*1 us to overrule the consequences for its mis for turnover and asks must bear 59(e) district court’s denial of the Rule take. motion in order to do so. We decline record, find, after our review We unnecessary ap- participate type opportuni- had numerous Electric that Lee 59(e) procedure that Rule was de- pellate arguments to be for its substantive ties signed to avoid. at noted. Lee Electric heard or least by raising squandered opportunities these III. Conolusion motions instead of substantive frivolous ones, any objections respondent Because we find that Lee failing present hearing failing process by not denied due at the motion Electric Co. was defenses by statement made failure to allow it to recognize a clear the district court’s quash Electric’s nu- with supplement court. Given Lee its motion to addi- district heard, motions, respondent to be the dis- tional and because opportunities merous rationally against ap- arguments trict could have concluded waived additional court argu- by failing had no substantive motion to pellee’s that Lee Electric turnover raise, quash did not violate ments to so court raise these its motion to or at the grant of the rights process hearing, to due its March 27 the decisions of the its for turnover. district court are motion Affirmed. 59(e) B. Denial Rule Motion ap
Lee Electric also claims on wrongly grant
peal that the district court motion for turnover. The
ed the Trustees’ court did abuse its discretion in
district 59(e)
denying Lee Electric’s Rule motion. 59(e) party allows a to direct the
“Rule newly district attention to discover court’s Darryl VEAZEY, N. Plaintiff- a manifest error of ed material evidence or Appellant, fact, the court to cor law or and enables rect its own errors and thus avoid unneces Moro, sary procedures.” appellate COMMUNICATIONS & CABLE OF However, F.3d at 876. the rule should not CHICAGO, INC., TCI Communi d/b/a party be allow a to introduce new used to cations, Inc., TV, Chicago Cable TCI arguments evidence or new that it advance Chicago TCI Chicago Cable,* De brought should have before the district fendant-Appellee. Here, court. Id. Lee Electric asserts that No. 98-2625. very it arguments raised its 59(e) that it Rule motion were those Appeals, United States Court have raised district court. The before the Seventh Circuit. “new” evidence that Electric asserts Lee pre presented Argued it should have been Dec. 1998. Thus, implicit sented below. Lee Electric Decided Oct. 59(e) ly acknowledges by Rule motion its proce it correct failed to follow the preserve dures order to review of its arguments against
substantive the motion * Despile appellee. Accordingly, the fact we will refer to the that LaSalle Telecommunica- tions, appear party Inc. does not as a named defendant-appellee as LaSalle Telecommuni- caption, parties represent cations, that La- Inc. properly Salle is identified as the defendant- *3 O’Halloran,
James E. III (argued), Deutsch, & IL, Levy Engel, Chicago, for Plaintiff-Appellant.
Paul E. Freehling, Victoria Perette Hal- Pflaum, D’Ancona & (argued), lock Chica- IL, go, for Defendant-Appellee. COFFEY, RIPPLE, Before MANION, Judges. Circuit COFFEY, Judge. Circuit Darryl Veazey contends that his former Telecommunications, employer, LaSalle Inc., incorrectly sued as Communications Em- Chicago, & Co. of violated Cable meeting, to a and once Veazey moned Act Protection Polygraph ployee provide 2001-09, Veazey refused again it (“EPPA”), §§ when 29 U.S.C. exemplar reading of him with a voice pro- he refused him because
discharged threatening message. transcript of voice ex- specific tape-recorded vide the Veazey’s refusal Based on continued The requested. had superiors emplar1 exemplar, Ma- requested provide under Fed- his suit court dismissed district 12(b)(6) discharged him for insubordination. son Procedure Rule of Civil eral it is Because to state a claim. failure Thereafter, against La- Veazey filed suit a set of facts con- hypothesize possible decision to alleging that LaSalle’s Salle complaint that would sistent with to provide him after he refused terminate relief, the district him to we reverse entitle message violat- tape recorded *4 pro- further remand for ruling and court’s employ- prohibition against ed the EPPA’s ceedings. LaSalle, ers, administering lie like responded to tests. detector I.BACKGROUND a motion to dis- Veazey’s complaint with 1996, Darryl Veazey’s em- fall of In the a claim under failure to state miss for Telecommunications, Inc., ployer, LaSalle 12(b)(6). Rule of Procedure Federal Civil employed Veazey, that who was suspected motion to granted court The district coordinator/dispatcher, had outage as an dismiss, that agreeing with LaSalle threatening anonymous left a hostile Mason and recording requested by of another em- the voicemail message on a detector test qualify did not lie Burke Accordingly, LaSalle ployee at LaSalle.2 Veazey EPPA. as that term is used Veazey concern- with up an interview set this case reverse and remand appeals. We Mason, Mike LaSalle’s ing the incident. further-proceedings. Manager, and Jack Fulfillment Customer troubleshooter,” Burke, ques- a “cable II.ISSUES message during a Veazey about the tioned La- in this case is whether The issue Veazey maintained interview. four hour Veazey pro- request specific Salle’s all times. his innocence at reading a of him exemplar a voice duce denials, Mason and Veazey’s Despite voicemail threatening transcript of Veazey read a ver- requested that Burke a “lie detector test” message amounts to mes- threatening transcript of batim the EPPA. under recorder, which would into a sage ex- to create voice turn enable LaSalle III.ANALYSIS read the ver- Veazey refused to
emplar.
