Case 3:12-cv-00460-DMS-MDD Document 31 Filed 10/30/12 Page 1 of 29 1 2 3 4 5 Eugene G. Iredale SBN: 75292 Julia Yoo SBN: 231163 IREDALE & YOO, APC 105 West F Street, 4th Floor San Diego, CA 92101-6036 Tel: (619) 233-1525 Fax: (619) 233-3221 Attorneys for Plaintiffs 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (Hon. Dana M. Sabraw) ) ) ) Plaintiffs, ) ) v. ) ) METROPOLITAN INTERPRETERS and ) TRANSLATORS, INC., a corporation, ) J.C., an individual, L.L., an individual, ) R.P., an individual, M.L, an individual, ) B.A., an individual, UNITED STATES OF ) AMERICA, EILEEN ZEIDLER, an ) individual, SONDRA HESTER, an ) individual, DAREK KITLINSKI, an ) individual, WILLIAM R. SHERMAN, an ) individual, and DOES 1-20, inclusive, ) ) Defendants. ) ) ) ) ) ) ) ) ) ) ___________________________________ ) M.G., F.M., L.A., J.M., L.G., F.B., M.N., R.G., L.S., and E.R., individuals, Case No.: 12-cv-00460-DMS-MDD SECOND AMENDED COMPLAINT FOR: (1) VIOLATION OF EMPLOYEE POLYGRAPH PROTECTION ACT 29 USC ? 2002 (1) (2) VIOLATION OF EMPLOYEE POLYGRAPH PROTECTION ACT 29 USC ? 2002 (2) (3) VIOLATION OF EMPLOYEE POLYGRAPH PROTECTION ACT 29 USC ? 2002 (3) (4) CIVIL CONSPIRACY (5) FRAUD (6) NEGLIGENT MISREPRESENTATION (7) INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (8) NEGLIGENCE (9) PERMANENT INJUNCTION AND OTHER EQUITABLE RELIEF JURY TRIAL IS HEREBY DEMANDED Case 3:12-cv-00460-DMS-MDD Document 31 Filed 10/30/12 Page 2 of 29 1 2 COME NOW, Plaintiffs M.G., F.M., L.A., J.M., L.G., F.B., M.N., R.G., L.S., and E.R. and allege and complain as follows: 3 I. INTRODUCTION 4 5 6 7 8 9 10 11 12 13 14 15 16 17 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 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 18 had committed a crime or engaged in wrongdoing. Rather, Defendants imposed the blanket 19 requirement that every linguist in San Diego and Imperial County take polygraphs. Defendants 20 provided no written material to Plaintiffs which explained the purpose of these mandatory tests 21 nor the basis for any investigation or suspicion; nor did Defendants give written notice of the 22 employees' rights under federal and state law. 23 One of the polygraphers, Defendant Eileen Zeidler, asked grossly inappropriate and 24 personal questions to some of the Plaintiffs. These questions were demeaning and humiliating. 25 DEA agents pressured Plaintiffs into "telling the truth" or accused Plaintiffs of lying. Agents 26 escorted Plaintiffs out of the building in a humiliating fashion after they "failed" the polygraph. 27 28 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 2 Case 3:12-cv-00460-DMS-MDD Document 31 Filed 10/30/12 Page 3 of 29 1 Plaintiffs from their employment either for "failing" the polygraph test, having an inconclusive 2 test result, or refusing to submit to the examination. 3 II. GENERAL ALLEGATIONS 4 1. 5 6 of California pursuant to 28 U.S.C. ?1331 and 29 U.S.C. ?? 2001 et seq. 2. 7 8 Jurisdiction is proper in the United States District Court for the Southern District This Court has supplemental jurisdiction over the pendent state law claims under 28 U.S.C. ? 1367(a). 3. 9 Plaintiffs' claims under 28 U.S.C. ?? 1346, and 2671-2680 (Federal Tort Claims 10 Act) against the United States were timely filed. These claims are deemed denied by operation of 11 law. 12 4. Venue is proper in the Southern District of California pursuant to 28 U.S.C. 13 ?1391(b), because at all times relevant hereto, a substantial part of the events or omissions giving 14 rise to the subject of the action occurred in San Diego County. III. PARTIES 15 16 17 5. At all times relevant to this complaint, Plaintiffs were individuals residing in San Diego County, California. 18 6. At all times relevant to this complaint, Defendant METROPOLITAN 19 INTERPRETERS and TRANSLATORS, INC. (hereinafter "METROPOLITAN") was a 20 nationwide corporation operating throughout the United States, including San Diego County, 21 California and employing the individual Defendants who were acting within the course and 22 scope of their employment. 23 24 25 26 27 28 7. Defendant J.C. was the Vice President of Defendant METROPOLITAN. 8. Defendant L.L. was an employee of Defendant METROPOLITAN and the head of Human Resources and Security. 9. Defendant R.P. was an employee of Defendant METROPOLITAN and a supervisor. 3 Case 3:12-cv-00460-DMS-MDD Document 31 Filed 10/30/12 Page 4 of 29 1 10. 2 supervisor of B.A. 3 11. 4 Defendant B.A. was an employee of Defendant METROPOLITAN and the site supervisor in San Diego. 5 6 Defendant M.L. was an employee of Defendant METROPOLITAN and the 12. The individual defendants participated in, promoted, approved and executed Metropolitan's corporate policy in contravention of the EPPA. 7 13. At all times relevant to this complaint, the Drug Enforcement Agency (DEA) was 8 a federal agency of defendant UNITED STATES OF AMERICA and was operating in San Diego 9 County, California. 10 14. 11 12 HESTER, DAREK KITLINSKI, and WILLIAM R. SHERMAN were employees or agents of the DEA. 13 14 15 16 15. 19 20 21 22 this complaint once their identities and the facts giving rise to their liability have been ascertained. 16. with the full knowledge and consent, either expressed or implied, of their principal and/or employer and each of the other named defendants. Each of the defendants had approved or ratified the actions of the other defendants, thereby making the currently named defendants herein liable for the acts and/or omissions of their agents, servants and/or employees. IV. FACTS 24 25 27 28 These defendants were agents, servants and employees of other named defendants and were acting at all times within the full course and scope of their agency and employment, 23 26 Plaintiffs are truly ignorant of the true names and capacities of DOES 1 through 20, inclusive, and/or are truly ignorant of the facts giving rise to their liability and will amend 17 18 At all times relevant to this complaint, Defendants EILEEN ZEIDLER, SONDRA 17. Plaintiffs reallege all prior paragraphs of this complaint and incorporate the same 18. Defendant Metropolitan describes itself as the "largest provider of translators, herein. transcription and interpretation services to the law enforcement community, government agencies 4 Case 3:12-cv-00460-DMS-MDD Document 31 Filed 10/30/12 Page 5 of 29 1 and private corporations nationwide." It has offices in New York, Miami, Los Angeles, San 2 Diego, Washington D.C. and Scottsdale, Arizona. Its corporate headquarters are located in New 3 York. Defendant Metropolitan is engaged in commerce within the meaning of 18 U.S.C. ? 2001. 4 5 6 7 8 9 10 19. Plaintiffs were linguists working for Metropolitan who had been thoroughly screened, vetted and subjected to security clearance checks before being hired. 20. After a thorough background investigation before hiring, Plaintiffs were given "Law Enforcement Access" which allowed to them to enter the premises of DEA offices. 21. In 2011, Defendants requested, required and demanded all linguists in San Diego and Imperial County submit to polygraph tests. 22. A private employer is prohibited from requesting, requiring or demanding a 11 polygraph test from an employee under the Employee Polygraph Protection Act, 29 USC ?? 12 2001, et seq. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 23. While the Federal government is exempt from the EPPA with respect to government employees, it is subject to the EPPA requirements with respect to the employees of its private contractors. 24. 