Opinion
Civil Action No. SA-99-CA-85-FB.
September 29, 2000.
ORDER CONCERNING PENDING MOTIONS
Before the Court are the following motions: (1) Defendant Allied Polygraph's Motion for Judgment on the Pleadings; (2) Defendant Polysoft Products' Motion for Judgment on the Pleadings; (3) Defendant Allied Polygraph's Motion for Summary Judgment Subject to Defendant Allied Polygraph's Motion for Judgment on the Pleadings; (4) Defendant Polysoft Products' Motion for Summary Judgment Subject to Defendant Polysoft Products' Motion for Judgment on the Pleadings; (5) Plaintiff's Motion for Reconsideration of Plaintiff's Motion for Sanctions; and (6) Defendants' Motion for Leave to File Supplement. The Court has reviewed the motions and the various responses and replies thereto and is now ready to rule on the motions.
Defendants' Motion for Leave to File Supplement
In Defendants' Reply to Plaintiff's Objection to Defendants' Supplement, defendants included, in the alternative, a Motion for Leave to File Supplement. Defendants contend it is not necessary to seek leave of court in order to file a supplement to their motions for summary judgment. Previously, this Court denied plaintiff's motion to strike the supplement. Accordingly, whether or not leave of court is needed, IT IS HEREBY ORDERED that Defendants' Motion for Leave to File Supplement (docket #65) is GRANTED.
Motions for Judgment on the Pleadings
Allied Polygraph and Polysoft Products have each filed a motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) to which plaintiff filed a consolidated response. Defendants argue plaintiff has failed to identify a factual basis sufficient to support a cognizable theory of recovery against them. Plaintiff contends the allegations asserted, if taken as true, are sufficient to form a cause of action against the defendants for negligence, fraud, and for violations of the Employee Polygraph Protection Act (EPPA). Plaintiff maintains that although these defendants were not "employers" in the strict sense of the word, they may be considered employers if their role in the investigation exceeds the mere administration of the polygraph test or they exert some control over the employer's compliance with the EPPA.
The purpose of a rule 12(c) motion is to dispose of cases in which the material facts "are not in dispute and a judgment on the merits can be rendered by looking to the substance of the pleadings and any judicially noticed facts." Perez v. Brown Williamcon Tobacco Corp., 967 F. Supp. 920, 924 (S.D. Tex. 1997). As with a motion for summary judgment, a motion pursuant to FED. R. CIV. P. 12(c) is only to be granted if "there is no issue of material fact and if the pleadings show that the moving parties are entitled to prevail as a matter of law." Id. Thus, a motion for judgment on the pleadings should be granted only if it is "beyond doubt that the plaintiff can prove no set of facts that would entitle him or her to relief." Id.
After reviewing the motions and response, the Court finds the motions should be denied, Accordingly, IT IS HEREBY ORDERED that Defendant Allied Polygraph's Motion for Judgment on the Pleadings (docket #42) and Defendant Polysoft Products' Motion for Judgment on the Pleadings (docket #43) are DENIED.
Motions for Summary Judgment
Both remaining defendants, Allied Polygraph and Polysoft Products, have filed motions for summary judgment. They contend there is no evidence to support at least one essential element of each of plaintiff's causes of action against them and the evidence negates at least one essential element of each of the claims. In the interest of brevity and to spare the Court the necessity of reviewing two virtually identical responses to what he considers two virtually identical motions, plaintiff elected to respond to each motion via a consolidated response. Plaintiff argues he has presented clear and specific facts that present genuine issues for trial.
Plaintiff also sued his employer, Cavender Oldsmobile, Inc. However, plaintiff and defendant Cavender settled their dispute early on in the litigation.
Standard for Reviewing Motions for Summary Judgment
A motion for summary judgment should be granted when the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. FED. R. CIV. P. 56(c). A dispute concerning a material fact is considered "genuine" if the evidence "is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). It is not the Court's function to "weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Id. at 249. The Court must determine if 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." Id. Of course, in ruling on a motion for summary judgment, all inferences drawn from the factual record is viewed in the light most favorable to the nonmoving party.Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986).