message for he was
transcript of the
batim
Review
A.
Standard
tape might be
how the
concerned about
under
a dismissal
We review
message
thought
and because he
used
12(b)(6)1 novo, taking
plaintiffs
counteroffer, Veazey
de
Rule
In a
offensive.
drawing all
true and
allegations as
voice
factual
provide
tape-recorded
agreed
fa
plaintiffs
inferences
reasonable
mes-
reading
of different
exemplar of
Educ.,
v. Board
Strasburger
vor. See
provide
refusal to
Because of his
sage.
Community Unit Sch.
County
Ma- Hardin
exemplar requested,
voice
Cir.1998),
(7th
351,
1,
359
No.
143 F.3d
Three Dist.
pay.
without
suspended Veazey
son
—
——,
denied,
119
U.S.
rt.
later,
again
Burke
sum-
Mason and
days
ce
exemplars
of the
ing
in the context
recording
simply
of a
exemplar
A voice
self-incrimination).
against
privilege
physi-
capture the
person’s utterances used
voice. See
properties
person's
of that
cal
Newcomb,
1,
Dionisio,
Ralph
a Tech-
employee was
410 U.S.
2. The
v.
generally United States
(discuss-
Manager.
764,
Operation
nical
67
L.Ed.2d
S.Ct.
35
93
854
(1999);
deed,
800,
S.Ct.
the liberal
re
(7th
Carter,
138,
74 F.3d
140
quirements
rules,
icanos v.
of the federal
“[a]ll
Cir.1996). A complaint should not be dis
required
that’s
to state a
claim a com
a claim
missed for failure to state
“unless
filed in
plaint
federal court is a short state
any
(that
granted
ment,
no relief could be
‘under
set of
is,
in plain
ordinary, nonlegalis
proved
tic)
that could be
consistent with
facts
English,
legal
Kirksey
claim.”
”
v.
allegations.’
Vieregge,
Nance
147
Co.,
Reynolds
v. R.J.
Tobacco
168 F.3d
(7th
589,
Cir.1998), cert.
(7th Cir.1999).
F.3d
590
de
1039, 1041
See Bennett v.
—nied,
-,
426,
119
142
U.S.
S.Ct.
(7th
Schmidt,
Cir.1998);
153 F.3d
518
(1998) (quoting
L.Ed.2d 347
Hishon v. Duda v. Board
Educ.
Franklin Park
69, 73,
King
Spalding,
&
467 U.S.
Pub. Sch. Dist. No.
133 F.3d
(1984)).
2229, L.Ed.2d
S.Ct.
oth
(7th Cir.1998). Furthermore,
claim
words,
possible
hypothesize
er
if it is
a must be
“if any
might
sustained
facts that
facts,
the complaint,
set of
consistent with
be established within
allegations
those
relief,
entitle the plaintiff
would
permit
judgment
plaintiff.”
