Compulsive reading from the Fourth Circuit about a seldom-litigated federal statute, the Employee Polygraph Protection Act (“EPPA”), 29 U.S.C. §§ 2001 to 2009 (2000). And, is the Eleventh Circuit one of the most dangerous places in the country for plaintiff’s employment attorneys to practice? You betcha!
Worden v. SunTrust Banks, Inc., No. 07-1354 (4th Cir. Nov. 24, 2008): Congress generally banned employers’ use of polygraph tests to determine employees’ fitness for duty through the EPPA, an act apparently so effective that it is almost never seen in operation in a published decision. The astonishing thing here is that the employee seemed to face — from the outset — almost no chance of prevailing, and yet magically rescues the slimmest reversal out of a hat out with a very skeptical audience.
The curtain rises on the drama right here:
“Daniel Worden worked at an Anderson County, South Carolina, branch bank of SunTrust (‘the Anderson branch’). On the morning of August 11, 2005, the Anderson branch received a telephone call from Worden, who claimed that two men had kidnapped him in order to rob the bank. Worden asked his co-worker to open the vault of the bank, but the coworker refused and instructed another employee to telephone the Anderson County police. Worden’s telephone call was then disconnected.
“At approximately the same time the Anderson County police received the telephone call from the bank, they also received a telephone call from Worden, who stated that he had been kidnapped and forced to participate in a bank robbery attempt. According to Worden, on the evening of August 10, 2005, he was held in his home overnight at gunpoint by two individuals who wanted to use him to rob the Anderson branch. Worden stated the men told him they would kill him if he refused to cooperate, and so he did as they instructed. He claimed he was held and questioned by the kidnappers until they were ready to leave the next morning. He stated that when his roommate and the roommate’s new wife (‘the Tyases ) arrived at his home, the kidnappers tied them up in a different room. Worden claimed the kidnappers abandoned him ‘in the woods’ when they realized their plan had failed.”
You’re going to guess from that grace note, “claimed,” how things turned out.
Worden became the prime suspect in the attempted crime (although there is no sign in the opinion, or elsewhere, that Worden has ever been prosecuted for the crime). Twice, local and federal law enforcement agents got Wordon to submit to polygraph tests, and both times (according to the record) the tests indicating deception. These results were communicated to managers at the bank (named Perry and Dill), along with other information, and the managers then fired the plaintiff based on suspicions that he was involved in the attempted robbery. The managers did not mention the polygraph test results to Worden at the time he was fired, but in an internal memorandum noted that in the course of the investigation Warden “was heavily questioned and has had 2 inconclusive polygraph tests.”
Worden — whether an innocent victim, or a daring soul (for a comparable instance, see Johnson v. AT&T Co., 422 F.3d 756, 96 FEP 762 (8th Cir. 2005)) — brought suit against SunTrust over his termination under the EPPA. While the district court granted summary judgment, the Fourth Circuit vacated and remanded in part. the court held the following, in the course of the decision:
1. Under § 2002(3), which renders it unlawful for an employer “to discharge . . . any employee . . . on the basis of the results of any lie detector test,” an employee does not carry the burden to establish that the polygraph test was the sole basis for the discharge. The word “sole” does not appear in the statute, so Congress meant that it was sufficient for an employee to state a claim by showing that the test results was a factor in the decision.
2. Yet despite a variety of statutory exceptions — none of which the bank argued in this case — the panel imports the familiar “mixed-motive” analysis into the case, borrowing directly from Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). The panel then holds that the employer established, as a matter of law, that it would have fired Worden even without the polygraph tests:
“The evidence in the record overwhelmingly supports the district court’s conclusion that SunTrust would have discharged Worden even without knowing the results of the polygraph examination. Specifically, Dill and Perry, the two individuals who made the decision to discharge Worden, both testified that Worden’s employment was terminated because they lost trust in him due to his probable involvement in the attempted robbery. They unequivocally testified that Worden would have been fired even if they had no knowledge of the results of the polygraph examinations. This testimony is not contradicted, and manifestly shows that SunTrust ‘would have made the same decision in the absence of’ knowing the results of the polygraph examination.”
My own sense is the panel’s handling of the record here disregards an important principle of summary judgment law: that the jury would not be required to credit the testimony of such interested witnesses. On the other hand, the temptation to shortcut this standard must have been overwhelming in the face of a record that lacks any visible support for the plaintiff.
3. Under § 2002(2), it is unlawful for an employer “to use, accept, refer to, or inquire concerning the results of any lie detector test of any employee or prospective employee.” The panel affirms the district court’s decision that the employer’s passive receipt of the test result, without more, would not violate this section. In the course of so holding, the panel affirms the district court’s decision that a DOL regulation supporting the employee’s interpretation — 29 C.F.R. § 801.4(c) — was invalid and unenforceable.
4. Nevertheless, the panel reverses summary judgment on the ory that the employee could still prove “use” of or reference to the adverse test results by Sun Trust, even if it did not cause his termination. This conclusion clearly caused the panel some heartburn:
“How a plaintiff proves a § 2002(2) claim for ‘use, accept, [or] refer to’ as to the results of a polygraph examination, when there is no cognizable claim for an employment action under § 2002(3), may present a formidable burden. This is particularly so as to damages, but it is plain that Congress saw fit to create separate causes of action in §§ 2002(2) and 2002(3), and it was within the authority of Congress to do so. As we have often noted, our judicial task is only to determine the meaning of the statute as passed by Congress, not to question the wisdom of the provision enacted.”
Lawver v. Hillcrest Hospice, Inc., No. 08-11626 (11th Cir. Nov. 24, 2008): In a companion to a case decided last week by the Fifth Circuit, Stover v. Hattiesburg Public Schools, No. 07-60419 (5th Cir. Oct. 18, 2008) (and my post from last week), the Eleventh Circuit also affirms summary judgment in a Title VII, EPA, and ADEA case, and grapples with a defendant fee award.
As in Stover, the final issue was whether the district court erred in awarding attorneys fees to the defendant under Christianberg Garment Company v. EEOC, 434 U.S. 412 (1978), Also as in Stover, the panel tossed the fees on the following rationale:
“We agree with the magistrate and district court on the merits of Lawyer’s claims. However, although Lawyer’s claims were weak, they were not ‘frivolous, unreasonable, or without foundation.’ Lawver reasonably speculated that she was terminated on the basis of her gender and age. Her male coworker was not terminated. The Associate Medical Directors hired to cover her patients were younger than her. Her witness’s affidavit stated that Hillcrest was profitable during the relevant times, such that Hillcrest need not have reduced its workforce. Two other Hillcrest employees stated that they observed gender discrimination at Hillcrest. Although this evidence was not all ultimately admissible and did not amount to a prima facie case, Lawyer’s speculation that she was terminated on the basis of discrimination was reasonable.” [Citations omitted.]
I think that any circuit that treats a clearly erroneous award of defense fees as beneath notice (occasioning only an unpublished opinion) turns its back on a bigger problem. Some district court judges — notoriously, in the Southern District of Florida — have taken to awarding such fees more routinely than in the past, possibly to deter the filing of civil rights litigation altogether. This practice must be quelled, but the Eleventh Circuit seems to be taking a too-gentle approach, considering that such decisions nullify the standing law under Christianberg Garment . I would urge publication of this decision, for a start.