Darryl N. Veazey v. Communications & Cable of Chicago, Inc., D/B/A Tci Communications, Inc., Chicago Cable Tv, Tci Chicago or Tci-Chicago Cable
Docket: 98-2625
Court: Court of Appeals for the Seventh Circuit; October 20, 1999; Federal Appellate Court
Darryl N. Veazey filed a lawsuit against his former employer, LaSalle Telecommunications, Inc., alleging a violation of the Employee Polygraph Protection Act (EPPA) after he was discharged for refusing to provide a tape-recorded voice exemplar of a threatening message he was accused of leaving. During an investigative interview, LaSalle requested Veazey to read a transcript of the message, but he declined due to concerns about its use and the message's offensive nature. Veazey offered to record a different message instead. Following his refusal, LaSalle suspended him and subsequently discharged him for insubordination. The district court dismissed Veazey's complaint under Federal Rule of Civil Procedure 12(b)(6), ruling that the request did not constitute a lie detector test under the EPPA. Veazey appealed, and the appellate court found that it is plausible to hypothesize facts that could support Veazey's claim, resulting in a reversal of the district court's dismissal and a remand for further proceedings. The critical legal question is whether LaSalle's request for the voice exemplar qualifies as a "lie detector test" under the EPPA.
A dismissal under Rule 12(b)(6) is reviewed de novo, with all factual allegations in the plaintiff's favor. A complaint should only be dismissed if no relief is possible under any set of facts consistent with the allegations. The dissent incorrectly asserts that the plaintiff must provide specific claims regarding evidence analysis, misunderstanding the notice-pleading standard that requires only a short and plain statement of the claim. Federal rules prioritize giving notice over detailed fact-pleading, allowing for the development of legal theories later. Therefore, a lack of specific claims regarding stress analysis does not warrant dismissal under Rule 12(b)(6).
The excerpt also provides a brief history of the polygraph, noting that Cesare Lombroso first claimed in 1895 that he could detect lies through physiological measurements, a notion that has persisted and influenced societal views on polygraphs. Understanding this history is essential for comprehending the implications of the Employee Polygraph Protection Act (EPPA) and potential violations by LaSalle.
Before the Employee Polygraph Protection Act (EPPA), federal law did not regulate polygraph use in private workplaces, leading to an increase in polygraph examinations conducted by private employers. A 1978 survey revealed that over 50% of major U.S. corporations, particularly commercial banks and retailers, used polygraphs, primarily testing all job applicants and employees rather than random samples. Concerns regarding the accuracy of polygraph tests grew as researchers and defense lawyers questioned their reliability, prompting Congress to enact the EPPA.
Several key studies highlighted the shortcomings of polygraph testing:
1. Kleinmuntz and Szucko's study of 100 polygraph exams showed a 39% misclassification rate of innocent individuals as guilty.
2. Horvath's research indicated that only 51% of innocent examinees were correctly identified as truthful, no better than chance.
3. Barland and Raskin found that 55% of innocent suspects were incorrectly classified as deceptive.
4. The Congressional Office of Technology Assessment's review of ten studies reported significant variability in polygraph accuracy, with false negatives ranging from 0% to 29.4%, false positives from 0% to 75%, and correct innocent detections from 12.5% to 94.1%.
These findings underscore the significant limitations and inaccuracies associated with polygraph testing in employment contexts.
A polygraph's validity rates of 90%, 80%, or 70% are problematic when assessing their implications for employment or criminal cases. The Congressional Office of Technology Assessment (O.T.A.) highlighted that false positives are most likely when polygraphs are randomly administered to large groups, as only a small percentage of individuals are actually guilty. For instance, with a hypothetical scenario where one in a thousand is guilty and the polygraph is 99% accurate, it could incorrectly label ten innocent individuals as guilty. Studies show that polygraph validity rates are often lower than 99%, leading to significant negative consequences for innocent individuals in employment contexts.
