Case Information
*1 UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION JASMINE TAYLOR, Plaintiff, -vs- Case No. 6:06-cv--160-0rl-l8JGG EPOC CLINIC, INC., JAMES S. PENDERGRAFT, IV, M.D.,
Defendants. ORDER TI-IIS
CAUSE comes before the Court upon Defendants' Motion for S u m i n q Jud, (merit (Doc. 6. iiled May 8, 2006). to which Plaintiff responded in opposition (Doc. 1 1-1, tiled June 5 , 2006). Plaintiff Jasmine Taylor ('-Plaintiff') brings tlis action against Defendants EPOC Clinic, Inc. ("EPOC" or '-the Clinic") and James S. Pendergraft, lV, M.D. (collectively, -'Dekndants"). alleging in a one-count Complaint the violation of her rights under the Employee Poljy-aph Protection Act of 1988 ("EPPA"I. 29 U.S.C. 5 2001. er seq. After reviening the motions and men~oranda provided by each party, the Court grants summary judgment to Defendants.
I. BACKGROUND Plaintiff'\vas tsmploycd by EPOC from August 22. 3003. to November 5. 2005. as a medical assistant at its offices in Orlando. Florida. Plaintiffs supervisor during this period of time \vas Dora Nold ("Nold"), the Administrator of the Clinic. In or about October 2005. two patients at the Clinic complained that they were missing money fiom their personal belongings u-lde at the Clinic. Nold at this point had a meeting with the staff at the Clinic. including *2 Plaintiff. irfisming tll lcrn that a law enforcement investigation was undenva>-, and that the elllployees may be askcd to submit to a lie detector test in cornpliaixe with the investigation. Plaintiff alleges that Nold told the employees repeatedly that they were going to be required to take a polygraph test. Shortly thereaiier. on Novenlber 4. 2005. a police detective came to EPOC and intenviewed Plaintiff about the missing money. Plaintiff alleges that the detective i~lfoimcd her that EPOC requested her to submit to a polygsaph test. Plaintiff initially ageed. but then decided that she did not want to undergo the polygraph test. Plaintiff was on schedule for multiple shifts later that week at work. but never retusned to the Clinic alier November 4. 2005. Plaintiff \vas subsequently te~minated from her job on Noven~ber 16.2005. on account of being a no-calho-show since her last day of work. Plaintiff does not claim that she was subject to an adverse employment action. merely that the Clinic violated her rights under the
EPPA.
11. DISCUSSION A. Szr~m~~zty .Jz~dgnieiit Sr~md~lrd .4 court will grant su~nmary judgment if -'the pleadings. depositions. answers to intzrrogatories. and admissions on file, together with affidavits. if any, show that there is no genuine issue as to any matcrial fact and that the moving past^ is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Material facts are those that may affect the outcomc of thc case uildes the applicable substantive law. Disputed issues of material [act preclude the entry of sumnary judgment. but factual disputes that are irrelevant or unnecessary do not. Anderson v. Libertv Lobby. Inc, 477 U.S. 242.238 ( 1 986).
*3 Thc moving party bears the initial burden of proving that no genuine issue of material fact esists. Cclotes Corn. v. Catrett. 477 U.S. 3 17.324-25 ( 1 986). In de~ermining wllether the moving party has satisfied its burden, the Court considers all inferences drajvn from the underlying fhcts in a light most favorable to the party opposing the motion and resol\-es all rsasonabie doubts against the moving party. Matsusl~ita Elec. Ind. Co. v. Zenith Radio Corn.. 475 U.S. 574. 587-88 ( 1986). The moving party may rely solely on the pleadings to satisfi its burden. Celotes. 477 U.S. at 323-24. A non-moving party bearing the burden of proof. however, must go beyond the pleadings and submit affidavits. depositions, answers to interrogatories. or admissions that designate specific facts indicating there is a genuine issue for trial. Id. at 324. If thc evidence offered b ~ ,
the non-moving party is mercly colorable. or is not signilicantly probative. h c Court may grant sumn~al~~judgment. Anderson, 477 U.S. at 249-50. Similarly. summary judgment is nmndated against a party who fails to prove an essential element of its case. Celotcs. 477 U.S. at 322.
B. ditcr(ysis For purposes of this order, the Court assumes that Defendants l'all under the EPPA: i . ~ . . that EPOC is an employer that engages in interstate commerce. 29 U.S.C. 2002 (stating that the EPPA applies to employers "engaged in or affecting commerce or in the production of goods for commerce"). Under the EPPA. an employer may not "directly or indirectly . . . require. request. suggest, or cause any employee or prospective employce to take or submit to any lie clctector test." 30 I1.S.C. $ 2002(1). The Eleventh Circuit has spccitically held that an employer's mere rcqucst is a violation. Polkcv v. 'Transtecs C o r ~ . , 404 F.3d 1264. 1268
*4 ( 1 1111 Cir. 2005) (-'IT]lie plain language of [4 2002(1)] prohibits an employer from requesting or suggesting that an employee s i ~ l m i t to a polygraph exam even where the test is ultimately not administered and no adverse eniployment action is taken as a consequence.").
