Worden v. SunTrust Banks, Inc.

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

DANIEL WORDEN, 
Plaintiff-Appellant,
v.  No. 07-1354
SUNTRUST BANKS, INCORPORATED,
Defendant-Appellee.

Appeal from the United States District Court
for the District of South Carolina, at Anderson.
G. Ross Anderson, Jr., District Judge.
(8:06-cv-01074-GRA)

Argued: September 23, 2008

Decided: November 24, 2008

Before MOTZ and AGEE, Circuit Judges, and
James C. CACHERIS, Senior United States District Judge
for the Eastern District of Virginia, sitting by designation.

Affirmed in part, reversed in part, and remanded by published
opinion. Judge Agee wrote the opinion, in which Judge Motz
and Senior Judge Cacheris joined.

COUNSEL

Mary Christine McCormac, Clemson, South Carolina, for
Appellant. Cara Yates Crotty, CONSTANGY, BROOKS &
SMITH, Columbia, South Carolina, for Appellee.
2 WORDEN v. SUNTRUST BANKS, INC.
OPINION

AGEE, Circuit Judge:

Daniel Worden brought this civil action against his former
employer, SunTrust Banks, Inc. ("SunTrust"), alleging that
SunTrust violated two provisions of the Employee Polygraph
Protection Act ("EPPA"), 29 U.S.C. §§ 2001 to 2009 (2000).
The district court granted SunTrust’s motion for summary
judgment as to both claims. For the reasons that follow, we
affirm in part, reverse in part, and remand the judgment of the
district court.

I.

Daniel Worden worked at an Anderson County, South Car-
olina, branch bank of SunTrust ("the Anderson branch"). On
the morning of August 11, 2005, the Anderson branch
received a telephone call from Worden, who claimed that two
men had kidnapped him in order to rob the bank. Worden
asked his co-worker to open the vault of the bank, but the co-
worker refused and instructed another employee to telephone
the Anderson County police. Worden’s telephone call was
then disconnected.

At approximately the same time the Anderson County
police received the telephone call from the bank, they also
received a telephone call from Worden, who stated that he
had been kidnapped and forced to participate in a bank rob-
bery attempt. According to Worden, on the evening of August
10, 2005, he was held in his home overnight at gunpoint by
two individuals who wanted to use him to rob the Anderson
branch. Worden stated the men told him they would kill him
if he refused to cooperate, and so he did as they instructed. He
claimed he was held and questioned by the kidnappers until
they were ready to leave the next morning. He stated that
when his roommate and the roommate’s new wife ("the
Tyases") arrived at his home, the kidnappers tied them up in
 WORDEN v. SUNTRUST BANKS, INC. 3
a different room. Worden claimed the kidnappers abandoned
him "in the woods" when they realized their plan had failed.

At some point later on August 11, 2005, Worden spoke by
telephone with Kevin Brock, the SunTrust area manager who
supervised the Anderson branch. Worden asked Brock to help
him with several personal matters he had been unable to
address and to come to the police station, where Worden had
gone to provide a statement of events.

Later the same day, Detective John Zamberlin, one of the
Anderson County police investigators on the case, informed
Worden that law enforcement suspected he was behind the
attempted robbery. He requested and received Worden’s con-
sent to administer a polygraph examination. No one from
SunTrust requested, participated in or was present during
Worden’s polygraph examination.

As requested by Worden, Brock was still at the police sta-
tion when the polygraph examination was administered.
Brock was joined by Loretta Rohrer-Norris, SunTrust’s
regional security manager. At some point, Zamberlin
informed Brock and Rohrer-Norris that they suspected Wor-
den and his roommate were involved in the attempted rob-
bery, and that Worden had agreed to take a polygraph
examination. While they were all discussing the incident, the
polygraph examiner entered the room and announced that
Worden had failed the exam. The examiner also apparently
spontaneously stated that a second exam would be appropriate
because the results of the first exam might be challenged as
inconclusive because the traumatic experience was so recent
in time.1

The next morning, Brock spoke with his supervisor, Kent
Dill, the retail line of business manager, about the progress of
1
Neither Brock nor Rohrer-Norris saw a written report of the polygraph
exam, nor did they ask for a copy of it.
4 WORDEN v. SUNTRUST BANKS, INC.
the investigation. During their discussion, Brock mentioned
Worden had failed the polygraph examination. At some point
over the next week, Brock also informed Charles A. Perry, the
regional president, that Worden had failed the polygraph
examination.

In addition to the Anderson County police, the Federal
Bureau of Investigation ("FBI") was also investigating the
incident. As part of their investigation, the FBI initiated and
administered a second polygraph examination on August 17,
2005, in Greenville, South Carolina. Once again, Worden
consented to the examination. As with the first polygraph
examination, SunTrust neither requested nor participated in its
administration. Upon the completion of the exam, the FBI
informed Worden that the results indicated "deception," and
that they still considered him to be a suspect.

