The opinion of the court was delivered by: PAUL L. FRIEDMAN
This matter came before the Court on the parties' cross-motions for summary judgment. After a hearing, the Court granted Defendants' motion for summary judgment, denied Plaintiff's motion for summary judgment, and entered judgment on all counts of the Amended Complaint in favor of Defendants by its Order of August 31, 1994, and for the reasons stated in open court on August 24, 1994. This opinion confirms the Court's oral ruling.
The Plaintiff Ricardo del Canto filed a complaint, and then an amended complaint, against Defendants ITT-Sheraton Corporation, Hotel and Restaurant Employees Union Local 25, and Ronald Richardson, Executive Secretary-Treasurer of Local 25. By stipulation and agreement, the Defendant ITT-Sheraton has previously been dismissed from the case.
There are three essential allegations that have been made in the complaint. Plaintiff first alleges that the Defendants violated Mr. del Canto's rights under the Employee Polygraph Protection Act of 1988. 29 U.S.C. §§ 2001-2009. Plaintiff next alleges that Defendants defamed Mr. del Canto by publishing a statement that he is a liar and a thief. Finally, Plaintiff alleges that Defendants conspired with each other and with ITT-Sheraton both to violate Mr. del Canto's rights under the statute and to defame him.
On December 18, 1991 the hotel suspended, and later terminated, Mr. del Canto because hotel security officers saw Mr. del Canto leave the hotel following his work shift on December 17 carrying a box that the hotel believed to be liquor he had taken without authority. Richardson Dec. P 3. According to the hotel, Mr. del Canto fled when the security officers instructed him to stop. Id. Ms. Vivian Taylor, the Director of Human Resources at the hotel, told Mr. del Canto the day after the alleged incident that he had been suspended pending investigation of those events. Richardson Dec. P 4.
On that same day Mr. del Canto went to the Union's offices to seek assistance with the problem. He explained to Ronald Richardson, the Executive Secretary-Treasurer of the Union, what had happened. Richardson Dec. P 5. He told Mr. Richardson that he had not taken any liquor or anything else from the hotel; rather, he said, he was carrying a bag of his dirty shirts under his arm and had gone out the back exit only because he had parked his car in the alley behind the hotel. Mr. del Canto told Mr. Richardson that in addition to the shirts, he had a large amount of money with him and, concerned for his safety and his property, that he ran when he saw two people in a car in the alley. Id.
According to Mr. Richardson, during the meeting he had with Mr. del Canto on December 18, Mr. del Canto on his own initiative brought up the possibility that he might take a lie detector test in order to demonstrate to the hotel that he had not taken any liquor or anything else from the hotel. Richardson Dec. P 6. Mr. del Canto says that it was not he who initially proposed that he take a lie detector test, but Mr. Richardson. Memorandum of Defendants in Support of Motion for Summary Judgment, 4 n.3. In his declaration, Mr. Richardson states that he is generally opposed to lie detector tests, but in this case he thought the suggestion a good one because it effectively would give Mr. del Canto "two bites at the apple." Richardson Dec. P 6. Mr. Richardson thought Mr. del Canto would get reinstated immediately if he passed the lie detector test, but even if he failed the test, under the agreement between the hotel and the Union he would still have an opportunity to pursue his grievance to arbitration. Id. For these reasons, Mr. Richardson says he agreed to raise the possibility of a lie detector test with the hotel. Id.
Mr. Richardson declared that at a meeting on January 29, 1992, between Union representatives, the hotel and Mr. del Canto, Carl Madda, an official of the Sheraton Hotel Corporation, told Mr. del Canto that he understood that Mr. del Canto was willing to take a lie detector test in order to return to work immediately. Richardson Dec. P 8. Mr. del Canto responded that Mr. Madda's understanding was correct. Id. See Plaintiff's Statement Of Material Facts As To Which There Is A Genuine Issue P 8 ("There is not a genuine issue of fact here.") Thus, regardless of who may have initiated the suggestion, it is undisputed that at some point Mr. del Canto told the hotel and the Union that he was willing to take a lie detector test. Some time thereafter, the hotel informed Mr. Richardson that it was, in fact, willing to reinstate Mr. del Canto immediately if he were to pass a lie detector test. Richardson Dec. P 9. After consulting with counsel, however, Mr. del Canto decided that he would not take the test. Richardson Dec. P 11.