If the party moving for summary judgment carries its burden of producing evidence which tends to show there is "no genuine issue of material fact, the nonmovant must then direct the court's attention to evidence in the record sufficient to establish the existence of a genuine issue of material fact for trial." Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996). The nonmoving party may not rely upon mere conclusory allegations to defeat a motion because allegations of that type are not competent summary judgment evidence and are insufficient to defeat a proper motion. Id. In fact, if the "nonmoving party rests merely upon conclusory allegations, improbable inferences, and unsupported speculation," a motion for summary judgment may be granted even in cases "where elusive concepts such as motive or intent are at issue." Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513 U.S. 871 (1994).
The party opposing the motion also may not rest on the allegations contained in the pleadings but "must set forth and support by summary judgment evidence specific facts showing the existence of a genuine issue for trial." Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). In meeting this requirement, the party must "identify specific evidence in the record" and "articulate the precise manner in which that evidence supports his or her claim." Id. Rule 56 of the Federal Rules of Civil Procedure does not impose upon this Court the "duty to sift through the record in search of evidence to support a party's opposition to summary judgment." Id.(quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 909. 915-16 § n. 7 (5th Cir.), cert.denied, 506 U.S. 832 (1992)). A summary judgment will only be precluded by disputed facts which are material, i.e. "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Factual disputes which are irrelevant or unnecessary to the issue will not be preclude summary judgment. Id.
Factual Background
According to Plaintiff's First Amended Original Complaint, plaintiff was employed as a parts counter technician for Cavender Oldsmobile, Inc., on or about January 22, 1998. Some time in the first week of October of 1998, plaintiff was confronted by the manager and informed that quantities of Freon, approximately $3, 552.94 worth of Freon, was missing from the locked Freon cabinet. Plaintiff acknowledges he had access to the general work area that contained the Freon, but he never had a key for that locked cabinet. Despite not having a key, plaintiff contends the manager, acting upon information he received from defendant Allied Polygraph, demanded he take a polygraph test to prove he was innocent of the theft as a condition of continued employment. Plaintiff submitted to the test because (1) he knew he was innocent and (2) was told he had to take the test as a condition of continued employment. Plaintiff claims he was also told he was not allowed to bring a friend, lawyer, or anyone else with him to the polygraph test. Plaintiff took the polygraph test on October 6, 1998, and was fired by his employer for allegedly failing the polygraph test on October 7, 1998.
Defendants state that in the fall of 1998, Cavender Oldsmobile requested Donald Trease, who is the principal of both Allied Polygraph Services and Polysoft Products, Inc., to conduct interviews of Cavender employees regarding the missing Freon, and Mr. Trease complied with that request. Following his investigation which took the form of employee interviews, Cavender requested Mr. Trease administer a polygraph examination to the plaintiff. Defendants note that plaintiff admits it was Cavender, his employer, who demanded he take the polygraph test, and it also was Cavender who terminated his employment with them on October 7.
In responding to defendants' motions for summary judgment, plaintiff takes issue with defendants' attack on each allegation contained in the pleadings as if each factual allegation is an independent tort. Plaintiff contends these allegations viewed as a whole show an uninterrupted string of acts and omissions by the defendants that constitute statutory violations, negligence, and fraud as to defendant Polysoft and show a negligent, reckless and/or malicious indifference to the rights of the plaintiff and a failure to adhere to federal and state statutory requirements as to defendant Allied. In reviewing the amended complaint in this case, the Court notes the only mention of a federal statute is references to the Federal Polygraph Protection Act. There is no reference to any state statutory violations. Therefore, in reviewing the motions for summary judgment filed, the Court will address the issues raised as to negligence, fraud/misrepresentation, damage to personal reputation, and the Federal Polygraph Protection Act.
Negligence
Plaintiff contends with respect to his negligence claim, the essential elements that must be defeated to sustain a summary judgment are 1) the existence of a legal duty, 2) a breach of that duty, and 3) resulting damages to the plaintiff as a result of that breach. Plaintiff argues that although defendants argue they did not owe a duty to the plaintiff, their motions are completely devoid of any law to support the declaration that they owed "no duty" to the plaintiff. Plaintiff maintains the defendants had superior knowledge of the risk that was posed to the plaintiff by negligently and wrongfully incriminating him for the crime of theft with no evidence to support the incrimination. In addition, the defendants profess to be proficient in the fields of investigation and polygraph examination and therefore will be held to exercise the degree of care consistent with their superior knowledge and skill. Although defendants assert they owed no duty to plaintiff because any representations they made were made to Cavender and not to plaintiff Calbillo, plaintiff claims an employee can satisfy the burden of showing a third party's actions were the proximate cause of his injuries by proving 1) the third party's failure to exercise reasonable care increased the risk of harm, 2) the third party undertook to perform a duty owed by the employer to employee, or 3) the employee's harm was the result of reliance by the employer or the injured employee upon the undertaking.
