Daily Labor Report®

Worker Suing Under Federal Polygraph Law Must Show But-For Cause

July 10, 2020, 5:44 PM

Workers must show polygraph results were “the reason” for an adverse employment decision to prevail under the Employee Polygraph Protection Act, not just that the exam motivated the employer’s action, the Western District of Missouri ruled.

Jessica Kautz sued Springfield Pool & Spa Inc. under the 1988 law when she was fired after failing a polygraph the company asked her and other employees to take following a workplace theft, the court said. Managing partner Edward White later testified that Kautz’s failed test “played a small part” in her discharge even though he didn’t initially suspect she had taken the $607 that went missing from petty cash, the court said.

Kautz argued White’s testimony was enough to prove her claim. The U.S. Court of Appeals for the Fourth Circuit held in 2008 that a worker only needs to show polygraph results were a factor in her termination to recover under the EPPA, she said.

But the U.S. Supreme Court held in March that the causation standard for any tort or tort-like claim is “but-for” cause unless Congress has expressly stated otherwise in the law giving rise to the claim, the U.S. District Court for the Western District of Missouri said Thursday. It cited Comcast Corp. v. National Association of African American-Owned Media.

Nothing in the EPPA suggests the lesser “motivating factor” standard applies when an employee sues under the act, Judge Roseann Ketchmark said.

The law’s use of the phrase “on the basis of” in defining when a worker can sue is analogous to the term “but-for,” the judge said. It is also similar to the “because of” language included in some federal employment discrimination laws, including the Age Discrimination in Employment Act, that have been interpreted as setting a but-for standard of proof, the judge said, denying Kautz’s motion for summary judgment on the issue of liability.

White says his other reasons for firing Kautz included that other employees expressed suspicions about her, evidence emerged that she engaged in previous stealing, and it was time “to cut some labor.”

Raymond Lampert represents Kautz. Spencer Fane LLP represents Springfield Pool.

The case is Kautz v. Springfield Pool & Spa, LLC, 2020 BL 255688, W.D. Mo., No. 6:19-cv-03310, 7/9/20.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Nicholas Datlowe at ndatlowe@bloomberglaw.com

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