. See: Commonwealth v. Parrella,
416 Pa. Super. 131, 137, 610 A.2d 1006, 1009 (1992). Specifically, the
federal Act, 18 U.S.C. § 2510 defines "intercept," "oral
communication" and "wire communication" as follows:
(1) "wire communication" means any aural transfer
made in whole or in part through the use of
facilities for the transmission of communications by
the aid of wire, cable, or other like connection
between the point of origin and the point of
reception (including the use of such connection in a
switching station) furnished or operated by any
person engaged in providing or operating such
facilities for the transmission of interstate or
foreign communications affecting interstate or
foreign commerce and such term includes any
electronic storage of such communication;
(2) "oral communication" means any oral communication
uttered by a person
exhibiting an expectation that such communication is
not subject to interception under circumstances
justifying such expectation, but such term does not
include any electronic communication; . . . . . . . .
(4) "intercept" means the aural or other acquisition
of the contents of any wire, electronic or oral
communication through the use of any electronic,
mechanical, or other device; . . . . .
Under the Pennsylvania Act, 18 Pa.C.S. § 5702,
"Wire communication" is [a]ny aural transfer made in
whole or in part through the use of facilities for
the transmission of communication by wire, cable or
other like connection between the point of origin and
the point of reception, including the use of such a
connection in a switching station, furnished or
operated by a telephone, telegraph or radio company
for hire as a communication common carrier. The term
includes any electronic storage of such
"Oral communication" is [a]ny oral communication
uttered by a person possessing an expectation that
such communication is not subject to interception
under circumstances justifying such expectation. The
term does not include any electronic communication.
"Intercept" is the [a]ural or other acquisition of
the contents of any wire, electronic or oral
communication through the use of any electronic,
mechanical or other device. The term shall include
the point at which the contents of the communication
are monitored by investigative or law enforcement
Both statutes define "aural transfer" to mean "[a] transfer
containing the human voice at any point between and including the
point of origin and the point of reception." Thus, those courts
which have had occasion to interpret these statutes have held
that to fall within the confines of the wiretapping control acts,
the interception must involve the acquisition of the contents of
a conversation, i.e., the actual hearing of sound. See, e.g.,
United States v. New York Telephone Company, 434 U.S. 159
166-167, 98 S.Ct. 364, 369 54 L.Ed.2d 376 (1977) ("[p]en registers
do not intercept because they do not acquire the contents
of communications as that term is defined by 18 U.S.C. § 2510(8)");
United States of America v. Cheely, 814 F. Supp. 1430,
1441 (D.Alaska 1992) ("[r]ecording devices do not
accomplish the interception, they merely record a conversation
that has already been intercepted"); United States v. Seidlitz,
589 F.2d 152
, 157 (4th Cir. 1978) (no evidence to suggest that
the "Milten Spy" device at issue relied in any fashion upon
sounds in retrieving information from the computers in written
form); Michigan Bell Telephone Company v. United States of
America, 565 F.2d 385
, 388 (6th Cir. 1977) ("[t]races, like
pen registers, neither hear nor monitor conversations").
In this case, the evidence produced by the parties clearly
demonstrates that the video camera which had been installed in
the plaintiff's office recorded no sound and that the videotape
created by that camera shows only the movements of the people in
that office. (See, e.g., Defendant's Exhibit Nos. "J" and "K").
Plaintiff himself acknowledged in his deposition testimony that
the tape had no sound. (Pl's Dep., 10/5/99, at p. 222). In the
absence of any record of "a human voice at any point between and
including the point of origin and the point of reception," as is
required for an "aural transfer," we can reach no other
conclusion but that the U.S. and Pennsylvania Wiretapping and
Electronic Surveillance Control Acts have no application here and
that the defendant did not violate either of these acts in
placing the video camera in Plaintiff's office. Summary judgment
must therefore be granted in favor of the defendant on Counts I
and II of the plaintiff's complaint.
2. Plaintiff's Claim for Wrongful Discharge.
In Count III of his complaint, Plaintiff seeks compensatory and
under the common law theory of wrongful discharge. In this
regard, Plaintiff asserts that the defendant's decision to
transfer him from the Allentown store to the Montgomeryville
store had the effect of constructively discharging him for
raising his constitutional right to privacy and for refusing to
testify falsely at a hearing before the National Labor Relations
The law in Pennsylvania has long held that an employer may
terminate an employee for any reason or no reason unless
restrained by contract. McLaughlin v. Gastrointestinal
Specialists, Inc., 750 A.2d 283 (Pa. 2000) citing Henry v.