29 CFR 801.10(d) explicitly provides that : "This exclusion from the Act applies only to the federal, state and local government entity with respect to its own public employees. Except as provided in sections 7(b) and (c) of the Act, and ? 801.11 of the regulations, this exclusion does not extend to contractors or non-governmental agents of a government entity, nor does it extend to government entities with respect to employees of a private employer with which the government entity has a contractual or other business relationship." 25. Exclusions from the Act apply only to Department of Defense contractors; Department of Energy contractors with respect to the "atomic energy defense activities" of the DOE; the National Security Agency; the Central Intelligence Agency; and contractors of the FBI engaged in performance of work related to counter intelligence (defined as activities designed to protect against espionage, sabotage, terrorist activities or assassination). 27 26. There is an exclusion for contractors' employees whose duties involve access to 28 5 Case 3:12-cv-00460-DMS-MDD Document 31 Filed 10/30/12 Page 6 of 29 1 information that has been classified at the level of top secret or designated as being within a 2 special access program under section 4.2(a) of Executive Order 12356 (or a successor Executive 3 Order). 4 5 6 7 8 9 10 11 27. Plaintiffs did not fall within any exclusion to the EPPA. Plaintiffs' duties did not involve access to information which was classified as "top secret." 28. Plaintiffs' duties as translators involved access only to non-classified information which is defined as "Law Enforcement Sensitive." 29. While such information may properly be restricted and its unauthorized dissemination proscribed, "Law Enforcement Sensitive" information is not classified information. 30. Plaintiffs' duties did not involve access to information which was designated as 12 being within a "special access program under ?4.2(a) of Executive Order 12356." Such a special 13 access program involves limitation of access to national defense information, intelligence 14 activities, or other "particularly sensitive information classified pursuant to Executive Order 15 12356 ." 16 17 18 19 20 21 22 23 24 25 26 31. Wiretap transcripts are not classified information. Were they classified, any criminal case involving wiretaps would require declassification of the intercepted conversations under cumbersome administrative procedures before disclosure to the defendant, counsel, or to the court. 32. Metropolitan could properly vet, investigate and screen Metropolitan employees who were to be involved in translation of Title III intercepts. Metropolitan and its client, the DEA, could legally enforce requirements of confidentiality and limitation of access to Title III intercepts. 33. These intercepts, however, were not, under the EPPA, within the limited and highly restricted category which exempted Metropolitan or the DEA from the legal requirements of the EPPA. 27 34. While Metropolitan and DEA could legally use any reasonable investigative or 28 6 Case 3:12-cv-00460-DMS-MDD Document 31 Filed 10/30/12 Page 7 of 29 1 security procedure to screen employees or ensure the secrecy of Title III intercepts, the EPPA 2 legally forbids the use of the polygraph in those efforts. 3 35. While the DEA is exempted from the EPPA requirements with respect to its own 4 employees, it is prohibited from requesting, requiring or demanding that a private contractor's 5 employees submit to a polygraph under 29 USC ?? 2001, et seq unless the contractor falls under 6 specified statutory exceptions, none of which apply in this case. 7 8 9 36. The DEA's actions in requesting, demanding and in performing polygraphs were clearly illegal. 37. Instead of declining to force its employees into submitting to illegal polygraphs, 10 Metropolitan Defendants agreed with, participated with, and aided and abetted the DEA in the 11 violations of law described in this complaint. Metropolitan, J.C., L.L., R.P., M.L., and B.A. 12 engaged in a civil conspiracy to violate the laws as described. 13 38. Metropolitan coordinated the testing; scheduled the tests for its employees; 14 communicated with the employees regarding the tests; presented the order in which the tests 15 would be given to the employees; and discharged the employees after they "failed" or refused the 16 test or had inconclusive test results. 17 18 19 20 21 22 23 24 25 26 27 39. Defendant Eileen Zeidler administered the tests, without complying with the requirements under 29 USC ? 2007 (b). 40. Defendant Eileen Zeidler not only administered the tests, but she participated in the planning, design, and execution of the scheme to violate the EPPA. She was instrumental in formulating the content of the questions, the sequence of testing and coordination of improper interrogation techniques before, during and after the examinations. 41. Defendant Eileen Zeidler failed during the pretest phase, to provide reasonable written notice of the date, time, and location of the test, and of Plaintiffs' right to obtain and consult with legal counsel or an employee representative before each phase of the test; failed to inform Plaintiffs in writing of the nature and characteristics of the tests and of the instruments involved; failed to inform Plaintiffs in writing whether the testing area contains a two-way 28 7 Case 3:12-cv-00460-DMS-MDD Document 31 Filed 10/30/12 Page 8 of 29 1 mirror, a camera, or any other device through which the test can be observed; whether any other 2 device, including any device for recording or monitoring the test, will be used; and failed to 3 inform Plaintiffs in writing that the employer or the examinee may (with mutual knowledge) 4 make a recording of the test. 5 6 42. mandates that an examinee: 7 (D) is read and signs a written notice informing such examinee-(i) that the examinee cannot be required to take the test as a condition of employment, (ii) that any statement made during the test may constitute additional supporting evidence for the purposes of an adverse employment action described in subsection (a), (iii) of the limitations imposed under this section, (iv) of the legal rights and remedies available to the examinee if the polygraph test is not conducted in accordance with this Act [29 USCS ?? 2001 et seq.], and (v) of the legal rights and remedies of the employer under this Act [29 USCS ?? 2001 et seq.] (including the rights of the employer under section 9(c)(2) [29 USCS ? 2008(c)(2)]); 8 9 10 11 12 13 14 15 16 17 Defendant Eileen Zeidler failed to comply with 29 USC ? 2007 (b)(2)(D) which 43. Defendant Eileen Zeidler failed to comply with 29 USC ? 2007 (b)(2)(E) which mandates that an examinee provided an opportunity to review all questions to be asked during the test and is informed of the right to terminate the test at any time. 18 44. Defendant Eileen Zeidler failed to comply with 29 USC ? 2007 (b)(3) which 19 mandates that during the actual testing phase, the examiner does not ask such examinee any 20 question relevant during the test that was not presented in writing for review to such examinee 21 before the test. 22 23 24 25 26 27 28 45. Defendants failed to comply with 29 USC ? 2007 (b)(4) which mandates that before any adverse employment action, the employer shall (A) further interview the examinee on the basis of the results of the test; and (B) provide the examinee with- (i) a written copy of any opinion or conclusion rendered as a result of the test, and (ii) a copy of the questions asked during the test along with the corresponding charted responses. 