Jottings By An Employer's Lawyer

Thursday, March 31, 2005

Rara Avis - A Plaintiff's Summary Judgment


Summary judgment is an employer's favorite method of seeing a case resolved (absent that even rarer species, a voluntary dismissal). Primarily because it is rarely something an employer has to worry about happening to it. But today's exception that proves the rule is Polkey v. Transtecs Corp. (11th Cir. 3/29/05) [pdf]. If there is a statute that is a likely candidate for plaintiff's summary judgment it is the one Ms. Polkey's claim was brought under -- the Employee Polygraph Protection Act. Even then, it took an unusual procedural posture to bring the case to the circuit court.

Athough purporting to allow polygraphs in the workplace under certain narrow circumstances, in fact the EPPA has almost eliminated what was once a common practice. It seems highly unlikely that the management of Transtecs, which provided mailroom services for the Department of Defense in Pensacola, knew about the law since there was no attempt to comply with the many procedural hurdles that EPPA requires.

The problems started when Polkey discovered some opened mail discarded in the trash and reported it to her supervisor. A brief investigation followed and the most likely suspect had already tendered his resignation. He was ultimately polygraphed and showed "deception". Nevertheless, Transtecs management determined it needed to polygraph all six employees at the facility to protect itself against claims of wrongdoing in case the DOD pursued the ultimate perpetrator.

Polkey refused to take the test and within a week was terminated. She sued making two separate claims under EPPA - (i) an unlawful polygraph exam request under §2002(1); and (ii) a discharge based on her refusal to submit to a polygraph exam, in violation of § 2002(3)(a).

After her suit was brought, Transtecs did its best to squeeze into the requirements of EPPA, but to no avail. Among the many things that it was caught on was the inability to make a case that it had a reasonable suspicion that Polkey was involved, which would at least have laid a foundation for the use of the "on going investigation" exemption. It also struck out on the national defense exemption because by its express terms it is applicable only to the federal government, not its contractors.

Its last argument was that merely requesting an employee to take a polygraph examination was not a violation since she never took it. The trial court granted summary judgment in favor of Polkey on her "request" claim.

That was when the unusual procedural move came about. According to a footnote, the parties settled the termination claim and stipulated to nominal damages for the "request" claim allowing it to be appealed to the circuit court. It sounds as if one or both of the parties thought this was a good opportunity to "make some law" under an Act that gets very little judicial attention. I don't know whose idea it was, but it was a better one for the plaintiff. The Circuit Court agreed with the trial court -- the mere asking an employee to take a polygraph examination alone is a violation, absent an applicable exemption. The Court also upheld plaintiff's argument that the company could not establish either of the two exemptions it had advanced.

The success of the EPPA in eliminating polygraphs from the workplace has been so complete that it may actually set a trap for many unwary employers. Since there is little or no discussion about them anymore, I could see an employer stumbling into thinking there must be nothing wrong with using them or even, as this decision shows, merely asking an employee to take a lie detector test. It is a little harder to explain how any polygraph examiner would be unfamiliar with the law, but that would seem to have been the case here.


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