Pittsburgh & Lake Erie Railroad Co., 139 Pa. 289, 21 A. 157
(1891). It is thus the general rule in Pennsylvania that no
common law cause of action exists against an employer for
termination of an at-will employment relationship. Krajsa v.
Keypunch, Inc., 424 Pa. Super. 230, 237, 622 A.2d 355, 358
(1993). Where, however, an employee can show that he or she was
terminated in violation of a clear mandate of public policy, a
cause of action may be stated. Geary v. United States Steel
Corp., 456 Pa. 171, 175, 319 A.2d 174, 176 (1974). Examples of a
public policy violation arise where (1) an employer requires an
employee to commit a crime, (2) an employer prevents an employee
from complying with a statutory duty, or (3) a statute prohibits
discharge. Denton v. Silver Stream Nursing and Rehabilitation
Center, ___ Pa.Super. ___, 739 A.2d 571, 577 (1999); Shick v.
Shirey, 552 Pa. 590, 595, 716 A.2d 1231, 1233 (1998). Moreover,
to establish constructive discharge, a plaintiff must demonstrate
that the employer permitted conditions of discrimination so
intolerable that a reasonable person would have felt compelled to
resign. DiRenzo v. General Electric Company, 1993 WL 534227,
1993 U.S.Dist.LEXIS 18153 at *19 (E.D.Pa. 1993), citing Spangle
v. Valley Forge Sewer Authority, 839 F.2d 171, 173 (3rd Cir.
1988). See Also: Goss v. Exxon Office Systems, Co.,
747 F.2d 885, 888 (3rd Cir. 1984). Specific intent on the part of the
employer to bring about the discharge is not required; however,
to make a showing of constructive discharge, more than the
subjective perceptions of unfairness or harshness or a
stress-filled work environment are required. Grande v. State
Farm Mutual Automobile Insurance Co., 83 F. Supp.2d 559, 564
(E.D.Pa. 2000); McLaughlin v. Rose Tree Media School District,
52 F. Supp.2d 484, 493 (E.D.Pa. 1999).
Applying the preceding legal principles to this case, we find
that the defendant is also entitled to the entry of judgment in
its favor as a matter of law with regard to plaintiff's claim for
According to the plaintiff, he believed that, in transferring
him to the identical position in the smaller, Montgomeryville
store, (which, while further away, was evidently within commuting
distance of his home in Nazareth, Pa.), he was being demoted and
he couldn't accept this. (Pl's Dep., 10/5/99, pp. 240-248).
However, it is clear from this record that Circuit City
Management believed the transfer was in Plaintiff's best
interests in that it would help him to further develop his
management skills to manage a new group of employees with whom he
did not at one time have peer relationships. The record also
clearly reflects that Circuit City offered Plaintiff the option
of an increase of $2,500 in annual pay to offset his increased
commuting costs or its standard re-location package. Plaintiff
rejected these offers not once, but again several months later
when Circuit City again offered him the Montgomeryville job. At
least two courts have held that neither a simple increase in
commuting distance nor a demotion are sufficient grounds to find
constructive discharge and we agree. The working conditions which
plaintiff faced simply were not so intolerable that a reasonable
person in the plaintiff's position would have felt compelled to
resign. See: Williams v. Bristol-Myers Squibb Co., 85 F.3d 270,
273-274 (7th Cir. 1996);
Grande v. State Farm, supra. We therefore conclude that the
plaintiff here was not constructively discharged, but instead
voluntarily resigned from his position with Circuit City.
Likewise, there is no evidence to support Plaintiff's
contention that he was transferred because he refused to testify
falsely before the NLRB or because he sought to enforce his
constitutional right to privacy. Again, there is no evidence that
the videotape in his office intercepted any of plaintiff's
conversations nor is there any evidence that he was ever called
to testify on behalf of the company before the Labor Relations
Board. (Pl's Dep. 7/14/99, pp. 174-176). Accordingly, even giving
Plaintiff the benefit of the doubt that he was discharged, there
is insufficient evidence to support his claim that his discharge
was in violation of a clear mandate of public policy.
For all of the foregoing reasons, the defendant's motion for
summary judgment shall be granted in accordance with the attached
AND NOW, this — day of May, 2000, upon consideration of the
Motion for Summary Judgment of Circuit City Stores, Inc. and
Plaintiff's response thereto, it is hereby ORDERED that the
Motion is GRANTED for the reasons set forth in the preceding
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