VALERIE MCCANN and LESLIE LINDBERG v. Iroquois Memorial Hospital

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-3420
VALERIE MCCANN and LESLIE LINDBERG,
Plaintiffs-Appellants,
v.
IROQUOIS MEMORIAL HOSPITAL, et al.
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of Illinois.
No. 06-2176—Harold A. Baker, Judge.
ARGUED MARCH 31, 2009—DECIDED SEPTEMBER 13, 2010
Before FLAUM, MANION, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. Behind a closed office door,
two co-workers at Iroquois Memorial Hospital, Valerie
McCann and Dr. Leslie Lindberg, had a conversation
in which they criticized hospital administration. Unbe-
knownst to them, their conversation was recorded by a
dictation machine, transcribed, and handed to those
they criticized. Believing that the recording was illegally

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2 No. 08-3420
obtained, disclosed, and used against them, they sued
another employee, Susan Freed, along with the hospital,
its Board of Trustees, and its Chief Executive Officer,
Stephen Leurck, under the Wiretap Act, 18 U.S.C.
§§ 2511, 2520. McCann and Lindberg believe that Freed
came into Lindberg’s office while they were talking, and
that while she was out of their line of sight picking
up papers next to Lindberg’s dictation machine, she
deliberately turned on the machine to record their con-
versation. Freed responds that she interrupted a con-
versation of theirs once but not on the date of the
taped conversation, and posits that Lindberg forgot to
turn off his dictation machine when McCann entered
his office. The district court granted summary judgment
for the defendants, based largely on inferences drawn
from the recording itself. But because the parties pre-
sented two different but plausible stories, an issue of fact
remains. We conclude that the claims against Freed and
the hospital boil down to a swearing contest and should
not have been resolved on summary judgment. Even
if Freed acted unlawfully, however, the evidence
does not show that CEO Leurck knew that, and the
only trustee who might have known did not use or
disclose the recording, so we affirm the summary judg-
ment of the claims against Leurck and the trustees.
I. Background
This saga begins with McCann’s termination from
the hospital, which she resented. McCann was formerly
the director of physicians’ services, but in early Feb-

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No. 08-3420 3
ruary 2006, she and several other employees were given
a week to resign and told that if they resigned by Feb-
ruary 10 they could apply for new positions. McCann
thought that this reorganization was really a way for
the then new CEO Stephen Leurck to get rid of people
he did not like, and she thought she was a target.
McCann tried to meet with Leurck to discuss the possi-
bility of a new position, but he did not meet with her
until February 10. The upshot of the meeting was that
she no longer had a job at the hospital and would not
be considered for a new one.
Around the same time, Leurck and the Board of
Trustees were also reorganizing the radiology depart-
ment. This put Lindberg’s radiology services to the
hospital at risk. The hospital used the services of
Lindberg along with another group of doctors, but it
voted to use only one provider in the future. They
asked Lindberg and others to submit proposals if they
wished to be considered for the position of exclusive
provider, but Lindberg’s proposal would have re-
quired a second, unnamed provider along with him.
Lindberg disapproved of the way the administration
was handling things, and the administration was not
particularly happy with him either. Freed, who over-
saw the staff who transcribed the radiologists’ dictated
reports, emailed Leurck and another administrator,
Susan Berg, complaining about Lindberg’s dictation
habits—apparently he began late in the day—and their
effect on her staff and patient care. Berg added that
Lindberg “let ‘politics’ get in the way of patient care
and safety.”

