Full opinion text
MEMORANDUM AND ORDER CROW, District Judge. The case comes before the court on the defendants’ motion for summary judgment (Dk.159). The plaintiffs bring this action alleging the defendants violated the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq., by monitoring and recording their telephone calls at work. The plaintiffs further claim that the defendants terminated their employment in retaliation for their complaints about this monitoring of telephone calls and for their reports of a coworker’s theft of commissions and fraudulent reports of business transactions. The plaintiffs also have claims for negligent infliction of emotional distress, intentional infliction of emotional distress, defamation, and invasion of privacy. The defendants seek summary judgment on all claims. SUMMARY JUDGMENT STANDARDS A court grants a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure if a genuine issue of material fact does not exist and if the movant is entitled to judgment as a matter of law. The court is to determine “whether there is the need for a trial — whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). “Only disputes over facts that might affect the outcome of the suit under the governing law will ... preclude summary judgment.” Id. There are no genuine issues for trial if the record taken as a whole would not persuade a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). “[T]here are eases where the evidence is so weak that the ease does not raise a genuine issue of fact.” Burnette v. Dow Chemical Co., 849 F.2d 1269, 1273 (10th Cir.1988). The initial burden is with the movant to “point to those portions of the record that demonstrate an absence of a genuine issue of material fact given the relevant substantive law.” Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir.), cert. denied, 506 U.S. 1013, 113 S.Ct. 635, 121 L.Ed.2d 566 (1992). If this burden is met, the nonmovant must “come forward with specific facts showing that there is a genuine issue for trial as to elements essential to” the nonmovant’s claim or position. Martin v. Nannie and the Newborns, Inc., 8 F.3d 1410, 1414 (10th Cir.1993) (citations omitted). The nonmovant’s burden is more than a simple showing of “some metaphysical doubt as to the material facts,” Matsushita, 475 U.S. at 586, 106 S.Ct. at 1356; it requires “‘present[ing] sufficient evidence in specific, factual form for a jury to return a verdict in that party’s favor.’” Thomas v. International Business Machines, 48 F.3d 478, 484 (10th Cir.1995) (quoting Bacchus Industries, Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991)). The court views the evidence of record and draws all reasonable inferences in the light most favorable to the nonmovant. Id. A party relying on only conelusory allegations cannot defeat a properly supported motion for summary judgment. White v. York Intern. Corp., 45 F.3d 357, 363 (10th Cir.1995). More than a “disfavored procedural shortcut,” summary judgment is an important procedure “designed ‘to secure the just, speedy and inexpensive determination of every action.’ Fed.R.Civ.P. 1.” Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986). At the same time, a summary judgment motion does not empower a court to act as the jury and determine witness credibility, weigh the evidence, or choose between competing inferences. Windon Third Oil and Gas v. Federal Deposit Ins. Corp., 805 F.2d 342, 346 (10th Cir.1986), cert. denied, 480 U.S. 947, 107 S.Ct. 1605, 94 L.Ed.2d 791 (1987). STATEMENT OF UNCONTROVERTED FACTS The court considers the following facts to be uncontroverted for purposes of this motion only. Douglas Cable Communications (“DCC”) hired the plaintiff John Ham (“Ham”) initially as a part-time customer service representative (“CSR”) on November 18, 1991. DCC also initially hired the plaintiff Jan Ali (“Ali”) in the same position on July 7, 1992. A CSR’s principal duties include speaking with customers over the telephone about sales, complaints, collection of delinquent accounts, and follow-up. The defendant Reavis Gibb has been the operations manager for DCC since 1986. The defendant Jeffrey Scheidegger has worked for DCC since 1986 holding various positions, including controller, director of operations, and director of customer service. The defendant Devon Plumberg was a training supervisor for CSRs from August of 1992 through December of 1993. In October of 1992, Ham complained to Patty Shaver, Devon Plumberg and Jeffrey Scheidegger that he believed another CSR, Marcia Trickett, was manipulating the DCC computer system for her personal gain. Specifically, Ham complained that Trickett was stealing commissions from other CSRs and was creating bogus accounts for which she was paid commissions. At the request of Scheidegger and others, Ham compiled and produced documents which ostensibly substantiated what he was alleging. The DCC management reviewed these documents and also investigated the allegations. In Trickett’s entries, they found evidence of suspicious circumstances and work inconsistent with training guidelines. Near the end of October and first part of November of 1992, Shaver informed Trickett that because of discrepancies in her work entries found by her co-workers she was being placed on a thirty-day probationary period and subjected to disciplinary measures, including additional reporting requirements, daily review of reported sales and adjustments, and monitoring of sales calls. The written disciplinary warning ended with: “An administrative review will be conducted on December 8, 1992, to affirm Marcia has corrected the improprieties. Further deviations will result in disciplinary actions not excluding termination.” (Dk.160, Ex. A). Ham continued to complain to Scheidegger about Trickett’s actions. Ham met with Scheidegger four or five times, produced additional documentation about his complaints, and asked why Trickett had not been disciplined or fired. Apparently frustrated by Scheidegger’s responses to his questions and efforts, Ham threw papers up in the air and walked out of one of the meetings. In one or more of the meetings, Ham accused Seheidegger of not acting on his complaints because Triekett’s bogus accounts benefitted DCC by increasing the availability of financing which was based on the number of customer accounts. At another meeting near March of 1993, Scheidegger told Ham “to shut the fuck up and sit down and not say another word about anything that’s going on here, or you will lose your job.” (Ham Dep. at 206). Ham described work as “crazy,” “as soon as I walked in, I had to hard copy anything that anyone around had done. I was trying to prove what Marcia had done. I was trying to figure out why Jeff wasn’t doing anything about what Marcia had done.” (Ham Dep. at 171). Ali printed each of her sales and took the ones that did not close properly to Ham who investigated them. Because the CSRs’ principal contact with customers was over the telephone, DCC management monitored the CSRs’ telephone conversations for purposes of training CSRs and improving customer service. Specifically, the supervisors used their extension telephones to monitor CSRs in the use of proper skills and to assist the CSRs with difficult customers. Some of the CSRs knew of the telephone monitoring because the supervisors