for the
12(b)(6)
inappro
dismissal under Rule
Duda,
Thus,
made to Ten polygraphers then guilty 4. correct detections varied from independently rescored the examination 70.6%; 98.6%to charts. the now established innocent Of 5. correct innocent detections varied examinees, only correctly 51% were scored from 94.1% to 12.5%. denying truthful guilt— as when their 90%, 80%, significance The of a or 70% hardly simply flipping better than a coin. polygraph validity fully rate cannot be un- derstood unless one understands what that Raskin, 3. Barland & An Evaluation figure seeking means to an individual em- Techniques of Field in Detection of ployment facing criminal charges. Deception, 12 Psychophysiology fact, O.T.A. determined that the mathe- matical chance of positives greatest false study, guilt In this or innocence of polygraphs when randomly are used suspects by expert determined because, large employees test numbers of panel judge, lawyers, of one two defense O.T.A., according only percent- a small prosecutors and two who examined each age of screened individuals are actually suspect. Barland poly- then administered guilty. example, For if one out of one graph ninety-two examinations to criminal people actually thousand guilty and we suspects, independently and Raskin scored posit that a polygraph will be 99% accurate those charts. in determining statements, truthful then Based on the expert decisions of the probability the law of would dictate that panel, incorrectly Raskin classified 55% only person would one correctly be suspects innocent as deceptive when guilty identified as but so would ten inno- they denied guilt. their Once again, the people. cent Given the results of studies (or survey suggests that employees em- demonstrating validity rates much lower matter) ployers for that might just fare 99%, than negative impact poly- well their fate was determined a graph screening on innocent individuals is simple flip a coin. in reality greater far hypothetical than the would suggest, and the actual conse- Congressional Office of Technolo- quences examinations, polygraph invalid *7 (O.T.A.) gy Summary Assessment therefore, greater affect a far number of (1983) of Studies people in employment situations. See Gallai, David Poligraph Evidence in Fed-
The O.T.A. reviewed ten field studies of eral Admissible, Courts: Should it he polygraph validity and found that the re- L; (1999) Am. Crim. Rev. n. sults of these widely. studies varied (“ overall ‘[N]o measure validity] [of ... Congressional Technology Office of As- can be established based on sci- sessment, available Validity Scientific of Polygraph entific evidence’ and polygraphs ‘de- Testing: A Research Review and Evalua- (A deception chance, tect[ ] better than but Memorandum), tion Technical OTA- with error rates that could be considered TMH-15, (1983). Cong., 98th 1st Sess. 5 ” significant.’ (quoting Congressional Office O.T.A. summarized its findings as follows: Assessment, of Technology supra)). 1. negatives false (incorrectly classify- truthful) ing deceptive person as var- Laboratory Studies5 0%; ied from 29.4% to (1975) University Study 1. of Utah positives 2. false (incorrectly classify- ing a truthful individual deceptive) as In two researchers from the Uni- 0%; varied from 75% to versity of Utah study conducted a of 5. All concerning laboratory information Congressional these tests is derived from the Office going Again, without graph examination. seventy-two involving validity polygraph study, the O.T.A. the specifics of into the in- A mock “crime” volunteers. student “the results report that in stated its object or of theft of valuable the volving ques- study raise serious the Barland of created —half money was sum of small he of directed the usefulness about tions while “guilty,” were involved students screening procedures questions control role of assigned the half were the other validity poly- as, of general, as well student Each individual. “innocent” an and testing pre-employment graph exam- polygraph administered then especially counterintelligience purposes, ination. used alone.” ex- polygraph of percent Thirty-five inconclusive, 12% and were aminations Army Labora- Land Warfare 4. U.S. examina- incorrect Of the were incorrect. (1974)6 Study tory and positives, false tions, were two-thirds laboratory complete most In one of the all, In this negatives. false were one-third polygraph validity of the on the studies test only 53% of the study revealed devices,” Dr. verification “truth and other by correctly identified subjects were University, Fordham F. of Joseph Kubis inno- guilty either being as polygrapher Army by the U.S. was commissioned who cent. Laboratory, sub- divided Warfare Land thief, lookout, into three basic jects roles— (1978) Study Podlesriy Raskin and 2. theft a simulated suspect innocent and —in study by validity 1978, an extensive In during being present After situation. polygra- required Raskin Podlesny examination, polyg- and experienced subject’s inno- guilt or decisions make 24% phers to evaluations incorrect raphers made based, but polygraph, examiners, not on without cence other time. When subjects. test of the the sub- observation to view the visual having opportunity of the results tested, poly- listing the rated the were jects they Without behav- research, charts, dropped below accuracy the test revealed graph polygraphers ioral observations 60%. polygraph than accurate more