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4 No. 08-3420
On the afternoon of February 24, 2006, McCann went
to visit Lindberg in his office. She no longer worked
for the hospital, but she still worked for the Independent
Physicians Association, of which Lindberg was presi-
dent, and she needed Lindberg to sign some checks for
the Association. When McCann arrived, Lindberg was
dictating a radiology report into his dictation machine.
He says that he turned the machine off, and the two
exchanged greetings. According to McCann and Lindberg,
while they were talking Freed entered the office with-
out knocking. Freed crossed out of their line of sight,
picked up some requisition forms that were next to
Lindberg’s dictation machine, and left. According to
Freed, she wanted to minimize her interruption and left
the office as quickly as she could. She generally remem-
bered the same sequence of events, but contended that
it occurred on February 10 rather than February 24. Freed
denied being in Lindberg’s office on the 24th.
Somehow, the dictation machine was turned on in mid-
conversation between Lindberg and McCann. The time-
stamp on the tape—which the parties acknowledge
cannot be changed—shows that Lindberg last entered
the bar code for a new patient at 3:17p.m. on February 24.
He dictated into the machine for just under two min-
utes. After Lindberg’s last sentence of medical dicta-
tion, there is a clicking sound, and the recording picks
up again in the middle of a sentence in which McCann
is discussing the checks she brought for Lindberg to
sign. McCann and Lindberg say that some preliminary
pleasantries to their conversation were not captured on
the recording.

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No. 08-3420 5
The conversation eventually turned to events at the
hospital of which the two were critical. The two dis-
cussed the reorganization in radiology and what it
would mean for Lindberg, and he asked McCann how
she thought the other doctors would fare under the
reorganization. McCann described what she saw as
Leurck’s “pecking order”—a sort of hit list —and Lindberg
was at the top. Both McCann and Lindberg criticized the
trustees and especially Leurck. During the conversation
McCann received a call on her cell phone and spoke
briefly about an event she was attending later that day.
The call was from her home, and phone records show
it was placed at 3:24p.m. At the end of the conversation,
McCann noted that she was running late and needed
to leave, and the tape reflects the sound of a door closing.
Soon thereafter, Lindberg’s dictated reports, along
with the recorded private conversation, made their
way to another department for transcription. The tran-
scriptionist who listened to the recording emailed Freed,
explaining that a conversation critical of the administra-
tion had been recorded. The transcriptionist assumed
that Lindberg had forgotten to turn off his dictation
machine. (The defendants point out that Lindberg had
occasionally failed to turn off the machine when he fin-
ished dictating, although he says that happened only
when his dictation microphone was broken.)
Freed listened to the conversation, advised the
transcriptionist to transcribe it, and, because she thought
it inflammatory, contacted Leurck. Freed told Leurck
that Lindberg had accidentally left on his dictation ma-

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6 No. 08-3420
chine and advised Leurck to listen to the recording.
Leurck then read the transcript and listened to the re-
cording. At a board meeting he informed the trustees
about the conversation. He also gave a copy of the tran-
script to one trustee while another was present in the
room. But the day after plaintiffs’ counsel sent the
hospital a letter accusing Leurck of illegally intercepting
the conversation (saying nothing of Freed), Leurck
emailed the two trustees and asked them to return the
transcript if they had it. Leurck testified that he asked
for the transcript’s return as a matter of routine business.
In an email, Leurck told the Chairman of the Board that
he thought a strong response would be appropriate,
and that Lindberg and McCann “need[ed] to be put in
their respective places.” The chairman added that the
recording “may be the crack in the door that maybe
[Lindberg] has talked once too much.” Not long after-
wards, Lindberg’s privileges at the hospital were termi-
nated, and he remains there only by virtue of an injunc-
tion entered by the Illinois state court in a separate
lawsuit. His business is down, because, he says, Leurck
told physicians not to send their radiology work to
him. As for McCann, Leurck thought she was meddling
and spending too much time hanging around the hospi-
tal. He banned her from entering the hospital for any-
thing other than healthcare for herself or a loved one.
Lindberg and McCann sued Freed, Leurck, the
hospital, and the members of the hospital’s Board of
Trustees under the Federal Wiretap Act and various
state laws. They asserted that Freed intentionally inter-

