The opinion of the court was delivered by: JAMES H. ALESIA
Now before the court is defendant Willlam E. Craven's ("Craven") motion to dismiss the complaint of the plaintiff, Sherwood James ("James"). The motion is brought pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted. For the reasons set forth below, Craven's motion is denied.
The following is a summary of the facts in the light most favorable to the plaintiff. In late January of 1993, Professionals' Detective Agency, Inc. ("Professionals'") hired James as a security guard. While employed by Professionals', James was assigned to work as a security guard at Leslie Hindman Auctioneers. On or about April 17, 1993, there was a theft of money and jewelry from the second floor lunchroom, at which time numerous customers and employees of Leslie Hindman, including James, were present in the building. On that day, James had been assigned to work on the fifth floor of the building. Additionally, Professionals' had assigned at least three other employees to work on other floors of the building. Later that day, James' supervisor, Mr. Lad, told him that he was temporarily suspended as a result of the theft in the building and requested that James submit to a polygraph test to determine whether he had been involved.
James agreed and the polygraph was administered by defendant Craven on May 7, 1993. Before administering the test, neither Professionals' nor Craven provided James with a written list of questions to review. During the test, Craven asked questions unrelated to the theft which needlessly degraded and intruded on the plaintiff. After the test, James was not given a copy of the results of the polygraph nor was he given any written conclusions. Furthermore, Professionals' failed to interview James regarding the results of the test and later discharged him as a consequence of the polygraph results.
James charges defendant Professionals' with violations of the Employee Polygraph Protection Act of 1988 ("EPPA"), 29 U.S.C. §§ 2002(1), 2002(3), for requesting that he submit to a polygraph test and for discharging him on the basis of the results of the test. Additionally, James charges defendants Professionals' and Craven with violations of 29 U.S.C. § 2007 for asking questions intended to degrade or needlessly intrude on him during the test, and for asking questions that were not presented in writing for his review prior to the test.
Defendant Craven has moved to dismiss the plaintiff's claim as it pertains to him because Craven was not plaintiff's "employer" as that term is used in the EPPA and is thus not subject to any civil action under the EPPA. The plaintiff, meanwhile, maintains that Craven does fit under the EPPA's definition of an employer.
A Rule 12(b)(6) motion to dismiss for failure to state a claim is granted only where it is beyond doubt that the plaintiff is unable to prove any set of facts that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957). The court must take all well pleaded facts and allegations as true, and must view them in the light most favorable to the plaintiff. Ellsworth v. City of Racine, 774 F.2d 182, 184 (7th Cir. 1985), cert. denied, 475 U.S. 1047, 106 S. Ct. 1265, 89 L. Ed. 2d 574 (1986). Furthermore, plaintiff is entitled to all reasonable inferences that may be drawn from the complaint. Id.
The general prohibition against the use of polygraph tests does not apply if the test is administered in connection with an ongoing investigation involving economic loss or injury to the employer's business, such as theft or embezzlement. 29 U.S.C. § 2006. In that case, the exemption applies only if the employee had access to the missing property, the employer had a reasonable suspicion that the employee was involved in the incident, and the employer executed a written statement setting forth, inter alia, the details of the incident and the basis for the employer's reasonable suspicion. Id. Furthermore, the exemption does not apply if the employer's actions do not meet a number of restrictions. Id. at § 2007. These restrictions are designed to eliminate adverse employment action based solely on lie detector results, protect employees' privacy rights, and reduce the possibility of inaccurate test results. Charles P. Cullen, The Specific Incident Exemption of the Employee Polygraph Protection Act: Deceptively Straighforward, 65 NOTRE DAME L. REV. 262, 276 (1990).
The EPPA provides for both public and private enforcement. 29 U.S.C. § 2005. The private enforcement provision creates an explicit right of action for employees against "an employer who violates [the EPPA] ... for such legal and equitable relief as may be appropriate, including, but not limited to, employment, reinstatement, promotion, and the payment of lost wages and benefits." Id. at § 2005(c)(1) (emphasis added). The Act defines an employer as "any person acting directly or indirectly in the interest of an employer in relation to an employee or prospective employee." Id. at § 2001(2). Pursuant to its duty to promulgate "rules and regulations as may be necessary or appropriate to carry out [the EPPA]," Id. at § 2004(a), the Department of Labor issued a regulation which states:
The term employer means any person acting directly or indirectly in the interest of an employer in relation to an employee or prospective employee. A polygraph examiner either employed for or whose services are otherwise retained for the sole purpose of administering polygraphs ...