were perhaps these studies7 Armed with overall. important too jobs recognizing to allow economy too scarce and the Study Barland the fate to dictate machine inaccurate en- Americans, EPPA was one Barland conducted millions employers, private acted, the use prohibiting done on validity studies ever few job appli- subjecting situations, screening most pre-employment polygraphs detector to lie employees worked tests. who cants military personnel testing desper- have been since, employers study, Ever For field. intelligence evaluate ways to seeking other ately to lie *8 participants half of told Barland job of other characteristics honesty and questions— to one responding when A. See Julie employees. and applicants they pro- could if twenty dollars offering Grapholo- Legal Implications The Spoh, poly- during the reading truthful of a duce degree ''[ajlthough of reliabili- Assessment, stating unless oth- supra, Technology of a depend upon may evidence ty polygraph of erwise noted. factors, simply there is variety of identifiable Lab., Kubis, Army Land Warfare U.S. J. particular case whether a way know in no to LWL-CR-03B70, Compari- Report No. Tech. accu- conclusion polygraph examiner’s a Lie Polygraph as Analysis Voice and son of rate, and uncertainties certain doubts because (1973). Detecting Procedure polygraph exams.” best plague even 303, 118 Scheffer, 523 U.S. States United recently ques- very has Supreme Court 7. The (1998). 1261, 1266, 140 L.Ed.2d 5.Ct. machines, polygraph validity of tioned Q. gy, 75 L. (analyz- Wash. U. employment promotion to, or or threat- ing graphology, the rise in the use of any en to take such against— action alleged divining of personality science (A) any employee or prospective handwriting, by companies American refuses, employee declines, who decisions); in employment Stephen F. Be- fails to take or submit any to lie detec- fort, Pre-Employment Screening and In- tor test vestigation: Navigating Between a Rock Place, and a Hard 14 Hofstra Lab. L.J. (1999). § 29 U.S.C. 2002 (1997) (discussing attempts of em- The statute defines the term “lie ployers pre-employment to adopt screen- detector” to include “a polygraph, decep ing practices light of various federal and tograph, voice stress psychologi laws); state see also Robert B. Fitzpatrick, evaluator, cal or any other similar Museums, Lie Belong Detectors Not in (ivhether electrical) device mechanical or Trials, Sexual Harassment ALI- SD06 used, that is or the results of which are (1998). see, ABA 889 As we shall LaSalle used, purpose rendering a diag may trying have been to skirt the for EPPA’s opinion nostic regarding honesty prohibition on detector lie tests it when dishonesty individual.” U.S.C. requested Veazey to provide tape record- 2001(3) (1999) § added). ing, (emphasis discharged and him refusing for We to do point so. out the illuminating language in this (which
statute is obviously enough broad Employee C. to Polygraph preclude The the resolution of this on Protection case dismiss) Act motion to and query whether to day’s technology permits recording, above, As Congress stated enacted the conjunction used in with other devices Employee Polygraph Protection Act statute, enumerated in the to achieve the justified 1988 in response to concerns that results a “lie detector.” The dissent employers many times misusing lie to forget seems focus the case and (as detectors or their derivatives the case “Veazey’s states that that a tape assertion here) may have been and were too fre- qualifies recorder as a lie detector has no quently relying inaccurate, inconclusive, foundation under terms or unfounded detector lie results make [EPPA], simply using tape recorder employment decisions. See S.Rep. No. voice compare samples does not 100-284, violate (1988), at 46 reprinted in 1988 the Act.” The ignores dissent the fact U.S.C.C.A.N. 734. Accordingly, the Veazey never limited EPPA to sim illegal, makes it with excep- limited ply tions, using tape recorder compare for employers voice to use lie detector samples. While tests. §§ See 29 dissent is correct U.S.C. 2001-09. par- ticular, simply using provisions applicable compare recorder to to this provide, samples case part: relevant would not violate the EPPA, that is not what this case is about. [I]t shall be any unlawful for employer Rather, about, the case is majority as the engaged in or affecting commerce or in opinion clear, perfectly makes tape re the production goods the. commerce— cording requested being used in (1) directly or indirectly, to require, conjunction with other devices that request, suggest, or cause any employee have allowed LaSalle directly gauge *9 or prospective employee to take or sub- whether Veazey telling the truth mit any test; to lie detector when he denied leaving the threatening