had used it during their training, and other CSRs, like the plaintiffs, were not aware of it. Devon Plumberg testified that notices regarding the monitoring were posted on a bulletin board and on a computer “billboard.” Others could not remember seeing the notice posted at either place. Ms. Plumberg testified that if the CSR received a personal call then she would stop monitoring that call. CSRs were not told that personal calls could not be made at their desk, and their supervisors knew that personal calls were being made and received at the CSRs’ desks. In early 1993, DCC management decided that recording CSR conversations for later review would be an aid in training and supervision and in participating in Home Box Office sponsored contests. Memoranda and staff agenda were distributed beginning in February of 1993 to the staff informing them first of the decision to add “recording mechanism to monitor CSR'phone calls” and then the management’s progress in acquiring the equipment and having it installed. (Dk.160, Ex. 15). In purchasing this equipment, DCC management contacted Wiltel which had provided DCC the telephone equipment it was using. Wiltel contracted with another company, Comtronics, in acquiring the ancillary equipment needed for recording the calls. Wiltel ■ installed the recording equipment which was connected to an extension tele-phone which had access to the CRSs’ different lines. The supervisor would set the equipment to record all phone calls made on a particular phone line. The equipment would then activate automatically when a call was received or made, and it did not distinguish between business or personal calls. A memorandum dated April 6, 1993, from Devon Plumberg distributed to the CSRs informed -them that: Documentation of sales and save techniques will begin this week with the installation of our recording device. I will be recording five CSRs’ activity this week: Jan Ali, John Ham, LeaAnn Husted, Janell Porter and Jennifer Wise. I have scripted the specific steps a CSR must go through for both the selling process and retention process as the basis for evaluating these recordings. (Dk.160, Ex. 12). Both Ali and Ham became aware of this memorandum on Friday, April 9, 1993. Before April 9th, Plumberg apparently recorded approximately one to one and one-half hours of telephone calls for each plaintiff over two business days. DCC did not install a pay or personal phone for CSRs to use for personal calls until April 19, 1993. Because Ham was making numerous personal phone calls while at work, he was furious that his telephone calls might be recorded. When Ham complained about the recording, DCC management sought the legal advice of their attorney. The letter opinion dated April 29, 1993, concluded that DCC’s “proposed practice of monitoring and taping some of the phones used by the CSR’s (sic) is lawful and appropriate,” and suggested some additional measures to insure “maximum insulation from civil liability.” (Dk.160, Ex. 81)., The management shared this letter opinion with the CSRs. The weekly sales activity reports and the summary of basic sales activity showed that Ham and Ali were not meeting performance expectations for the first part of 1993. In a memorandum dated February 12,1993, Ham received a memorandum from Ms. Shaver that criticized his behavior and attitude at work. She referred to several instances of customer complaints about rudeness and failure to place a work order, of improper handling of DCC payments, and of studying at work. In a memorandum dated February 5, 1993,'Steve Krueger criticized Ham’s handling of orders and checks. He had found several checks on Ham’s desk, and some of them dated back to October of 1992. Krueger wrote: “I know John knows not to have money around that long. I give up on babysitting him. I’m not asking you to fire him, but he is no longer any asset of our Iowa team.” (Dk.160, Ex. 20). On March 2, 1993, Ham received a memorandum from Devon Plumberg on his failure to meet his weekly sales goals over the last nine-week period. Despite the warning, Ham’s sales did not improve. Ham says his performance had not been criticized until he began arguing with Scheidegger over not taking action against Trickett. During the first part of 1993, Ham twice threw papers in the air in disgust in front of his supervisors. His supervisors considered such behavior to be insubordinate temper tantrums. DCC management found that Ham was performing poorly because of his delinquent handling of checks, declining sales, and insubordinate behavior towards supervisors. A week or two weeks after returning to work from a medical absence, Scheidegger requested a note from Ham’s doctor concerning the absence. The next day Ham sent Scheidegger a note dated April 15,1993, that said, “After speaking to my atty. I have decided against obtaining a physician’s note.” (Dk.160, Ex. 29). On April 19, 1993, Shaver called Ham and told him that he was not scheduled to work that day. When Ham inquired who else was not scheduled to work, why he was selected, and when he would be scheduled to work again, Shaver answered that the work schedules were not completed and that she did not know when Ham would be scheduled. Ham told Shaver that he was coming to work anyway and “have a little meeting and you guys can tell me exactly who else besides me that you are putting on temporary.” (Dk. 172, Ex. H at 8). Ham talked with Scheidegger and Shaver in Scheidegger’s office. Ham repeatedly asked why he was not scheduled to work, and Scheidegger refused to give him a reason. Ham and Scheidegger raised their voices and appeared agitated. Ham carried a concealed voice-activated tape recorder during that meeting, and a transcript of the recording shows that Scheidegger placed Ham on inactive part-time status and that Ham insisted on being provided a written reason for this decision. After a while, Scheidegger asked Ham to “vacate the building” and repeated that request numerous times when Ham refused to leave. (Dk. 172, Ex. L at 5-10). Ham became disruptive and attempted to talk with others who were working at the time. Just before leaving, Ham told Scheidegger: “Oh by the way Jeff, I’ll see you later____ It’s been fun believe me and it’s even going to be a lot more fun. And I hope that all these people around here do the same thing that I’m gonna do to you____ Sweet dreams.” (Dk. 172, Ex. L at 10). Scheidegger perceived Ham’s comments as threatening, and the police were called. The officers were given Ham’s name. An officer escorted the employees to their cars. The locks on DCC’s building were changed, and all CSRs were required to enter through the front door. Employees were told to hang up if Ham called and to alert the police if he was seen on the premises. Shaver told another CSR that afternoon or the next day that Ham seemed to be the kind of person who would “come in with a gun and shoot everybody.” (Trickett Dep. at 61). When Ham called Scheidegger later to ask for his personnel file, Scheidegger told him that it would be mailed to him and that he need not come to DCC, that he was perceived as “dangerous” and “irrational,” and that the police would be called. During his employment with DCC, Ham claims he suffered a physical injury from the stress. On March 2, 1993, Ham was seen at the emergency