After the examination was over, Zamberlin telephoned
Brock to request that he drive Worden back to Anderson.
Zamberlin, apparently unsolicited, also told Brock that Wor-
den had "failed [the second polygraph examination] misera-
bly." Brock went to Greenville to pick up Worden and while
driving him back to Anderson, Worden told Brock that he
failed the second polygraph exam.2

Within a day of the second polygraph examination, Brock
informed Dill that Worden was still considered a suspect and
had failed another polygraph examination. As the investiga-
tion continued, law enforcement personnel apprised Brock
and Rohrer-Norris of their progress, and the fact that Worden
was their prime suspect and that he would likely be charged
with the crime.3 Brock and Rohrer-Norris communicated that
information to their supervisors, Dill and Perry.
2
Rohrer-Norris also learned of the results of the second polygraph
examination from the FBI during a conversation regarding the attempted
robbery investigation.
3
Zamberlin’s affidavit in the record states, "[a]s soon as the investiga-
tion began, we learned of several facts that immediately raised ‘red flags,’
 WORDEN v. SUNTRUST BANKS, INC. 5
Dill and Perry concluded Worden was not a trustworthy
employee and should not be in a position to handle deposi-
tors’ money. They decided to terminate Worden’s employ-
ment, but delayed any action on the termination at the request
of law enforcement so as not to impact the investigation.
Perry and Dill both stated that although they were aware of
the polygraph results, based on the complete information in
their possession, SunTrust "still would have made the deci-
sion" to terminate Worden even if he had passed the poly-
graph examinations or if they were not aware of the negative
results. Perry indicated the only time he mentioned the poly-
graph results was in a conversation with Mindy Schwartz, the
senior regional human resources representative, in the context
of discussing the reasons law enforcement suspected Worden.

On September 1, 2005, Brock informed Worden of the
decision to terminate his employment. Brock expressed the
concerns SunTrust had based on law enforcement’s ongoing
belief that Worden was involved in the attempted bank rob-
bery, but did not mention the polygraph examinations.4

or made us suspicious of Mr. Worden’s possible involvement in the
crime." Zamberlin cited the following factors leading to their suspicion:
the length and detail of Worden’s statement, a former employer’s belief
that Worden was stealing merchandise from him and had quit before being
discovered, Worden’s neighbor was not home the night of the kidnapping
and no one in the neighborhood observed anything suspicious, the hole by
which Worden claimed the kidnappers entered his apartment had not been
cut from the outside, Worden’s description of the kidnappers’ behavior
was unusual, Worden’s "oddly unemotional" response to the kidnapping
and to being accused of being involved in the crime, the kidnappers’ use
of materials from inside Worden’s duplex to bind Worden and the Tyases,
Worden’s refusal to turn over his home computer for processing, inconsis-
tencies in Worden’s statement and those provided by the Tyases, Wor-
den’s claim that the kidnappers left with Worden around 4 a.m. to commit
a crime that was not attempted until 9 a.m., and the kidnappers’ inside
knowledge of the bank and the lack of any other suspects within the
Anderson branch.
4
SunTrust also summarized the incident leading to Worden’s termina-
tion in its standard internal "termination reason form," which describes the
incident leading to his termination as follows:
6 WORDEN v. SUNTRUST BANKS, INC.
In March 2006, Worden timely filed a complaint against
SunTrust alleging two violations of the EPPA. First, Worden
asserted SunTrust "used, accepted, referred to, obtained,
learned of, and/or inquired concerning the results of the poly-
graph examination," in violation of 29 U.S.C. § 2002(2) (the
"§ 2002(2) claim"). Second, Worden asserted SunTrust fired
him "based on the results of the polygraph examination," in
violation of 29 U.S.C. § 2002(3) (the "§ 2002(3) claim").

Both parties moved for summary judgment. After hearing
oral argument, the district court granted SunTrust’s motion.
Noting the paucity of EPPA case law, the district court first
held that § 2002(3) "does not prohibit the discharge of an
employee if polygraph results are ‘a factor’ in the decision, so
long as they are not the sole factor.’"5 It then found the "un-
disputed evidence" in the case at bar demonstrated that "no
reasonable person could conclude the polygraph results were
the sole reason for [Worden’s] discharge." Worden v. Sun-
Trust Banks, Inc., 8:06-cv-1074-GRA, slip op. at 8-9 (D.S.C.
March 22, 2007). In addition, the district court determined the
record "unequivocally establishe[d]" that SunTrust "would
have made the same decision [to terminate Worden] even if
law enforcement (and [Worden]) had not disclosed the results
to SunTrust." Id. at 11. In so holding, the district court relied

