Heard: February 14, 2017.
action commenced in the Superior Court Department on March
motion to dismiss was heard by James R. Lemire, J.
Allyson H. Cohen for the plaintiff.
William R. Bagley, Jr., Assistant City Solicitor, for the
Present: Green, Meade, & Agnes, JJ.
law prohibits employers, public as well as private, from
subjecting applicants for employment, as well as employees,
to a "lie detector test, " whether the test is
administered in this State or elsewhere. G. L. c. 149, §
The statute includes safeguards for employees who assert
their rights, provides criminal penalties for those who
violate the statute, and permits persons aggrieved by a
statutory violation to bring a civil action against the
violator for injunctive relief and damages. This appeal
requires us to address a question of first impression,
namely, whether § 19B(2) prohibits a Massachusetts
employer from considering the results of a lie detector test
administered lawfully by an out-of-State employer in
connection with an individual's earlier application for
employment in another State. For the reasons that follow, we
conclude that § 19B(2) does not apply in the
circumstances of this case, and accordingly, we affirm the
judgment dismissing the plaintiff's complaint.
plaintiff, Philip Saliba, alleges that the defendant, the
city of Worcester (city), violated G. L. c. 149, §
19B(2), by obtaining and referring to a copy of the
plaintiff's lie detector (polygraph) test results from
his application for a job with the Connecticut State police
(CSP). The judge below allowed the defendant's motion to
dismiss under Mass.R.Civ.P. 12(b)(6), 365 Mass. 747 (1974),
and judgment entered accordingly. The plaintiff filed a
2007 CSP and Worcester police department
plaintiff's claim is based on the following series of
events, which are summarized in his complaint. In 2007, the
plaintiff, an honorably discharged United States Marine Corps
veteran, was working full time as a plumber. He applied for a
job with the CSP. As part of the hiring process, the
plaintiff voluntarily underwent a polygraph
examination. On January 18, 2008, the plaintiff was
informed that the reason he was not hired by the CSP was his
past use of anabolic steroids.The plaintiff also applied for a
job with the Worcester police department (WPD) around the
same time. On or about January 23, 2008, the WPD requested
from the CSP a copy of the plaintiff's employment
application, the CSP findings, and the results of the
polygraph examination administered by CSP. The polygraph test
results were sent to the WPD the following day. After the WPD
completed its own investigation of the plaintiff, which
included a personal interview, the chief of police forwarded
to the city manager a recommendation that the plaintiff be
bypassed for the job based at least in part on the
results of the CSP polygraph test.
2011 Worcester fire department application.
October, 2011, the plaintiff applied for a job with the
Worcester fire department (WFD). On March 30, 2012, the
plaintiff was bypassed for a position based at least in part
on the results of the CSP polygraph test. The plaintiff
appealed this bypass to the Civil Service Commission, but
later withdrew his appeal.
2013 WFD application.
plaintiff again applied for a job with the WFD in July, 2013.
The plaintiff was interviewed a second time. In connection
with the plaintiff's 2013 application, the WFD obtained
summaries of the investigations conducted in connection with
the plaintiff's 2008 application to the WPD and his 2011
application to the WFD. Of the applicants for the 2013
position, the plaintiff was the only person who had polygraph
test results in his file. The plaintiff was again bypassed,
based at least in part on the results of the polygraph test
administered by the CSP.
plaintiff also appealed this bypass to the Civil Service
Commission (commission) . After three days of hearings,
the commission issued its decision. The commission concluded
that the city "did not require [the plaintiff] to
undergo [a polygraph] exam." The city learned about the
test taken by the plaintiff when it became aware that the
plaintiff had previously applied for employment with the CSP
and requested a copy of the plaintiff's file including
any polygraph test results. The commission ruled that this
did not violate G. L. c. 149, § 19B.
the pendency of the plaintiff's appeal to the commission,
he filed the present complaint in Superior Court alleging
that the city violated G. L. c. 149, § 19B, by using
information from his polygraph examination with the CSP to
bypass him for employment with the WFD in 2011 and
2013. The judge allowed the city's motion