In order for a plaintiff to prevail on a cause of action for negligence, three elements must be satisfied: (1) a legal duty owed by the defendant to the plaintiff; (2) a breach of that duty; and (3) damages proximately caused by the breach. Dagley v. Haag Engineering Co., 18 S.W.3d 787, 790 (Tex.App.-Houston [14th Dist.] 2000, no pet.). In a negligence case, the threshold issue is "whether the defendant owed a duty to the plaintiff." The existence of a duty is a question of law for the court to decide based on the facts of the case. Id. Here the evidence is undisputed that Cavender hired the defendants to conduct an investigation and to give a polygraph examination. The only relationship between the parties is that plaintiff worked for Cavender and was one of the parties interviewed and plaintiff was selected by Cavender to take the polygraph examination given by Allied.
Although no authorities were cited by either party concerning whether an investigator or polygraph examiner owe a duty to a third party examinee, it appears to this Court that the situation herein is somewhat analogous to that of an insurance company hiring an investigator to investigate a claim. It is well settled in Texas that a third party hired by an insurance company owes no duty to the insured because there is no privity. Id.; see Bui v. St. Paul Mercury Ins. Co., 981 F.2d 209, 210 (5th Cir. 1993) (investigator hired by insurance company found not liable to insured under theory of negligence); Wattley v. Hartford Accident Indem., No. 3-99-CV-17-BD, 199 WL 801391 at *2 (N.D.Tex. Oct. 6, 1999) (private investigator has no legal relationship with person being investigated therefore no duty exists); see also Hall v. United Parcel Serv., 555 N.E.2d 273, 278 (N Y 1990) (declined to recognize cause of action based on allegations polygraph test negligently administered). Likewise, there is no evidence of any privity in this case.
Plaintiff appears to argue that a duty should stem from the fact that defendants are licensed in the State of Texas and should be required to exercise the degree of care consistent with their superior knowledge and skill. However, even if that is the case, as defendants point out in response, there is no evidence, not even from the plaintiff's experts, that any standardized degree of care was violated.
Therefore, based on the defendants' arguments, the summary judgment evidence presented, and the fact that no authority has been presented to this Court and the Court could not find any which recognizes such a duty or supports the imposition by this Court of such a duty in this case, defendants' motions for summary judgment as to any negligence claims are granted.
Fraud/Misrepresentation
Based on a review of plaintiff's complaint, the allegations of fraud concern plaintiff being told the information he gave would not be circulated and telling the plaintiff that all of his co-employees had agreed to take a polygraph examination. Defendants contend there is no evidence to support the claim that any information was circulated, by whom it was circulated, or to whom it was circulated. With respect to the claim that Mr. Trease misrepresented to the plaintiff that others had agreed to take a polygraph examination, defendants contends plaintiff's reasonable reliance was negated by the fact that plaintiff also stated the individuals had told him they would not consent to a polygraph.
In response, plaintiff contends that in order for him to recover on his misrepresentation claim, he must show a material misrepresentation was made, the speaker made it with the intention that it should be acted upon by the plaintiff, and the plaintiff acted in reliance upon it and thereby suffered harm. Plaintiff asserts misrepresentation rises to the level of fraud when plaintiff can demonstrate the speaker's knowledge of the falsity of the representation. Plaintiff maintains there is no doubt that Trease knew he was making a false representation to him when he said others had agreed to be tested. When faced with conflicting stories between Trease and his co-workers, plaintiff states he relied on the reputed professional standing and integrity of Trease and agreed to be tested.
In plaintiff's deposition testimony, he confirms that the only person or entity to his knowledge with which Mr. Trease shared the results of his interview and his polygraph examination was his employer Cavender. Therefore, there is no evidence to support a claim based on circulation.