46. When employees requested information from the DEA regarding the polygraph 8 Case 3:12-cv-00460-DMS-MDD Document 31 Filed 10/30/12 Page 9 of 29 1 testing, these requests were not addressed by the DEA, but rather forwarded to Metropolitan 2 defendants. 3 4 5 47. Defendant B.A. advised a DEA supervisor that Metropolitan employees "failed" the polygraph for a reason. 48. Metropolitan Defendants told the employees that they were not to discuss the 6 polygraph with any DEA employee. Defendants said that any questions regarding the polygraph 7 were to be addressed only with Metropolitan. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 49. Defendant J.C. mandated that all of the employees' questions be directed to him, Defendant M.L., Defendant L.L .and Defendant R.P. 50. J.C. specifically forbade any communication regarding the polygraph between the employees and DEA. 51. When employees complained to the DEA regarding the polygraph, within a few minutes, Defendant B.A. called the office, scolding the employees for speaking to DEA agents regarding the polygraph. B.A. threatened to write them up if she found out who had discussed the polygraph with the DEA. 52. Defendant J.C. approved, endorsed, ratified, and enforced the taking of the polygraphs by Metropolitan employees. 53. Defendant J.C. provided false and incomplete information to employees regarding the legality of the polygraph testing, and approved the polygraph testing in violation of law. 54. Defendant L.L., the head of Human Resources, approved, endorsed ratified, and enforced the polygraph testing. 22 55. Defendant R.P., a supervisor at Metropolitan, approved, endorsed ratified, and 23 enforced the polygraph testing. 24 56. Defendant R.P. placed the Plaintiffs on "laid-off status" and implemented the 25 termination of employees. 26 27 28 57. Defendant M.L., the supervisor of Defendant B.A, approved, endorsed, ratified, and enforced the polygraph testing. 9 Case 3:12-cv-00460-DMS-MDD Document 31 Filed 10/30/12 Page 10 of 29 1 58. Defendant B.A. coordinated all polygraph tests, often changing the date and time 2 of the tests without warning, and notifying some employees of the testing via text messaging on 3 employees' cell phones during their days off. 4 5 6 7 8 9 10 59. Defendant Eileen Zeidler, administered the polygraphs without complying with the provisions of the EPPA. 60. Defendant Sondra Hester, a supervising agent with DEA, authorized, approved, endorsed, ratified and enforced the polygraph examinations. 61. Defendant Darek Kitlinski, a supervising agent with DEA, authorized, approved, endorsed, ratified and enforced the polygraph examinations. 62. Defendant William Sherman, the Acting Special Agent in charge of the San 11 Diego Division of DEA, authorized, approved, endorsed, ratified and enforced the polygraph 12 examinations. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 63. Plaintiff M.G. On July 6, 2011, Defendant B.A .told M.G. that he had to "cover" an evening shift. Thirty minutes after reporting, Defendants B.A. and Eileen Zeidler instructed M.G. that he was to undergo a polygraph examination. Defendant B.A. told M.G., "today is your turn." No one had provided M.G. with any written materials regarding the examination. M.G. had to submit to a four hour polygraph test as a condition of his employment. During the pretest, Defendant Eileen Zeidler lectured M.G. on what she thinks defines a "good person." Eileen Zeidler then asked him about his relationships, whether he has ever cheated on a significant other; whether he has had sex with prostitutes; and whether he has had sex with minors. After his examination, M.G. was escorted to his desk in front of all of his co-workers to retrieve his belongings. Defendant Sondra Hester took M.G.'s badge and escorted M.G out of the building through the back door. Metropolitan terminated his employment. 64. Plaintiff F.M. On July 8, 2011, Plaintiff F.M. felt ill and took a day off from work. On that day, Defendant B.A. called him at home in the afternoon and told F.M. that he would need to come to work the following day, Saturday, July 9, 2011 to take a polygraph examination. On July 9, 2011, F.M. came in to submit to the polygraph. He was not feeling 28 10 Case 3:12-cv-00460-DMS-MDD Document 31 Filed 10/30/12 Page 11 of 29 1 well. Immediately after F.M. clocked in, Defendant Eileen Zeidler came to take him into the 2 polygraph room. F.M. told Zeidler in response to her question that he had not eaten breakfast. 3 Zeidler became visibly angry and told F.M. that he was irresponsible and wasting her time. F.M. 4 attempted to explain that no one had given him instructions about eating breakfast. F.M. then 5 told Zeidler in response to her question that he did not go to sleep until pretty late the night 6 before, until about midnight. Zeidler told him that F.M. should have known better; that he 7 should have been a responsible person; and that he was wasting her time. F.M. tried to explain 8 that no one had given him instructions regarding sleep related to the polygraph. Defendant Eileen 9 Zeidler asked F.M. questions during the pre-test phase whether he had cheated on his ex-wife. 10 Zeidler asked personal questions regarding F.M.'s past relationship and family relationships and 11 F.M.'s financial situation. Zeidler told F.M. that if he ever lied or cheated in school, he could not 12 work there. 13 65. F.M. told Eileen Zeidler that he had back surgery several years before and could 14 not remain in the same position for an extended period. Despite this, F.M. was subjected to 15 approximately four hours of polygraph testing. During the test, F.M. felt dizzy and his head fell 16 back. Defendant Zeidler became angry and stopped the test. Zeidler walked around the table and 17 stood in front of F.M.; leaned in toward him; and yelled at him that he was not taking this 18 seriously and that he was wasting her time. F.M. explained that he was feeling unwell. Zeidler 19 told F.M. that he knew what he was there for and told him to "suck it up" or words to that effect. 20 After the conclusion of the test, Defendant Zeidler took F.M. into an interrogation room where he 21 remained locked in for approximately 20 minutes. F.M. was experiencing significant back pain 22 so he sat on the ground. When Zeidler came back and saw him sitting on the ground, she told 23 him "Get up. You are being a baby." Zeidler took F.M. back into the polygraph room and asked 24 for his badge. Zeidler told F.M. that he did not pass the polygraph. Zeidler told F.M. that he did 25 not fail the polygraph. Zeidler told him that she did not know what would happen to him given 26 that his test was inconclusive and that he would be notified at a later time. Another agent came 27 in and escorted F.M. out of the building. Metropolitan effectively discharged F.M. from 28 11 Case 3:12-cv-00460-DMS-MDD Document 31 Filed 10/30/12 Page 12 of 29 1 2 employment. 66. Plaintiff L.A. Defendant B.A. told L.A. that she was to take a polygraph test on 3 August 29, 2011. On August 10, 2011 however, Defendant B.A. told L.A. that she would have 4 to take the exam the very next day, August 11. No one provided L.A. with any written 5 documentation regarding the polygraph examination. L.A. told Defendant Eileen Zeidler that 6 she had high blood pressure for which she was taking medication. Zeidler told L.A. that this 7 would have no affect. L.A. was told to wash her hands with warm water. During the pre-test 8 phase of the examination, Zeidler asked her if she had engaged in sexual activity with animals. 