M.G., G.M., L.A., J.M., L.G., F.B., M.N., R.G., L.S., and E.R., Plaintiffs,
METROPOLITAN INTERPRETERS AND TRANSLATORS, INC., J.C., L.L., R.P., M.L., B.A., UNITED STATES OF AMERICA, EILEEN ZEIDLER, SONDRA HESTER, DAREK KITLINSKI, and WILLIAM R. SHERMAN, Defendants.
ORDER DENYING IN PART AND GRANTING IN PART MOTION TO DISMISS
JEFFREY T. MILLER, District Judge.
This matter comes before the court in response to the court's March 20, 2013 request for further briefing on whether Plaintiffs may bring a private cause of action against the United States pursuant to the Employee Polygraph Protection Act ("EPPA"), 29 U.S.C. §2001 et seq. (Ct. Dkt. 60). That order also denied the sovereign immunity motion brought by Defendants United States of America, Eileen Zeidler, Sondra Hester, Darek Kitlinski, and William R. Sherman (collectively the "Federal Defendants"). Plaintiffs M.G., G.M., L.A., J.M., L.G., F.B., M.N., R.G., L.S., and E.R. (collectively "Plaintiffs") oppose the motion. Pursuant to Local Rule 7.1(d)(1), the court finds this matter appropriate for decision without oral argument. For the reasons set forth below, the court denies the motion to dismiss the EPPA claims and grants the motion to dismiss the individual Federal Defendants from this action.
On October 10, 2012, Plaintiffs filed the operative Second Amended Complaint ("SAC") alleging nine causes of action: (1) violation of EPPA, 29 U.S.C. §2002(1); (2) violation of EPPA, 29 U.S.C. §2002(2); (3) violation of EPPA, 29 U.S.C. §2002(3); (4) civil conspiracy; (5) fraud; (6) negligent misrepresentation; (7) intentional infliction of emotional distress; (8) negligence; and (9) permanent injunction and other equitable relief. Plaintiffs allege jurisdiction based upon federal question jurisdiction, 28 U.S.C. §1331 and 29 U.S.C. §2001 et seq., and supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. §1367(a). (SAC ¶¶1, 2). Defendants Eileen Zeidler, Sondra Hester, Darek Kitlinski, and William R. Sherman are employees of the Drug Enforcement Agency ("DEA").
Plaintiffs' claims relate to their employment as linguists with Metropolitan Interpreters and Translators, Inc. ("Metropolitan"). Defendants J.C., L.L., R.P., M.L., and B.A. are employees of Metropolitan. (SAC ¶¶7-11). Metropolitan provides translation, transcription and interpretation services to the law enforcement community, government agencies, and private corporations. (SAC ¶18). Plaintiffs provide the following summary of their case:
In 2011, Metropolitan and DEA requested, required and demanded that all linguists working in their San Diego and Imperial County offices take polygraph exams. Defendant B.A., the Metropolitan site supervisor in San Diego, made all arrangements for Plaintiffs take the DEA administered polygraph exams as a condition of employment. If the employees "failed" or refused the test, or had inconclusive results, they would lose their "clearance" to be in the DEA offices, meaning that they would be terminated from their jobs.
Metropolitan was not conducting an investigation involving economic loss to Metropolitan. Nor did Metropolitan have any individualized suspicion that any of the Plaintiffs had committed a crime or engaged in wrongdoing. Rather, Defendants imposed the blanket requirement that every linguist in San Diego and Imperial County take polygraphs. Defendants provided no written material to Plaintiffs which explained the purpose of these mandatory tests nor the basis for any investigation or suspicion; nor did Defendants give written notice of the employees' rights under federal and state law. One of the polygraphists, Defendant Eileen Zeidler, asked grossly inappropriate and personal questions to some of the Plaintiffs. These questions were demeaning and humiliating. DEA agents pressured Plaintiffs into "telling the truth" or accused Plaintiffs of lying. Agents escorted Plaintiffs out of the building in a humiliating fashion after they "failed" the polygraph.
The polygraph testing in this case was prohibited by the Employee Polygraph Protection Act of 1988, 29 U.S.C. §§ 2001, et seq. ("EPPA") Defendants effectively terminated Plaintiffs from their employment either for "failing" the polygraph test, having an inconclusive test result, or refusing to submit to the examination.
(SAC at pp. 2:8-3:2).
According to Plaintiffs, in 2011, they were informed by Metropolitan that they would be discharged if they failed the polygraph exam, refused the exam, or provided inconclusive test results. (SAC ¶38). The DEA not only allegedly requested and demanded the polygraph tests, but planned, designed, administered and executed them as well. (SAC ¶40). Metropolitan scheduled and coordinated the exams of its employees. (SAC ¶38). The Metropolitan Defendants allegedly instructed its "employees that they were not to discuss the polygraph with any DEA employee" and to direct any questions regarding the polygraph only to Metropolitan. (SAC ¶48).
With respect to each Plaintiff, the SAC alleges as follows:
Plaintiff M.G. On July, 6, 2011, Defendant B.A. instructed M.G. that he was required to take a polygraph examination. No one provided M.G. any written materials regarding the examination. M.G.'s polygraph exam lasted four hours. After the examination, Metropolitan terminated his employment. (SAC ¶ 63).
Plaintiff F.M. On July 8, 2011, Defendant B.A. told F.M. he needed to come to work the next day to take a polygraph examination. The next day, July 9, 2011, F.M. was subjected to an approximately four hour polygraph exam. The polygrapher asked personal questions regarding F.M.'s past relationships and financial situation. The polygrapher told F.M. that he had neither passed nor failed the exam. F.M. was later escorted out of the building and his badge was taken away. Metropolitan discharged F.M. from employment. (SAC ¶ 64).
Plaintiff L.A. Defendant B.A. told L.A. that she was to take a polygraph test on August 29, 2011. On August 10, 2011, however, B.A. told L.A. that she would have to take the exam the next day, August 11, 2011. No one provided L.A. any written material regarding the polygraph examination. During the pre-test phase of the examination, the polygrapher asked L.A. if she had engaged in sexual activity with animals. L.A.'s examination lasted approximately five hours ...