Veazey v. Commun. & Cable of Chicago

• Decision Date: 20 October 1999
• Docket Number: No. 98-2625,TCI-C,98-2625
• Citation: 194 F.3d 850
• Parties: (7th Cir. 1999) Darryl N. Veazey, Plaintiff-Appellant, v. Communications & Cable of Chicago, Inc., d/b/a TCI Communications, Inc., Chicago Cable TV, TCI Chicago orhicago Cable, <A HREF="#fr1-*" name="fn1-*">* Defendant-Appellee
• Court: U.S. Court of Appeals — Seventh Circuit

Page 850

194 F.3d 850 (7th Cir. 1999)

Darryl N. Veazey, Plaintiff-Appellant, v. Communications & Cable of Chicago, Inc., d/b/a TCI Communications, Inc., Chicago Cable TV, TCI Chicago or TCI-Chicago Cable,^* Defendant-Appellee.

No. 98-2625

In the United States Court of Appeals For the Seventh Circuit

Argued December 8, 1998

Decided October 20, 1999

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 97 C 8594--Blanche M. Manning, Judge. [Copyrighted Material Omitted] Before Coffey, Ripple, and Manion, Circuit Judges.

Coffey, Circuit Judge.

Darryl Veazey contends that his former employer, LaSalle Telecommunications, Inc., incorrectly sued as Communications & Cable Co. of Chicago, violated the Employee Polygraph Protection Act ("EPPA"), 29 U.S.C. sec.sec. 2001-09, when it discharged him because he refused to provide the specific tape-recorded voice exemplar¹ his superiors had requested. The district court dismissed his suit under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. Because it is possible to hypothesize a set of facts consistent with Veazey's complaint that would entitle him to relief, we reverse the district court's ruling and remand for further proceedings.

I. BACKGROUND

In the fall of 1996, Darryl Veazey's employer, LaSalle Telecommunications, Inc., suspected that Veazey, who was employed as an outage coordinator/dispatcher, had left a hostile and threatening anonymous message on the voicemail of another employee at LaSalle.² Accordingly, LaSalle set up an interview with Veazey concerning the incident. Mike Mason, LaSalle's Customer Fulfillment Manager, and Jack Burke, a "cable troubleshooter," questioned Veazey about the message during a four hour interview. Veazey maintained his innocence at all times.

Despite Veazey's denials, Mason and Burke requested that Veazey read a verbatim transcript of the threatening message into a tape recorder, which would in turn enable LaSalle to create a voice exemplar. Veazey refused to read the verbatim transcript of the message for he was concerned about how the tape might be used and because he thought the message was offensive. In a counteroffer, Veazey agreed to provide a tape- recorded voice exemplar of his reading of a different message. Because of his refusal to provide the specific voice exemplar requested, Mason suspended Veazey without pay. Three days later, Mason and Burke again summoned Veazey to a meeting, and once again Veazey refused to provide LaSalle with a voice exemplar of him reading a transcript of the threatening message. Based on Veazey's continued refusal to provide the requested voice exemplar, Mason discharged him for insubordination.

Thereafter, Veazey filed suit against LaSalle alleging that LaSalle's decision to terminate him after he refused to provide the specific tape recorded message violated the EPPA's prohibition against employers, like LaSalle, from administering lie detector tests. LaSalle responded to Veazey's complaint with a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). The district court granted the motion to dismiss, agreeing with LaSalle that the tape recording requested by Mason and Burke did not qualify as a lie detector test as that term is used in the EPPA. Veazey appeals. We reverse and remand this case for further proceedings.

II. ISSUES

The issue in this case is whether LaSalle's specific request that Veazey produce a voice exemplar of him reading a transcript of the threatening voicemail message amounts to a "lie detector test" under the EPPA.

III. ANALYSIS

A. Standard of Review

We review a dismissal under Rule 12(b)(6) de novo, taking a plaintiff's factual allegations as true and drawing all reasonable inferences in the plaintiff's favor. See Strasburger v. Board of Educ., Hardin County Community Unit Sch. Dist. No. 1, 143 F.3d 351, 359 (7th Cir. 1998), cert. denied, 119 S. Ct. 800 (1999); Americanos v. Carter, 74 F.3d 138, 140 (7th Cir. 1996). A complaint should not be dismissed for failure to state a claim "unless no relief could be granted 'under any set of facts that could be proved consistent with the allegations.'" Nance v. Vieregge, 147 F.3d 589, 590 (7th Cir. 1998), cert. denied, 119 S. Ct. 426 (1999) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)). In other words, if it is possible to hypothesize a set of facts, consistent with the complaint, that would entitle the plaintiff to relief, dismissal under Rule 12(b)(6) is inappropriate. See Graehling v. Village of Lombard, Ill., 58 F.3d 295, 297 (7th Cir. 1995).

