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Laney v. Getty

United States District Court, E.D. Kentucky, Central Division

May 5, 2014

E. SCOTT LANEY, Plaintiff,
v.
RICHARD A. GETTY, et al., Defendants

For E. Scott Laney, Plaintiff: David Brent Cox, Michael J. Cox, LEAD ATTORNEYS, Cox Law, PLLC, Lexington, KY.

For Richard A. Getty, The Getty Law Group, PLLC, Defendants: Kendra Elizabeth Samson, LEAD ATTORNEY, Neal & Harwell, Nashville, TN; Jeffrey H. Gibson, PRO HAC VICE, William T. Ramsey, Neal & Harwell, PLC, Nashville, TN.

For Albert W. Borne, Borne Investigations, Inc., Defendants: Elisabeth Megan Howard, Gregg E. Thornton, Ward, Hocker & Thornton - Lexington, Lexington, KY.

For Stoner Mill Farm, LLC, Defendant: J. Andrew Inman, Susan C. Sears, Littler Mendelson PSC - Lexington, Lexington, KY.

Page 738

MEMORANDUM OPINION AND ORDER

Danny C. Reeves, United States District Judge.

On June 25, 2012, Plaintiff Scott Laney was terminated from his employment with Defendant Stoner Mill Farm, LLC (" Stoner Mill" ). Before the firing, an investigator employed by Stoner Mill and its attorney suggested that Laney take a polygraph examination. Laney refused and subsequently sued, claiming that the requested polygraph violated his rights under the Employee Polygraph Protection Act (" EPPA" ). Because Laney would have been terminated regardless of whether he agreed or refused to submit to the polygraph, he cannot prevail under one section of the act, 29 U.S.C. § 2002(3).

However, the undisputed facts show that the defendants' actions likely violate another provision of the act, 29 U.S.C. § 2002(1). Under Rule 56(f) of the Federal Rules of Civil Procedure, the Court will give the parties notice and time to respond

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to the issue of whether Laney is entitled to judgment as a matter of law on his § 2002(1) claim.[1] The defendants' motion for summary judgment will be granted, in part, and denied, in part.[2]

I.

Plaintiff E. Scott Laney was employed as an at-will employee by Defendant Stoner Mill Farm (" Stoner Mill" ), owned by Robert and Nancy Harney, from 2006 until he was terminated on June 25, 2012. [Record No. 1, p. 4 ¶ 18] Laney was hired by then-manager of Stoner Mill, John Walden.[3] [Record No. 42-1, pp. 26-27] During his employment, disputes arose between Nancy Harney and Walden that ultimately resulted in Walden's termination and at least three civil actions.[4] See, e.g. Harney et al. v. Walden, Civil Action No. 10-200-JBC (E.D. Ky.); Walden v. Harney et al, Civil Action No. 5:10-204-JBC (E.D. Ky.); Harney et al. v. Walden, Civil Action No. 12-CI-2829 (Fayette County Circuit Court). Essentially, the Harneys accused Walden of stealing various items from Stoner Mill, including artifacts and other valuable items. [Record No. 60-2]

Walden was fired in April 2010, after which he filed suit against Stoner Mill and Nancy Harney. [Record No. 70-9, p. 11] During that litigation, Walden continued to live on the farm until he was " locked out" on June 15, 2012. [ Id., p. 14] Stoner Mill claims that around this time, invoices, receipts, and papers regarding the stolen items also disappeared. [Record No. 70, p. 3] On the morning of Friday, June 22, 2012 (approximately one week after Walden left the farm) Laney was advised by his supervisor and then farm manager, Trinidad Arredondo, to stop work and attend an interview. [Record No. 70, p. 11] Arredondo stated to Laney that " he didn't know what it was about" and Laney had no prior notice. [Record No. 70-8] The interview was conducted by Defendants Richard Getty and Albert Borne. At the time, Getty was counsel for Stoner Mill. Borne, a private investigator, had been hired by Stoner Mill to investigate the missing items, including the missing invoices, receipts, and documents. [Record No. 70-9, p. 8]

Unknown to Laney, Defendants Getty and Borne recorded the parties' discussions. [Record No. 60-9] During the interview, Laney was questioned regarding the stolen artifacts and documents. [ See generally id. ] After Borne asked Laney if he took the artifacts or documents, Laney answered " I absolutely didn't take it. Do

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you want me to take a lie detector test? I mean, I would not steal from Nancy or take anything." [ Id., p. 19 ln.23-25] Borne responded, " [w]ell actually, that was going to be my next question quite honestly." [ Id., p. 20 ln. 1-2] Laney then responded, " [n]o, I'm not going to take a lie -- I mean I didn't take it." [ Id., ln. 3-5]

After this exchange, the subject of a polygraph examination was brought up two other times.

Mr. Getty: It would help, if you let, you know, us bring this guy over from Louisville, he's a former FBI agent, and give you a polygraph.
Mr. Laney: Well, I mean, I know polygraphs aren't admissible and you know.
Mr. Getty: Yeah, I know, but I've used them and they're pretty damn reliable.
Mr. Borne: It depends on who's giving it, but this guy is an ex-FBI and he really knows his stuff. He's ...

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