United States District Court, S.D. California
For M.G., individual, F.M., individual, L.A., individual, J.M., individual, L.G., individual, F.B., individual, M.N., individual, R.G., individual, L.S., individual, E.R., individual, Plaintiffs (3:12-cv-00460-JM-MDD): Eugene G Iredale, LEAD ATTORNEY, Grace S. Jun, Julia Yoo, Iredale & Yoo, APC, San Diego, CA.
For Metropolitan Interpreters and Translators, Inc., a corporation, Defendant (3:12-cv-00460-JM-MDD): Erin Cranman Witkow, LEAD ATTORNEY, Manatt Phelps and Phillips, Los Angeles, CA; Yoanna S. Binder, LEAD ATTORNEY, Maura F. Kingseed, Manatt, Phelps and Phillips, LLP, Los Angeles, CA.
For J.C., an individual, M.L., an individual, B.A., an individual, R.P., an individual, Defendants (3:12-cv-00460-JM-MDD): Yoanna S. Binder, LEAD ATTORNEY, Maura F. Kingseed, Manatt, Phelps and Phillips, LLP, Los Angeles, CA; Erin Cranman Witkow, Manatt Phelps and Phillips, Los Angeles, CA.
For Eileen Zeidler, an individual, Sondra Hester, an individual, Darek Kitlinski, an individual, William R. Sherman, an idividual, Defendants (3:12-cv-00460-JM-MDD): Ernest Cordero, Jr., LEAD ATTORNEY, U.S. Attorney's Office, Southern District of California, Civil Division, San Diego, CA.
For M.D., an individual, Plaintiff (3:13-cv-01891-JM-MDD): Eugene G Iredale, Julia Yoo, LEAD ATTORNEYS, Grace S. Jun, Iredale & Yoo, APC, San Diego, CA.
For Metropolitan Interpreters and Translators, Inc., a corporation, J.C., an individual, R.P., an individual, B.A., an individual, Defendants (3:13-cv-01891-JM-MDD): Erin Cranman Witkow, LEAD ATTORNEY, Manatt Phelps and Phillips, Los Angeles, CA; Yoanna S. Binder, LEAD ATTORNEY, Maura F. Kingseed, Manatt, Phelps and Phillips, LLP, Los Angeles, CA.
For M.T., individuals, E.S., individuals, L.P., individuals, Plaintiffs (3:13-cv-01892-JM-MDD): Eugene G Iredale, Julia Yoo, LEAD ATTORNEYS, Grace S. Jun, Iredale & Yoo, APC, San Diego, CA.
For Metropolitan Interpreters and Translators, Inc., a corporation, J.C., an individual, R.P., an individual, C.G., an individual, Defendants (3:13-cv-01892-JM-MDD): Erin Cranman Witkow, LEAD ATTORNEY, Manatt Phelps and Phillips, Los Angeles, CA; Yoanna S. Binder, LEAD ATTORNEY, Maura F. Kingseed, Manatt, Phelps and Phillips, LLP, Los Angeles, CA.
ORDER GRANTING IN PART AND DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT
Hon. Jeffrey T. Miller, United States District Judge.
Defendants Metropolitan Interpreters and Translators, Inc. (" Metropolitan" ) and J.C., R.P., M.L., B.A. and C.G. (the " Individual Defendants" ) move for partial summary judgment on the claims arising under the Employee Polygraph Protection Act (" EPPA" ), 29 U.S.C. § § 2002(1),(2), and (3), and the punitive damages claim. Plaintiffs M.G, F.M., L.A., J.M., L.G., F.B., M.N., R.G., L.S., E.R., M.D., M.T., E.S., and L.P. oppose the motion and separately move for summary judgment on the issue of whether Metropolitan and the Individual Defendants violated various provisions of EPPA. 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 grants summary judgment in favor of defendants R.P., M.L., B.A. and C.G. on the EPPA and punitive damages claim and denies Plaintiffs' motion for summary judgment on these claims; grants summary judgment in favor of Plaintiffs on the EPPA claims asserted against Metropolitan and J. C. and denies Metropolitan and J.C.'s motion for summary judgment on these claims; and denies Metropolitan and J. C.'s motion for summary judgment on the punitive damages claim.
The Second Amended Complaint (" SAC" ), filed on October 30, 2012 in 12cv0460 JM(MDD), alleges nine causes of action against Defendants: (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. Plaintiffs are linguists employed by defendant Metropolitan, a nationwide corporation that describes itself as " the largest provider of translators, transcription and interpretation services to the law enforcement community, government agencies, and private corporations nationwide." (SAC at p.1:4-5; ¶ 6, 18). In addition to Metropolitan, Plaintiffs name five of Metropolitan's employees as defendants, J.C., L.L., R.P., M.L., B.A. (Compl. ¶ ¶ 7-11).
Plaintiffs provide the following summary of their claims:
Plaintiffs worked as linguists for Metropolitan Interpreters and Translators, Inc. (" Metropolitan" ), a private corporation that contracted with various governmental agencies nationwide. Metropolitan had a contract with the Drug Enforcement Administration and Immigration and Customs Enforcement in San Diego. Plaintiffs, as employees of Metropolitan, provided translation services for DEA and ICE in San Diego County. 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 to 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 Counties 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 polygraphers, 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.1:4 - 2:2). The court notes that the other two cases (13cv1891 and 13cv1892) contain substantially similar allegations, especially with respect to the EPPA claims.
All three cases assert nearly identical allegations. The three plaintiffs in Case No. 13cv1892, M. T., E. S., and L. P., worked at the DEA's El Centro facility. The ten plaintiffs in 12cv0460, M. G., F. M., L. A., J. M., L. G., F. B., M. N., R. G., L. S., and E.R., and the single plaintiff in 12cv1891, M. D., worked at either the main DEA Field Division in Kearney Mesa or the DEA's Carlsbad office.
On July 18, 2012, the original presiding judge, Judge Dana Sabraw, granted in part and denied in part the motions to dismiss filed by Defendants Metropolitan and the Individual Defendants. Following the filing of two amended complaints and the addition of the United States and certain federal employees as parties, Judge Sabraw recused himself and the case was reassigned to the undersigned. On January 28, 2013, the court ordered the substitution of the United States for the federal employee defendants pursuant to 28 U.S.C. § § 2679(b)(1) and (d)(2).
On March 20, 2013, this court found that the United States was not entitled to assert the statutory exemptions to liability of the EPPA. Since then, five plaintiffs (L. A., L. G., J. M., M.G. and L. S.) have resolved their claims with Metropolitan and Plaintiffs in all cases have settled with defendant United States. Metropolitan then filed an Objection to the settlement between the United States and Plaintiffs. The court referred the matter to United States Magistrate Judge Mitchell Dembin for a Report and Recommendation (" R & R" ). On July 11, 2014, Magistrate Judge Dembin issued a " Report and Recommendation on Joint Motion to Dismiss United States and on ...