Sixth Circuit Affirms Dismissal of Claim under Polygraph Protection Act

Earlier this month, the Sixth Circuit affirmed summary judgment in favor of a restaurant employer on a claim brought under the federal Employee Polygraph Protection Act. Bass v. Wendy’s of Downtown, No. 12-3575 (6^th Cir. 5-16-13).   In that case, after the plaintiff had been forced to resign when he was caught on a security video tape inappropriately touching a female employee, the plaintiff filed a charge of discrimination with the Ohio Civil Rights Commission alleging that he had been passed over for a promotion a few months earlier because of his age and because he had previously alleged discrimination.  In defense of the OCRC charge, the employer explained that he had been passed over for the promotion because of his extensive disciplinary history, his insubordinate attitude and because he had failed a polygraph examination a few years earlier when suspected of a workplace theft.  The plaintiff then filed suit seeking $5M for the unlawful disclosure to the OCRC of the results of his polygraph examination and for the denial of the promotion based on the results of the examination.  The Court dismissed the lawsuit on the grounds that he did not prove that he had suffered any compensable injury from the disclosure and that the employer had shown that he would not have been promoted regardless of the polygraph examination based on his extensive disciplinary history and repeated insubordination.

The Employee Polygraph Protection Act provides in relevant part at 29 U.S.C. § 2008 that:

(a) In general

A person, other than the examinee, may not disclose information obtained during a polygraph test, except as provided in this section.

(b) Permitted disclosures

A polygraph examiner may disclose information acquired from a polygraph test only to—

(1) the examinee or any other person specifically designated in writing by the examinee;

(2 )the employer that requested the test; or

(3) any court, governmental agency, arbitrator, or mediator, in accordance with due process of law, pursuant to an order from a court of competent jurisdiction.

(c) Disclosure by employer

An employer (other than an employer described in subsection (a), (b), or (c) of section 2006 of this title)[which does not include restaurants] for whom a polygraph test is conducted may disclose information from the test only to—

(1) a person in accordance with subsection (b) of this section; or

(2) a governmental agency, but only insofar as the disclosed information is an admission of criminal conduct.

Although the Act does not permit the disclosure of examination results to the OCRC, the plaintiff failed to show that he had been injured in any way from the disclosure.  Therefore, his claim for unlawful disclosure was dismissed.

While employers who violate the EPPA are subject to various types of damages under § 2005, Bass has not cited any particular material in the record demonstrating that he was harmed by the disclosure and entitled to relief. See Fed. R. Civ. P. 56(c)(1)(A).

The Act also prohibits employers from disciplining or discriminating against employees who fail polygraph examinations.  29 U.S.C. § 2002.  In this case, however, while the examination results played a part in the decision to not promote him, the overwhelming and undisputed evidence of his 22 corrective action notices and repeated insubordination showed that he would not have been promoted even if his examination results had not been considered.  While the Court did not definitively determine which legal standard to apply, the plaintiff could not prevail even under the lenient Price Waterhouse analysis.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.