department of Stormont>-Vail Regional Medical Center in Topeka for complaints of a rapid heart beat. Ham told the hospital personnel that he had been under stress and had consumed a large amount of caffeine through beverages. The progress notes from Ham’s physician dated March 3, 1993, show sinus tachycardia “probably due to the number of stimulants that he currently has in his diet.” The physician’s notes for March 4, 1993, state: “Patient has continued to have problems with withdrawal from taking large amounts of caffeine daily. He is having problems with restlessness and anxiety.” (Dk.160, Ex. 54). He wore a monitor for twenty-four hours to monitor the rate of his tachycardia, and the results were benign. The notes from March 8, 1993, show that Ham improved with the Xanax medication and that the physician thought a low dosage of Xanax on a permanent basis might be appropriate considering Ham’s “history of anxiety neurosis or panic disorder.” (Dk.160, Ex. 54). Jan Ali’s sale performance also declined, and she was not meeting her sales goals and was missing work. It appears Ali’s absences were due to a medical leave of absence. Ali wrote a memo to Scheidegger complaining about the scheduling of training sessions and remarking that, “It wouldn’t be so bad if we would actually learn something valuable at these sessions.” (Dk.160, Ex. 44). In July, Ali received a letter from Shaver that said it had been determined during her thirty-day absence that her services were no longer needed. To support her claim of physical injury, Ali refers to three different instances when she sought treatment from area hospitals. In January of 1993, she was hospitalized for several days with right lower lobe pneumonia. On November 17, 1993, over four months after termination, Ali visited a hospital emergency department with complaints of itching. In December of 1993, she presented to the emergency room again, but this time she complained of coughing and large red spots on her throat. Ali testified that her last two visits also included treatment for red bumps or rash that Ali says her physician diagnosed as caused by anxiety. Ali’s physician testified that the' rash was caused by medication that Ali had taken in error. Ali testified that she had several meetings concerning the recording of CSRs’ telephone calls and that she complained to Shaver and Plumberg about lost commissions and bogus accounts caused by Trickett. According to Ali, at her last visit with Scheidegger about recording telephone calls, Scheidegger became angry and warned her that “if I mentioned the words John Ham or wire tapping or eavesdropping to any technician or customer or customer service rep, I would be fired within the hour.” (Ali Dep. at 127). OMNIBUS CRIME CONTROL AND SAFE STREETS ACT OF 1968 The plaintiffs claim that the defendants by monitoring and recording the CSRs’ telephone calls violated Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510, et seq. (“Title III”). This Act prohibits the interception and disclosure of wire communications subject to certain express exceptions and allows for the victim to recover damages in a civil action. 18 U.S.C. §§ 2511, 2520. The defendants argue the interceptions here come within the recognized exceptions for consent and business extensions. Section 2511(l)(a) prohibits the intentional interception of any wire communication. “ ‘A telephone conversation is a wire conversation.’ ” Forsyth v. Barr, 19 F.3d 1527, 1534 (5th Cir.) (quoting Briggs v. American Air Filter Co., Inc., 630 F.2d 414, 417 (5th Cir.1980)), cert. denied, — U.S. -, 115 S.Ct. 195, 130 L.Ed.2d 127 (1994). Because the statute speaks of “intentional” interceptions, liability will not attach from inadvertent interceptions. Thompson v. Dulaney, 970 F.2d 744, 748 (10th Cir.1992). There seems little dispute that the defendants violated Title III unless their conduct comes within one of the argued exceptions. On the consent exception, the defendants argue that the plaintiffs consented to the monitoring and recording as other DCC employees knew supervisors were monitoring CSRs’ telephone calls and were purchasing equipment for recording the CSRs’ telephone calls. On the business extension exception, the defendants argue the interception was done in the ordinary course of business with an extension telephone. Because these exceptions are “analytically separate,” the court will analyze the consent exception first. See Watkins v. L.M. Berry & Co., 704 F.2d 577, 581 (11th Cir.1983). The consent exception appears at § 2511(2)(d), which provides: It shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire, oral, or electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State. “ ‘Consent may be actual or implied.’ ” United States v. Amen, 831 F.2d 373, 378 (2nd Cir.1987) (quoting S.Rep. No. 1097, 90th Cong., 2d Sess., reprinted in 1968 U.S.Code Cong. & Admin.News 2112, 2182), cert. denied, 485 U.S. 1021, 108 S.Ct. 1573, 99 L.Ed.2d 889 (1988); see Williams v. Poulos, 11 F.3d 271, 281 (1st Cir.1993). “ ‘[I]mplied consent is “consent in fact” which is inferred “from surrounding circumstances indicating that the party knowingly agreed to the surveillance.” ’ ” Williams, 11 F.3d at 281 (quoting Griggs-Ryan v. Smith, 904 F.2d 112, 116-17 (1st Cir.1990) (quoting in turn United States v. Amen, 831 F.2d at 378)). “[I]mplied consent should not be casually inferred.” Williams, 11 F.3d at 281 (citation omitted). The circumstances giving rise to implied consent are case specific, but they “ordinarily include language or acts which tend to prove (or disprove) that a party knows of, assents to, encroachments on the routine expectation that conversations are private.” Griggs-Ryan, 904 F.2d at 117. “ ‘Knowledge of the capability of monitoring alone cannot be considered implied consent.’ ” Deal v. Spears, 980 F.2d 1153, 1157 (8th Cir.1992) (quoting Watkins v. L.M. Berry & Co., 704 F.2d at 581). Consent is not necessarily “an all or nothing proposition,” Watkins, 704 F.2d at 582, and its scope or its parameters can be circumscribed by the understandings and facts in a given case, Griggs-Ryan, 904 F.2d at 119. The plaintiffs deny knowledge and acquiescence in the monitoring of their telephone calls. It is uncontroverted that some of the CSRs knew of the defendants’ monitoring practice while other CSRs did not. The circumstances under which certain CSRs learned of the monitoring goes to the plaintiffs’ credibility in denying knowledge, for it is controverted whether the defendants formally announced they would monitor CSRs’ calls and whether the defendants established a formal policy or procedure for monitoring CSRs’ calls which was communicated to the CSRs. The defendants appear to have known that CSRs made or received personal phone calls at their desks, and there is no evidence of record that the CSRs were discouraged from doing the same. In fact, prior to Ham’s discharge, the defendants had not provided CSRs with a separate phone for making personal phone calls. The evidence is enough to create a genuine issue of material fact whether the plaintiffs consented to the monitoring of their telephone calls. As for the recording, the defendants in February, March and April announced in staff memoranda their intention to acquire a system for recording the CSRs’ telephone