FIFTH DIVISION
March 29, 2002

JUSTICE GREIMAN delivered the opinion of the court:

Thomas Schmidt, while on disability leave from Ameritech for an injuryunconnected to his employment, lied to his employer at least three times aboutgoing on a fishing trip. The employer then sought to determine his whereaboutsby an intense investigation which included the examination and use of hispersonal telephone records. After being discharged, Thomas, his wife and hiswife's employer filed suit on August 23, 1995, alleging that the defendants'conduct in 1994 constituted a cause of action entitled "unreasonableintrusion upon seclusion" and a second cause of action entitled"private facts made public." The circuit court directed a verdict onthe "private facts made public" cause of action against theplaintiffs, who have not appealed that ruling.

On December 2, 1999, the circuit court submitted the one remaining issue -intrusion upon seclusion - to a jury, which returned a verdict againstAmeritech. This appeal followed. Because we find that the facts presented inthis case do not satisfy the elements of the tort of unreasonable intrusion uponseclusion, we reverse.

Thomas was employed with defendant Ameritech as a customer servicetechnician. His wife, coplaintiff Cynthia Schmidt (Cynthia), was not anAmeritech employee, nor was Jeri Lynn Richie (Richie), who became the thirdplaintiff in this case. Richie was the owner of Reflections Salon of Beauty, ahair salon where Cynthia worked, and all three were Ameritech customers.

On June 26, 1994, Thomas injured his knee in an accident unrelated to hisemployment and claimed to be unable to work. Ameritech's policy with respect tosuch disabilities provided Thomas' absence from work automatically converted todisability leave after seven consecutive sick days. Consequently, he wascompensated under Ameritech's disability benefit policy until he returned towork on August 4, 1994.

Under his union's seniority system, he previously had put in for a Canadianfishing vacation during the week of July 15 through July 24, 1994, and hissupervisor had approved the request. However, Ameritech's disability policyprovided that taking a vacation while also collecting disability is prohibitedwithout written authorization. Ameritech reminded Thomas of this restriction ina July 5, 1994, letter. Undeterred, he and his wife left for their previouslyplanned fishing vacation even though he remained collecting disability. What ismore, he lied to Ameritech at least three times concerning his whereabouts:first, he lied to his supervisor, Herb Mazanke, before he left on vacation;second, he again lied to Mazanke on the day of his return home; and third, helied to a group of Ameritech managers, including Mazanke, on the day of hisreturn to work.

During Thomas' disability leave, Mazanke became suspicious of Thomas'conduct. Because Mazanke was aware of Thomas' plans to go fishing in Canada inJuly, he suspected that Thomas might leave town impermissibly. Accordingly,Mazanke began an investigation to determine whether Thomas was guilty ofmisconduct. On July 14, 1994, Mazanke sent two managers to Thomas' home. Thosemanagers waited in the Schmidts' driveway for Thomas to return home andinstructed him to call Mazanke. During the call, Mazanke requested the telephonenumber and location of Thomas' physical therapist and discussed the possiblerestrictions on his work when he returned. When the telephone number that Thomashad provided for his physical therapist did not work, Mazanke again calledThomas and reminded him that his planned vacation was inappropriate while he wason disability.

On July 21, 1994, Mazanke called Ameritech's benefits department to determineif they had received the needed documentation from Thomas. After being told thatthey had no return date for Thomas, Mazanke again called him at home, receivedno answer, and left a message for Thomas to return his call. Mazanke'ssupervisor authorized a visit to Thomas' home for the following day and toldMazanke to contact Ameritech's security department to track down Thomas.

On July 22, Thomas called home to check his messages and found a message fromMazanke. Thereafter, that morning, Thomas called Mazanke and left a message.Mazanke, however, did not receive Thomas' message until afternoon because he wasconducting the home visit at Thomas' home. During that visit, Mazanke parked onthe street and knocked on the front and side doors, waited a few minutes, butgot no response. While at the door, he noticed that some mail and newspapers hadgathered on the porch. After lunch, Mazanke returned to Thomas' home and againknocked on all of the doors and received no response. He then left anothermessage advising Thomas that he was at his house and questioning him as to hiswhereabouts.