9 Zeidler also inquired regarding L.A.'s boyfriend. Zeidler did not provide a written copy of 10 questions to be asked. When Zeidler put the wires on L.A., the equipment did not function 11 properly. Zeidler struggled to alternate the band between L.A.'s leg and arm. Eventually Zeidler 12 managed to place the band on L.A.'s left arm. The bands were designed for smaller sized people 13 and it did not fit L.A. properly. By this point, L.A. was starting to feel ill. L.A.'s examination 14 lasted approximately five hours. Once the examination was over, Eileen Zeidler left the room for 15 approximately twenty minutes. Zeilder came back to the room and told L.A. that there was a 16 chance that she may have to retake the test but that she was checking L.A.'s results with 17 Washington D.C. Approximately fifteen minutes later, Zeidler told L.A. that she failed the 18 polygraph. Zeidler told L.A. that she had failed every question asked. Zeidler proceeded to 19 interrogate L.A. by asking "Who are you working for? Which drug cartel?" Zeidler asked 20 repeatedly who had ordered L.A. to seek employment with DEA. L.A. asked for a copy of her 21 polygraph test. Zeidler told her no, that it was DEA property. Zeidler left the interrogation room 22 which was locked from the outside. L.A. was locked in the small interrogation room for 23 approximately one hour. L.A. felt distress from the interrogation and from being locked in the 24 small space due to her claustrophobia. Agents eventually allowed her to go to the bathroom to 25 clean herself. They told L.A. that she lost her clearance to enter the DEA building and that she 26 would be laid off because there would be no work for her. L.A. was terminated from her 27 employment at Metropolitan. 28 12 Case 3:12-cv-00460-DMS-MDD Document 31 Filed 10/30/12 Page 13 of 29 1 67. Plaintiff J.M. J.M.'s shift supervisor gave him a letter on August 1, 2011 that he 2 would have to submit to a polygraph on August 22, 2011. No one provided J.M. with any other 3 written documentation regarding the polygraph examination. The examination lasted 4 approximately four hours and included a question regarding his sexual conduct and whether he 5 cheated on his partner. After J.M. took the polygraph, he was escorted out as if he had 6 committed a crime. The polygrapher told J.M. that he failed one question and asked J.M. to 7 submit to a retest. J.M. agreed to a retest. No one set up a retest and Metropolitan terminated 8 him from his job. 9 68. Plaintiff L.G. Defendant Eileen Zeidler made statements that employees would 10 not be allowed to work until they took the polygraph. Defendant B.A. told L.G. that she was 11 required to take a polygraph exam that was scheduled for September 13, 2011. On Tuesday 12 August 30, 2011, Defendant B.A. sent L.G. a text message on her private cell phone, arbitrarily 13 changing the date to that following Friday, September 2, 2011. L.G. submitted to a three hour 14 polygraph examination on September 2. L.G. "failed" the test. The next day, L.G. went into the 15 wire room when Eileen Zeidler stormed into the room, irate that another employee had left 16 without taking the polygraph. Plaintiff L.G. was unnerved by Defendant Zeidler's emotional 17 state. Zeidler was ranting that it was unacceptable for the other employee to leave without 18 submitting to a polygraph. Zeidler told L.G. that she had left a message for the other employee 19 and that she would take the call while L.G. was taking the test because "no one could get away 20 with not getting polygraphed." In the middle of L.G. being briefed, Zeidler took a call, took it 21 outside, came back in and started the test again. The printer was noisy and L.G. could not 22 concentrate, which made her nervous, but Zeidler did not turn it off. Zeidler told L.G. that she 23 failed the polygraph. Zeidler asked L.G. for her badge, escorted her out and asked L.G. if she 24 had anything to tell her. As L.G. was walking out of the elevator, Zeidler told L.G. that if she 25 ever applied for any jobs that asked whether her clearance had been revoked, she would have to 26 answer yes. Plaintiff L.G. worked at the ICE office which did not request or require a polygraph 27 examination. In December of 2011, Metropolitan and/or DEA advised ICE of the results of the 28 13 Case 3:12-cv-00460-DMS-MDD Document 31 Filed 10/30/12 Page 14 of 29 1 2 DEA polygraph examinations. Metropolitan effectively discharged L.G in December of 2011. 69. Plaintiff F.B. On August 2, 2011, Metropolitan shift supervisor gave F.B. a 3 facsimile notifying him that he was scheduled for a polygraph on September 30, 2011. No one 4 provided any other documents related to the polygraph. On August 30, 2011, Defendant B.A. 5 sent F.B. a text message that read: "Fyi yur (sic) poly is rescheduled ok. Not sure when yet." On 6 September 9, 2011, Defendant B.A. sent a text message to F. B. that read: "Yur (sic) polygraph is 7 scheduled for: 9/14 at 11:30am. Plz (sic) have yur (sic) DL avail and make a copy. And eat 8 before yur (sic) poly plz (sic)." One minute later, Defendant B.A. sent F.B. yet another text 9 message that read: "Yur (sic) scheduled for PM shift in Carlsbad but a sup will cover it. Come 10 directly to div plz (sic)." F. B. submitted to the polygraph on September 14, 2011 that lasted 11 approximately four hours. The polygrapher, believed to be named "Sam" asked F.B. deeply 12 personal questions, including whether he ever received treatment from a mental health 13 practitioner. After the examination was under way, the polygrapher pulled up a chair and sat 14 directly in front of F.B. "Sam" told F.B. that he was very scared of F.B. because he failed every 15 single question. Sam told F.B. that he was 100% untruthful and was hiding something. Sam 16 accused him of being a criminal by asking "who do you work for?" He continued the 17 accusations and attempts to have F.B. confess to something through intimidation and forceful 18 tones for approximately 30 minutes. 19 70. The polygrapher had a diagram with "infiltration" and "sensitive information" in 20 the center. The words were intended to point out possible sources of infiltration to which 21 sensitive information could be given. Some of these words and phrases included: FARC, Drug 22 Cartels, Foreign Political Groups and the press. The polygrapher told F.B. "You need to give 23 me a name, you need to tell me something because otherwise everyone downstairs is going to 24 assume the worst of you." He continued and said, "In order for me to help you, you need to help 25 me by telling me what you're hiding." He also said, "Now is the time to confess and release all 26 that stress and worry you are carrying around." Under tremendous stress and fear, not knowing 27 what was happening to him, F.B. gave the examiner the name his ex-girlfriend, a reporter. He 28 14 Case 3:12-cv-00460-DMS-MDD Document 31 Filed 10/30/12 Page 15 of 29 1 asked F.B. whether the ex-girlfriend had persuaded him to get the job or if he had ever given her 2 any information. The answer was again "No." The polygrapher then concluded that it couldn't 3 have been that which had caused the spikes in F.B.'s responses during the polygraph and accused 4 F.B. of hiding something else. This intimidation continued for another 15 minutes. F.B. told the 5 polygrapher that he had nothing to hide and that he was in no way lying about anything and that 6 he had nothing else to say. The polygrapher continued to ask if F.B. wanted to add anything. He 7 then stopped the questioning and escorted him to an interrogation room down. He locked the 8 room and left F.B. inside for approximately thirty minutes. 