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Laney v. Getty

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

June 23, 2014

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

Page 746

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, William T. Ramsey, Neal & Harwell, Nashville, TN; Jeffrey H. Gibson, PRO HAC VICE, 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 747

MEMORANDUM OPINION AND ORDER

Danny C. Reeves, United States District Judge.

Previously, the Court granted partial summary judgment in favor of the defendants concerning Plaintiff E. Scott Laney's wrongful termination claim under 29 U.S.C. § 2002(3). [Record No. 106] At the same time, the Court gave the parties notice pursuant to Rule 56(f) of the Federal Rules of Civil Procedure that Laney was likely entitled to summary judgment on the defendants' alleged violation of the Employee Polygraph Protection Act (" EPPA" ). [ See id. ]

The parties have now filed supplemental briefs under Rule 56(f) in accordance with the Court's directive. [Record Nos. 108, 111, 112] Additionally, the defendants have moved for costs and attorneys' fees, claiming that they are the prevailing parties under the EPPA. [Record No. 110] For the reasons set forth below, the Court will grant summary judgment in favor of Laney on his claim under the EPPA, and will deny the defendants' motion for costs and fees.[1]

I.

The factual history of this case is discussed at length in the Court's earlier opinion. [ See Record No. 106.] Plaintiff Laney was employed 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] Defendants Al Borne and Richard Getty were hired by Stoner Mill to investigate Native American and Western artifacts that Nancy Harney collected, and which were stolen in 2010, allegedly by former Stoner Mill manager John Walden. [Record No. 106, p. 3] During one of the civil cases initiated by Nancy Harney against then-terminated John Walden, invoices and receipts that demonstrated the purchase and ownership of the missing artifacts were disclosed, and copies were exchanged. [Record No. 33] Stoner Mill claims that some of those documents went missing " at some point prior to June 22, 2012." [Record No. 60-1, p. 2 n.2] On June 22, 2012, Borne and Getty interviewed Laney in connection with the underlying

Page 748

litigation relating to the missing artifacts and documents. [ Id., p. 2]

During the interview, Borne asked Laney if he took those documents and other items from the farm. Laney answered, " I absolutely didn't take it. Do you want me to take a lie detector test? I mean, I would not steal from Nancy or take anything." [Record No. 60-9, 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]

The subject of a polygraph examination was subsequently brought up by the defendants several times over the course of the recorded interview.

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 [the test], but this guy is an ex-FBI and he really knows his stuff. He's probably the best in the state.

[ Id., p. 24 ln. 8-17]

Later, Getty again broached the subject:

Mr. Getty: It would help us, Scott, if you would agree. Just think about whether we can get this guy to give you a polygraph.
Mr. Laney: Okay.
Mr. Getty: I mean, you're not obligated to do it --
Mr. Laney: I know.
Mr. Getty : -- but, you know, that would be ...

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