On 8/11/05, a kidnapping and attempted robbery occurred with
the [Anderson branch. Worden] called into the [branch] and said
he was kidnapped and the kidnappers wanted money. The Ander-
son County police department [is] involved and have an ongoing
investigation. Daniel was heavily questioned and has had 2
inconclusive polygraph tests. He has not been told he is a suspect
however due to the possible involvem[ent] with this crime
against the bank, we ended his employment on 9/1/05.
5
In so doing, the district court specifically rejected the approach taken
in Mennen v. Easter Stores, 951 F. Supp. 838 (N.D. Iowa 1997), where
the court "decline[d] the opportunity to ‘assume’ that an employer . . . can
take adverse employment action against an employee, so long as the poly-
graph results are not the sole basis for its decision." Id. at 855.
 WORDEN v. SUNTRUST BANKS, INC. 7
on the statements of Dill and Perry, the individuals with
authority to terminate Worden’s employment, and SunTrust’s
evidence that it had discharged "at least one other employee
under virtually identical circumstances – with the notable
exception that the employee had not taken or been asked to
take a polygraph." Id. at 11.

The district court then analyzed Worden’s § 2002(2) claim.
It "decline[d] to hold [SunTrust] liable for the mere knowl-
edge of [Worden’s] lie detector results where it never asked
for that information or had the opportunity to decline it and
where [Worden] himself informed it of the polygraph results."
Id. at 15. The district court determined Worden’s assertion
that SunTrust unlawfully "used" the polygraph examination
results was "completely duplicative" of his wrongful dis-
charge claim. It therefore concluded SunTrust did not "use"
the polygraph results for § 2002(2) purposes because those
results "were not the sole or determinative factor in the dis-
charge decision." Id. The district court further held SunTrust
did not "refer to" the results of the polygraph examinations
because it would be "nonsensical" to hold SunTrust liable for
"referring to" information Worden provided to it. Id. at 19. It
noted that even if SunTrust had impermissibly used or
referred to the polygraph examination results, "the point is
moot because the ultimate outcome would not be any differ-
ent" because SunTrust would have discharged Worden "even
without knowledge of the polygraph results." Id. at 20.

The district court also held SunTrust did not "accept" the
results of Worden’s polygraph examinations for purposes of
§ 2002(2). It concluded that both the definition and statutory
context of the word "accept" required an employer to do more
than passively receive information. Accordingly, it found
SunTrust had not "accepted" the polygraph results because
law enforcement first informed SunTrust of the results
"through no fault of" SunTrust’s, and then Worden "unilater-
ally forced knowledge of the polygraph results upon" it. Id. at
15, 19. In reaching this decision, the district court held that
8 WORDEN v. SUNTRUST BANKS, INC.
the Department of Labor ("DOL") regulation, 29 C.F.R.
§ 801.4(c), making it unlawful for an employer to receive the
results of a polygraph test administered by police authorities
was "beyond the scope of the authority granted by Congress
and [was] irreconcilable with the express terms of the EPPA."
Id. at 16-17.

Worden noted a timely appeal. We have jurisdiction under
28 U.S.C. § 1291 (2000).

II.

We review the district court’s grant of summary judgment
de novo. Laber v. Harvey, 438 F.3d 404, 415 (4th Cir. 2006)
(en banc). Summary judgment is appropriate "if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law." Hill v.
Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 283
(4th Cir. 2004) (en banc) (internal quotation marks omitted).
We construe the evidence in the light most favorable to Wor-
den, the party opposing SunTrust’s motion, and draw all rea-
sonable inferences in his favor. See id.

III.

Worden appeals the district court’s grant of summary judg-
ment as to both of his EPPA claims. Under § 2002(2), it is
unlawful for an employer "to use, accept, refer to, or inquire
concerning the results of any lie detector test of any employee
or prospective employee." Under § 2002(3), it is unlawful for
an employer "to discharge . . . any employee . . . on the basis
of the results of any lie detector test." In view of the district
court’s stated basis to award summary judgment to SunTrust
on the § 2002(2) claim, we will first review the award of sum-
mary judgment on the § 2002(3) claim.
 WORDEN v. SUNTRUST BANKS, INC. 9
A.

Worden asserts the district court erred in holding that an
employer can only be liable under § 2002(3) if the polygraph
examination results are the employer’s "sole factor" for termi-
nation or other adverse employment action regarding an
employee. In addition, he contends summary judgment was
inappropriate because a genuine issue of material fact exists
regarding whether SunTrust would have terminated Worden
even if it had not known of the polygraph examination results.

The district court appears to have blended two different
grounds in its analysis of the § 2002(3) claim. First, it deter-
mined the statute did not prohibit employers from discharging
an employee as a result of polygraph examination results as
long as the results were not the "sole factor" for the decision.
Separately, the district court reviewed the evidence and held
that the record "unequivocally establishe[d]" that SunTrust
"would have made the same decision even if law enforcement
(and [Worden]) had not disclosed the results to SunTrust."