With respect to the claim that there is no doubt Mr. Trease knew he was making a false representation to plaintiff when he said others had agreed to be tested, the evidence shows that immediately after plaintiff's interview with Trease he talked to several of his co-employees who he states told him they were not going to take a polygraph examination. After talking to these employees, plaintiff stated he did not know what to believe. When asked in follow up if he believed Mr. Trease that they were going to take a polygraph test, he states that despite the statements from his co-workers, he decided to believe Mr. Trease because of his background and the fact he was investigating the theft of Freon. However, plaintiff also stated in his deposition that he did not believe that any of the co-workers were lying to him when they told him they were not going to take a polygraph examination. The only evidence from a co-worker concerning this issue is contained in the affidavit of Robert Vitela. He states Mr. Trease asked him if he would consent to a polygraph examination and his response was he "would only take a polygraph examination if Steven Cavender told [him] that [he] had to." Mr. Calbillo testified that Robert Vitela had told him he would not take one unless Jon Smith took one.
Plaintiff describes that immediately after his interview he went downstairs and "told the other people if they were willing to take a polygraph. And they said, `Well, yeah.' They told me, `Well, he asked us about it, but we told him we weren't.' And I told them, `Well, he told me that you all were willing to take a polygraph test.' So, I went ahead and went with him to take a polygraph test. I told him, `Yeah, I will take one, because I didn't steal no [F]reon from this company.'"
Regardless of whether Mr. Trease made the statement, there is evidence Mr. Calbillo was on notice as to its truthfulness. In addition, plaintiff does not point to any evidence contained in his deposition or elsewhere that he relied on that statement to his detriment. In support of his position, plaintiff relies on the deposition testimony set forth in the text above. However, that testimony does not contain any assertions concerning reliance. Moreover, plaintiff maintains in the Facts Section of Plaintiff's First Amended Original Complaint that he submitted to the polygraph examination because he knew he was innocent and because he was told by his employer "he must take the test as a condition of continued employment." Plaintiff does not assert he took the polygraph test only because Mr. Trease told him all of he co-workers had consented to take one.
Accordingly, even accepting the statement as true, there is no summary judgment evidence indicating the representation was material or that plaintiff acted in reliance on the statement to his detriment. Plaintiffs claims based on fraud/misrepresentation are also denied.
Liability Based on the Employee Polygraph Protection Act
Based on a reading of plaintiff's response, it appears plaintiff's major contention is that the defendants should be held liable under the Employee Polygraph Protection Act (EPPA). Plaintiff contends a polygraph examiner hired by an employer to administer a test may himself be considered an employer and subject to suit under the EPPA if the examiner has a role in investigation beyond administering the test or exerts some control over the employer's compliance with the EPPA. Plaintiff claims both defendants had a role in the Freon investigation and selection of plaintiff for the polygraph that goes far beyond that of investigator or polygraph examiner. Defendants respond by noting that plaintiff failed to make any allegations that they exerted "control" over the employer's compliance with the EPPA in their complaint.
As set forth in Mennen v. Easter Stores, 951 F. Supp. 838, 849 (N.D.Iowa, 1997), much debate precipitated the enactment of the EPPA. Although the polygraph machine was initially developed "as an adjunct to criminal investigations within the law enforcement community," the machine rapidly became "part of routine testing and screening in the workplace, and employers particularly those confronted with losses from employee theft, quickly adopted lie detectors as an expedient and inexpensive solution." Id. Because of the explosive growth in the use of polygraph tests and the "rampant, unregulated use of these tests in the private employment sector," Congress was prompted to "address the need for federal regulation of polygraph testing in the workplace."Id.
As enacted, the EPPA "severely restricts the uses most private employers may make of any type of lie detector device," Id. at 850. In discussing its applicability, the Court explained:
In general, section 2002 of the EPPA prohibits an employer from requiring an employee or applicant to take a lie detector test and also forbids any adverse action against an employee or applicant who fails or refuses to take a polygraph test, or who files a complaint, testifies, or exercises any right granted under the EPPA. Although section 2002 serves to virtually eradicate polygraph use in the private employment sector, Congress created a limited exemption for an ongoing investigation of an employee's theft. Apparently persuaded by the employer/polygraph proponents' argument that the threat of a polygraph examination would serve as a deterrent to employee theft in the workplace, Congress allowed a narrow exception to the statutory protection of the employee's right to privacy provided in section 2002. The legislative history of the EPPA, however, clearly reflects the legislative intent that this exemption be narrowly construed and subject to careful restrictions and conditions. Thus, the employer seeking application of the "ongoing investigation" exemption and implementing a polygraph test must provide the tested employee with certain procedural safeguards. The stringent requirements of the exemption are demonstrative of the limits the EPPA places on the employer's ability to subject its employees to polygraph testing for the purpose of protecting purely economic interests.Id. at 851-52 (citations omitted). Thus, in order for plaintiff to be able to recover under the EPPA, defendants must fit the definition of employer as set forth in the act.