The dissent states that "[s]ince Veazey has not claimed that any recording would have been subjected to a stress analyzer, his complaint cannot survive a 12(b)(6) dismissal." In making this statement the dissent misconstrues the burden a plaintiff is under when defending a motion to dismiss under 12(b)(6). As the dissent must be aware, federal courts have notice- pleading, not fact-pleading, requirements. As this court has stated recently, "[i]n contrast [to fact-pleading], the federal rules follow the notice pleading approach, requiring only a 'short and plain statement of the claim showing that the pleader is entitled to relief.' Rule 8(a)(2). The only function the pleadings must serve is to give notice of the claim; the development of legal theories and the correlation of facts to theory come later in the process." International Marketing, Ltd. v. Archer-Daniel-Midland Co., Inc., 192 F.3d 724, 733(7th Cir. Sept. 23, 1999) (emphasis added). Indeed, under the liberal notice pleading requirements of the federal rules, "[a]ll that's required to state a claim in a complaint filed in federal court is a short statement, in plain (that is, ordinary, nonlegalistic) English, of the legal claim." Kirksey v. R.J. Reynolds Tobacco Co., 168 F.3d 1039, 1041 (7th Cir. 1999). See Bennett v. Schmidt, 153 F.3d 516, 518 (7th Cir. 1998); Duda v. Board of Educ. of Franklin Park Pub. Sch. Dist. No. 84, 133 F.3d 1054, 1057 (7th Cir. 1998). Furthermore, the claim must be sustained "if any facts that might be established within those allegations would permit a judgment for the plaintiff." Duda, 133 F.3d at 1057. Thus, the fact that Veazey's complaint does not specifically state that the recording would have been subjected to a stress analyzer, it does not render his complaint susceptible to a successful 12(b)(6) motion to dismiss. If one keeps the principles discussed above in mind, it becomes apparent that Veazey's complaint should not have been dismissed for failure to state a claim.

B. The History of the Lie Detector

The polygraph is composed of a combination of devices which measure certain, specified physical data.³ In 1895, an Italian psychiatrist and criminologist named Cesare Lombroso made the unprecedented claim that he could "detect lies" by monitoring a person's blood pressure and "reading" the changes in it. See Michael Tiner & Daniel J. O'Grady, Lie Detectors in Employment, 23 Harv. C.R.-C.L. L. Rev. 85, 85-86 (1988). Lombroso asserted that by understanding the typical criminal responses and physical characteristics he could distinguish "criminal types" from the rest of society. See id. Over a hundred years later, his claims continue to shape society's perceptions of polygraphs and account for their popularity. See id.; Timothy B. Henseler, A Critical Look at the Admissibility of Polygraph Evidence in the Wake of Daubert: The Lie Detector Fails the Test, 46 Cath. U. L. Rev. 1247 (1997); see also David Thoreson Lykken, A Tremor in the Blood: Uses and Abuses of the Lie Detector (1981). In order to understand the importance of the EPPA, and why LaSalle may have violated it, we believe it is helpful for one to understand the evolution of the lie detector and its impact on employers and employees.

Before the EPPA, federal law regulated the use of polygraph machines mainly in law enforcement contexts, but made no attempt to control or monitor their use in the private workplace. It was not a surprise when private employers took it upon themselves to administer more polygraph examinations than either the federal government or state criminal investigators. See Congressional Office of Technology Assessment, Scientific Validity of Polygraph Testing: A Research Review and Evaluation (A Technical Memorandum), OTA-TM-H-15, 98th Cong., 1st Sess. 5 (1983). In fact, a 1978 survey of four hundred major U.S. corporations found that more than fifty percent of the commercial banks and retailers that had responded to the survey used polygraphs. See Belt & Holden, Polygraph Usage Among Major U.S. Corporations, 51 Personnel J. 80, 86 (February 1978). The survey also noted that these companies were more likely to test all job applicants and employees than to conduct random sampling. See id.

As polygraph machines gained popularity in the American business world, many researchers and defense lawyers began to question the accuracy of the machine that was dictating numerous peoples' employment fate. Several studies concerning polygraph validity were published in the late 1970's and early 1980's, and contributed greatly to the understanding of the lie detector's limitations, motivating the United State Congress to pass the EPPA.⁴

Field Studies

1. Benjamin Kleinmuntz & Julian J. Szucko, On the Fallibility of Lie Detection, 17 L. & Soc'y Rev. 85 (1982)

In 1982, Kleinmuntz and Szucko obtained the charts of one hundred polygraph examinations which were performed by the then well-known Reid Polygraph Agency in Chicago, Illinois. The study consisted of fifty charts that had been verified as deceptive by the subsequent confessions of the examinees and fifty charts that had been verified as truthful by the subsequent confessions of other people. Polygraphers from the well recognized Reid agency then independently rescored all one hundred charts, incorrectly classifying 39% of the...