calls. Prior to the memorandum of April 6, 1993, the defendants, however, did not disclose or describe the manner in which they intended to use the recording equipment. Ham and Ali apparently did not learn of the contents of the April 6th memorandum until April 9, 1993. Ham’s testimony is that Ali called him about the April 6th memorandum and that he then complained immediately to Plumberg. The evidence shows that Ham called Plumberg on Friday, April 9, 1993, inquired about DCC’s recording of telephone calls, and complained that the recording was unlawful. Plumberg testified that some of Ham’s telephone calls had been recorded before April 9, 1993. The evidence simply is not sufficient to infer as a matter of law that Ham impliedly consented to any recording of his telephone calls before or after April 9, 1993. As for Ali, she too did not learn of the April 6th memorandum until April 9, 1993, and then immediately questioned Shaver and Plumberg about the recording of calls. She learned from Plumberg that some of her calls had already been recorded prior to receiving the memorandum. The court finds genuine issues of material fact remaining as to Ali’s implied consent to the recording of telephone calls. In sum, the plaintiffs have come forth with sufficient evidence suggesting the absence of either full knowledge or adequate notification, from which consent can be implied. Neither plaintiff was in an actual position where he or she necessarily would have learned of the monitoring. The monitoring and recording were done without beep tones or other signals indicating their use. There were no labels on the CSRs’ phones or other written policies distributed to the CSRs that warned them of monitoring and/or recording of telephone calls and that cautioned them against making personal phone calls at their desks. Prior to Ham’s departure, DCC had not provided CSRs with a private telephone from which they could make personal phone calls. DCC made no effort to obtain the written consent of the CSRs prior to monitoring and recording their telephone calls. Nor does DCC offer evidence of the CSRs openly and frequently discussing the monitoring and recording as a routine and pervasive practice at DCC. Genuine issues of material fact surround the consent exception. When §§ 2510(4) and (5) of Title III are construed together, they create an exception for extension or business extension telephones. United States v. Murdock, 63 F.3d 1391, 1393 (6th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 1672, 134 L.Ed.2d 776 (1996). Title III defines “electronic, mechanical, or other device,” as used in § 2510(4), to not include: (a) any telephone or telegraph instrument, equipment or facility, or any component thereof, (i) furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business or furnished by such subscriber or user for connection to the facilities of such service and used in the ordinary course of its business; 18 U.S.C. § 2510(5)(a). Thus, this exception “places outside the reach of Title III the monitoring of communications carried out by certain types of equipment and done in the ordinary course of business.” Williams v. Poulos, 11 F.3d 271, 279 (1st Cir.1993). The first prong under this exception is whether the equipment used by DCC to monitor and record the CSRs’ calls qualifies as § 2510(5)(a) equipment. There are two ways that this prong can be met: (1) the provider of wire communication service furnishes the equipment in the ordinary course of its business, or (2) the subscriber or user furnishes the equipment for connection to the wire communication facilities. 18 U.S.C. § 2510(5)(a); see Sanders v. Robert Bosch Corp., 38 F.3d 736, 740 n. 9 (4th Cir.1994). DCC represents that its telephone system, including the telephones used to monitor the CSRs’ calls, was provided by Wiltel, a licensed telecommunications company, in the ordinary course of Wiltel’s business. See Deal v. Spears, 980 F.2d at 1158 (Radio Shack is not a telephone company). Even if Wiltel is not a provider of wire communication service, DCC acquired the supervisors’ extension telephones “for connection to the facilities” of its existing wire communication service. 18 U.S.C. § 2510(5)(a); cf. Williams v. Poulos, 11 F.3d at 280-81. The extension telephones plainly enabled the supervisors to become a party to telephone conversations between customers and CSRs and, thus, the extension telephones furthered DCC’s communication system. See Sanders, 38 F.3d at 741. Courts repeatedly have treated extension telephones as telephone equipment. See, e.g., Newcomb v. Ingle, 944 F.2d 1534, 1535-36 (10th Cir.1991), cert. denied, 502 U.S. 1044, 112 S.Ct. 903, 116 L.Ed.2d 804 (1992); Royal Health Care Services v. Jefferson-Pilot Life Insurance Co., 924 F.2d 215, 217 (11th Cir.1991); Watkins v. L.M. Berry & Co., 704 F.2d at 582-84. As for the recording equipment, it merely “preserved] the contents of the communication.” United States v. Harpel, 493 F.2d 346, 350 (10th Cir.1974). Because the recording equipment was attached to the telephone extension, the extension is the device that intercepts the communication. Id.; see Royal Health Care Services v. Jefferson-Pilot Life Insurance, 924 F.2d at 217; But see United States v. Murdock, 63 F.3d at 1394; Sanders, 38 F.3d at 740 n. 8; Deal, 980 F.2d at 1157-58; Pascale v. Carolina Freight Carriers Corp., 898 F.Supp. 276, 279-81 (D.N.J.1995). Bound by the Tenth Circuit precedent, the court finds that the first prong of the business extension exception is satisfied. The other prong to this exception is that DCC used the intercepting equipment in the ordinary course of its business. Sanders, 38 F.3d at 740; Deal, 980 F.2d at 1157. Before going to the general rules developed in other circuits, this court first must determine the parameters set by controlling Tenth Circuit precedent. See Morris v. State of Kan. Dept. of Revenue, 849 F.Supp. 1421, 1428 (D.Kan.1994). In United States v. Harpel, the defendant was charged and convicted of disclosing an unlawfully intercepted wire communication. The evidence at trial adduced that Harpel played a recording of a telephone conversation between a police officer with the Pueblo, Colorado Police Department and agents of the Bureau of Narcotics and Dangerous Drugs in Denver, Colorado. The evidence, however, did not prove who recorded the conversation or the manner in which it was recorded. On appeal, Harpel argued the call was not an unlawfully intercepted wire communication pursuant to the telephone extension exception. The Tenth Circuit affirmed the conviction holding: What appellant Harpel has overlooked in his reliance on the exception is that the telephone equipment must be used “in the ordinary course of business.” We hold as a matter of law that a telephone extension used without authorization or consent to surreptitiously record a private telephone conversation is not used in the ordinary course of business. 493 F.2d at 351. In James v. Newspaper Agency Corp., 591 F.2d 579 (10th Cir.1979), the defendant employer installed telephone monitoring devices in those departments that typieally dealt with the public. All employees affected by the monitoring were notified in writing of the decision to install monitoring devices. The plaintiff’s duties included collection of unpaid bills from transient advertisers. The employer’s purposes in monitoring business calls was to assist supervisors in training and instructing employees on how to deal with the public and to protect employees from abusive calls. 