Ashley Pealer, a former Upper Cumberland Development District employee has filed a federal court lawsuit against the agency; the man who fired her, Randy Williams, UCDD's interim executive director; and Mike Gannon, chairman of the UCDD board. Pealer claims her personal cell phone messages and Facebook account were hacked, a violation of her Constitutional rights.
Pealer is being represented by W. Gary Blackburn of Nashville, who filed the suit in the U.S. District Court for the Middle District of Tennessee Northeast Division Wednesday morning.
Allegations involve violations of the Stored Communications Act and the Wiretap Act, allegedly committed by Williams and Gannon.
Pealer claims that after she was fired, her cell phone, issued to her by UCDD, was taken from her; that some three hundred pages of her private text messages, which were stored through Verizon, were accessed by the defendants, printed and published to various persons. Pealer alleges that at least one of the defendants used her private password to invade and access her Facebook account as well. The Defendants also allegedly intercepted a private email communication to Pealer's Facebook account, according to the lawsuit.
Pealer claims the purpose and intent of this behavior was to embarrass and intimidate her in retaliation for her refusal to participate in or remain silent about the illegal behavior of former UCDD Executive Director Wendy Askins, and to determine the extent to which she (Pealer) was involved in disclosing illegal conduct to the news media.
Pealer is asking the court to "permanently enjoin any further publication of her text messages or information obtained from her Facebook account; that the court order the defendants to answer to Pealer in damages caused by their violation of the Secured Communications Act, in an amount of no less than one thousand dollars for each violation, to be assessed against each individual Defendant, and in an amount not less than ten thousand dollars for violation of the Wiretap Act; that the Defendants be assessed punitive damages as provided under the Secured Communications Act; that the Defendants be further assessed damages for the deprivation of Pealer's rights as guaranteed under the Fourth Amendment to the U.S. Constitution; that Pealer be awarded her reasonable attorney's fees and expenses as provided both by the Secured Communications Act and the Wiretap Act; and that a jury be impaneled to try all issues so triable"
Allegations of the lawsuit state as follows:
Prior to June 18, 2012, the Plaintiff (Pealer) had been employed for a number of years by the UCDD. Pealer was provided a Droid smartphone by the UCDD. Her business email address was firstname.lastname@example.org. The published personnel manual of the agency provides that communications stored in agency systems are the property of the agency. Pealer therefore does not assert any expectation of privacy with regard to the agency email account or voicemail.
Pealer maintained a separate private email account with the address and a private password protected Facebook account.
Pealer also communicated through text messages which were stored through a service provided by Verizon. The UCDD personnel manual is silent concerning text messages. The Agency, through its supervisory personnel, never sought access to or advised of rules concerning text messages prior to June 18, 2012. Pealer sent and received personal messages and regarded them as private.
In the months preceding June 18, 2012, the agency was the subject of an extensive investigation by NewsChannel5 television of Nashville. This investigation revealed what was appeared to have been the misappropriation of funds and the diversion of agency money for the private benefit of the Director, Wendy Askins, her family members and others. The Agency, its directors and employees have been and are the subject of a federal criminal investigation.
As a consequence of the scandal, the agency employed counsel to do an internal investigation at a cost of nearly two hundred fifty thousand dollars. During this investigation, Pealer was interviewed. At no time were her text messages requested or reviewed, nor was she asked to permit access to her Facebook account. At no time were her personal Hotmail emails requested or reviewed.
Director Wendy Askins, who was suspected of misappropriation of public funds, was forced to resign. She was permitted to retain her cell phone and upon information and belief, none of her messages were requested or reviewed by the Agency or by any attorney employed on its behalf.
Subsequent to Ms. Askins' departure, Mr. Earl Carwile was asked to become the interim Executive Director of the Agency. Pealer served as acting Deputy Director and reported directly to Mr. Carwile.
On May 31, 2012, Mr. Carwile submitted to Mike Foster, who at that time served as Chairman of the Board, his resignation as Executive Director. Mr. Carwile complained of what he believed to have been poor financial management and inappropriate conduct on behalf of the UCDD Board. This included the surrender of over one hundred thousand dollars in grant money to an individual who had applied for the grants while a UCDD employee. Mr. Carwile complained that rather than focusing upon the multiple problems created by the unethical and illegal conduct of the former Executive Director, board members previously associated with Ms. Askins had become obsessed with identifying the person or persons who had contacted the media and who had taken "information out".
Pealer was associated with Mr. Carwile and was among those who had opposed and refused to remain silent about illegal and possible criminal activities attributed to Ms. Askins, her friends and family.
On June 18, 2012, Pealer reported to work. She was taken to the office of the then acting, Director, Randal Williams, and terminated. Mr. Williams falsely told Pealer that she was being terminated mainly because of an agency reorganization.
None of the procedures for such an adverse job action contained in the policy and procedures manual was followed.
Defendant Williams, in the presence of Sherry Thurman, announced in pretentious language that Pealer had been terminated and must leave the premises immediately. Pealer was not allowed to obtain her personal belongings and her cell phone was taken from her.
Thereafter, some three hundred pages of private text message of Pealer, which were stored through Verizon, were accessed by the defendants and printed. The defendant, Mike Gannon, who by then served as the Chairman of the UCDD Board, reviewed the text messages along with Defendant, Michelle Price, Sherry Thurman, and Patty Ray. After the text messages were printed, they were published to various persons.
At least one of the Defendants used the private password of Pealer to invade and access Pealer's Facebook account as well. The Defendants intercepted a private email communication to Pealer's Facebook account.
The purpose and intent of this behavior was to embarrass and intimidate Pealer in retaliation for her refusal to participate in or remain silent about the illegal behavior of Wendy Askins, and to determine the extent to which she was involved in disclosing illegal conduct to the news media.
At the time the stored messages were accessed by the Defendants, Pealer had already been terminated. Consequently, none of the texts were used as a premise for her termination, and no proper or legitimate purpose has been offered by the defendants.
The Stored Communications Act prohibits unlawful access to stored electronic communication.
The intrusion of the Defendants as agents of a public agency into Pealer's stored text messages and Facebok account constitutes a warrantless search upon private property in which Pealer had a reasonable expectation of privacy. The search was not done pursuant to a warrant or in the investigation of any matter concerning Pealer's employment, but was done following her termination for an improper purpose. This constitutes a deprivation of Pealer's rights under the fourth amendment of the U.S. Constitution.
The UCDD, through its agents and employees, intentionally intercepted a wire or electronic communication from a third person to Pealer through the theft and misuse of her Facebook password. The UCDD therefore violated the Wiretap Act.