Bourke v. Nissan Motor Co.

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Bourke v. Nissan Motor Co.
Case Title Bonita P. Bourke et al., v. Nissan Motor Corporation in U.S.A.
Date 1993/07/26
Appealed Yes
Personal Information Sexual, Medical and Health
Link to Ruling
Country/Jurisdiction United States
State or Province
Regulatory Bodies
Decided No
Arbitrator Court of Appeal
Related Laws Penal Code Section 631, Penal Code Section 632

Short Summary

Rule: The court ruled that the employer had a right to monitor an employee's email and to terminate employees for sending email 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 The Court of Appeal designated this opinion "Not to be published" and it was not reported in the typical opinion reporters.


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 email 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 email 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).

The court found that the employees had no reasonable expectation of privacy, citing the following undisputed facts: (1) Plaintiffs each signed a Computer User Registration Form, which states that "It is company policy that employees and contractors restrict their use of company-owned computer hardware and software to company business." (2) The two had been aware for months that E-mail messages were, from time to time, read by individuals other than the intended recipient. (3) In June 1990, a full six months before Bourke's termination, fellow employee, Lori Eaton, had contacted Bourke to complain about the personal, sexual nature of Bourke's E-mail message which Eaton had retrieved for demonstration purposes during a training session at an Infiniti dealership.

The court found that the statute of Penal Code Section 631 does not apply to the facts of this case, since plaintiffs cited no authority to support their contention that section 631 covers the retrieval, printing and reading of email messages which is not authorized by the author of the message.The court found that section 632 (which prohibits the eavesdropping or recording of a "confidential communication by means of any electronic amplifying or recording device"), does not apply in this case.

The court argued that a claim for wrongful termination in violation of public policy necessarily requires a violation of public policy; however, as concluded in section I., Nissan's actions in reviewing plaintiffs' E-mail messages did not violate their constitutional right to privacy. Therefore, the Court held that plaintiffs had failed to state a claim for wrongful termination in violation of public policy.


Bourke v. Nissan Motor Corp., No. B068705 (Cal. Ct. App., July 26, 1993) 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.