9 71. Defendant Sondra Hester and another agent named Barry entered the room. These 10 agents asked if F.B. was willing to write out a statement with anything that could help him in a 11 possible re-test. They asked F.B. about his ex-girlfriend who worked as a reporter. They 12 wondered how F.B. could have failed every single question and asked if there was anything he 13 could tell them about his physiology that could explain the inconsistency. Defendant Sondra 14 Hester acknowledged F.B.'s lengthy dedication to the job, the respect he received from his 15 coworkers, supervisors and agents. Defendant Hester then asked for his access pass. 16 72. Plaintiff M.N. Defendant B.A. told M.N. via text message that she was to take a 17 polygraph on September 15, 2011. During a conversation with a polygrapher, M.N. asked what 18 made DEA believe that the polygraphs were reliable. The polygrapher told M.N. that this would 19 not be the only time the linguist would be asked to take the polygraph. M.N. told him that she 20 would not submit to the test. The M.N. provided a written statement to the DEA agent declining 21 to take the polygraph. M.N. stated in the letter that the actions of Metropolitan were in direct 22 violation of the Employee Polygraph Protection Act. She stated that she had not been provided 23 with reasonable written notice before the exam. M.N. stated that she declined to take the test 24 because both the test and the manner of testing were in violation of the law. Because she 25 declined to take the test, Metropolitan fired her. 26 27 73. Plaintiff R.G. In the summer of 2011, defendant B.A. told R.G. verbally that he would have to submit to a polygraph examination and that a date for the examination would be 28 15 Case 3:12-cv-00460-DMS-MDD Document 31 Filed 10/30/12 Page 16 of 29 1 given at a later time. R.G. knew that, of the first eleven Metropolitan employees tested from El 2 Centro, seven had "failed" and had been fired. R.G. grew concerned as he found out that 3 employees being tested were being called liars during the polygraph examinations. On one 4 occasion, Defendant B.A. told R.G. to take the polygraph exam the very next morning. R.G. 5 told Defendant B.A. that he had an appointment and could not do it on such short notice. On 6 another occasion, Defendant B.A. called R.G. shortly after his night shift had begun and 7 instructed him to go home early because B.A. scheduled his polygraph examination the following 8 morning. Defendant B.A. told him that he would have to go home because they did not want to 9 pay R.G. overtime since the administration of the polygraph would exceed his 40 hours for the 10 week. R.G. had car pooled with a co-worker who did not have a way home and could not leave 11 early. Defendant B.A. told him that she would reschedule his polygraph. R.G. informed 12 Defendant B.A. on or about November 6, 2011 (2 or 3 days before he was scheduled to take the 13 exam) that he was not going to take the exam. At the time, R.G. was working at ICE, which did 14 not request or require that Metropolitan employees take the polygraph examination. On 15 December 21, 2011, while working at ICE, R.G. was informed that he was required to leave the 16 site after he finished his shift that day. Defendant L.L. notified R.G. that he was to return his 17 identification card. R.G. contacted Defendant B.A. regarding L.L.'s instructions and Defendant 18 B.A. expressed regret that he would no longer be working at Metro. 19 74. Plaintiff L.S. On September 9, 2011, Defendant B.A. sent Plaintiff L.S. a text 20 message stating " yur polygraph is scheduled for: 9/15 @ 8:30am. Plz have yur DL available and 21 make a copy. Wear flats and eat before yur poly plz." On September 12, a supervisor told LS 22 that the exam would be rescheduled. On November 4, 2011, BA sent LS a text stating, " yur 23 scheduled for yur poly on wed @ 11:30. Go to work as scheduled and lv around 10:30, eat before 24 u come ok? Did I give u the letter w instructions." However, on November 8, 2011, B.A. sent 25 L.S. a text canceling the test. Later that day on November 8, 2011, B.A. called L.S. and told L.S. 26 to take the polygraph on November 22, 2011. On November 16, 2011, B.A. sent L.S. an email 27 stating "unfortunately I have to cancel polygraph for next week. The polygrapher had an 28 16 Case 3:12-cv-00460-DMS-MDD Document 31 Filed 10/30/12 Page 17 of 29 1 emergency and will not be available. I will contact you as soon as the polygrapher give me her 2 availability." The next day, November 17, 2011, B.A. told L.S. that she would be taking the 3 polygraph on November 22, 2011 after all. On November 22, 2011, B.A. sent a text to L.S. 4 stating, "Miss Lydia. Plz come to div tomorrow @ 9 for yur poly. Ahora si! So just come straight 5 here. No need to go to carlsbad." On November 23, 2011, B.A. sent a text to L.S. stating, " 6 Buenos dias. When u get to the office clock in under neiremeirs case plz and make a copy of yur 7 DL. And just wait for Eileen." 8 9 75. Plaintiff L.S. submitted to the polygraph examination. When L.S. arrived for her examination, some of her coworkers were being cordial towards Defendant Eileen Zeidler. 10 Eileen Zeidler asked, "Wow, what did you do? Did you murder somebody? Because they are 11 being nice to me." This interaction made L.S. very uncomfortable. During the pretest, Defendant 12 Zeeidler asked questions regarding L.S.'s ex-husband and the reasons for the divorce. Defendant 13 Zeidler asked a series of questions whether L.S. had had any problems or issues with neighbors, 14 co-workers, law enforcement, or employer. L.S. notified Defendant Eileen Zeidler that she had 15 high blood presure, but Defendant Zeidler told her that did not matter. Zeidler placed all the 16 wires on L.S. There was a malfunction with the equipment so Zeidler replaced a part. L.S. told 17 Zeidler that she was having trouble breathing because the wires or bands were too tight around 18 her chest. Zeidler loosen them up a little, but they were still too tight throughout the 19 examination. After the examination, Zeidler asked if there was something L.S. was worried 20 about because there were some things that were "questionable." L.S. told her there was not. 21 Zeidler failed to inform L.S. which answers were "questionable" or what questions L.S. failed. 22 Zeidler said she was going to send the results to headquarters to get a second opinion and if they 23 needed to re-take the test she would call L.S. back. After the test, Defendant B.A. told L.S. to 24 return to work. An hour later, B.A. called L.S. and told her to give her badge to her supervisor 25 and leave the building. 26 27 76. Plaintiff E.R.: On March 12, 2012, B.A. told E.R. that his polygraph had been scheduled for March 18, 2012 at 9 a.m. B.A. requested that E.R. go to the DEA office to submit 28 17 Case 3:12-cv-00460-DMS-MDD Document 31 Filed 10/30/12 Page 18 of 29 1 to the testing. E.R. was working for ICE, not DEA. At the time that E.R. took the polygraph in 2 March of 2012, E.R. had not worked for the DEA since late August 2011 and had worked 3 exclusively with ICE. When E.R. went to get polygraphed, Defendant Eileen Zeidler said 4 something to the effect, "I guess [Defendant B.A.] is in need of people because she keeps 5 sending me people." 