In a case involving whether the EPPA applies to polygraph examiners, another court recognized that the EPPA "expressly limits the ability of employers to subject employees to polygraph examinations." Fallin v. Mindis Metals, Inc., 865 F. Supp. 834, 838 (N.D.Ga. 1994). The restrictions and liabilities imposed in title 29 U.S.C. § 2001 et seq. "are imposed only on `employers,' and not on any other entities, including polygraph examiners,"Id. The EPPA defines an employer as "any person acting directly or indirectly in the interest of an employer in relation to an employee or prospective employee." 29 U.S.C. § 2001(2). A polygraph examiner has been specifically excluded by the Secretary of Labor from the definition of employer if he or she is hired to administer a polygraph examination. Fallin, 865 F. Supp. at 838. The language of the Secretary is as follows: "A polygraph examiner either employed for or whose services are retained for the sole purpose of administering polygraph tests ordinarily would not be deemed an employer with respect to the examinees." Id. In deciding the issue before it, the Fallin court provided a discussion of the two cases which have examined the meaning of the term "employer" in the context of a suit against the actual polygraph examiner by an employee. That discussion provides:
In Rubin v. Tourneau, the plaintiff sued the polygraph examiner under the E.P.P.A. After analyzing the term "employer" in the E.P.P.A. and comparing the E.P.P.A. to the Fair Labor Standards Act of 1938, the court found that a polygraph examiner could be treated as an "employer," under the E.P.P.A., only where, "as a matter of economic reality, [the polygraph examiner] exerts some degree of control over the employee's compliance with EPPA."
The Rubin court found that where a polygraph examiner exerts control over which employees are examined and when employees should be subjected to polygraph examination, then the polygraph examiner is acting, as a matter of economic reality, as though it were the employer, and liability may be imposed under the E.P.P.A. against the polygraph examiner as follows:
if an examiner decides which employees may be polygraphed and under what circumstances polygraph examinations are permissible, that examiner is acting `directly or indirectly in the interest of an employer in relation to an employee or prospective employee.'
The court explains that if a polygraph examiner is hired simply to perform polygraph examinations on employees, then the E.P.P.A, by its very terms, does not apply to that polygraph examiner as follows:
On the other hand, if the examiner is hired for the sole purpose of administering examinations at the direction of the employer, then as a matter of economic reality, that examiner does not exert control over the employer's compliance with EPPA and, therefore, is not subject to suit under 29 U.S.C. § 2005(c)(1).
More recently, in Kluge v. O'Reilly Automotive, Inc., [an unpublished decision available on WestLaw and Lexis], the district court in Kansas considered the meaning of "employer" under the E.P.P.A. The court in Kluge, noted there were not any allegations that the polygraph examiner had decided which employees should be examined or that the polygraph examiner had provided the employer with any guidance in how to comply with the E.P.P.A., as follows:
There are no allegations which would indicate that [the polygraph examiner] played any role in the investigation beyond simply administering the polygraph test and interviewing some employees. There is no allegation that [the polygraph examiner] provided any expertise or advice to [the employer] regarding compliance with the EPPA, or that [the employer] relied on [the polygraph examiner] in any way to insure that it complied with the EPPA. Plaintiff has not alleged that [the polygraph examiner] consulted with [the employer] in deciding which employees would be given the test or that [the polygraph examiner] provided guidance to [the employer] regarding EPPA's requirements.