On July 25, 1994, the Schmidts returned home. Thomas telephoned Mazanke toinform Mazanke that Thomas had seen his doctor that day and had been released toreturn to work on August 4, 1994. Mazanke demanded to know where Thomas had beenon July 22, 1994, at the time he returned Mazanke's call. Again, Thomas lied andtold Mazanke that the telephone call had been placed from Thomas' home. At thatpoint, Mazanke knew that Thomas was untruthful about his whereabouts becauseMazanke and another Ameritech manager physically were at the Schmidts' house atthe time that Thomas called Mazanke.

Mazanke advised Thomas' union representative, Tony Tellez, of the issues ofconcern. On August 4, 1994, Thomas returned to work and Mazanke immediatelycalled him into a meeting to discuss his whereabouts on the dates of July 15through July 24, 1994. Present at this meeting was Mazanke, Thomas, Tellez, andanother member of Ameritech's management, Doug Kotlinski. Thomas again statedthat he had been home on that date, so it was impossible for Mazanke to havevisited his home that day. Thomas then was told that he was being suspendedpending Ameritech's investigation into the circumstances of his disabilityleave.

On August 11, 1994, Mazanke and Bill Gerlich from the Ameritech SecurityGroup reviewed the "message unit detail" (MUD) records for the numberassigned to Thomas. At trial, Gerlich testified that MUD records would show ifoutgoing calls were made from the Schmidts' telephone on the dates in question.On that date, Mazanke and Gerlich also reviewed Ameritech's "directory linerecords" (DLR), which provide "telephone book" information suchas name and address, and directory account trouble history (DATH) reports, whichwould show whether their telephone was out of service or otherwisemalfunctioning. In addition, Mazanke and Gerlich reviewed Ameritech's DLRreports for several other telephone accounts whose numbers had been frequentlycalled from the Schmidts' home phone location. This included accessing and usingthe phone records of Cynthia's employer, i.e., Richie and her hairsalon. Ameritech asserted that it reviewed those records after Thomas' deceitfulanswers to determine whether any calls had been made to the Schmidt home.Lastly, Ameritech reviewed its billing records for the AT&T card registeredto Thomas.

Based on the information that Mazanke and Gerlich gained through their reviewof the telephone records, on August 11, 1994, Gerlich contacted the resort inCanada where the Schmidts had apparently stayed. On August 15, 1994, hecontacted the kennel where the Schmidts had boarded their dog. Because he hadreason to believe the Schmidts were fishing in Canada, he contacted the OntarioDepartment of Natural Resources to obtain a copy of Thomas' fishing license.Gerlich also contacted the Chicago police department and asked them to use theircomputer system to check on the license plates of vehicles parked in theSchmidts' driveway. A call was also placed to the Schmidts' local post office todetermine the time that the Schmidts' mail was delivered to their home each day.

On August 24, 1994, Thomas again was ordered to appear at a meeting. There,he was told by Mazanke and Gerlich that Ameritech knew the resort where he andhis wife had spent their vacation, that Ameritech knew where he and his wife hadboarded their dog, and that Ameritech knew the locations of the conveniencestore pay phone in Eau Claire, Wisconsin, that he had used when placing his lastphone call while en route home from Canada. He was told by Mazanke andGerlich that they had obtained that information by their review of Ameritech'sMUD records for the telephone number listed to him. Thomas was then fired.

Immediately thereafter, he filed a grievance with the company. The grievancewent to arbitration, and Thomas was ordered to be reinstated. However, thearbitrator found that because Thomas had attempted to mislead Ameritech while hewas away on his fishing trip, he was refused a year's back pay that he sought.

Plaintiffs then filed suit to redress Ameritech's alleged invasions of theirprivacy. Defendants removed the action to federal court, claiming thatplaintiffs' claims were preempted by section 301 of the Labor ManagementRelations Act (29 U.S.C.