591 F.2d at 581. The Tenth Circuit affirmed the summary judgment granted for the employer: As above mentioned, the evidentiary matter before the trial court when it granted summary judgment in favor of the defendant on the wire interception claim showed that the defendant had requested the telephone company to install a monitoring device which would permit the defendant to listen in on telephone conversations between its employees and its advertisers, and others. This was a part of the service rendered by the phone company on request. As indicated, the reason for the installation was the concern by management over abusive language used by irate customers when called upon to pay their bills, coupled with the possible need to give further training and supervision to employees dealing with the public. The installation was not done surreptitiously. Rather, all employees were advised in advance, in writing, of the proposed installation, and there was no protest. In our view, the present ease comes squarely within the exception provided in 18 U.S.C. § 2510(5)(a), and it is on this basis that we affirm the summary judgment granted the defendant on the second claim. We do not regard our holding in the instant case to be at odds with United States v. Harpel, 493 F.2d 346 (10th Cir.1974). In Harpel, we held that the surreptitious use of a telephone extension to record a private telephone conversation did not qualify as an exception under 18 U.S.C. § 2510(5)(a), sinee such was not in the “ordinary course of business.” Here the installation was not surreptitious, but with advance knowledge on the part of both management and its employees, and was for a legitimate business purpose. 591 F.2d at 581-82. For purposes of this case, there are some obvious reasons for narrowly reading the holdings in Harpel and James on what constitutes “in the ordinary course of business.” First, they were decided more than twenty years ago when the case law on this issue under Title III was still emerging. After these decisions were handed down, other circuits have had the chance to discuss this issue in different contexts and to fashion some accepted rules of general applicability. Second, language and analysis from the consent exception creeps into the discussion of the separate extension exception found in the decisions. Third, the holdings in both are fact-bound. In Harpel, the court was content to say what was not “in the ordinary course of business” based solely on the facts before it. There was no evidence in Harpel as to who intercepted the call or how it was accomplished. Consequently, the Tenth Circuit rejected the defendant’s extension exception argument for essentially two reasons. First, the absence of any evidence showing an authorized use of the extension telephone. The court implicitly held that an unauthorized use of an extension telephone is not done in the ordinary course of business. Second, the surreptitious monitoring of private or personal calls is not done in the ordinary course of business. In James, the court found the extension exception applicable based on the limited facts and arguments that had been presented. There is no mention in the James opinion whether the employer monitored employees’ personal or private phone calls or whether the employees were even allowed to make personal or private phone calls on the business lines. Presumably, the Tenth Circuit believed only business calls were being monitored as that was the employer’s stated purpose for the monitoring. The panel in James did refer to the “surreptitious” language in Harpel, but considered it relevant only to the manner in which the extension telephone was used. The holding in Harpel concerning private calls, coupled with the panel’s failure to mention or discuss personal calls in James, dissuades this court from believing that the extension exception recognized and applied in Harpel and James allows an employer to monitor by extension phone an employee’s private or personal calls, so long as the employer does not monitor the calls surreptitiously. It is not enough that DCC’s policy reasons for monitoring and recording the CSRs’ telephone calls are justifiable. See Watkins, 704 F.2d at 582. In fact, there is little dispute that DCC had legitimate business reasons for monitoring the CSRs’ business calls. The real issue is whether DCC proceeded to intercept the communications in the ordinary course of its business. While DCC obviously has a legitimate business interest in monitoring business calls, it does not pretend to have any similar interest in monitoring the CSRs’ personal phone calls. The CSRs were not told that personal calls could not be made or received at their desk, and the supervisors knew that such personal calls occurred. The accepted rule with regard to intercepting personal calls of employees was first enunciated by the Eleventh Circuit in Watkins: We hold that a personal call may not be intercepted in the ordinary course of business under the exemption in section 2510(5)(a)(i), except to the extent necessary to guard against unauthorized use of the telephone or to determine whether a call is personal or not. In other words, a personal call may be intercepted in the ordinary course of business to determine its nature but never its contents. 704 F.2d at 583 (footnote omitted); see United States v. Murdock, 63 F.3d at 1396-97 (“[T]he indiscriminate recording of both incoming and outgoing calls by Mrs. Murdock does not constitute conduct within the ordinary course of the funeral home business in which she had an interest as a part owner.”); Sanders, 38 F.3d at 741 (employer lacked justification for extended recording of telephone calls, including personal calls); Deal, 980 F.2d at 1158-59 (employer’s suspicions of employees did not justify recording twenty-two hours of phone calls without regard to whether calls were related to the employer’s business interests). Ms. Plumberg testified that she ended the monitoring of a telephone call whenever she determined that the call was personal. The plaintiffs are unable to controvert this testimony. The defendants’ practice in monitoring in person only business calls and intercepting personal calls only to the extent necessary to determine whether the call was personal is a valid one under the extension exception. See Watkins, 704 F.2d at 583. Consequently, the court grants summary judgment for the defendants on the claim that the defendants unlawfully monitored in person their telephone calls or disclosed the contents of those conversations. DCC does not offer a legitimate business reason that as a matter of law justifies the indiscriminate recording of all business and personal telephone calls received or made during a particular shift. The defendants say they did not listen to the recorded tapes until the plaintiffs filed this action. This does not matter, for “[t]he recording of a telephone conversation alone constitutes an ‘aural ... acquisition’ of that conversation.” Sanders, 38 F.3d at 740 (footnote and citations omitted); see George v. Carusone, 849 F.Supp. 159, 163 (D.Conn.1994). In