message on employee’s another answering (3) to discharge, discipline, Examples discrimi- machine. fairly of common lie nate against any manner, in deny or detection methods suggest that it possi-
859 the Su As eviscerated. would be lyzers ble.8 extremely stated, it is has preme Court tape a that contends LaSalle Initially, allows interpretation that unlikely that an to use to it wanted recorder, device the be easily evaded would to so a be statute is not exemplar, voice requested make the Cf. Lovorn, v. one. athorn the correct H EPPA by the as defined “lie detector” a 2421, 16, 72 255, 102 n. S.Ct. 265 457 U.S. directly itself, does it, by because (1982) (refusing interpret to 824 L.Ed.2d truthfulness; merely it person’s a gauge that way in a Rights Act Voting § 5 of the characterization LaSalle’s records sounds. easily jurisdictions to allow covered would of “lie detector” statutory definition the of statute); McElroy v. United the evade it because too narrow is, opinion, in our 655-56, 642, S.Ct. States, 102 455 U.S. phrase the significance the overlooks (1982) (refusing to 1332, 71 L.Ed.2d the ... are used of which results “the statute of a federal provision a interpret opinion diagnostic a rendering purpose “patient a to allow forgery criminalizing dishonesty of an honesty or regarding Wil provision); easily evade the to forger” that voice concedes individual.” 653, Tribe, 442 U.S. Indian son ana- by a voice stress Omaha evaluated exemplar, L.Ed.2d 666-67, 99 S.Ct. device, and’often might be lyzer or similar regarding (1979) limit statute “diagnostic (refusing rendering of is used in in a American lands dishones- Native honesty disputes or over regarding the opinion “escape its opinion party allow a are of the way that would We an individual.” ty of carry logic and incorporating necessi- merely by of basic application reach very usual”); Ind. might well Northern tape as ing recorder on business tates that Co., to a “lie detec- adjunct County an Coal v. Carbon considered Pub. Serv. Co. be Cir.1986) (7th EPPA be- (noting under determination tor” 799 F.2d (a recording tape of a Lands results Mineral cause the of the provision to render be used can ac exemplar) railroads from voice Act Leasing preventing honesty regarding opinion undoubtedly cov diagnostic coal leases quiring evalu- when individual dishonesty of an or provision of the evasion” er a “facile. or similar analyzer stress by a voice ated corporation). dummy of a through use recorder, tape Accordingly, a device. one conjunction with legislative in used Finally, the EPPA’s when or a statute intended Congress enumerated devices history indicates device, the definition may fit within of lie detectors similar the use prohibition on. the EPPA. under Cortf. broadly. “lie detector” H.R. of a interpreted to be (1988), re-printed 100-659, at 11 No. Rep. Furthermore, interpretation narrow (“The con in 1988 U.S.C.C.A.N. many of removes by LaSalle advanced on a prohibition that the ... intend ferees EPPA. For by the afforded protections broadly to be construed test detector lie tape record instance, employer could if an (empha a lie detector.” any use include then turn employee, with an interview added)). excluding devices By sis recording tape analyze around those with conjunction used might be EPPA’s analyzer, stress voice with a by the prohibited specifically devices voice stress ana- use of on the prohibition added). stress an- Similarly, voice (emphasis evalu- stress example, psychological 8. For rapid variations "[f]requent alyzers measure deception measur- attempt to detect ators amplitude' vibrato the 'tremolo modu- voice ing and uncontrollable inaudible changes emo- varies with speech, which with associated by the stress caused lations is then value Id. "A numerical tional stress.” recording questions "A lying. reflecting the truth changes assigned to these run answers are employee’s employee and the Although no responses." Id. falsity evaluator, subtle measures which through the necessary to conduct recording is ques- responding when changes the voice id., that one is evident it see previous actions." honesty and about tions be used. can § 2 at 3d Proof of Facts Am.Jur. *10 EPPA, LaSalle’s narrow interpretation of to analyze samples DNA tell often us the definition of “lie detector” contravenes suspected whether a perpetrator