The excerpt references several studies:
1. **University of Utah Study (1975)**: Conducted with 72 student volunteers, it found that 35% of polygraph results were inconclusive, and 12% were incorrect, with two-thirds being false positives. Only 53% of subjects were correctly identified as guilty or innocent.
2. **Podlesny and Raskin Study (1978)**: This study suggested that polygraphers' behavioral observations were more accurate than the polygraph itself in determining guilt or innocence.
3. **Barland Study (1981)**: Focused on military personnel, this study raised doubts about the effectiveness of certain polygraph questioning techniques and the overall validity of polygraph testing for pre-employment and counterintelligence purposes.
4. **U.S. Army Land Warfare Laboratory Study (1974)**: Involving simulated theft scenarios, this study revealed that experienced polygraphers made incorrect evaluations 24% of the time, and accuracy dropped below 60% when examiners did not observe the subjects during testing.
Overall, the evidence suggests that polygraphs may not be reliable for determining truthfulness, particularly in high-stakes situations like employment and criminal investigations.
The Employee Polygraph Protection Act (EPPA), enacted in 1988, prohibits most private employers from requiring job applicants or employees to take lie detector tests due to concerns over their misuse and the inaccuracy of results. This legislation aims to protect individuals from employment decisions based on unreliable lie detector outcomes. Employers have sought alternative methods to assess honesty, leading to an increase in practices such as graphology and other pre-employment screenings, as discussed in various legal analyses. The case at hand highlights that LaSalle may have attempted to circumvent the EPPA by requesting Veazey provide a tape recording, subsequently terminating him for refusal. The EPPA explicitly makes it unlawful for employers to require lie detector tests or retaliate against those who refuse them. The statute's definition of a "lie detector" encompasses various devices used to evaluate honesty, raising questions about whether a tape recording, especially if combined with other technologies, could be construed as a "lie detector" under the law. The dissenting opinion mistakenly limits the issue to the use of a tape recorder alone, neglecting the broader context of its use alongside other devices to assess truthfulness in Veazey's case.
LaSalle argues that a tape recorder does not qualify as a "lie detector" under the Employee Polygraph Protection Act (EPPA) because it merely records sound without directly assessing truthfulness. However, this interpretation is deemed too restrictive, as it ignores the broader definition involving devices that provide a diagnostic opinion on honesty. The use of a tape recording in conjunction with a voice stress analyzer can indeed facilitate such an opinion, aligning with EPPA's definition of a "lie detector."
If LaSalle's narrow view were accepted, it would undermine the protections offered by the EPPA, allowing employers to circumvent prohibitions by recording interviews and subsequently analyzing them with stress analyzers. The document cites Supreme Court precedents emphasizing that interpretations permitting easy evasion of statutes are typically incorrect. Additionally, legislative history supports a broad interpretation of the EPPA's definitions, indicating that Congress intended for any related use of lie detectors to be included in the prohibition.
The conclusion affirms that the requested voice exemplar does not fall outside the legal definition of a "lie detector," though a tape recorder alone does not qualify unless used with a device that assesses truthfulness. LaSalle further contends that the specific recording in this case cannot facilitate a diagnostic opinion on honesty, suggesting it should not be classified as a lie detector.
LaSalle argues that the requested tape recording of Veazey cannot be used to assess his truthfulness, as it can only be compared to the voicemail message left for Ralph Newcomb and lacks an independent basis for evaluation. The court disagrees, stating that while it is valid to differentiate between devices that directly measure truthfulness and those that do so indirectly, LaSalle's assertion regarding the tape recording's utility does not warrant dismissal under Rule 12(b)(6). The court highlights that even devices like DNA testing, despite their reliability, do not provide conclusive evidence of truthfulness on their own and cannot render a diagnostic opinion regarding honesty. Legislative history from the Employee Polygraph Protection Act (EPPA) supports excluding devices that only indirectly indicate truthfulness from the definition of "lie detector." The ruling emphasizes that LaSalle's dismissal argument relies on a factual proposition about the technological capabilities of the tape recording, and since Veazey's complaint does not preclude the recording's potential use in determining truthfulness, dismissal under Rule 12(b)(6) is inappropriate.