To the extent the district court interpreted § 2002(3) to
require "discharge . . . on the basis of" the results of a poly-
graph examination as the sole factor for the employment-
related decision, we reject that interpretation.6 The language
of § 2002(3) is plain and straightforward: it is unlawful for an
employer "to discharge . . . any employee . . . on the basis of
the results of any lie detector test." Reading the statute so as
to require the results of the polygraph examination to be the
"sole" basis of that decision would require adding words to
the statute, a task in the province of the legislature and not the
judiciary. See Ayes v. U.S. Dep’t of Veterans Affairs, 473 F.3d
104, 111 (4th Cir. 2006) (refusing to "venture beyond the con-
fines of the statutory language" because "Congress says in a
6
Conversely, if an employer’s termination of employment is solely on
the basis of the results of a polygraph exam, liability under § 2002(3) is
axiomatic unless one of the EPPA exceptions applies.
10 WORDEN v. SUNTRUST BANKS, INC.
statute what it means and means in a statute what it says"
(internal quotation marks omitted)). On its face, § 2002(3)
does not require polygraph results to be the "sole" basis of an
employment decision and we cannot read the statute other-
wise.

Therefore, a plaintiff is only required to show that the
results of the polygraph examination were a factor in the ter-
mination of employment as part of establishing a prima facie
case under § 2002(3). Even upon such a showing, however, a
plaintiff does not necessarily succeed on an EPPA claim of
unlawful discharge. There are certain exceptions to liability
under § 2006 of the EPPA. One is a limited exemption for
ongoing investigations, which provides that an employer is
permitted to request an employee submit to a polygraph test
if "the test is administered in connection with an ongoing
investigation involving economic loss or injury to the employ-
er’s business," "the employee had access to the property that
is the subject of the investigation," "the employer has a rea-
sonable suspicion that the employee was involved in the inci-
dent or activity under investigation," and the employer
executes a statement including certain information, which is
provided to the employee before the test is administered.
§ 2006(d). SunTrust does not contend this or any other EPPA
exemption applies, but that because its motive in terminating
Worden’s employment was unrelated to the polygraph exami-
nation and would have occurred in any event, it cannot be lia-
ble under § 2002(3).

There are two traditional approaches to analyzing employ-
ment discrimination claims, historically referred to as the
"pretext" and "mixed-motive" frameworks. Hill, 354 F.3d at
284-85. Under the "pretext" model established in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1975), a plaintiff is
obligated to first establish direct or circumstantial evidence of
discrimination. If the plaintiff makes such a showing, the
defendant must respond with evidence that it acted on a legiti-
mate, non-discriminatory basis. If the defendant does so, the
 WORDEN v. SUNTRUST BANKS, INC. 11
plaintiff is then obliged to present evidence to prove that the
defendant’s articulated reasons were a pretext for unlawful
discrimination. See Love-Lane v. Martin, 355 F.3d 766, 786
(4th Cir. 2004). Alternatively, under the "mixed-motive"
framework set forth in Price Waterhouse v. Hopkins, 490 U.S.
228 (1989) (plurality opinion), a plaintiff must first offer evi-
dence of discrimination.7 Once the plaintiff has made a prima
facie case, the employer can avoid liability by proving that it
would have made the same decision in the absence of the dis-
criminatory motivation. Id. at 258 (plurality opinion); id. at
259-60 (White, J., concurring); id. at 276-77 (O’Connor, J.,
concurring).
7
Because Price Waterhouse was a plurality decision, an ongoing issue
after it was decided was what level of proof a plaintiff must provide to set
forth his prima facie case. This Circuit has followed Justice O’Connor’s
concurring opinion in Price Waterhouse, which required plaintiffs to pre-
sent "direct evidence that decisionmakers placed substantial negative reli-
ance on an illegitimate criterion." Fuller v. Phipps, 67 F.3d 1137, 1142
(4th Cir. 1995) (quoting Price Waterhouse, 490 U.S. at 277 (O’Connor,
J., concurring)), abrogated by Desert Palace, Inc. v. Costa, 539 U.S. 90,
101-02 (2003). In Desert Palace, the Supreme Court held that the 1991
statutory changes make it unnecessary to provide direct evidence of dis-
crimination in Title VII mixed-motive cases. 539 U.S. at 101-02.
Although this Court has acknowledged the question in other instances
in which it has applied Price Waterhouse’s mixed-motive analysis, it has
not needed to resolve the issue. E.g., EEOC v. Warfield-Rohr Casket Co.,
364 F.3d 160, 163 n.1 (4th Cir. 2004) ("We have previously assumed,
without deciding, that direct evidence is still a prerequisite for a mixed-
motive analysis in ADEA cases. . . . We are not called on to decide that
issue because the EEOC has presented direct evidence of discrimina-
tion—namely, [testimony] and journal entries regarding [the employer’s]
alleged discriminatory statements").
At a minimum, to pursue a mixed-motive case, a plaintiff must demon-
strate that a "protected trait . . . actually played a role in the employer’s
decisionmaking process and had a determinative influence on the out-
come." Hill, 354 F.3d at 286 (internal quotation marks omitted). In view
of our resolution of the § 2002(3) claim, it is unnecessary in this case to
determine what level of proof would be required to proceed under the
mixed-motive analysis.
12 WORDEN v. SUNTRUST BANKS, INC.
Through the Civil Rights Act of 1991, Congress eliminated
an employer’s ability to avoid all liability in some Title VII
cases. 42 U.S.C. § 2000e-2(m); see Hill, 354 F.3d at 284.
However, courts have continued to apply the Price Water-
house mixed-motive analysis in other employment discrimi-
nation contexts where Congress has not subsequently acted.
See Desert Palace, Inc. v. Costa, 539 U.S. 90, 95 (2003). For
example, this Court has applied Price Waterhouse’s mixed-
motive analysis in the context of claims brought under the
Age Discrimination in Employment Act, see EEOC v.
Warfield-Rohr Casket Co., 364 F.3d 160, 164 n.2 (4th Cir.
2004), Title VII retaliation claims, Kubicko v. Ogden Logis-
tics Servs., 181 F.3d 544, 552 n.7 (4th Cir. 1999), and claims
under the Uniformed Services Employment and Reemploy-
ment Rights Act of 1994. Hill v. Michelin N. Am., Inc., 252
F.3d 307, 314-15 (4th Cir. 2001); see also Williams v. Fer-
menta Animal Health Co., 984 F.2d 261, 265 (8th Cir. 1993)
(permitting equivalent of a mixed-motive jury instruction in
a claim under 42 U.S.C. § 1981). Application of the mixed-
motive analysis to claims under the EPPA thus seems logical
and appropriate, as the case at bar well illustrates.