Under Rubin and Kluge, the term "employer" is defined by considering, as a matter of economic reality, whether the polygraph examiner exerts some control over the employer's compliance with the E.P.P.A. When examining the degree of control necessary to treat an independent polygraph examiner as an "employer" for purposes of the E.P.P.A., the courts looked to factors such as, who decided what employees would be examined, under what circumstances examinations should be administered, and did the examiner decide whether the employee would be disciplined or merely report the results of the polygraph. According to Rubin and Kluge, the critical question is whether the polygraph examiner stepped beyond its role as an independent entity and actually exerted control, as a matter of economic reality, over the employer's compliance with the E.P.P.A. The courts held that if the answer is yes, then the polygraph examiner should be treated as an employer under the E.P.P.A.; however, if the answer is no, then the Secretary of Labor's implementing regulations for the E.P.P.A. expressly exclude entities which merely perform the polygraph examinations.Id. at 839-40 (citations omitted).
The Fallin court recognized that the decisions in Rubin andKluge were decided at the motion to dismiss stage. As is the case here, the Fallin court had before it a motion for summary judgment by the examiners. Id. at 840. The court first noted that just because an employer's liability arises from the acts taken by the polygraph examiner does not necessitate a finding that the polygraph examiner is an "employer" for purposes of the EPPA. Id. The court found there was no evidence the examiners chose the plaintiff for the polygraph, no evidence the examiners provided criteria for choosing which employees should undergo polygraph examinations, or that the examiners were hired to ensure the employer complied with the EPPA. Instead, the evidence showed the comptroller was in charge of the investigation and the examiners were hired to perform the polygraph examinations. Id. Because Fallin failed to meet his burden to demonstrate that a genuine issue of material fact existed as to whether, as a matter of economic reality, the polygraph examiners exerted control over the employer's compliance with the EPPA, the motions for summary judgment filed by the polygraph examiners were granted as to plaintiff's EPPA claim. Id. at 840-41.
In addition to the Rubin decision discussed above, plaintiff also cites to James v. Professional's Detective Agency, Inc., 876 F. Supp. 1013 (N.D.Ill. 1995), to support his proposition that a polygraph examiner may be subject to liability under the EPPA.James like Rubin and Kluge was procedurally before the court on a motion to dismiss. The allegations made by the plaintiff in James was the examiner "acted in the interest of [the employer] in relation to [the plaintiff]," and the examiner "failed to provide the plaintiff with a written list of the questions before the polygraph test and asked questions that needlessly degraded and intruded upon him during the test." James, 876 F. Supp. at 1016. The court denied the motion to dismiss finding that plaintiff "may be able to show that the examiner, as a matter of economic reality, exerted some degree of control over the employer's compliance with the EPPA." Citing to the decision in Fallin for the proposition that an examiner must have done more than simply administer the polygraph test, the court advised the examiner to file a motion for summary judgment if that was not the case.
Although the Court is aware of the many allegations by the plaintiff concerning the actions of the defendants, it appears plaintiff may only recover against these remaining defendants under the EPPA if their actions place them into the category of employer. The difficulty in this case exists because Mr. Trease apparently wore two hats, one as an investigator and one as a polygraph examiner. Most of the allegations concern actions taken before the decision to polygraph Mr. Calbillo was made, but some concern the actual examination.
In his amended complaint, plaintiff's allegations referencing the EPPA are that the defendants were guilty of the following acts and/or omissions which were a proximate or producing cause of the injuries and damages suffered by plaintiff as follows: (1) failing to prove access to the stolen goods in conformance with law before recommending to the employer that the plaintiff was a reasonable suspect and should be referred for a polygraph examination in accordance with the EPPA; (2) conducting a pre-test interview of the plaintiff as defined by the EPPA without advising the plaintiff that he was being subjected to such a pre-test interview and without advising the plaintiff of his rights under the EPPA; (3) in proffering legal advice to the employer as to how to appear to comply with the requirements of Federal Polygraph Protection Act, resulting in the plaintiff being coerced into taking an unlawful polygraph examination, and (4) in proffering legal advice legal advice to the employer as to the requirements of the Federal Polygraph Protection Act, resulting in the plaintiff being coerced into taking an unlawful polygraph examination. From reviewing plaintiff's response to defendants' motions for summary judgment, plaintiff's main contention is that the only reason he was considered to be a candidate for a polygraph test is because Trease "in his capacity as an investigator employed by Cavender, singled [him] out to Cavender Oldsmobile as the only possible candidate for a polygraph examination, which Trease then performed." Plaintiff points to the discrepancy between the reports attached to Trease's deposition which he allegedly made in connection with his interviews of the employees and the affidavits of two employees who claim they did not tell Trease they suspected the plaintiff of stealing the Freon.