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No. 08-3420 7
cepted their conversation, in violation of 18 U.S.C.
§ 2511(a)(1), and that she disclosed the recording to
Leurck, who disclosed it to the trustees, in violation of
18 U.S.C. § 2511(c). They claimed that Freed and Leurck
acted within the scope of their employment and that
the hospital was liable for their actions. In addition,
they asserted that Leurck and the trustees used the re-
cording’s contents to justify sanctioning Lindberg and
McCann, in violation of 18 U.S.C. § 2511(d). And they
alleged that all of the defendants knew or had reason to
know that the recording was made unlawfully, as re-
quired for liability under subsections (c) and (d). Finally,
they brought various state law claims not at issue in
this appeal.
The defendants filed for summary judgment, arguing
that Lindberg and McCann lacked evidence that Freed
had entered Lindberg’s office on the date in question.
The defendants’ argument rested largely on the plain-
tiffs’ initial confusion about the date of the recorded con-
versation: before the plaintiffs had access to the re-
cording and its date stamp, they thought that the re-
corded conversation may have occurred on February 10,
and had said in their initial depositions that they
thought Freed came in that day. However, the plaintiffs
responded to the summary judgment motion with addi-
tional affidavits, noting that based on new evidence and
refreshed recollection—e.g., the date on the recording,
as well as the checks Lindberg signed and McCann’s
phone records—they realized that the conversation they
remembered, along with Freed’s interruption, occurred
on the 24th rather than the 10th. The defendants moved

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8 No. 08-3420
to strike the new affidavits, contending that they were
improper attempts to rehabilitate deposition testimony.
The district court did not explicitly rule on the motion
to strike, but it found the dispute about the dates im-
material. The court granted summary judgment for the
defendants on the Wiretap Act counts and declined to
exercise supplemental jurisdiction over the remaining
state law counts. The court’s order on summary judg-
ment was based largely on inferences drawn from the
recording itself. The district court explained that al-
though the recording did not reflect the pleasantries
that Lindberg and McCann said they exchanged
before discussing the checks, as one would expect it to
if Lindberg had simply failed to turn off the dictation
machine when McCann entered, that did not prove that
Freed turned on the machine. Instead, it deemed the
plaintiff’s inferences “metaphysical doubt.” The district
court concluded that the recording supported Freed’s
testimony that she did not turn on the machine, and thus
that there was no intentional interception, an element
necessary to support the Wiretap Act claims against all
of the defendants.
The plaintiffs moved for reconsideration, which the
district court denied. The court reiterated that the
absence of McCann and Lindberg’s greetings was insig-
nificant, speculating that Lindberg could have resumed
dictating while McCann produced the checks but then
failed to turn off the machine a second time. The court
also noted the absence of any sound reflecting Freed’s
exit after she purportedly turned on the machine, ob-

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No. 08-3420 9
serving that when McCann left, the closing door was
audible. Finally, it thought that the interruption in re-
cording between Lindberg’s dictation and McCann’s
voice in mid-sentence did not support the plaintiffs’
argument that there was a break between the recorded
dictation and the recorded private conversation. McCann
and Lindberg appealed.
II. Analysis
The plaintiffs’ first, and most significant, argument on
appeal is that a material issue of fact precluded sum-
mary judgment on whether Freed intentionally recorded
their conversation. In short, they contend that they
know the date and time when the recording of the private
conversation started, they know the three people who
were in the room during the different parts of the con-
versation, and since all three of them deny turning on
the machine, there is an issue of fact as to who did so.
The defendants raise a preliminary question: whether
we can consider the affidavits from McCann and Lindberg
suggesting that three people were in the room. They
argue that the only evidence of Freed’s presence on the
24th, as opposed to the 10th, are the affidavits that the
plaintiffs submitted in response to summary judgment.
In their view those affidavits should be disregarded
as contradicting earlier deposition testimony. The de-
fendants point to cases saying that a plaintiff cannot
manufacture an issue of fact by submitting an affidavit
that contradicts prior sworn testimony. The rule defen-
dants seek to apply is designed to avoid sham factual

