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West v. Corecivic, Inc.

United States District Court, D. Kansas

June 26, 2019

LESLIE WEST, Plaintiff,
v.
CORECIVIC, INC., f/k/a CORRECTIONS CORPORATION OF AMERICA, Defendant.

          MEMORANDUM AND ORDER

          CARLOS MURGUIA, UNITED STATES DISTRICT JUDGE

         Defendant 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. 22)

         I. LEGAL STANDARDS

         A. 12(b)(6)

         In 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).

         B. EPPA

         The 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)).

         The 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).

         Department 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).

         There 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).

         II. FACTUAL BACKGROUND

         Plaintiff 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 ...


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