6 77. During the pre-test phase, Defendant Eileen Zeidler gave E.R. a list of crimes and 7 asked if E.R. had committed any of them. This list included a question whether E.R. engaged in 8 sex with animals. During the polygraph examination, Zeidler told E.R. that he had "problems" 9 with some of the questions. She said she was having issues reading his trustworthiness. She 10 repeatedly asked questions related to cheating or lying at work. Zeidler did not specify if E.R. 11 passed or not and said she had to send the results to headquarters for review. A few days later, 12 Defendant B.A. sent E.R. an email, telling him that Sondra Hesler wanted to meet him at DEA 13 Division regarding the polygraph results. B.A. would not tell him whether he had passed. 14 E.R. met with Defendant Sondra Hester. Hester told E.R. that it was surprising he was in 15 this situation and asked if there was anything he wanted to discuss with her. E.R. told her there 16 was nothing to say, and that he had told the truth during the polygraph. Hester told E.R. that he 17 did not pass the test and again asked if he had anything to tell them. E.R. told her that everything 18 had been said during the polygraph and that he had told the truth. Hester told E.R. that he no 19 longer had access to DEA facilities. Hester asked E.R. to turn in his badge and left the room. 20 21 22 23 24 25 26 27 78. Defendants constantly changed the dates of the employees' polygraphs without notice, adding to the widespread anxiety that they could be terminated at any given moment. 79. Metropolitan and its officials forbade the employees to speak to any DEA official about the polygraphs and mandated that they speak only to Defendant B.A. and other Metropolitan supervisors. 80. Submission to the polygraph was part of Plaintiffs' employment by Metropolitan. The polygraphs were administered during work hours and the employees were paid for their time spent undergoing the polygraph examination. 28 18 Case 3:12-cv-00460-DMS-MDD Document 31 Filed 10/30/12 Page 19 of 29 1 2 81. Metropolitan effectively fired all employees who "failed," had inconclusive test results, or refused the test. 3 82. The DEA had no legal right to administer polygraph tests to Plaintiffs, who were 4 employees not of the United States, but of Metropolitan. The EPPA prohibited the DEA from 5 administering the polygraphs in this case under inter alia, 29 CFR ? 801.10. Metropolitan aided 6 and abetted DEA in violating the statute. Metropolitan's actions were independently in violation 7 of the EPPA. 8 9 83. Under the EPPA, any waiver of rights guaranteed by 29 USCS ?? 2001 et seq. is prohibited. The rights and procedures may not be waived by contract or otherwise, unless such 10 waiver is part of a written settlement agreed to and signed by the parties to a pending legal action 11 or complaint under 29 USCS ?? 2001 et seq. 12 13 84. Metropolitan and its officials provided ICE with a list of names of employees who had "failed" the polygraph or refused to submit to it. 14 V. FIRST CAUSE OF ACTION VIOLATION OF EMPLOYEE POLYGRAPH PROTECTION ACT 29 USC ? 2002 (1) (Against All Defendants) 15 16 17 85. Plaintiffs reallege all prior paragraphs of this complaint and incorporate the same 86. 18 29 USCS ? 2002 provides in relevant part: herein. 19 20 Except as provided in sections 7 and 8 [29 USCS ?? 2006, 2007], it shall be unlawful for any employer engaged in or affecting commerce or in the production of goods for commerce-- 21 22 (1) directly or indirectly, to require, request, suggest, or cause any employee or prospective employee to take or submit to any lie detector test 23 24 25 87. Plaintiffs had a firmly established right under the Employee Polygraph Protection 26 Act (EPPA), which prohibits employers from using any lie detector tests either for pre27 employment screening or during the course of employment. 28 19 Case 3:12-cv-00460-DMS-MDD Document 31 Filed 10/30/12 Page 20 of 29 1 88. Metropolitan is not entitled to an exclusion from the coverage under the EPPA 2 because it is a private company. 3 89. DEA in not entitled to an exclusion from the EPPA because Plaintiffs were not its 4 direct employees. 5 90. Defendants required, requested, and/or suggested that Plaintiffs take or submit to a 6 lie detector test. 7 91. Defendants directly and indirectly caused Plaintiffs to submit to a lie detector test. 8 92. Defendants United States, Hester, Kitlinski and Sherman promulgated and/or 9 authorized policies and procedures which called for the administration of the polygraph. 10 93. 94. 11 12 13 16 17 Metropolitan, J.C., L.L., R.P., M.L, and B.A. authorized the administration of the polygraphs, directly or indirectly requested that Metropolitan's employees submit to testing; and caused the testing to occur. 14 15 Defendant Zeidler administered the polygraph examinations. 95. to humiliation, fear, loss of income, loss of reputation, loss of employment, and pain and suffering by the illegal acts of defendants and are entitled to compensatory damages, attorney fees and punitive damages. 18 VI. SECOND CAUSE OF ACTION VIOLATION OF EMPLOYEE POLYGRAPH PROTECTION ACT 29 USC ? 2002 (2) (Against All Defendants) 19 20 21 96. 24 25 26 27 28 Plaintiffs reallege all prior paragraphs of this complaint and incorporate the same 97. 22 23 As a direct and proximate result of Defendants' actions, Plaintiffs were subjected 29 USCS ? 2002 (2) provides that it is unlawful for an employer "to use, accept, herein. refer to, or inquire concerning the results of any lie detector test of any employee or prospective employee." 98. Defendants used, accepted and inquired about the results of the lie detector tests of the Plaintiffs. Metropolitan Defendants inquired of results of the tests from DEA. They accepted 20 Case 3:12-cv-00460-DMS-MDD Document 31 Filed 10/30/12 Page 21 of 29 1 and used them. 2 99. Defendants disseminated the results to ICE. Metropolitan and its officials 3 provided a list of names to ICE of individuals who had "failed" or refused the examination. 4 100. Defendants United States, Hester, Kitlinski and Sherman used the results of the 5 polygraphs to terminate security access of the Plaintiffs. 6 101. Defendant Zeidler used and referred to the polygraph examinations after she 7 administered them and provided other DEA agents and Metropolitan the results of the polygraphs. 8 102. Metropolitan, J.C., L.L., R.P., M.L, and B.A. used, accepted and inquired about 9 the results of the lie detector tests to effectively terminate Plaintiffs from employment; process 10 payroll; and manage unemployment status of Plaintiffs. These Defendants communicated with 11 other agencies and individuals regarding the results of Plaintiffs' polygraph examinations. 12 13 14 15 103. As a direct and proximate result of Defendants' actions, Plaintiffs were subjected to humiliation, fear, loss of income, loss of reputation, dissemination of defamatory information, loss of employment, and pain and suffering by the illegal acts of defendants and are entitled to compensatory damages, attorney fees and punitive damages. 16 VII. THIRD CAUSE OF ACTION VIOLATION OF EMPLOYEE POLYGRAPH PROTECTION ACT 29 USC ? 2002 (3) (Against All Defendants) 17 18 19 104. 20 21 22 23 24 25 26 27 28 Plaintiffs reallege all prior paragraphs of this complaint and incorporate the same 105. 29 USCS ? 2002 (3) provides in relevant part: herein. Except as provided in sections 7 and 8 [29 USCS ?? 2006, 2007], it shall be unlawful for any employer engaged in or affecting commerce or in the production of goods for commerce-(3) to discharge, discipline, discriminate against in any manner, or deny employment or promotion to, or threaten to take any such action against-(A) any employee or prospective employee who refuses, declines, or fails to take or submit to any lie detector test, or (B) any employee or prospective employee on the basis of 21 Case 3:12-cv-00460-DMS-MDD Document 31 Filed 10/30/12 Page 22 of 29 1 the results of any lie detector test... 2 106. Defendants DEA, Zeidler, Hester, Kitlinski and Sherman assisted, aided and 3 abetted Metropolitan and its officials in violating 29 USCS ? 