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Saliba v. City of Worcester

Appeals Court of Massachusetts, Worcester

October 27, 2017

PHILIP SALIBA
v.
CITY OF WORCESTER

          Heard: February 14, 2017.

         Civil action commenced in the Superior Court Department on March 27, 2015.

         A 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 defendant.

          Present: Green, Meade, & Agnes, JJ.

          AGNES, J.

         Massachusetts 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, § 19B.[1] 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.[2] 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.[3] 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.

         The 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 timely appeal.

         Background.

         1. 2007 CSP and Worcester police department applications.

         The 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.[4] 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.[5]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[6] for the job based at least in part on the results of the CSP polygraph test.[7]

         2. 2011 Worcester fire department application.

         In 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.[8] The plaintiff appealed this bypass to the Civil Service Commission, but later withdrew his appeal.

         3. 2013 WFD application.

         The 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.[9]

         The plaintiff also appealed this bypass to the Civil Service Commission (commission) .[10] 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.[11]

         During 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.[12] The judge allowed the city's motion ...


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