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10 No. 08-3420
issues and prevent parties from taking back concessions
that later prove ill-advised. Bank of Illinois v. Allied Signal
Safety Restraint Sys., 75 F.3d 1162, 1168-70 (7th Cir. 1996);
see Commercial Underwriters Ins. Co. v. Aires Envir. Servs.
LTD, 259 F.3d 792, 799 (7th Cir. 2001). But it applies
when the change is incredible and unexplained. Patton v.
MFS/Sun Life Fin. Distrib., Inc., 480 F.3d 478, 488 (7th
Cir. 2007). In contrast, when the change is plausible and
“the party offers a suitable explanation such as ‘con-
fusion, mistake, or lapse in memory,’ ” a change in testi-
mony affects only its credibility, not its admissibility.
Commercial Underwriters, 259 F.3d at 799 (quoting
Maldonado v. U.S. Bank, 186 F.3d 759, 769 (7th Cir. 1999));
Patton, 480 F.3d at 488.
We agree with the district court to the extent that it
found the confusion about the dates to be immaterial.
The affidavits do not contradict the substance of the
prior testimony—that Freed entered the office during
the plaintiffs’ conversation—and even if they are contra-
dictory, the plaintiffs have offered a suitable explana-
tion. The contradiction is only as to the specific date
that these events occurred, a matter that naturally
might be difficult to pinpoint without access to the re-
cording itself. More importantly, McCann, Lindberg,
and even Freed all remembered that at some point in
February, Freed walked into Lindberg’s office while he
was talking to McCann and picked up papers from his
desk. The plaintiffs initially thought that these events
occurred February 10, the day McCann lost her job, but
when they were deposed both became uncertain and non-
committal about the date and thought they might have

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No. 08-3420 11
Neither party has raised or addressed the issue of whether the 1
federal Wiretap Act requires proof that the interception or
(continued...)
talked on February 22. After they learned that the
timestamp on the recording showed that it was made
on February 24, that the checks discussed in the re-
cording were signed on the 24th, and that the phone call
McCann took was placed on the 24th, it was reasonable
for them to conclude that they had been mistaken about
the date of the conversation, and the date of the inter-
ruption as well. Indeed, Freed herself also had trouble
recalling the date she walked into Lindberg’s office;
she first said it was February 3 and then, after con-
sulting the obituary of her grandfather (who passed
away around that time), changed her mind and said
the date was February 10. At base, there is nothing re-
markable about having difficulty remembering, or re-
membering incorrectly, the date that an event occurred,
and nothing inherently unbelievable about correcting
it after consulting other evidence.
Accepting the plaintiffs’ affidavits, we turn to the
question whether an issue of material fact precluded
summary judgment on any of the Wiretap Act claims.
The Wiretap Act prohibits intentionally intercepting an
oral conversation, 18 U.S.C. § 2511(a), as well as inten-
tionally disclosing or using the contents of such a con-
versation while having reason to know that it was unlaw-
fully intercepted, 18 U.S.C. § 2511(c), (d); see Nix v. O’Mal-
ley, 160 F.3d 343, 348 (6th Cir. 1998) . Necessary to all of1

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12 No. 08-3420
(...continued) 1
disclosure occurred in or through the means of interstate
commerce. It seems that it would. See Doe v. Smith, 429 F.3d 706,
709 (7th Cir. 2005). If the Lanier dictating system (the system
Lindberg used) transmits data through the internet or tele-
phone lines, for example, or if Freed transmitted the recording
via mail or e-mail to the CEO of the hospital, the Board of
Directors, or anyone else, the interstate commerce require-
ment will have been met. The defendants have not questioned
the use of the Wiretap Act nor its constitutionality. (Note that
if Freed wishes to challenge the constitutionality of the Act,
she would need to alert the district court and arrange for
notice to be given to the Attorney General so that the federal
government may intervene to defend the legislation if it so
desires. See id.; 28 U.S.C. § 2403(a); Fed. R. Civ. P. 25(c)). As
neither party has raised the issue before us, we need not
resolve it here, but flag it for resolution on remand.
the plaintiffs’ claims, then, is an intentional intercep-
tion. But the plaintiffs need not produce direct evidence
of the intentional interception; for often the only way
to prove that a stealthy interception occurred is through
circumstantial evidence. See DirectTV v. Webb, 545 F.3d
837, 844 (9th Cir. 2008).
In determining if there was an issue of material fact
on the intentional interception element, the court views
the record in the light most favorable to the non-moving
party, and draws all reasonable inferences in that party’s
favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986); Antonetti v. Abbott Labs., 563 F.3d 587, 591 (7th
Cir. 2009). The court may not weigh the evidence or