2002 (3). They participated in the 4 violation by terminating security clearance of Plaintiffs; authorizing and requesting the polygraph 5 testing; and coordinating the discharge of Plaintiffs from employment. 6 107. Metropolitan discharged, disciplined and discriminated against the Plaintiffs based 7 on the results of the lie detector test or their refusal to submit to a test. 8 108. Metropolitan threatened to discharge, discipline, or discriminate against Plaintiffs 9 for refusal or failure to take or submit to a lie detector test. 10 11 109. on the basis of the results of a polygraph test. 12 13 110. 111. Metropolitan discharged Plaintiff F.M. for neither passing nor "failing" the polygraph. 16 17 Metropolitan discharged Plaintiffs M.G., L.A., J.M., L.G., F.B. and L.S. for "failing" the polygraph. 14 15 Metropolitan threatened to discharge, discipline, or discriminate against Plaintiffs 112. Metropolitan discharged Plaintiffs M.N and R.G. for refusing to take the polygraph test. 18 113. As a direct and proximate result of Metropolitan's actions, Plaintiffs were 19 subjected to humiliation, fear, loss of income, loss of reputation, loss of employment, and pain 20 and suffering by the illegal acts of defendants and are entitled to compensatory damages, attorney 21 fees and punitive damages. 22 23 VIII. FOURTH CAUSE OF ACTION CIVIL CONSPIRACY TO VIOLATE THE EPPA (Against All Defendants) 24 25 26 114. Plaintiffs reallege all prior paragraphs of this complaint and incorporate the same 115. Defendants entered into a conspiracy to violate the EPPA by jointly acting to cause 27 herein. 28 22 Case 3:12-cv-00460-DMS-MDD Document 31 Filed 10/30/12 Page 23 of 29 1 the administration of polygraph examinations to Metropolitan employees; to use the results of 2 those polygraphs; to disseminate those results; to discharge employees based on the polygraph 3 results; and to violate the EPPA. 4 116. These Defendants engaged in a joint venture, a common plan or scheme, and a 5 civil conspiracy to violate multiple provisions of the EPPA. 6 117. These wrongful act or acts were done pursuant to the agreement between the 7 Metropolitan, the individually named Defendants, the DEA and DEA personnel. 8 118. Each Defendant, as a member of the conspiracy, acted in concert and came to a 9 mutual understanding to accomplish a common and unlawful plan, which was to engage in acts 10 that violated the EPPA. 11 119. These Defendants committed overt acts to further the conspiracy. In furtherance of 12 their unlawful agreement, Defendants committed the following overt acts, among others: 13 a. Defendant B.A. coordinated the scheduling of the polygraph examinations of Metropolitan employees by email, text, verbal requests and facsimiles. b. Defendant B.A. often changed the date and time of the tests without warning, notifying some employees of the testing via text messaging on employees' cell phones during their days off. c. Defendant B.A. told a DEA supervisor that employees failed polygraph tests "for a reason." d. Defendant J.C. mandated that all of the employees' questions be directed to him, Defendant M.L., Defendant L.L.and Defendant R.P. e. Defendants B.A. and J.C. forbade any communication regarding the polygraph between the employees and DEA. f. Defendant J.C. provided false and incomplete information to employees regarding the legality of the polygraph testing, and approved the polygraph testing in violation of law. g. Defendant R.P. placed the Plaintiffs on "laid-off status" and implemented the termination of employees. h. Defendant R.P. disseminated the results of the polygraph examinations to officials of ICE. i. Defendant Eileen Zeidler administered polygraph examinations. She asked highly inappropriate and offensive questions to some of the examinees. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23 Case 3:12-cv-00460-DMS-MDD Document 31 Filed 10/30/12 Page 24 of 29 1 j. Defendants United States, Hester, Kitlinski and Sherman promulgated the policy of polygraphing Metropolitan employees. k. Defendants United States, Hester, Kitlinski and Sherman authorized the polygraphs of Metropolitan employees. 120. Defendants are joint tortfeasors. They are liable for all damages ensuing from the 2 3 4 5 wrongs committed by their co-conspirators, irrespective of whether or not they were direct actors 6 and regardless of the degree of their activity. 7 121. As a result of the conspiracy, Plaintiffs suffered damages in the amount to be 8 proven at trial. 9 IX. FIFTH CAUSE OF ACTION FRAUD (Against Defendants B.A. J.C., R.P. and Metropolitan, and Does 1 to 20) 10 11 12 122. Plaintiffs reallege all prior paragraphs of this complaint and incorporate the same 123. Defendants made false material representations to Plaintiffs in order to induce 13 14 15 16 17 18 19 20 21 22 herein. plaintiffs to submit to polygraphs when Plaintiffs had no obligation to do so and Defendants acted illegally in requesting, suggesting and requiring Plaintiffs to take a polygraph examination. 124. Defendants B.A. and J.C. represented to Plaintiffs that the polygraph examinations were legitimate and could be legally required. 125. Defendants B.A. and J.C. represented to Plaintiffs that the polygraph examinations were being required by the DEA and that the DEA was legally permitted to do so under the EPPA. 126. Defendants represented to Plaintiffs that the EPPA did not apply to these 23 polygraphs. 24 127. Defendant J.C. falsely represented to plaintiffs that no employees would be 25 "terminated unless there is a criminal act involved." 26 128. Defendants J.C., and R.P. told plaintiffs that if they failed the polygraph or 27 declined to take it, they would not be discharged, but would be permitted to work on other non28 DEA projects, such as work for ICE. 24 Case 3:12-cv-00460-DMS-MDD Document 31 Filed 10/30/12 Page 25 of 29 1 129. These statements were all false and known to be false by defendants at the time 2 they made them. Plaintiffs reasonably relied on the representations in taking the polygraphs. 3 130. After the polygraphs were taken or refused, Defendants falsely told several 4 Plaintiffs that they were not discharged, but were merely "laid off." Defendants claimed to 5 Plaintiffs that Metropolitan had not dismissed them from employment, and that they could 6 continue to work on any other available assignments in San Diego, including work for ICE on 7 Title III intercepts. 8 131. After Defendants had made these representations, Metropolitan supervisor R.P. 9 disclosed to ICE a list of Plaintiffs' names and Social Security numbers. 10 132. R.P. further disclosed to ICE Plaintiffs had been subjected to polygraph 11 examinations; Plaintiffs either did not pass, or declined to take polygraph examinations; and that 12 Plaintiffs no longer were employed on DEA projects. 13 133. Thereafter, in response to Metropolitan's unlawful disclosures, ICE informed 14 Metropolitan that it no longer wanted Plaintiffs to work on ICE projects. 15 16 17 18 19 20 21 22 23 134. Metropolitan then falsely represented to Plaintiffs that ICE had independently terminated their access to ICE facilities. Metropolitan expressed its regrets, and continued to falsely maintain Plaintiffs were not fired, but that Metropolitan simply had no work on which Plaintiffs were cleared to work. 135. This ploy was an attempt by Metropolitan to avoid legal liability by falsely claiming that ICE had acted unilaterally, and Metropolitan was not responsible. 