The opinion of the court was delivered by: MICHAEL B. MUKASEY
MICHAEL B. MUKASEY, U.S.D.J.
Plaintiffs Marc S. Rubin and Angela Viteritti sue Tourneau, Inc., their former employer, and Jeffrey L. Gwynne and Associates, Inc. ("Gwynne"), a polygraph testing service, under the Employee Polygraph Protection Act of 1988, 29 U.S.C. § 2001-2009 (1988) ("EPPA"). The case is before the Court on defendant Gwynne's motion to dismiss plaintiffs' "Third Cause of Action" as against Gwynne for lack of subject matter jurisdiction. For the reasons set forth below, defendant Gwynne's motion is denied.
A court reviewing a motion to dismiss for lack. of subject matter jurisdiction must assume that plaintiffs' well-pleaded allegations are true. Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974); 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (1990). The facts viewed from that perspective are as follows.
In or about February 1991, defendant Tourneau, a Manhattan watch and jewelry retailer, hired defendant Gwynne to assist in an investigation into the disappearance of several watches from its inventory. In March 1991, 25 Tourneau employees including plaintiff Rubin, a buyer, and plaintiff Viteritti, a salesperson, received written requests to submit to polygraph examinations from Louis Rosen, Tourneau's Director of Administration. (Compl. Exh. A) shortly thereafter, plaintiffs took polygraph examinations administered by defendant Gwynne.
On April 16, 1991, plaintiffs were fired by Tourneau for refusing to take a second polygraph examination. Following dismissal, plaintiff Rubin remained unemployed for approximately four months. As of the filing of the complaint on December 31, 1991, plaintiff Viteritti remained unemployed.
Plaintiffs have alleged two claims against defendant Tourneau and one claim against both defendants for violations of EPPA. Plaintiffs' Third Cause of Action, which is the subject of this motion, alleges that in the course of the polygraph examination "plaintiffs were forced to answer personal and degrading questions and suffered great embarrassment, humiliation and mental distress for which defendant Gwynne and defendant Tourneau are liable in damages." (Compl. P 34)
Congress passed EPPA after concluding that employees and applicants often are denied employment opportunities or fired unjustly because of the misuse of polygraph examinations and the inaccuracies inherent in current methods of lie-detection. See S. Rep. No. 284, 100th Cong., 2d Sess. (1988), reprinted in 1988 U.S.C.C.A.N. 726; H.R. Conf. Rep. No. 659, 100th Cong., 2d Sess. (1988), reprinted in 1988 U.S.C.C.A.N. 749. EPPA prohibits an employer from requiring an employee or applicant to take a lie detector test. 29 U.S.C. § 2002(1). EPPA also prohibits any adverse action against an employee or applicant who fails or refuses to submit to a polygraph examination, or who files a complaint, testifies or exercises any right granted under EPPA. 29 U.S.C. §§ 2002(3)(A), 2002(4). Exemptions are provided for: (1) federal, state and local government employers; (2) security services; (3) firms authorized to manufacture, distribute or dispense controlled substances; (4) the federal government when dealing with outside contractors engaged in national security intelligence or counter-intelligence; and (5) any employer conducting an ongoing investigation into illegally generated economic loss or injury to its business.
29 U.S.C. § 2006.
EPPA provides for both public and private enforcement. Public enforcement is under the jurisdiction of the Secretary of Labor who is empowered to assess civil penalties and to sue in federal court to enjoin violations of the Act. 29 U.S.C. §§ 2005(a), 2005(b). The private enforcement mechanism -- the basis of this suit -- is an explicit right of action in favor of employees against "an employer who violates [EPPA] . . . for such legal or equitable relief as may be appropriate, including, but not limited to, employment, reinstatement, promotion, and the payment of lost wages and benefits." 29 U.S.C. § 2005(c)(1) (emphasis added).
At issue is whether defendant Gwynne may be considered plaintiffs' employer under EPPA and, therefore, whether defendant Gwynne is subject to suit by plaintiffs under 29 U.S.C. § 2005(c)(1). Gwynne argues that it merely assisted an employer in conducting an investigation and is not itself an employer with respect to plaintiffs. Plaintiffs maintain that EPPA's definition of employer is sufficiently broad to include examiners such as Gwynne.
In construing a statute, a court must look first to its language and, if the language is unambiguous, "judicial inquiry is complete." Rubin v. United States, 449 U.S 424, 430, 66 L. Ed. 2d 633, 101 S. Ct. 698 (1981); see also Connecticut National Bank v. Germain, 117 L. Ed. 2d 391, 112 S. Ct. 1146, 1149 (1992) ("courts must presume that a legislature says in a statute what it means and means in a statute what it says"); United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 109 S. Ct. 1026, 1031, 103 L. Ed. 2d 290 (1989) ("the plain meaning of a statute should be conclusive"). Unfortunately, EPPA's definition of employer is ambiguous. In itself, the word employer would appear to exclude a polygraph testing service, which, although it may have assisted the person or entity for whom the examinee works in violating EPPA, is not joined with the examinee in what is commonly thought of as an employment relationship. However, for the purposes of EPPA Congress has defined employer as "including any person acting directly or indirectly in the interest of an employer in relation to an employee or prospective employee." 29 U.S.C. § 2001(2). By adopting this provision Congress gave no restrictive definition of employer but instead noted only that whatever definition courts adopt, they should include as employers those who act in the interest of an employer in relation to an employee or prospective ...