Saliba v. City of Worcester (Lawyers Weekly No. 11-137-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 16-P-591 Appeals Court PHILIP SALIBA vs. CITY OF WORCESTER. No. 16-P-591. Worcester. February 14, 2017. – October 27, 2017. Present: Green, Meade, & Agnes, JJ. Practice, Civil, Motion to dismiss. Public Employment, Polygraph test. Statute, Construction. 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. 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 […]