their reply memorandum, the defendants represent: “Simply because the call may have been recorded, at one point in time, does not mean that the supervisory personnel would discontinue their practice of not listening to personal calls.” (Dk. 179 at 8). There is no evidence cited in support of this naked assertion. The defendants are not entitled to summary judgment on the plaintiffs’ claim that they unlawfully intercepted and recorded personal phone calls. The defendants Gibb and Scheidegger say they cannot be held liable under Title III as they were not involved in the contemporaneous interception of any phone conversations. Gibb and Scheidegger deny listening to the tape-recorded conversations before the lawsuit was filed, and even if they had, they maintain liability does not rest upon mere acquisition of the tape-recorded conversations. The plaintiffs point to Gibb’s and Scheidegger’s roles in ordering and authorizing the purchase of the telephone recording device and in directing others to use the recording system. Under subsections (a) and (b) of § 2511, a person can be liable if he or she “procures” another to intercept or to use a device to intercept a wire communication. Based on the facts as presented, questions of material fact remain as to whether Gibb or Scheidegger procured another to intercept or to use a device to intercept the plaintiffs’ wire communications. INVASION OF PRIVACY In the pretrial order, the plaintiffs allege with respect to these claims the following: Plaintiffs Ali and Ham claim that the actions of the defendants, and each of them, with respect to the monitoring and recording of their telephone conversations and subsequent disclosure of the same, and that the actions of defendants with respect to John Ham and his termination, recklessly and intentionally intruded upon the plaintiffs’ solitude, seclusion and private affairs, placed the plaintiffs in a false light, and offended all ordinary and reasonable standards of conduct so as to have constituted an invasion of privacy. (Dk. 156 at 7). The plaintiffs’ invasion of privacy claims assert three different tort theories: (1) intrusion upon seclusion, (2) publicity given to private life, and (3) publicity placing person in false light. The defendants deny that the monitoring and recording of phone calls at work amount to intrusion. As for the latter two torts, the defendants maintain the plaintiffs are unable to prove that the defendants publicized any information. The Kansas Supreme Court has recognized a cause of action for invasion of privacy and has utilized the four distinct tort theories set forth in the Restatement of Torts (Second) §§ 652B-652E. Froelich v. Adair, 213 Kan. 357, 358, 516 P.2d 993 (1973). The three theories relevant here are: “§ 652B. INTRUSION UPON SECLUSION One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another, or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable man. § 652D. PUBLICITY GIVEN TO PRIVATE LIFE One who gives publicity to matters concerning the private life of another, of a kind highly offensive to a reasonable man, is subject to liability to the other for invasion of his privacy. § 652E. PUBLICITY PLACING PERSON IN FALSE LIGHT One who gives to another publicity which places him before the public in a false light of a kind highly offensive to a reasonable man, is subject to liability to the other for invasion of his privacy.” Froelich, 213 Kan. at 358-59, 516 P.2d 993; see Werner v. Kliewer, 238 Kan. 289, 293-94, 710 P.2d 1250 (1985); Finlay v. Finlay, 18 Kan.App.2d 479, 485-86, 856 P.2d 183, rev. denied, 253 Kan. 857 (1993). Intrusion upon Seclusion To prevail on an § 652B action for intrusion upon seclusion, the plaintiff must prove: “First, something in the nature of an intentional interference in the solitude or seclusion of a person’s physical being, or prying into his private affairs or concerns, and second, that the intrusion would be highly offensive to a reasonable person.” Werner, 238 Kan. at 294, 710 P.2d 1250. The interference must be “a substantial one, of a kind that would be highly offensive to the ordinary reasonable person, as the result of conduct to which the reasonable person would strongly object.” Moore v. R.Z. Sims Chevrolet-Subaru, Inc., 241 Kan. 542, Syl. ¶ 2, 738 P.2d 852 (1987). The tort “is based upon the manner in which an individual obtains information.” Werner, 238 Kan. at 294, 710 P.2d 1250. “While liability for the intrusion does not require publication of a plaintiffs private affairs, it does require that the defendant place himself physically, or by means of his senses, within plaintiffs zone of privacy.” Finlay, 18 Kan.App.2d at 486-87, 856 P.2d 183. Consequently, it is both the manner of intrusion as well as the nature of the information acquired that must rise to the level of being highly offensive to a reasonable person. Werner, 238 Kan. at 295, 710 P.2d 1250. The defendants’ motive or malice is not an element, for liability turns upon the defendant’s actions as opposed to motives. Froelich, 213 Kan. at 360, 516 P.2d 993. Other jurisdictions have recognized that the improper interception of employees’ phone calls may constitute a tortious invasion of privacy. See, e.g., Awbrey v. Great Atlantic & Pac. Tea Co., Inc., 505 F.Supp. 604, 608-10 (N.D.Ga.1980); Jackson v. Nationwide Credit, Inc., 206 Ga.App. 810, 426 S.E.2d 630 (1992), cert. denied, 206 Ga.App. 900 (1993); Benoit v. Roche, 657 So.2d 574 (La.Ct.App.1995); Oliver v. Pacific Northwest Bell Telephone Co., 53 Or.App. 604, 632 P.2d 1295, 1298 rev. denied, 292 Or. 108, 642 P.2d 310 (Or.1981); cf. Walker v. Darby, 706 F.Supp. 1467, 1473-75 (N.D.Ala.1989), rev’d, 911 F.2d 1573 (11th Cir.1990) (intercepting oral conversations at work with co-employees.) The plaintiffs cannot reasonably claim any offensive intrusion by the monitoring or recording of their business calls at the work place. Such calls were made for the benefit and in the interest of their employer. The business calls were a large part of the plaintiffs’ responsibilities at work, and the defendants were simply monitoring the plaintiffs’ work performance. The plaintiffs do not effectively controvert the defendants’ practice of monitoring personal calls only for so long as necessary to determine their personal nature. The court does not believe that a reasonable person would consider such a procedure to be a substantial interference with seclusion or highly offensive. On the other hand, a reasonable person could find it highly offensive that an employer records an employee’s personal phone calls in the circumstances where the employer did not discourage employees from making personal calls at their desks and did not inform the plaintiff employees that their personal calls would be recorded. In Jackson, the appeals court upheld summary judgment where the employer had monitored the employee’s work telephone: [W]e cannot conclude that it is an unreasonable intrusion into appellants’ seclusion, solitude or private affairs for Nationwide to monitor its telephones as it routinely did. All employees were advised that the telephones were for business only and that the telephones would be monitored. Therefore, using a speaker telephone to monitor appellants’ telephone calls while at work, in the context of this case, does not constitute an unreasonable intrusion into their private affairs. 