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4th Circuit Decides Employee Polygraph Protection Act Case

Published by on January 2, 2009

In a rare decision under the Employee Polygraph Protection Act (“EPPA”), the Fourth Circuit decided several unresolved issues of statutory interpretation in a published opinion dated November 24, 2008.  The opinion in Worden vs. Sun Trust Banks, Inc., can be found here.  More after the page break. The case involved a bank employee who claimed that […]

In a rare decision under the Employee Polygraph Protection Act (“EPPA”), the Fourth Circuit decided several unresolved issues of statutory interpretation in a published opinion dated November 24, 2008.  The opinion in Worden vs. Sun Trust Banks, Inc., can be found here.  More after the page break.

The case involved a bank employee who claimed that two men had kidnapped him in order to rob the bank.  The employee attempted to exploit the alleged kidnapping in order to obtain money from the bank.  In the course of the subsequent law enforcement investigation, he was given a polygraph examination that he failed.  After the polygraph, the examiner entered the room and announced that the plaintiff had failed the exam in front of several bank management employees.  The plaintiff subsequently took a second polygraph examination, which he again failed.  Once again, bank management officials learned of the failure. 

The bank decided to terminate the plaintiff’s employment based on its concerns that law enforcement had an ongoing belief that the plaintiff was involved in the attempted bank robbery. The bank officials did not mention the polygraph examination.  The plaintiff filed suit under the EPPA alleging, first, that Sun Trust violated the EPPA by the fact that it “used, accepted, referred to, obtained, learned of, and/or inquired concerning the results of the polygraph examination,” and second, that the bank fired him “based on the results of the polygraph examination” in violation of the EPPA.  The district court granted the bank’s motion for summary judgment on both claims. 

The Court of Appeals first examined the wrongful termination claim.  It found that a plaintiff is only required to show that the results of the polygraph examination where a factor in the termination of employment in order to establish a prima facie case under the EPPA.  Then, applying the familiar shifting burden standards developed in the Title VII context, the court noted that the defendant must respond with evidence that it acted with a legitimate nondiscriminatory reason.  If the defendant does so, the burden shifts back to the plaintiff to present evidence that the defendant articulated reasons were a pretext for an unlawful discrimination.  It also recognized the applicability of the Price Water House mixed motive framework.  In that context, if a plaintiff first offers evidence of discrimination, the employer can avoid liability by proving that it would have made the same decision in the absence of the discriminatory motivation.  Here, even though the defendant claims that it did not consider the polygraph in its decision to terminate his employment, the court assumed that the plaintiff had shown that the results were a factor in the decision to terminate his employment for purposes of his prima facie case.  The court nevertheless found that the evidence overwhelmingly supported the conclusion that the bank would have discharged the plaintiff even without knowing the results of the polygraph examination.  There is no evidence in the record to suggest that their asserted justification was untrue. 

The court next turned to examine the claim that the company violated the EPPA by “accepting” and “using” or “referring to” the results of the polygraph examination.  The court concluded that the mere receipt of the polygraph results from law enforcement officials did not constitute “accepting” the polygraph results in violation of the statute.  Accordingly, it upheld the dismissal of this claim. 

The court did find, however, that the plaintiff had established a claim that the bank had violated the EPPA by “using” or “referring to” the polygraph results.  Even though the plaintiff’s evidence presented a colorful claim for violation of the statute on this basis, the court pointed out the significant difficulty in proving damages.  In a footnote, the court noted that “because we have held that (plaintiff) would have been fired regardless of the polygraph results, proving economic harm appears unlikely.” 

Although this particular plaintiff may have difficulty proving damages when he returns to the trial court, the decision is a reminder to employers of the illegality of taking polygraph results into consideration when making employment decisions.

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