Plaintiff claims that Nold stated to Plaintiff (and the other employees) that taking a polygraph test was going to be a future requirement as a result of the thefis. (See PI. Aff. '7 4- 6 . 1 lon,e\.er, Defendants have produced nvo affidavits stating that the only discussion of a polygraph test on the part oi'Nold was in reference to a possible in\-estigation by the police. (& Simeus Aff. 4: Nold Aff. 6.) Carmita Simeus. a medical assistant at the Clinic. specifically stated in her affidavit tliat '-Noid told nic and the other employees of the Clinic that she did not know ~vhat would happen during the investigation other than that she tliouglit that w e might be interviewed and that we might be asked to takc a lie detector test." (Simcus Aff. ',I 4.) Simeus' recollection or the event corresponds exactly to Nold's recollection. as stated in Nold's o\;n afiidavit:
I advised the staff employees that law enforcement was conducting an investigation regarding some nissing money from patients. that I did not knolv what the investigation might consist of as it was being handled by a Police Officer and that I thought as part of the i~ivestigation tliat we (including myself) might be interviewed and that we might be also asked to takc a lie detector test.
(Nold Aff. 7 6.) The only evidence that Plaintiff brings forward to contradict Defendants' aflidavits is her own affidavit. in which she states that Nold stated that she was conducting her own investigation (not that of the police) and that polygraph tests lvould be required. (& 1'1. Al'f. '~11 4-6.) Plaintiff statcs that Nold told the employees the following: "'1'111 conducling an *5 investigation into theft from one of the patients. . . . Everybody is going to h a w to take a polygraph test. You are all going to have to take a polygraph test. If any of you don7[ like it. you can lenvc right noiv."' (PI. AIT. 4.) This conduct alleged by Plaintif'r(cond~~cted by Nold as a representative for Defendants). falls into the category of what is not pertnittcd by thc EPPA. Taking Plaintiffs affidavit as fact. which the Court must do at the summa^?. judgment stage. Defendants appeared to "require, request. suggest. or cause [Plaintiff] . . . to take or subniit to [a] lie detector test." which is in violation of the EPPA.
Honwer, there arc csemptions to the EPPA. See 29 U.S.C. 3 2006. An employer is not prohibited from requesting an employee to subniit to a polygraph tcst if the follo~ving requirements are met:
( 1 ) thc test is xhinistered in connection with an ongoing invcstigation involving economic loss or injury to the employer's business, such as theft. cmbezzlemenl, misappropriation. or an act of unla~sful industrial espionage or sabotage; (2) thc employce had access to the property that is the subject of thc investigation; (3) the employer has a reasonable suspicion that the employee ivas involved in the incident or activity under investigation: and (4) tlic employer executes a statement. provided to the esaniinee before the test [that describes with specificity the esarninee's alleged misconduct].
29 U.S.C. 6 2006(d). After considering the facts in a light most favorable to Plaintiff. as the Court must do here, it is apparent that Dctilndants are entitled to this exemption and thcrclbre have not violated the EPPA. I'laintiffallcges that her supervisor. Nold, informed the employees that she was
->- *6 conducting an investigation into the possiblc theft at the Clinic. This satisfies the first requirement of'thc ongoing investigation exemption. Plaintiff was one of only five employees that west included in the investigation, presumably because they \yere the only employees at the Clinic. 'This fact satisfies both the sccorld and third requirement for the exemption. Plaintiff. as one ofthe fi\.e employees. had access to the property (patient's money) that is the subjcct of
. . thc investigation. 1 he employer would also. logically, have a reasonable suspicion of a11 five employees that had access to the stolen property (in light of the fact that there arc so few individuals en~ployed at thc Clinic). As for the fourth requirement. the Eleventh Circuit has held that when the employce never actually takes the lie detector test, (4) becomes inapplicable because the employee ncvcr becomes an actual "exruninec." Watson v. Drunlmond Co.. 436 F.3d 13 10; 13 15 (1 I th Cir. 2006). I'laintiff never actually took a polygraph test. theret'ore the fourth requirement docs not apply.
In conclusion. cvcn if the facts surrounding this incident occurred precisell. as Plaintiff alleges, Defendants are still entitled to the "ongoing investigation" exemption as provided by 29 U.S.C. 9 2006(d). Plain~iff'has failed to show that Defendants violated her rights under the EPPA. As a result, Defendants are entitled to surnm+r judgment.