Mennen v. Easter Stores
| Decision Date | 09 January 1997 |
| Docket Number | No. C 94-3011-MWB.,C 94-3011-MWB. |
| Citation | 951 F.Supp. 838 |
| Parties | Douglas A. MENNEN, Plaintiff, v. EASTER STORES, a Partnership, Stan Schlicher, and Dennis Easter, Defendants. |
| Court | U.S. District Court — Northern District of Iowa |
Michael G. Byrne, Winston & Byrne, P.C., Mason City, IA, for plaintiff.
Mark W. Thomas, Grefe & Sidney, P.L.C., Des Moines, IA, for defendants.
Competing interests of crime detection and personal privacy require the court to navigate the relatively uncharted waters of the Employee Polygraph Protection Act, 29 U.S.C. § 2001, et seq., in order to determine whether the defendant employer has violated the Act by using the plaintiff's polygraph examination results, demoting him on the basis of those results, and ultimately constructively discharging him. While working for the defendants' grocery store, the plaintiff took a polygraph examination after he was implicated in a theft within the store. Following receipt of those results, the defendants promptly removed the plaintiff from his position as grocery manager and stripped him of his cash-handling and supervisory responsibilities. The plaintiff filed claims pursuant to federal and state polygraph statutes, asserting that the defendants used the plaintiff's examination results and took adverse employment action against him on the basis of those results. The defendants contend that their conduct did not violate either federal or state law in that they were merely cooperating with the police investigation of the theft. In addition, the defendants assert that the plaintiff's performance on the polygraph examination was only one factor in their decision to remove him as grocery manager of the store. After a three-day bench trial, the court must determine whether the defendants violated the polygraph statutes. If the court finds that the defendants are liable for violations of either or both statutes, then the court must further ascertain what remedies are available under the statutes and appropriate under the circumstances.
On March 14, 1994, plaintiff Douglas A. Mennen filed a complaint in this court, alleging claims against defendants Easter Enterprises, Incorporated, Stan Schlicher, and Dennis Easter (collectively "Easter") under the Employee Polygraph Protection Act, 29 U.S.C. § 2001 et seq., the Iowa Polygraph Act, Iowa Code § 730.4, and state tort laws for loss of reputation and interference with employment opportunities. While working at the grocery store owned and operated by defendant Easter Enterprises, Incorporated, in Mason City, Iowa, Mennen took a polygraph examination after he was implicated in a theft from a cash register within the store. In his complaint, Mennen asserts that he was demoted from his position as grocery manager of the store based upon the polygraph examination results, which were released by the Mason City police department to defendant Stan Schlicher, the store manager. Specifically, Mennen contends that defendant Dennis Easter consulted with Schlicher regarding his polygraph examination and "based thereon either directed or participated in the decision to discipline [Mennen] as employee based upon the results of [the] polygraph examination." Amended Complaint ¶ 13. In addition, Mennen claims that the failure of Easter to reinstate him to his prior position as grocery manager and the stated intention of Easter to prohibit any future employment promotion or change of status following his demotion led to his constructive discharge. Mennen seeks damages against Easter for lost wages and benefits, future lost wages and benefits, loss of reputation, emotional damages, and such further relief as the court deems appropriate. On April 18, 1994, Easter answered Mennen's complaint, generally denying all of Mennen's allegations.
Mennen sought leave to amend his complaint on November 3, 1994, claiming that subsequent to the filing of his original complaint, Mennen learned that control of the store was exercised by Easter Stores, a Partnership, rather than defendant Easter Enterprises, Incorporated. The court granted Mennen's motion, and he amended his complaint on November 25, 1994, to add defendant "Easter Stores, a Partnership" and to assert all claims previously made against defendant Easter Enterprises, Incorporated against the newly named defendant, Easter Stores, a Partnership.1 On December 2, 1994, Easter answered Mennen's amended complaint, generally denying all of his allegations.
The parties tried this case to the court on April 15, 1996 in Fort Dodge, Iowa, and the parties presented their evidence on April 15, 16, and 18, 1996. Plaintiff was represented by Michael G. Byrne, Winston & Byrne, P.C., Mason City, Iowa. Easter was represented by Mark W. Thomas, Grefe & Sidney, P.L.C., Des Moines, Iowa. Closing arguments were heard telephonically on July 9, 19962 and the case was submitted for the court's resolution of the issues raised therein.
On February 20, 1992, during regular business hours, a thief or thieves victimized a Mason City grocery store owned and operated by Easter Stores, a Partnership, and absconded with approximately two hundred sixty-one dollars and one cent ($261.01) in cash, plus eighteen dollars and forty cents ($18.40) in coupons. Although there had been other thefts in various areas of the store, the February 20 theft was the only one in which a localized register was isolated as the source and in which a claim of recent controlled access could be established.
The manager of the Mason City store was defendant Stan Schlicher, and the assistant manager was Doug Phinney. Both Schlicher and Phinney opined that the person who committed the theft in question was a store employee and had compiled a list of employees who had access to the places where cash was missing throughout the store. Based upon this list, plaintiff Douglas Mennen was one of the store employees suspected of committing the theft on February 20, 1992.
Mennen had been a store employee from May 25, 1979 to April 25, 1992, and on February 20, 1992, he held the position of "grocery manager" in the store.3 As the grocery manager, Mennen was responsible for handling money throughout the store, including preparing bank deposits, overseeing cashiers and the courtesy counter, obtaining change for the cashiers, and authorizing check cashing to customers. Occasionally, Mennen would also operate a cash register and assist in checking out customers when the store was busy or when another cashier was either at break or on his or her lunch hour.
Prior to February 20, 1992, Schlicher and Phinney had discussed their concerns that Mennen might be involved in the thefts occurring throughout the store, and Schlicher also communicated his concerns to defendant Dennis Easter, the chief executive officer of Easter Stores, a Partnership. The February 20, 1992 theft occurred on cash register number four, a register assigned to cashier Karen Rosenberger. Normally, cash register number three was assigned to "the boys" who worked for the store, including stockers and department managers.
After Karen Rosenberger went to lunch on February 20, 1992, Mennen was called to the front of the store at approximately a few minutes after 1:00 p.m. to check out customers. Instead of going to "the boys' register," cash register number three, to check out customers, Mennen went to Rosenberger's register, cash register number four. Mennen testified that the cash drawer in register number four appeared normal to him as he checked several people through the line.4 He then closed that aisle and went back to work in another area of the store.
Mennen was asked to check out customers again shortly before 2:00 p.m. He again went to Rosenberger's register, cash register number four. Upon opening the register drawer a second time, Mennen testified that there appeared to be money missing from Rosenberger's cash drawer. Rather than calling the problem to the attention of Phinney, Mennen checked with Rosenberger when she returned...
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