The record clearly shows that SunTrust was aware of the
results of Worden’s two polygraph examinations. For this rea-
son, we will assume, without deciding, that he has shown that
those results were a factor in the decision to terminate his
employment. Even so, and as the district court found, the
record unequivocally shows that SunTrust would have termi-
nated Worden even if it had not known the results of the poly-
graph examinations.

Contrary to Worden’s argument on appeal, the evidence
falls short of creating any genuine issues of material fact on
this issue. The parties filed cross motions for summary judg-
ment, both representing to the district court that there were no
genuine issues of material fact remaining for trial, except for
damages. In one section of his response to SunTrust’s motion
for summary judgment, Worden argued summary judgment
 WORDEN v. SUNTRUST BANKS, INC. 13
based on a mixed-motive theory was inappropriate because
the district court would be required to make "credibility deter-
minations" and "decid[e] numerous issues of material fact"
regarding SunTrust’s reasons for terminating him. Worden
suggests the record contains "contradictions" and he questions
the "suspicious" timing of Worden’s departure. However, he
did not point to any specific facts in the record that created a
question of fact as to whether SunTrust’s stated reasons for
terminating his employment were its actual reasons for doing
so. (R. 24). Worden is just as imprecise in his argument on
appeal.

The evidence in the record overwhelmingly supports the
district court’s conclusion that SunTrust would have dis-
charged Worden even without knowing the results of the
polygraph examination. Specifically, Dill and Perry, the two
individuals who made the decision to discharge Worden, both
testified that Worden’s employment was terminated because
they lost trust in him due to his probable involvement in the
attempted robbery. They unequivocally testified that Worden
would have been fired even if they had no knowledge of the
results of the polygraph examinations. This testimony is not
contradicted, and manifestly shows that SunTrust "would
have made the same decision in the absence of" knowing the
results of the polygraph examination.

Perry and Dill also testified, without contradiction, that in
making their employment decision, they relied on the state-
ments of law enforcement officers that Worden was suspected
of involvement in the attempted robbery. Nothing in the
record, or alleged by Worden, challenges their bona fide reli-
ance on the statements from law enforcement as to Worden’s
complicity. In addition, SunTrust provided information show-
ing that it terminated another employee who law enforcement
suspected in an unrelated criminal investigation, even though
the evidence was circumstantial, authorities had not pressed
charges against the employee, and the employee had not taken
a polygraph examination.
14 WORDEN v. SUNTRUST BANKS, INC.
Worden contends several of Brock’s prior statements indi-
cate that he was fired because of the polygraph examination
results. However, the record is clear that Perry and Dill were
the two individuals who had the authority and made the deci-
sion to terminate Worden. Brock was not part of their discus-
sions, nor did he act independently. Accordingly, his
statements do not create a genuine issue of material fact. See
Hill, 354 F.3d at 288, 291 ("an employer will be liable not for
the improperly motivated person who merely influences the
decision, but for the person who in reality makes the deci-
sion").