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No. 08-3420 13
decide which testimony is more credible. Anderson, 477
U.S. at 255; Kodish v. Oakbrook Terrace Fire Protection
Dist., 604 F.3d 490, 507 (7th Cir. 2010); Payne v. Pauley, 337
F.3d 767, 770 (7th Cir. 2003). Even if one side’s story
is more believable, the court must “avoid[ ] the tempta-
tion to decide which party’s version of the facts is more
likely true.” Payne, 377 F.3d at 770; Kodish, 604 F.3d at
507. “As we have said many times, summary judgment
cannot be used to resolve swearing contests between
litigants.” Payne, 377 F.3d at 770.
Here, the plaintiffs testified that they did not turn on
the dictation machine that recorded their private con-
versation, but that during their conversation Freed
walked in and picked up papers adjacent to the ma-
chine, giving her easy access to it. That testimony,
when coupled with the facts that the machine was
turned on in actual mid-conversation, and that Freed
disliked Lindberg’s work at the hospital and therefore
had reason to discredit him, provides circumstantial
evidence that Freed deliberately turned on the recording
equipment to capture the unflattering conversation.
Freed does not dispute some elements of this story—she
recalls entering Lindberg’s office while he was speaking
to McCann and picking up a stack of forms immediately
next to Lindberg’s dictation machine. Freed just denies
that it happened on the 24th, and denies that she inten-
tionally turned on the dictation machine while she was
there. But that leaves us with conflicting testimony on a
central issue—in other words, a swearing contest.
Furthermore, the recording does not contradict the
plaintiffs’ version of the story, and, viewed most fav-

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14 No. 08-3420
orably to the plaintiffs, provides some support for it. The
district court thought the recording favored Freed’s
story in part because the recording reflects the sound of
a door closing when McCann left, but not when Freed
would have left. But nothing in the record tells us
whether the door could have been closed silently;
McCann said she was in a hurry when she left and may
have let the door slam, whereas Freed, who was con-
scious that she was intruding (and, perhaps, that she
was being taped) may have closed the door softly to be
inconspicuous. Viewed in the light most favorable to the
plaintiffs, the absence of sound does not prove Freed
correct. In addition, the plaintiffs point out that if
Lindberg had accidentally left the machine on, as the
defendants suggest, it presumably would have caught
their conversation from the beginning. But instead it
picks up in the middle of the conversation, so one
could infer that it was off but then someone turned it on
during the conversation. That is a reasonable inference,
and one we must credit on summary judgment.
When reasonable inferences are drawn in the plain-
tiffs’ favor, there is an issue of material fact as to
whether Freed intentionally intercepted the plaintiffs’
conversation under 18 U.S.C. § 2511(a)(1). That issue of
fact precludes summary judgment on the § 2511(a)(1)
claim against Freed. It also precludes summary judg-
ment on the § 2511(b) claim against her—that she “dis-
closed” or “used” the contents of the conversation—
because Freed admitted that she distributed the tran-
script and recording. As for the claim against the
hospital based on Freed’s conduct, since the hospital