426 S.E.2d at 632; cf. Simmons v. Southwestern Bell Tel. Co., 452 F.Supp. 392, 394 (W.D.Okla.1978) (The plaintiff did not have a “reasonable expectation of privacy” in his personal telephone conversations at work when he knew that his telephone conversations could be monitored and were being monitored.), aff'd, 611 F.2d 342 (10th Cir. 1979). In the instant case, there is a genuine issue of material fact whether the plaintiffs were aware that their personal calls would be recorded prior to April 9, 1993. Without uncontroverted proof that the plaintiffs knew their personal calls would be recorded before any such calls were actually recorded, the court cannot say as a matter of law that the plaintiffs’ actual or subjective expectation of privacy in the personal calls made at the work place was unreasonable under the circumstances. Cf. Walker, 911 F.2d at 1578-79. The employer’s asserted interest in recording the phone calls “must be balanced against the degree of intrusion resulting from the employer’s methods to obtain the information.” Pulla v. Amoco Oil Co., 882 F.Supp. 836, 867 (S.D.Iowa 1994) (balancing the respective rights and interests in an employer/employee relationship), aff'd in part and rev’d in part on other grounds, 72 F.3d 648 (8th Cir.1995); cf. Dawson v. Associates Financial Services Co., 215 Kan. 814, 820-21, 529 P.2d 104 (1974) (balancing the respective rights and interests in a debtor/creditor relationship). This is a case where a reasonable jury could find that the defendant employer’s asserted interest in recording the telephone calls did not justify recording the plaintiffs’ personal calls prior to warning about this risk. The defendants’ arguments do not warrant summary judgment on this claim. While the court finds that the defendants are entitled to summary judgment on the plaintiffs’ claim of intrusion upon seclusion from the monitoring in person of their telephone calls, the court denies summary judgment as to the plaintiffs’ claim that the recording of their personal calls before April 9, 1993, intruded upon their seclusion. Publicity to Private Affairs and Publicity in a False Light An element common to both of these claims for invasion of privacy is that the defendant give publicity to a matter concerning the plaintiff. See Restatement (Second) of Torts §§ 652D, 652E (1977). “The standard of publicity, ..., is the same in both” claims. Moore v. Big Picture Co., 828 F.2d 270, 275 n. 7 (5th Cir.1987). Comment a to § 652D explains this element: a. Publicity. The form of invasion of the right of privacy covered in this Section depends upon publicity given to the private life of the individual. “Publicity,” as it is used in this Section, differs from “publication,” as that term is used in § 577 in connection with liability for defamation. “Publication,” in that sense, is a word of art, which includes any communication by the defendant to a third person. “Publicity,” on the other hand, means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge____ Thus it is not an invasion of the right of privacy, within the rule stated in this Section, to communicate a fact concerning the plaintiffs private life to a single person or even to a small group of persons. On the other hand, any publication in a newspaper or a magazine, even of small circulation, or in a handbill distributed to a large number of persons, or any broadcast over the radio, or statement made in an address to a large audience, is sufficient to give publicity within the meaning of the term as it is used in this Section. The distinction, in other words, is one between private and public communication. Restatement (Second) of Torts § 652D at 384-85; see Werner v. Kliewer, 238 Kan. at 296, 710 P.2d 1250; Polin v. Dun & Bradstreet, Inc., 768 F.2d 1204, 1206 (10th Cir. 1985) (Okla. law). The plaintiffs are unable to prove such widespread disclosure of private matters as to constitute publicizing. The plaintiffs at pages twenty-nine and thirty of their brief allege various instances of publication, several of which are not supported by any citation to evidence of record. Of the different alleged acts of publication, the one coming closest to “publicizing” concerns statements made and actions taken to portray Ham as a dangerous or threatening former employee. Still, the only persons allegedly made aware of this portrayal were DCC employees and law enforcement officers, both of whom would be groups having a legitimate responsibility and need to know of this information. Most courts have summarily disposed of cases under similar circumstances. See e.g. Krochalis v. Insurance Co. of North America, 629 F.Supp. 1360, 1371 (E.D.Pa. 1985); Davis v. Monsanto Co., 627 F.Supp. 418, 421-22 (S.D.W.Va.1986); Wells v. Thomas, 569 F.Supp. 426, 437 (E.D.Pa.1983); Beard v. Akzona, 517 F.Supp. 128, 132-33 (E.D.Tenn.1981); cf. Moore, 828 F.2d at 274-75. “Publication to the community of employees at staff meetings and discussions between defendants and other employees is clearly different from the type of public disclosure found in cases relied upon by plaintiff.” Wells, 569 F.Supp. at 437. The plaintiffs do not allege that this information had become common knowledge in the business community or any other public arena. The defendants are entitled to summary judgment on the plaintiffs’ claims of publicity to private affairs and publicity in a false light. DEFAMATION In the pretrial order, the plaintiff Ham claims: that the actions and conduct of the defendant Douglas Cable, its management personnel, and in particular, Jeff Scheidegger, Patty Shaver and Reavis Gibb, on April 19, 1993, at and after the time of his termination, defamed him. He claims such defamation occurred by their acts in knowingly and intentionally communicating, verbally and by conduct, false information and impressions to Topeka Police Department, Shawnee County Sheriffs Department and non-management employees and co-workers of Douglas Cable without reason to know, that the plaintiff John Ham was dangerous and a threat to the workplace and its employees. (Dk. 156 at 7-8). The defendants seek summary judgment arguing: (1) that Ham cannot prove defamatory words were spoken to the Topeka Police Department; (2) that Ham cannot prove he sustained any damages as a result of the alleged defamatory words; (3) that any communications to law enforcement officers is qualifiedly privileged. The tort of defamation includes both libel and slander. Luttrell v. United Telephone System, Inc., 9 Kan.App.2d 620, 683 P.2d 1292 (1984), aff'd, 236 Kan. 710, 695 P.2d 1279 (1985). To prevail on his defamation claim, the plaintiff Ham must prove (1) false and defamatory words; (2) communicated to a third person; and (3) which injured the plaintiffs reputation. Polson v. Davis, 635 F.Supp. 1130, 1146 (D.Kan.1986), aff'd, 895 F.2d 705 (10th Cir.1990); Luttrell, 9 Kan.App.2d at 620-21, 683 P.2d 1292. “[DJamage to one’s reputation is the essence and gravamen of an action for defamation.” Gobin v. Globe Publishing Co., 232 Kan. 1, 6, 649 P.2d 1239 (1982). A corporation may be liable for the defamatory utterances of its agent which are made while acting within the scope of his authority. Luttrell, 9 Kan. App.2d at 621, 683 P.2d 1292. At common law, there were two types of defamation: per se and quod. Defamation per se included statements that impugned someone of criminal conduct or of unfitness for his or her trade or profession. Polson, 635 F.Supp. at 1147. Defamation per se “did not require proof of actual damages for a finding of liability,” but defamation per quod required proof of damages for liability. Polson v. Davis, 895 F.2d 705, 708 (10th Cir.1990). The Kansas Supreme Court in Gobin, relying on Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), eliminated this distinction: “Damages recoverable for defamation may no longer be presumed; they must be established by proof, no matter what the character of the libel.” 