Because the record plainly shows that SunTrust would have
terminated Worden’s employment even if it had not had
knowledge of the polygraph examination results, we hold that
SunTrust met the Price Waterhouse standard for avoiding lia-
bility on Worden’s claim of unlawful termination. As there
was no genuine issue of material fact left before the district
court on this issue, it did not err in granting SunTrust sum-
mary judgment on the § 2002(3) claim.

B.

Worden contends the district court did err by granting sum-
mary judgment on his § 2002(2) claim because, in his view,
SunTrust used, accepted, and referred to the polygraph exami-
nation results as prohibited by the statute.8 Worden also
asserts the district court erred in determining that 29 C.F.R.
§ 801.4(c) was an invalid regulation as "beyond the scope of
authority granted by Congress." For the reasons that follow,
8
Worden does not contend on appeal that SunTrust "inquired concern-
ing the results" under § 2002(2). Although Worden included that allega-
tion in his Complaint, he does not include a claim under that portion of
the statute in his Statement of Issues and he makes no argument in that
regard on brief. Accordingly, that portion of the statute is not at issue in
this appeal and Worden has waived any claim in that regard. See Fed. R.
App. P. 28(a)(9)(A); 11126 Baltimore Blvd., Inc. v. Prince George’s
County, 58 F.3d 988, 993 n.7 (4th Cir. 1995) (en banc).
 WORDEN v. SUNTRUST BANKS, INC. 15
we affirm the district court judgment in part, reverse that
judgment in part and remand for further proceedings.

1. "Accept"

Worden’s argument on appeal as to the "accept" prong of
his § 2002(2) claim is that "SunTrust admitted that it received
information regarding the polygraph results." He makes no
other argument that SunTrust "accepted" the polygraph results
other than the mere receipt of the results from either law
enforcement or himself. Worden does not challenge the dis-
trict court’s finding that SunTrust’s receipt of the polygraph
results from law enforcement was "passive" and that "Sun-
Trust did not request [Worden’s] polygraph results from law
enforcement." Similarly, Worden does not challenge the dis-
trict court’s finding, at least as to the second polygraph exam-
ination, that Worden "unilaterally forced knowledge of the
polygraph results upon" SunTrust. With this background in
mind, and recognizing neither the EPPA nor its promulgated
regulations define the term "accept" for § 2002(2) purposes,
we review the district court’s judgment in that regard.

The district court determined that under the facts of this
case, SunTrust’s "mere receipt" of the polygraph results was
not "acceptance" for purposes of a § 2002(2) claim. Sun-
Trust’s "receipt" came either because law enforcement volun-
tarily announced the results in the presence of SunTrust
employees (both examinations) or Worden told SunTrust the
results (the second examination). As the district court dis-
cussed, this conduct

does not constitute "acceptance" of the results. The
word "accept," in both legal and non-legal contexts,
necessarily connoted the ability to decline and
requires some action by the person or entity "accept-
ing." Black’s Law Dictionary defines "accept" as:
"To receive with approval or satisfaction; to receive
with intent to retain . . . Means something more than
16 WORDEN v. SUNTRUST BANKS, INC.
to receive, meaning to adopt, to agree to carry out
provisions, to keep and retain." BLACK’S LAW
DICTIONARY 12 (5th ed. 1979) (emphasis added).

Worden, slip op. at 16.

Worden contended mere receipt of the polygraph results,
without more and regardless of the circumstances, constitutes
"accept[ance]" for purposes of establishing liability under
§ 2002(2). In support of this contention, he cited 29 C.F.R.
§ 801.4(c), a Department of Labor regulation implementing
the EPPA, which provides: "The receipt by an employer of
information from a polygraph test administered by police
authorities pursuant to an investigation is prohibited" by
§ 2002(2).

The district court disagreed with this argument and rejected
the validity of the regulation.

This Court declines to follow [§ 801.4(c)] that pro-
vides an employer’s mere "receipt" of the results of
a polygraph examination from law enforcement is a
violation of the EPPA. Such a regulation goes
beyond the authority granted to the DOL by Con-
gress to issue rules and regulations. . . . In essence,
such a provision operates to make an employer
strictly liable for receiving such information from
law enforcement. Such an interpretation is beyond
the scope of the authority granted by Congress and
is irreconcilable with the express terms of the EPPA.

Clearly, the actual language of the EPPA requires
more than the employer’s passive receipt of poly-
graph information from law enforcement. . . .