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No. 08-3420 15
does not argue on appeal that respondeat superior is
inapplicable, that claim is available on remand as well.
The claims against the remaining defendants are
another matter. Even if Freed illegally made the
recording, Leurck and the trustees could be liable only
if they had reason to know the recording was made
illegally and they used or disclosed the recording.
The district court did not address the defendants’ argu-
ments on those points, but that does not preclude us
from sustaining the judgment based on those arguments.
See Wisconsin Cent., Ltd. v. Shannon, 539 F.3d 751, 761
(7th Cir. 2008).
To be liable under § 2511(c) or § 2511(d), a defendant
must know or have reason to know “’sufficient facts
concerning the circumstances of the interception such
that the defendant[ ] could, with presumed knowledge
of the law, determine that the interception was pro-
hibited in light of [the Wiretap Act].’ ” Nix, 160 F.3d at
349-50 (quoting Thompson v. Dulaney, 970 F.2d 744,
749 (10th Cir. 1992)). It is not enough to know that the
conversation was intercepted; the defendant must also
be able to tell that none of the statutory exceptions
apply. See Williams v. Poulos, 11 F.3d 271, 284 (1st Cir.
1993); Thompson, 970 F.2d at 749. If the defendant does
know the interception was illegal, then he is liable if
he “uses” or “discloses” to others the contents of the
recorded conversation. 18 U.S.C. §§ 2511(c), (d), 2520.
Leurck testified that Freed told him that the recording
was made because Lindberg forgot to turn off his
dictation machine (again), and if that is all Leurck
knew, then he had no reason to think that the recording

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16 No. 08-3420
violated the statute, which does not cover inadvertent
interceptions. The plaintiffs argue that Leurck must have
known that the recording was unlawful because Leurck
asked two trustees to return the copy of the transcript
he had given them. But as the defendants point out, that
was after the plaintiffs’ counsel sent the hospital a
letter accusing Leurck of illegally intercepting the con-
versation. In light of the letter it is unsurprising that
Leurck asked for the transcript back: as a CEO faced
with an allegation of illegality, even one he may have
thought was unfounded, it was prudent for him to
avoid exposing the hospital to further potential liability
by ensuring that the transcripts were not disseminated
to anyone else. Inferring from this conduct that Leurck
must have known the recording was illegal would put
him on a razor’s edge: risking liability in the form of an
inference of guilt if he seeks to contain any damage,
and risking additional liability from the transcript’s
further distribution if he does not. See, e.g., Beck v.
Dobrowski, 559 F.3d 680, 684 (7th Cir. 2008); Armstrong
v. LaSalle Bank Nat’l Ass’n, 446 F.3d 728, 733 (7th
Cir. 2006); Flanagan v. Ashcroft, 316 F.3d 728, 730 (7th
Cir. 2003). That Leurck emailed the trustees this
request makes it even more far-fetched that he was
trying to cover his tracks—a presumably sophisticated
CEO would know better than to “cover up” a pur-
portedly illegal recording by creating an electronic trail
of the cover-up. On summary judgment we make rea-
sonable inferences in the plaintiffs’ favor, but Leurck’s
request for the transcript is too thin a reed on which to
base a reasonable inference that he knew the recording
was illegally obtained.

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No. 08-3420 17
The plaintiffs also seem to suggest in their reply
brief that the letter itself gave Leurck a reason to know
that the recording was illegal. But the letter provides
only a bald allegation and no concrete facts, let alone
facts that Leurck was required to believe, to undermine
his belief that the recording was made accidentally. See
Nix, 160 F.3d at 349-50. Indeed, the letter accuses him
of intercepting the conversation, and since he knew that
he did not do so (no one suggests now that he was the
interceptor) it is difficult to see how he could have
gleaned that one of his employees surreptitiously turned
on Lindberg’s dictation machine.
As for the trustees, in their brief the plaintiffs identify
only one, Mohammed Razvi, who they contend had
reason to know the conversation was recorded illegally.
They explain that McCann testified that Razvi said to
her that the recording was illegal. But, as the defendants
point out, it is immaterial if Razvi knew, because the
plaintiffs agreed in their statement of undisputed facts
that Razvi did not use or disclose the transcript of the
conversation. Accordingly, Razvi could not be liable
under § 2511(c) or § 2511(d).
The grant of summary judgment for Leurck and the
trustees is AFFIRMED. The grant of summary judgment
for Freed and the hospital is VACATED, and the case is
REMANDED for further proceedings consistent with
this opinion.
9-13-10

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