136. Plaintiffs had a right to rely on the representations of Defendants and as a direct and proximate cause, they lost their employment and were subjected to humiliation and damages as set forth in this complaint. 24 X. SIXTH CAUSE OF ACTION NEGLIGENT MISREPRESENTATION (Against Defendants B.A., J.C., R.P. Metropolitan and Does 1 to 20) 25 26 27 28 137. Plaintiffs reallege all prior paragraphs of this complaint and incorporate the same 25 Case 3:12-cv-00460-DMS-MDD Document 31 Filed 10/30/12 Page 26 of 29 1 herein. 2 138. Defendants made representations set forth in paragraphs 124-128, 130 and 134 as 3 to the material facts regarding the polygraph examinations. 4 139. Defendant B.A. told Metropolitan employees that they had nothing to worry about. 5 B.A. told employees that if they had nothing to hide, they had nothing to fear from taking the test. 6 B.A. made a statement that people failed polygraphs for a reason. 7 140. These representations were untrue. 8 141. Defendants negligently made these untrue representations. 9 142. The representations were made with the intent to induce Plaintiffs to rely upon 143. Plaintiffs were unaware of the falsity of the representation and acted in reliance 10 them. 11 12 13 upon the truth of the representation. Plaintiffs were justified in relying on Defendants' representations. 14 15 144. misrepresentation of its employees. 16 17 Defendant Metropolitan is liable under respondeat superior for the negligent 145. As a result of the reliance upon the truth of the representations, Plaintiffs sustained damage in an amount to be established at trial. 18 XI. SEVENTH CAUSE OF ACTION INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS 20 (Against Defendants Eileen Zeidler, Sondra Hester, B.A., J.C., R.P. Metropolitan, and Does 1 to 20) 21 19 22 146. Plaintiffs reallege all prior paragraphs of this complaint and incorporate the same 147. By engaging in the acts alleged herein, Defendants engaged in outrageous conduct 23 herein. 24 25 with an intent to, or a reckless disregard of the probability of causing, Plaintiffs to suffer 26 emotional distress. 27 148. Defendants inflicted emotional distress on Plaintiffs by wrongfully authorizing, 28 requesting, demanding, and coordinating the polygraphs; by terminating Plaintiffs' employment; 26 Case 3:12-cv-00460-DMS-MDD Document 31 Filed 10/30/12 Page 27 of 29 1 and by improperly using the results of the polygraph examination. 2 149. Defendant Eileen Zeidler engaged in outrageous conduct by asking highly 3 improper, personal and humiliating questions during the administration of the polygraph. 4 150. Defendants Eileen Zeidler and Sondra Hester treated some of the Metropolitan 5 employees like criminals; caused people to be escorted out of the building; and accused them of 6 sharing law enforcement sensitive information. 7 151. As a direct, proximate and foreseeable result, Plaintiffs suffered severe emotional 8 distress and the outrageous conduct was the cause of the emotional distress suffered by Plaintiffs. 9 152. The conduct of Defendants also amounts to oppression, fraud or malice and was 10 undertaken in deliberate disregard of Plaintiffs' rights. Punitive damages should be assessed 11 against each Defendant for the purpose of punishment and for the sake of example. 12 XII. EIGHTH CAUSE OF ACTION NEGLIGENCE (Against All Defendants) 13 14 15 153. Plaintiffs reallege all prior paragraphs of this complaint and incorporate the same 154. Defendants, their agents, servants and employees owed a duty of reasonable care to 16 herein. 17 18 prevent unnecessary harm to Plaintiffs. 19 155. Defendants failed to act with reasonable care by authorizing, coordinating, 20 requesting, demanding, and administering polygraphs without making sure that they were 21 complying with federal laws. 22 156. Defendants failed to act with reasonable care by not addressing the legitimate 23 concerns brought by employees regarding the legality of the polygraphs and by providing false 24 information. 25 157. Defendants failed to act with reasonable care by failing to ensure that the 26 polygraphs were being conducted properly. 27 158. Defendants breached their duty to exercise reasonable care by inter alia, by 28 27 Case 3:12-cv-00460-DMS-MDD Document 31 Filed 10/30/12 Page 28 of 29 1 demanding Plaintiffs be subjected to a polygraph test as a condition of employment or continued 2 employment. 3 159. Defendants were negligent in their failure to properly explain the basis and 4 procedure to the employees. 5 160. Defendant B.A. was negligent in unilaterally and constantly rescheduling the 6 polygraph tests without sufficient notice or warning to the employees. 7 161. Defendants were negligent in their failure to follow proper statutory procedures; to 8 provide proper notice to the Plaintiffs; and to provide notice of Plaintiffs' rights. 9 162. Defendant Metropolitan is liable under respondeat superior for the negligence of 10 its employees performed within the course of their employment. 11 163. Defendants' breach of the duty of reasonable care caused damages to Plaintiffs, in 12 an amount to be established at trial. 13 XIII. NINTH CAUSE OF ACTION [INJUNCTIVE RELIEF] 14 15 164. Plaintiffs reallege all prior paragraphs of this complaint and incorporate the same 165. Plaintiffs are informed and believe and thereon allege that, unless enjoined, 16 herein. 17 18 Defendants will continue to engage in the unlawful and tortious acts. 19 166. Plaintiffs face the real and immediate threat of repeated and irreparable injury and 20 continuing, present adverse effects as a result of the acts of the Defendants. 21 167. Plaintiffs have effectively been terminated from their jobs at Metropolitan and 22 have lost their security clearance. Plaintiffs are therefore unable to obtain similar employment 23 elsewhere. 24 168. Plaintiffs have no adequate and complete remedy at law. 25 169. Plaintiffs are entitled to equitable relief under 29 U.S.C. ?2005. 26 170. Plaintiffs seek an order of the Court reinstating them to their employment, 27 requiring the destruction of all records of polygraph results in Metropolitan's possession, and 28 28 Case 3:12-cv-00460-DMS-MDD Document 31 Filed 10/30/12 Page 29 of 29 1 enjoining Metropolitan from dissemination of polygraph information. 2 XIV. PUNITIVE DAMAGES 3 4 Defendants acted in deliberate disregard of Plaintiffs rights under the Employee Polygraph 5 Protection Act. They acted with oppression, fraud or malice and punitive damages should be 6 assessed against each Defendant, with the exception of the United States of America, for the 7 purpose of punishment and for the sake of example. 8 9 WHEREFORE, Plaintiffs pray as follows: 10 1. For general and special damages according to proof at the time of trial; 11 2. For past and future lost wages and benefits and reinstatement of Plaintiffs' 12 employment; 13 3. For restoration of seniority rights; 14 4. For expungement of record of the polygraph from the Plaintiffs' personnel files; 15 5. For costs of suit and interest incurred herein and attorneys' fees pursuant to 29 16 U.S.C. ?2005; 17 6. For punitive damages; and 18 7. Any further injunctive or declaratory relief this court deems just and proper. 19 20 DATED: October 26, 2012 Respectfully submitted, 21 S/ Eugene Iredale ________________________ EUGENE G. IREDALE JULIA YOO Attorneys for Plaintiff 22 23 24 25 26 27 28 29