Bourke v. Nissan Motor Corp., No. B068705 (Cal. Ct. App., July 26, 1993), was a California court case in which the Second Appellate District Court of the California Courts of Appeal upheld the original decision of the trial court in favor of the defendant, Nissan Motor Corporation, against the charges of the plaintiffs, who alleged wrongful termination, invasion of privacy, and violation of their constitutional right to privacy, under the California constitution, in connection with Nissan's retrieval, printing, and reading of E-mail messages authored by plaintiffs.
The court ruled that the employer had a right to monitor an employee's E-mail and to terminate employees for sending E-mail of a personal, sexual nature. California's Wiretap and privacy laws did not protect employees from employer monitoring. The Court of Appeal designated this opinion "Not to be published" and it was not reported in the typical opinion reporters.
Case Background
Bonita Bourke and Rhonda Hall were hired by Nissan in June 1989, as Information Systems Specialists at an Infiniti car dealership, serving as customer service representatives for users of the internal computer system.
In June 1990, a co-worker of plaintiffs, Lori Eaton, during a demonstration of the use of E-mail at a training session, randomly selected a message sent by Bourke to an employee of the dealership. Unfortunately, the E-mail contained non-business-related content of a highly personal, sexual nature.
This incident was reported to management and many other messages containing personal content involving Bourke and her colleague Hall were later discovered. Following this, written warnings were issued to plaintiffs for violating the company policy prohibiting the use of the company computer system for personal purposes.
During the annual performance review in October 1990, both plaintiffs had received rather low performance ratings (Bourke was rated “needs improvement,” and Hall was rated “unsatisfactory,” second lowest and lowest of six performance level, respectively).
On December 28, 1990, plaintiffs filed grievances with Nissan's human resources department, complaining that the company had invaded their privacy by retrieving and reading their E-mail messages. A few days later, on January 2, 1991, Bourke was given a final warning notice requiring her to improve her performance, while Hall's employment was terminated.
Based upon Nissan's actions in reviewing their E-mail messages as described above, plaintiffs sued Nissan for common law invasion of privacy, violation of their constitutional right to privacy, and violation of California's criminal wiretapping and eavesdropping statutes. They also brought a cause of action for wrongful discharge in violation of public policy (termination in retaliation for the filing of complaints objecting to Nissan's invasion of their privacy).
Opinion of the Court
I. Common Law Invasion of Privacy and Violation of Constitutional Right to Privacy Regarding the application of common law vs. constitutional right, the court found that the constitutional right to privacy (stated in California Constitution, Article 1, section 1, "All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy") is broader than, and encompasses, the common law tort of invasion of privacy (see Porten v. University of San Francisco, 64 Cal. App. 3d 825, 829 (Cal. Ct. App. 1976)), thus analysis and discussion was restricted to the constitutional claim.