is being Congress’ expressed intention. Accord- truthful when he denies committing a ingly, we conclude that the EPPA’s defini- crime. generally Friedland, Steven I. not, tion of “lie does Law, detector” as matter Science Malingering, 30 Ariz. law, exclude the use (1998); St. L.J. 339-40 Devlin, Jon exemplar requested LaSalle Veazey to Genetics and Justice: Indigent An Defen- produce. Right dant’s Expert Assistance, to DNA Legal fact, 1998 U. Chi. F. 395. one holding Our in this case does not stated, court has “[DNA testing] consti- that tape mean recorder invariably must single greatest tute^] advance be considered a “lie detector” under the truth,’ ‘search for and the goal of convict- EPPA. A recorder would not fall ing guilty innocent, and acquitting the within statutory definition if it was not since the advent of cross-examination.” conjunction used in with another device People Wesley, 140 Misc.2d that assists in the gauging person’s of a (1988). N.Y.S.2d Notwithstand- Perhaps this, realizing truthfulness.9 La (even ing the virtues if not great as as argues Salle also that the recording re Wesley suggests) of DNA testing, the fact quested in used, this case could not be remains that devices, these sorts of even if conjunction device, even in with another infallible,11 assumed do not supply data diagnostic render “a opinion regarding the that, more, without operator allow an honesty dishonesty of an individual” and determine whether lying. someone is At therefore, recorder intended most, the results only are evidence of a to be used in this case cannot be consid fact; historical independently types these ered a “lie detector.” LaSalle continues of devices can not be used to determine and states requested that because the re subject whether a telling truth. cording could be used to gauge Veazey’s Such devices to date have been recog- only by truthfulness way comparison nized being able to render “diagnostic with the message actual Ralph left on opinion” concerning a person’s truthful- Newcomb’s voicemail and not some in Moreover, ness. legislative EPPA’s dependent assessment of the tape record history confirms the fact that those devices ing, the tape recording cannot be used to only which indirectly indicate whether render diagnostic opinion concerning person is lying should not be included in Veazey’s honesty or dishonesty. We dis the definition of “lie detector.” See S.Rep. agree with LaSalle’s characterization of 100-284, (1988), No. at 47 reprinted in how the tape recording might be used. 1988 U.S.C.C.A.N. (noting 734-35 LaSalle and the dissent10 are cor a telephone used to check application in- rect to distinguish (and between devices formation detector”). would not be a “Me devices) presumably combinations of can be used to directly gauge person’s While LaSalle and the dissent truthfulness and those only indirectly justified are distinguishing between de determine person whether a has been directly vices that whether a determine truthful. example, For the machines used person is being truthful and those that do Upon remand the district Thames, court must deter- 11. See Jon P. It’s Not Bad Law—It’s mine if any had intention to use Bad Science: Problems with Expert Testimony tape recording conjunction with another Proceedings, Trial 18 Am. J. Trial Advoc. gauge device truthfulness in viola- (1995). tion of the EPPA. 10. The example dissent uses the of a urine test as a indirectly telling person means of if a lying they deny using drugs. *11 the broad benefit the plaintiffs give a that indirectly, its contention only
so
12(b)(6) mo-
surviving a Rule
for
standard
reading
verba-
Veazey
recording of
tape
v. Gen-
...’”)
Dawson
(quoting
Id.
tion.
message
threatening
the
transcript of
tim
(7th
F.2d
Corp., 977
eral Motors
Veaz-
directly gauge
to
be used
not
could
that
Cir.1992)).
extent
Accordingly,
the
to
a dis-
support
cannot
truthfulness
ey’s
ex-
articulate
specifically
to
Veazey failed
12(b)(6). LaSalle’s
under Rule
missal
be
exemplar could
the
actly
requested
how
proposition
on a
depends
contention
the
before
truthfulness
gauge
to
his
used
technolo-
current
whether
fact, specifically
court,
not serve
failure does
his
is district
determining
someone
capable
isgy
appeal
on
he makes
arguments
the
re- waive
tape
upon
truth based
the
telling
merely sce-
are
arguments
these
under
because
dismiss
a motion to
On
cording.
complaint.
with
to narios consistent
favorable
12(b)(6),
only “facts”
Rule
are
consider
can
a court
that
a defendant
Conclusion
IV.
complaint.
plaintiffs
alleged
those
Veaz-
EPPA or
nothing
Lease
Corp. v.
is
Capital
There
Elec.
General
(7th
possibility
excludes
complaint
F.3d
that
Corp.,
ey’s
Resolution
recording LaSalle
and
Cir.1997).
what
before
that
As stated
test
is
a lie detector
that
there
as
qualifies
requested
is the fact
ignores
dissent
hold
we
Accordingly,
that ex-
EPPA.