On April 15, 1992, Mr. del Canto's case was arbitrated before an arbitrator, and he was represented in that matter by counsel engaged by, and presumably paid by, the Union. Richardson Dec. PP 12-14. Counsel for Local 25 cross-examined the witnesses presented by the hotel and called Mr. del Canto and another individual as witnesses. Declaration of Mady Gilson ("Gilson Dec.") P 10. Mr. del Canto testified to the events precisely as he had earlier reported them to Mr. Richardson.
II. The Allegedly Disputed Facts
There are only four genuine issues of disputed fact asserted by Plaintiff. The question before the Court on these summary judgment motions is whether they really are disputed and, if so, whether these disputed facts are material in this case. Fed. R. Civ. P. 56(c); see Laningham v. U.S. Navy, 259 U.S. App. D.C. 115, 813 F.2d 1236, 1242 (D.C. Cir. 1987).
First, as noted, there is a dispute as to who first proposed the lie detector test: whether Mr. Richardson on behalf of the Union first suggested that Mr. del Canto take a lie detector test, or whether Mr. del Canto himself suggested it. While Plaintiff says that this is probably the most material fact in dispute, Plaintiff's Statement of Material Facts P 5, the Court does not find that this disputed fact is at all material. For one thing, the lie detector test never took place. Furthermore, Plaintiff acknowledges that "there is not a genuine issue of fact" as to whether Mr. del Canto told Mr. Madda on January 29, 1992, that Mr. Madda was correct in his understanding that Mr. del Canto was willing to take a lie detector test Richardson Dec. P 8; Plaintiff's Statement of Material Facts P 8. In any event, as discussed below, there is no private right of action against either the Union or Mr. Richardson, an officer of the Union, because they are not covered entities under the statute.
The second fact that Plaintiff says is disputed is that all Defendants, presumably including Mr. Richardson and the Union, believed that Mr. del Canto was lying and that he stole the alleged box of liquor. Plaintiff's Statement of Material Facts P 6. Plaintiff cites Mr. Richardson's deposition at pages 24 to 26, Ms. Taylor's deposition at pages 50 to 53, Mr. Madda's deposition at page 18, Mr. DuCamp's deposition at page 41, and Mr. Hopkins' deposition at pages 59 to 62. The Court has read those deposition excerpts and finds that none of them supports the statement that all Defendants, or any Defendant, believed Mr. del Canto to be lying or that he stole the alleged box of liquor. There is absolutely no support in those depositions for that statement. Furthermore, even if they did support that statement, the mere fact that people may have believed Plaintiff was lying or that he stole liquor would not be material.
Third, Plaintiff says it is disputed whether Mr. Richardson spoke with Mr. del Canto and "instructed him to report for the lie-detector test." Plaintiff's Statement of Material Facts P 12. Again, the Court does not believe it is material whether Mr. Richardson instructed Mr. del Canto to report for the lie detector test, suggested a lie detector test or asked him to report for the lie detector test. The fact is that Mr. del Canto never took the lie detector test. Furthermore, as discussed below, the Union and Mr. Richardson are not covered by the statute.
The fourth purportedly disputed fact is the assertion that Mr. Richardson was communicating with third parties concerning the allegations of theft by Mr. del Canto and his guilt at the same time that Mr. Richardson was initiating and arranging for Mr. del Canto to take a lie detector test. Plaintiff's Statement of Material Facts P 22. In these circumstances, Plaintiff says, those communications conveyed Mr. Richardson's disbelief about Mr. del Canto's veracity and, by ...