In his deposition, plaintiff was asked if he had asked Ed Hollas if others were taking a polygraph. Plaintiff said he asked but was told not to worry about anyone else. Plaintiff acknowledged he was not told one way or the other if anyone else was taking a polygraph. Although the events leading up to the termination may indicate that plaintiff was the only suspect, there is no evidence in the record one way or the other indicating that Cavender only suspected plaintiff or that plaintiff was the only person they considered for a polygraph. The inference could also be made that Mr. Calbillo was the chosen to be the first employee to take the test and when test results came back as they did, Cavender decided to not continue the investigation.
According to the notes signed by Don Trease over his Texas Investigative License number, Ms. Smid indicated to him Dino has a Freon license and she suspects Dino. However in Ms. Smid' affidavit she states she "did not give any names to Donald Trease of potential suspects." The notes concerning Mr. Vileta indicate that he suspects Dino of taking the Freon, he knows Dino has a lot of contacts on the southside, and Dino works on Saturdays. However, Mr. Vileta states in his affidavit he had "no recollection of telling Donald Trease that [he] suspected Dino Calbillo. Had I told him that I suspected anyone, I would have told him that I suspected anyone who worked alone on Saturdays. Dino Calbillo and John Blaker both worked alone on Saturdays." In response to the question of how one would get rid of Freon. Mr. Vileta avers "I said that it would have to be someone who knew the city. I never told Trease that whoever stole the Freon would have to have a lot of contacts on the south side of San Antonio in order to sell the Freon." Despite these discrepancies, the Court finds it most telling that even the plaintiff admits these actions were taken in Trease's role as an investigator and not a polygraph examiner. Plaintiff has not pointed to and the Court has not found any provisions in the EPPA concerning liability for pre-polygraph investigations. Likewise, the pre-test violations which plaintiff complains about seem to be the interviews conducted by Trease as the investigator. Plaintiff does not dispute the Trease's testimony that following the interview, plaintiff was subjected to the pretest phase of the polygraph examination pursuant to 29 U.S.C. § 2007(b)(2).
The cases discussing possible liability of polygraph examiners under the EPPA concern polygraph examiners who have crossed the line into the employer realm and not persons performing investigation services. The most persuasive evidence on the control issue by the defendants is found in the uncontroverted affidavit of Edward Hollas who was employed as the general manager at Cavender during the time period at issue herein. Mr. Hollas states:
I was the General Manager of Cavender during the time frame Cavender conducted an investigation into the missing Freon at issue in the Lawsuit and during the time frame the polygraph examination of Selestino Calbillo was administered. I was the person at Cavender most involved in the initiation of the investigation into the missing Freon. I was also the person at Cavender primarily responsible for initiating contact and exchanging information with Donald Trease for purposes of the investigation into the missing Freon and the subsequent polygraph examination of Selestino Calbillo. I was directly involved in the decision regarding which employees to interview initially, and was also directly involved in the determination to request a polygraph examination of Selestino Calbillo. Donald S. Trease was not then, and to my knowledge has never been, an employee of Cavender.
I was quite concerned with the missing Freon. After some ineffective attempts to thwart the theft or to identify the perpetrator, I personally conducted interviews of employees, including Selestino Calbillo, in an effort to gain an insight into the underlying activities. After conducting these interviews myself, it was decided at Cavender to invite an objective third-party to similarly interview employees and report the findings. I contacted Donald S. Trease for this purpose. Donald S. Trease had no involvement in the decision to interview Cavender employees regarding the mission Freon. . . . In my position as General Manager, I was well aware of which employees worked alone in the parts department and which employees had or may have had access to the Freon. I had no need for Mr. Trease to determine these specific matters for Cavender.
Mr. Trease conducted the interviews as requested by Cavender, and reported the information he gathered from the individuals interviewed to me. Mr. Trease expressed no independent personal opinion regarding who might be stealing the Freon. He only reported to me the results of the interviews. I am not aware that Mr. Trease shared this information with anyone else. The information relayed to me by Mr. Trease confirmed and supported the information and suspicions I had gathered personally.
