United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA, UNITED STATES DISTRICT JUDGE
CoreCivic, Inc. moves to dismiss plaintiff Leslie West's
First Amended Complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim under the
Employee Polygraph Protection Act (“EPPA”). (Doc.
reviewing a motion to dismiss under Rule 12(b)(6), the court
assumes true all well-pleaded facts in the complaint,
disregards all legal conclusions couched as factual
allegations, and grants the plaintiff all reasonable
inferences from the pleadings. Colony Ins. Co. v.
Burke, 698 F.3d 1222, 1228 (10th Cir. 2012). To survive
a motion to dismiss, the complaint “must contain
sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl.
Co. v. Twombly, 550 U.S. 544, 570 (2007)) (quotation
marks omitted). “[A] well-pleaded complaint may proceed
even if it strikes a savvy judge that actual proof of those
facts is improbable, and that a recovery is very remote and
unlikely.” Twombly, 550 U.S. at 556 (citing
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974))
(quotation marks omitted).
court begins with the plain text of the statute, using
traditional tools of interpretation, and defers to
permissible constructions by a statute's administering
agency where the statute is silent or ambiguous as to the
precise question at issue. See TransAm Trucking, Inc. v.
Admin. Review Bd., 833 F.3d 1206, 1210 (10th Cir. 2016)
(citing Chevron, U.S.A., Inc. v. Nat. Res. Defense
Council, Inc. 467 U.S. 837, 843 (1984)).
EPPA prohibits an employer from either directly or indirectly
“requir[ing], request[ing], suggest[ing], or caus[ing]
any employee or prospective employee to take or submit to any
lie detector test.” 29 U.S.C. § 2002(1) (2012).
“Employer” is defined to “include any
person acting directly or indirectly in the interest of an
employer in relation to an employee or prospective employee,
” and “Lie detector” is defined to
“include a polygraph.” Id. §
2001(2), (3). The Act exempts from liability certain
employers and circumstances not relevant to this motion, and
further commands the Department of Labor to issue rules and
regulations as necessary to carry out its mandates. See
Id. § 2004(a).
regulations interpreting the Act clarify the type of employer
activity that does not rise to the level of prohibited
conduct despite not falling within a statutory exemption. 29
C.F.R. § 801.4 (1991).
For example, it is not uncommon for police authorities to
request employees suspected of theft or criminal activity to
submit to a polygraph test during the employee's tour of
duty since, as a general rule, suspect employees are often
difficult to locate away from their place of employment.
Allowing a test on the employer's premises, releasing an
employee during working hours to take a test at police
headquarters, and other similar types of cooperation at the
request of the police authorities would not be construed as
“requiring, requesting, suggesting, or causing,
directly or indirectly, any employee * * * to take or submit
to a lie detector test.”
Id. § 801.4(b).
is little Tenth Circuit or Kansas authority interpreting the
EPPA, and no authority from either source interpreting the
scope of prohibited conduct. See Fernandez v. Mora-San
Miguel Elec. Co-op., Inc., 462 F.3d 1244, 1247-50 (10th
Cir. 2006) (applying “economic reality” test
interpreting “employer” under the EPPA);
Kluge v. O'Reilly Automotive, Inc., No. Civ. A.
94-2159-GTV, 1994 WL 409575, at *2-3 (D. Kan. Aug. 3, 1994)
(discussing insufficient allegations of
“employer” status under same).
is a resident of Kansas and former employee of defendant.
Defendant is a private corrections management corporation
organized under Maryland law, doing business and managing a
private detention facility in Leavenworth, Kansas (“CCA
Leavenworth”). Plaintiff began her employment with
defendant on September 5, 2013 as a Corrections Officer at
CCA Leavenworth. From hiring through December 13, 2015,
defendant promoted plaintiff three times: first, to
Lieutenant / Assistant Shift ...