232 Kan. at 5, 649 P.2d 1239. Despite more recent Supreme Court rulings limiting Gertz, it remains the law in Kansas that a plaintiff may not rest on presumed damages but must allege and prove actual damages in a defamation action. Polson v. Davis, 895 F.2d at 708; Zoeller v. American Family Mut. Ins. Co., 17 Kan.App.2d 223, 225-29, 834 P.2d 391, rev. denied, 251 Kan. 942 (1992). The defendant to a defamation claim has a number of affirmative defenses, included among them are truth and privilege. Turner v. Halliburton Co., 240 Kan. 1, 7, 722 P.2d 1106 (1986). Truth is a complete defense. High v. A.J. Harwi Hardware Co., 115 Kan. 400, 405, 223 P. 264 (1924). A privilege may be absolute or qualified. Turner, 240 Kan. at 7, 722 P.2d 1106. In this case, the defendants assert a qualified privilege. “Whether a privilege is available in an action for defamation must be determined based on the status of the particular defendant and the content of the alleged defamatory communication.” Id. A qualified or limited privilege is generally restricted to those situations where public policy is deemed to favor the free exchange of information over the individual’s interest in his or her good reputation. One such qualified privilege exists with respect to business or employment communications made in good faith and between individuals with a corresponding interest or duty in the subject matter of the communication. (Citations omitted). The question of whether or not a publication is privileged is a question of law to be determined by the court. 240 Kan. at 7-8, 722 P.2d 1106; see Faber v. Byrle, 171 Kan. 38, 42-43, 229 P.2d 718 (1951) (communications to a law enforcement officer made for purposes of assisting in the detection of a crime are subject to a qualified privilege). Where there is a qualified privilege, the plaintiff must prove not only that the statements were false but that the statements were made with actual malice. Turner, 240 Kan. at 8, 722 P.2d 1106. In Munsell v. Ideal Food Stores, 208 Kan. 909, 920-21, 494 P.2d 1063 (1972), the Supreme Court of Kansas defined actual malice as acting with “actual evil-mindedness or specific intent to inure.” The Kansas pattern instructions define actual malice: “Proof of actual malice requires a plaintiff to prove that the (communication) (publication) was made with knowledge that the defamatory statement was false or with reckless disregard of whether it was false or not and that it was made with actual evil-mindedness or specific intent to injure.” Pattern Instructions— Kansas 2d 14.54 (1995 Supp.). To recover, the plaintiff “must prove actual malice by the defendant and that it defamed the plaintiff.” Id. The question of the communication being privileged is one of law, but the issue of malice is one of fact. Castleberry v. Boeing Co., 880 F.Supp. 1435, 1443 (D.Kan.1995). The defendants say Ham cannot prove that defamatory words were spoken to the Topeka Police Department. Ms. Shaver testified that the Topeka Police Department was told that a disgruntled employee by the name of John Ham had left the building and that the police were needed to watch the building and to protect the employees. Other witnesses testified that police officers came and remained until the employees went home that evening. This constitutes both direct and circumstantial evidence that the defendants made statements about Ham to the police department. The defendants’ first argument is without merit. The defendants next contend that Ham has not alleged and is unable to prove any injury to his reputation. Proof of such damages typically entails showing that persons were deterred from associating with the plaintiff, that the plaintiffs reputation had been lowered in the community, or that the plaintiffs profession suffered. See Hartman v. Meredith Corp., 638 F.Supp. 1015, 1017 (D.Kan.1986). The plaintiff has testified to a former employee avoiding him after the alleged defamatory statements were made. The plaintiff posits that Gibb upheld his termination based on the defamatory statements made by Seheidegger and that he has been unable to find other employment because of the same. The court finds the evidence sufficient at this juncture to avoid summary judgment. The defendants alternatively argue the words spoken to the Topeka Police Department were, qualifiedly privileged, as they were made out of concern for the safety of management and employees. The current record indicates genuine issues of material fact remain as to whether the defendants communicated with the Topeka Police Department in good faith and whether actual malice exists on the defendants’ part. Summary judgment .is inappropriate on the plaintiff Ham’s defamation claim. NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS The plaintiffs claim that the defendants’ actions caused the plaintiffs’ “physical injury and damage sufficient to justify a claim for negligent infliction of emotional distress.” (Dk. 156 at 7). The defendants argue the plaintiffs are unable to prove: (1) a “causal nexus” between the defendants’ alleged negligent acts and the plaintiffs’ alleged physical injuries, and (2) a contemporaneous, physical injury as defined under Kansas law. Kansas law is well established that a plaintiff may not recover “for emotional distress caused by negligence unless accompanied by or resulting in physical injury.” Fusaro v. First Family Mtg. Corp., 257 Kan. 794, 806, 897 P.2d 123 (1995); Humes v. Clinton, 246 Kan. 590, 598, 792 P.2d 1032 (1990). The plaintiff must sustain an actual physical injury that “ ‘occurs contemporaneously with or shortly after the incident causing the emotional distress.’ ” Schweitzer-Reschke v. Avnet, Inc., 874 F.Supp. 1187, 1196 (D.Kan.1995) (quoting Tyrrell v. Boeing Co., No. 91-1285-FGT, 1994 WL 114841, at *12 (D.Kan. Mar. 24, 1994)). The reason for the physical injury rule “is to guard against fraudulent or exaggerated claims, Maddy v. Vulcan Materials Co., 737 F.Supp. 1528, 1534 (D.Kan.1990); it also recognizes that emotional distress is a common experience in life and is usually trivial, Freeman v. Kansas State Network, Inc., 719 F.Supp. 995, 1001 (D.Kan.1989).” Garcia-Paz v. Swift Textiles, Inc., 873 F.Supp. 547, 563 (D.Kan.1995). The “[pjhysical injury is considered evidence or substantiation of severe and genuine emotional distress.” Laughinghouse v. Risser, 786 F.Supp. 920, 929 (D.Kan.1992) (citations omitted). In the pretrial order, the plaintiffs’ only allegations of negligence on the part of the defendants are their failure “to stop, prevent or appropriately investigate the conduct” of Marcia Trickett and their complaints about her.