Based on the information gathered through the employee interviews conducted by myself and then by Mr. Trease. the decision was made internally at Cavender to request that Selestino Calbillo undergo a polygraph examination. The potential for a polygraph examination of anyone, including Selestino Calbillo, was not considered or discussed until after all employee interviews had been concluded first by me and then by Donald Trease. Specifically, there was no discussion of potential polygraph examinations and certainly no determination of the need for a polygraph examination of anyone prior to the employee interviews. I again contacted Donald S. Trease to ask if he would administer the polygraph examination of Selestino Calbillo. Donald Trease was not involved in making the decision to polygraph Selestino Calbillo.
During the entire decision-making process at Cavender regarding the possibility of a polygraph examination on Selestino Calbillo, I was personally in contact with Cavender's attorneys and other Cavender employees. All legal advice proffered to Cavender regarding the possibility of Selestino Calbillo's polygraph examination came directly from Cavender's attorneys and not from Donald S. Trease. Donald S. Trease did not offer legal advice at any time to Cavender, and neither Cavender nor myself sought legal advice at any time from Mr. Trease.
After the conclusion of the polygraph examination, Donald S. Trease reported to Cavender the results of the polygraph examination as determined by the polygraph testing equipment. Donald S. Trease made no recommendations or other representations of any kind regarding the polygraph examination results. I have no reason to believe Mr. Trease circulated or otherwise shared the results of the polygraph examination with anyone other than Cavender and Selestino Calbillo.
Donald S. Trease was not involved in the decision to terminate the employment of Selestino Calbillo at Cavender. Mr. Trease made no recommendations regarding the employment of Selestino Calbillo. To my knowledge, Donald S. Trease was not even informed of the decision to terminate the employment of Selestino Calbillo.
Based on the foregoing and the uncontroverted affidavit concerning the role of Mr. Trease, it does not appear to this Court that Mr. Trease acting in his role as investigator or polygraph examiner exerted, as a matter of economic reality, some degree over the employer's compliance with the EPPA to qualify him as an employer under that act. The decision to polygraph, who to polygraph, and the decision to terminate were all ultimately made by the employer. Other than plaintiff's speculation to the contrary, there is no evidence to support his position that Trease exerted some degree over the employer's compliance with the EPPA. Whether the employer in some way violated the EPPA is no longer before this Court, because plaintiff has settled his claims against his former employer. Moreover, plaintiff's subjective beliefs will not avoid a motion for summary judgment.
Plaintiff appears to argue that the fact defendants sent by facsimile transmission to Cavender three pages of information concerning the EPPA, they were exerting control to make certain Cavender would comply with the provisions of the EPPA. However, defendants explain this 3-page transmission as a standard package that is sent out in response to "telephone inquiries about polygraph testing that gives a brief summary of the requirements of the Department of Labor regulations along with the blank form that they will need to fill in the information that is requested." In response to the question of whether Mr. Trease is advising the employer about the appropriate steps in terms of terminating an employee, Mr. Trease replied, "I am simply, as I said, giving them a brief summary of the regulations issued by the US Department of Labor. I'm not an attorney, I don't give legal advice. I don't give them any advice at all on who to terminate or why. I simply given them a brief summary of the Department of Labor regulations on that subject." This testimony does not appear to controvert any of the statements made by Mr. Hollas concerning who made the decisions at issue herein.
Accordingly, based on the record presented and the authorities cited, the Court finds plaintiff's claims pursuant to the EPPA should also be dismissed. Having found in favor of defendants with respect to the claims for EPPA, negligence and fraudulent acts, plaintiff's claims for damage to his reputation based on these allegations must also fail. Therefore, IT IS HEREBY ORDERED that Defendant Allied Polygraph's Motion for summary Judgment (docket #45) and Defendant Polysoft Products' Motion for Summary Judgment (docket #46) are GRANTED as to all of plaintiff's claims and this case is DISMISSED. Plaintiff's Motion for Reconsideration of Plaintiff's Motion for Sanctions (docket #57) is DENIED. Motions pending, if any, are also DENIED.
The parties are advised that because there is no published case concerning the EPPA in the Western District of Texas or in the Fifth Circuit Court of Appeals, the Court intends to publish this opinion. Therefore, the Court asks that the parties file any motions for reconsideration they believe will add or help the Court clarify the issues decided and discussed.
It is so ORDERED.