In this case, the statute expressly uses the word
"accept," which has a plain meaning beyond mere
receipt. Moreover, the words of the statute surround-
 WORDEN v. SUNTRUST BANKS, INC. 17
ing "accept," namely "use," "refer to," and "inquire,"
all connote active participation by an employer. "Re-
ceipt" connotes no such active participation, a point
made dramatically clear by the circumstances of this
case where SunTrust did not request [Worden’s]
polygraph results from law enforcement, yet would
be liable under the DOL’s expansive interpretation
of the EPPA. When viewed in context of the express
language of the statute itself, it is clear that the regu-
lation goes beyond congressional intent. Therefore,
[the regulation] goes beyond the scope of authority
granted by Congress and will not be followed by the
[c]ourt.

Worden, slip op. at 16-17, 18-19.

We agree with the district court’s analysis. 29 C.F.R.
§ 801.4(c) is an "interpretive" and not a "legislative" regula-
tion because it merely "explains how a provision operates."
See Walton v. Greenbrier Ford, Inc., 370 F.3d 446, 452 (4th
Cir. 2004). As the district court correctly noted, this means
§ 801.4(c)

can only be upheld "if [it] implement[s] the congres-
sional mandate in a reasonable manner." [Walton,
370 F.3d at 452 (citing Pelissero v. Thompson, 170
F.3d 442, 446 (4th Cir. 1999))]. In making such a
determination, the Court must assess whether the
regulation " ‘represents a reasonable accommodation
of conflicting policies that were committed to the
agency’s care by the statute . . . [and] should not [be]
disturb[ed] . . . unless it appears from the statute or
its legislative history that the accommodation is not
one that Congress would have sanctioned.’" Chev-
ron[, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 845
(1984) (citing United States v. Shimer, 367 U.S. 374,
383 (1961)).]
18 WORDEN v. SUNTRUST BANKS, INC.
Worden, slip op. at 17.

In the absence of a definition from Congress in a statute, or
a clear congressional intent to the contrary, see Smith v.
United States, 508 U.S. 223, 228 (1993), we accord words in
a statute their "ordinary, contemporary, common meaning."
Walters v. Metropolitan Educ. Enter., Inc., 519 U.S. 202, 207
(1997) (internal quotation marks omitted). In addition, the
interpretive maxim noscitur a sociis states that "a word is
known by the company it keeps." See S.D. Warren Co. v.
Maine Bd. of Envtl. Prot., 547 U.S. 370, 378 (2006) (internal
quotation marks omitted).9 As the district court correctly con-
cluded, "accept" as defined "means something more than to
receive."10 Furthermore, the inclusion of "accept" in the same
statutory phrase as "use," "refer to," and "inquire concerning
the results" reflects a statutory intent that "accept" be read in
context as carrying similar meaning. Those terms all involve
an action by the employer greater than passive receipt. Thus,
both its dictionary definition and its context with the adjoin-
ing statutory terms under noscitur a sociis establish that "ac-
cept" means something other than mere unsolicited receipt for
§ 2002(2) purposes.

As the regulation adopts a mere receipt rule, it is contrary
to this plain statutory meaning, and it cannot, as a matter of
law, "implement[ ] the congressional mandate in a reasonable
9
The maxim noscitur a sociis "is invoked when a string of statutory
terms raises the implication that the words grouped in a list should be
given related meaning." Id. (internal quotation marks omitted). It provides
that "several items in a list share an attribute counsels in favor of interpret-
ing the other items as possessing that attribute as well." Beecham v. United
States, 511 U.S. 368, 371 (1994).
10
The district court quoted from Black’s Law Dictionary to support this
proposition, and other dictionary definitions also support this conclusion.
For example, the definition of "accept" in Webster’s Third New Interna-
tional Dictionary includes "to receive with consent . . . assent to the
receipt of . . . to be able to take or hold." Webster’s Third New Int’l Dictio-
nary 10-11 (2002).
 WORDEN v. SUNTRUST BANKS, INC. 19
manner." Accordingly, we hold that the district court did not
err in ruling 29 C.F.R. § 801.4(c) invalid.

Because the mere "receipt" of unsolicited polygraph results
does not constitute "accept[ance]" under § 2002(2), Worden’s
§ 2002(2) claim cannot succeed under the facts of this case.
We thus conclude SunTrust did not "accept" the polygraph
results within the intendment of § 2002(2) and therefore the
district court did not err in awarding summary judgment to
SunTrust as to the "accept" prong of the § 2002(2) claim.
Accordingly, we affirm the award of summary judgment as to
that part of the § 2002(2) claim.