Veazey’s
under the
nothing
have
this case to
requested
for
improper
it
that
that was
possibility
cludes
claim
to state a
or
by itself
failure
be used
dismissed
recording could
been
12(b)(6).
to render
We
devices
ReveRse
with other
under Rule
conjunction
direct
and
Veazey’s
concerning
district court
of the
judgment
opinion
diagnostic
for further
un-
be Remanded
a dismissal
case
Accordingly,
that
this
truthfulness.
opinion.
this
that
with
12(b)(6)
the “fact”
consistent
based on
proceedings
Rule
der
could
recording
requested
LaSalle
dissenting.
MANION,
Judge,
Circuit
opinion
diagnostic
to render
be used
inappropriate.
dis-
truthfulness
court’s
Veazey’s
the district
affirm
I would
no
I have
complaint.
Veazey’s
missal of
notwithstanding La
This is so
analysis
thorough
court’s
with this
quarrel
Veazey has waived
suggestion
Salle’s
and
polygraphs
shortcomings of
LaSalle
raises.
arguments he
many of
evidence
used as
fallibility when
their
specifical
Veazey’s failure
contends
assertion
Veazey’s
But
truthfulness.
ex
voice
the requested
how
ly articulate
a lie detector
as
qualifies
tape recorder
gauge
used to
be
or could
emplar
terms
under the
has no foundation
court
district
before the
his truthfulness
Act, 29
Protection
Polygraph
Employee
a waiver
judge constitutes
using
2002(3),
simply
and
§
U.S.C.
how
about
on appeal
speculate
right
does
samples
compare voice
recorder
exemplar.
the voice
use
might
the Act.
not violate
Highsmith
decision
This court’s
employers
certain
(7th
restricts
EPPA
F.8d
Corp., 18
Chrysler Credit
to their
tests
detector
administering lie
argu
waiver
Cir.1994),
LaSalle’s
forecloses
2002(3).1 The
§
29 U.S.C.
employees.
when this
instructs
Highsmith
ment.
“lie detector”
the term
dismissals,
defines
12(b)(6)
statute
“we
Rule
reviews
court
deceptograph,
polygraph,
including “a
raised
allegations
factual
consider new
will
stress
psychological
they
provided
appeal
time on
first
for the
(whether
device
evaluator,
similar
or other
at
Id.
complaint.”
consistent with
are
“
used,
electrical)
that is
mechanical
necessary to
rule
(noting,
‘[t]his
439-40
manufacturers,
services,
and
drug
security
un-
polygraphs
believing that
Despite
§ 2006.
29 U.S.C.
employers. See
reliable,
the EPPA
other
exempted from
Congress
state,
private
federal,
governments,
local
used,
results of which are
pur-
(7th
for the
Cir.1998)
F.3d
291-92
(quoting
*12
pose of rendering
diagnostic opinion
re- American Tobacco
Patterson,
v.Co.
456
63, 68,
the
garding
honesty
1534,
or
U.S.
dishonesty
an
102
S.Ct.
if a graph voice voice, comparative but a his, ishe threatening voice shows used devices But mechanical
lying. urinalysis or
analyze -the data devices” “similar are not
analysis *13 or the voice stress
polygraph, out set lieof detectors examples
other may employers Accordingly,
the statute. ferreting recorders use legitimately violations other harassment
out sexual merely They policy. company law or record- those subjecting
must refrain a voice tests, such lie detector
ings to Because test.4
stress attempt- was that LaSalle allege does not compara- than other anything
ing to do correctly court district analysis, the
tive under a claim state he failed
found that
EPPA. America, STATES
UNITED
Plaintiff-Appellee, Florence POLIN and G.
Stanton
Phillips, Defendants-
Appellants. 98-4264.
No. Appeals, Court States
United Circuit.
Seventh 14, 1999. Sept.
Argued 20, 1999. Oct.
Decided analyzed to determine then The chart person analysis, a voice stress Generally, in subject lied. . when the by questions examiner. a series is asked causes microtremors stress Because however, case, Veazey asked In this purport- larynx, the stress around muscles ques- to answer transcript, and read a discernable may be by lying edly induced then, doubtful, whether It is tions. records examiner voice. The the examinee's analysis stress a voice conducted have could analysis in- an audio responses on no contained sample, which Veazey’svoice displays a computes and which strument truth. be measured could assertions stress. examinee's the level chart