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Juana Sanchez v. Prudential Pizza

November 2, 2011

JUANA SANCHEZ, PLAINTIFF,
v.
PRUDENTIAL PIZZA, INC., AND JOHN APOSTOLOU, DEFENDANTS.



The opinion of the court was delivered by: Judge Sharon Johnson Coleman

Memorandum Opinion and Order Plaintiff, Juana Sanchez, moves for partial summary judgment [56] on Count III of her Amended Complaint alleging violation of the Employee Polygraph Protection Act ("EPPA"), 29 U.S.C. §2001(1). On October 31, 2011, the Court heard argument on the motion. Having considered the briefs and submissions of the parties as well as the arguments made at the hearing, the Court grants the motion for the reasons the follow.

Background

The basic facts are not in dispute. Juana Sanchez was a phone clerk and hostess for the Prudential Plaza Giordano's franchise restaurant from November 2008 to July 15, 2010. Defendant Prudential Pizza, Inc. is the owner of the Giordano's Pizza franchise at the Prudential Tower in Chicago. Basil Apostolou, who is not a defendant in this lawsuit, owns and is the sole corporate officer of Prudential Pizza. Defendant John Apostolou is Basil Apostolou's father. John Apostolou is the primary shareholder of Giordano's Enterprises, Inc. the franchisor of Giordano's Pizza, including the Giordano's Restaurant at Prudential Tower. Gino Olivito is the District Manager for Giordano's Enterprises.

Basil Apostolou purchased the Prudential Tower Giordano's from his father in June 2008. Basil has helped with the management of several of his father's Giordano's restaurants.

The corporate offices for Giordano's Enterprises are located at 740 North Rush Street, Chicago. Basil Apostolou has a work space/designated work area at the corporate office. Prudential Pizza's Employee Handbook requires employees to report any unresolved "serious issues" to the District Manager and Franchise Owner in writing.

Basil Apostolou hired Alex Marquez as a manager for the Prudential Tower Giordano's. Juana Sanchez alleges that Alex Marquez sexually harassed her by making comments about wanting to sleep with her and spank her. Basil Apostolou met with Alex Marquez to discuss the accusation. According to Basil Apostolou, Marquez responded that the claim was a lie and that he would take a lie detector test to prove it. Basil Apostolou informed Marquez that he was opening an investigation.

In June 2010, Basil Apostolou held a meeting with Sanchez at the Giordano's Enterprises corporate offices. Michaela Stapleton-Corcoran (in-house counsel for Giordano Enterprises) was also present for the meeting. John Apostolou arrived some time during the course of the meeting and did not stay for the duration. In his affidavit, John Apostolou states that "I then told Juana Sanchez that Alex Marquez had indicated that he would be willing to take a lie detector test." Basil Apostolou testified at his deposition that his father said to Sanchez, "Alex is willing to take one, are you."

Juana Sanchez was ultimately terminated. Sanchez filed the instant lawsuit alleging that she was retaliated against for complaining about Marquez's sexual harassment. The defendants contend that Sanchez was terminated because she had nine incident reports on her record for things ranging from being tardy to not wearing her uniform.

Legal Standard

A party is entitled to summary judgment if all of "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The Court construes the facts and all reasonable inferences in the light most favorable to the non-moving party when deciding a motion for summary judgment. Abdullahi v. City of Madison, 423 F. 3d 763, 773 (7th Cir. 2005).

Discussion

Sanchez alleges that John Apostolou violated section 2002(1) of the EPPA, which forbids any employer "directly or indirectly, to require, request, suggest, or cause any employee to take or submit to any lie detector test." 29 U.S.C. §2002(1). Sanchez argues that John's statement in the meeting is incontrovertible evidence that he "requested or suggested" that Juana Sanchez take a lie detector test in violation of the EPPA. Defendants respond that John was merely reiterating to Sanchez what Alex Marquez had said and, moreover, the record does not conclusively show that John was acting as an "employer" within the meaning of the EPPA.

There is a dearth of case law interpreting the EPPA primarily because the statute was designed to prohibit the use of lie detector test by employers in all but a few narrow exceptions. The parties present no cases, and the Court's research revealed none, that construed the statute in a case similar to the one at bar. Where courts have been asked to apply the EPPA, they have interpreted it quite broadly.

In Harmon v. CB Squared Services, Inc., 624 F.Supp.2d 459, 473 (E.D.Va. 2009), the court stated that "[t]he coverage of the EPPA is broad -- an employer violates Section 2002(1) by merely suggesting, even indirectly, that an employee submit to a polygraph." The situation in that case is markedly different than the case at bar. There, the plaintiff took a polygraph test voluntarily at the request of his employer, though the request was indirect. Id. The court found it immaterial that the plaintiff voluntarily took the test and granted summary judgment in the plaintiff's favor on the issue of the defendant's liability under Section 2002(1). The court reasoned that "[w]hether the Court construes [the ...


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