Veazey's arguments on appeal are not waived despite LaSalle's claims due to his lack of specific articulation regarding the use of a requested voice exemplar. The court cites *Highsmith v. Chrysler Credit Corp.*, which allows for new factual allegations consistent with the original complaint when reviewing Rule 12(b)(6) dismissals. Consequently, Veazey's failure to detail how the voice exemplar might gauge his truthfulness does not preclude his appeal, as these arguments align with his original claims.
The court further concludes that nothing in the Employee Polygraph Protection Act (EPPA) or Veazey's complaint rules out the possibility that the requested recording qualifies as a lie detector test under the EPPA. As such, it was improper for the district court to dismiss the case for failure to state a claim under Rule 12(b)(6). The court reverses the district court's judgment and remands the case for further proceedings. Additionally, LaSalle Telecommunications, Inc. is confirmed as the proper defendant-appellee despite its absence in the caption. A voice exemplar is defined as a recording used to analyze a person's voice, and various polygraph components and their reliability issues are briefly noted.
All information regarding laboratory tests originates from the Congressional Office of Technology Assessment, unless specified otherwise. A U.S. Army report compares voice analysis to polygraph tests, highlighting the Supreme Court's skepticism about the reliability of polygraph results, noting uncertainties that affect accuracy (United States v. Scheffer). Psychological stress evaluators and voice stress analyzers measure subtle voice modulations to detect deception, with numerical values assigned to reflect truthfulness. The district court must determine if LaSalle intended to use a tape recording with another device to assess Veazey's truthfulness in violation of the Employee Polygraph Protection Act (EPPA). The dissent draws a parallel to urine tests for detecting drug use. The EPPA prohibits employers from administering lie detector tests, defining "lie detector" as including various devices that assess honesty. The Act does not apply to techniques used for other investigative purposes, such as comparing voice samples for suspected harassment. The district court correctly ruled that the EPPA does not prohibit such comparisons, as Veazey did not allege any recording would be subjected to a stress analyzer, leading to the dismissal of his complaint under Rule 12(b)(6).
Veazey claims that the term "lie detector" encompasses tape recorders, arguing that the Employee Polygraph Protection Act (EPPA) prohibits LaSalle from terminating him for not providing a recorded voice sample. However, he fails to provide legal support for this assertion. The court emphasizes that statutory interpretation should rely on the language used by Congress, which does not define "lie detector" to include tape recorders. The statute specifies devices like polygraphs and voice stress analyzers, which analyze rather than merely record sounds. Thus, employers can require voice samples for comparative analysis without violating the EPPA, similar to urine tests for drugs. The analysis of voice recordings does not equate to lie detection as defined by the statute, allowing employers to utilize tape recorders for investigations into misconduct, provided they do not employ them in ways considered lie detection under the EPPA. Consequently, the district court determined that Veazey's complaint did not establish a valid claim under the EPPA.
The principle of ejusdem generis dictates that a general term that follows a specific term should be interpreted in relation to the specific items listed. In this context, the general term "any other similar device" must be understood alongside the specific devices enumerated in the statute. Notably, a tape recorder does not share similarity with devices like a polygraph or voice stress analyzer. Additionally, the regulations interpreting the Employee Polygraph Protection Act (EPPA) clarify that the Act does not prohibit medical tests for detecting alcohol or controlled substances in blood or urine. In voice stress analysis, an examiner poses questions to the subject, with the analysis based on stress-induced microtremors in the voice. However, in this case, Veazey was only asked to read a transcript rather than respond to questions, raising doubts about the feasibility of conducting a voice stress analysis, as there were no statements to evaluate for truthfulness.