2. "Use" and "Refer to"

The district court, after correctly determining summary
judgment was warranted on the § 2002(3) claim, also awarded
summary judgment as to the "use" component of Worden’s
§ 2002(2) claim because it "is completely duplicative of the
claim . . . regarding plaintiff’s discharge." Worden, slip op. at
15. Similarly, in rejecting Worden’s "refer to" prong of the
§ 2002(2) claim, the district court determined "the point is
moot because the ultimate outcome would not be any differ-
ent" because "plaintiff’s employment would have been termi-
nated even without knowledge of the polygraph results." Id.
at 20. With regard to both statutory prongs, the district court
misconstrued the operation of subsections (2) and (3) of
§ 2002 and failed to recognize that the statutory cause of
action under § 2002(2) is wholly separate and distinct from
the cause of action under § 2002(3).

Under the plain terms of § 2002(2), a § 2002(2) claim is not
dependent upon an employer’s liability under § 2002(3).
Rather, a § 2002(2) claim constitutes an independent basis for
asserting the liability of an employer. Although, as a practical
matter, the evidence establishing a § 2002(2) or § 2002(3)
claim may be substantially the same, liability under § 2002(2)
does not require the same proof as would be necessary to
20 WORDEN v. SUNTRUST BANKS, INC.
recover under § 2002(3). For example, no proof of an adverse
employment action is required under § 2002(2). Instead, the
plaintiff need only prove the employer "used" or "referred to"
the polygraph examination results. Thus, liability under
§ 2002(3) is not a condition precedent for a § 2002(2) claim.

How a plaintiff proves a § 2002(2) claim for "use, accept,
[or] refer to" as to the results of a polygraph examination,
when there is no cognizable claim for an employment action
under § 2002(3), may present a formidable burden. This is
particularly so as to damages, but it is plain that Congress saw
fit to create separate causes of action in §§ 2002(2) and
2002(3), and it was within the authority of Congress to do so.
As we have often noted, our judicial task is only to determine
the meaning of the statute as passed by Congress, not to ques-
tion the wisdom of the provision enacted. Sigmon Coal Co. v.
Apfel, 226 F.3d 291, 308 (4th Cir. 2000). "[A]s long as a stat-
ute is supported by a legitimate legislative purpose furthered
by rational means, judgments about the wisdom of such legis-
lation remain within the exclusive province of the promulgat-
ing entity." McDaniels v. United States, 300 F.3d 407, 412 n.2
(4th Cir. 2002) (internal quotation marks omitted).

It is evident that the district court determined it would not
recognize Worden’s § 2002(2) claim on the "use" or "refer to"
prongs only because Worden’s § 2002(3) claim had failed.
The district court’s grant of summary judgment on this part of
the § 2002(2) claim was thus grounded in the erroneous con-
clusion that the § 2002(2) claim was dependent upon the suc-
cess or failure of Worden’s § 2002(3) claim.

Because the district court’s rationale for the award of sum-
mary judgment on the "use" and "refer to" prongs was based
on an incorrect reading of the relationship of § 2002(2) and
(3), it erred in granting summary judgment on that portion of
Worden’s § 2002(2) claim. We therefore reverse the grant of
summary judgment as to the "use" and "refer to" portions of
Worden’s § 2002(2) claim. We also remand to the district
 WORDEN v. SUNTRUST BANKS, INC. 21
court for further proceedings the part of the § 2002 claim as
to whether SunTrust "use[d]" or "refer[red to]" the polygraph
results in violation of § 2002(2). As always, the analysis upon
remand should focus principally on the plain meaning of the
statutory text. See Conn. Nat’l Bank v. Germain, 503 U.S.
249, 254-55 (1992).11

IV.

For the foregoing reasons, we reverse the district court’s
judgment as to the "use" and "refer to" prongs of Worden’s
§ 2002(2) claim, affirm the award of summary judgment as to
the "accept" portion of Worden’s § 2002(2) claim and Wor-
den’s entire § 2002(3) claim. We remand this case for further
proceedings consistent with this opinion as to the portion of
the district court’s judgment that is reversed.12

AFFIRMED IN PART,
REVERSED IN PART,
AND REMANDED
11
"Use" is a broad term. In the context of the EPPA, it appears to mean
"to put into practice" or "to employ." Webster’s Third New Int’l Dictio-
nary, supra, at 2523-24. As to Worden’s claim that SunTrust "refer[red]
to" the polygraph results in violation of the EPPA, "refer" may be defined
as "to direct attention to [or] allude." Id. at 1907.
Even if the district court finds SunTrust "use[d]" or "refer[red] to" the
polygraph examination results in violation of § 2002(2), Worden must
prove he suffered damages as a direct result of the violation. Because we
have held that Worden would have been fired regardless of the polygraph
results, proving economic harm appears unlikely. As to non-economic
harms, the district court must determine on remand whether such damages
can be proven on these facts.
12
We do not address any of SunTrust’s other arguments that the district
court did not reach and to which SunTrust has not separately noted an
appeal. We specifically do not address the impact, if any, on a claim of
"use" or "refer to" of Worden’s voluntary transmittal of the results of the
polygraph results to SunTrust.