Id. The Secretary also held that the temporal proximity between the employee's suspension and Respondents' learning of the test result justified an inference that the test result was the likely reason for the suspension. Id. at 6.

have foreseen the examiner's actions or inactions;

(6) The explanation of the employer, including whether the violations were the result of a bona fide dispute of doubtful legal certainty;

(7) The extent to which the employee(s) or prospective employee(s) suffered loss or damage;

(8) Commitment to future compliance, taking into account the public interest and whether the employer has previously violated the provisions of the Act or this part.

Prior record
[29 C.F.R. § 801.42(b)(1)]

   In this case, Respondents have not been shown to have a previous record of any kind in regard to compliance or noncompliance with the EPPA. I find that the absence of a previous record of noncompliance is a significant mitigating factor.

Gravity of the violation
[29 C.F.R. § 801.42(b)(2) and (3)]

   The gravity of the violation factor has both mitigating and nonmitigating elements. Only one employee was involved. (see Tr. at 217) The Secretary held that there were sufficient grounds to discharge that employee even prior to the administration of the polygraph test, and that Respondents were entitled to administer a polygraph test pursuant to the ongoing investigation exception (although that entitlement was nullified when they didn't comply with post-test requirements). Respondents' non-compliance only involved one element of the post-testing requirements for the ongoing investigation exemption. I also note Respondents' somewhat ironic argument that its choice to administer a polygraph test before implementing any discipline was, in a sense, an exhibition of restraint. I note that the employee did not believe that there was any malice involved by Respondents in administering the polygraph test. (Tr. at 217)

   It appears, however, that the final decision to suspend the employee was made as a proximate result of the polygraph test, even if it was only a contributing factor to the suspension. When Respondents' chose to administer a polygraph test, the employee was entitled to the specific protections of the EPPA. Moreover, compliance with the requirement of providing an employee with copies of the test examiner's opinion and questions used during the test prior to taking any adverse employment action should not have been a difficult or ambiguous matter with which to comply. Respondents' decision to almost immediately suspend the

employee, many days before the materials were provided to her, cannot be easily written off as a "technical" violation. (see Respondents' remand brief at 19).

   Balancing these factors, I find that the gravity of the violation element is neither a mitigating nor an aggravating factor in this matter.

Good faith compliance
[29 C.F.R. § 801.42(b)(4)]

   In regard to the factor of good faith compliance with the EPPA, nothing in the circumstances surrounding the violation at issue show a reason for mitigation (e.g., that attempts to provide the employee with the materials had failed, or that Respondent had a good faith belief that the employee had been provided with the materials). It appears that Respondents otherwise complied with the EPPA - but I find that this is a neutral factor in regard to the violation at issue rather than a mitigating factor.

Test examiner's inactions
[29 C.F.R. § 801.42(b)(5)]

   Respondents testified that the charted responses were never sent to the employee because they were never received from the examiner. See Sec'y Dec., Slip op. at 5, citing Tr. at 163, 183. I do not consider this to be a mitigating factor, however, because there is no evidence that Respondents made any effort to obtain the materials after they became aware that they were missing. Rather, this factor has a slight aggravating effect in that it shows a lack of commitment by Respondents to supplying the employee with test results in compliance with the regulation at 29 C.F.R. § 801.25(a)(2). The aggravating effect of this lack of initiative, however, is dampened by the test examiner's evidently being the person who did not supply the test results.

Respondents' explanations, including "doubtful legal certainty"
[29 C.F.R. § 801.42(b)(6)]

   Respondents' explanation is essentially that it only suspended the employee, and gave her a chance to respond to the test. (see Respondents' remand brief at 6-7, 14-15) Thus, Respondents pin part of the blame on the employee for not responding to a note enclosed with the test questions when they finally were sent to the employee asking her to call if she wished to discuss the examination. I do not find any particular mitigating effect of the fact that Respondents technically only suspended the employee or that the employee did not respond to the note. The EPPA requires refrain from "any adverse employment action" prior to providing the required materials to the employee.

   Respondent has not argued that the violation at issue was "the

result of a bona fide dispute of doubtful legal certainty", and I find that this is not a mitigating factor.

   I find that the element described by section 801.42(b)(6) of the regulations is neither a mitigating nor an aggravating factor in this case.

Extent of loss or damage to employee
[29 C.F.R. § 801.42(b)(7)]

   The employee in this matter was suspended and ultimately replaced. The Secretary invoked an inference that the test result was the likely reason for the suspension. Moreover, Mr. Scrivener testified that he based the suspension on "[t]he information I had collected, the still unresolved shortage of $134 and the disappointing results of the test." (Tr. 207, emphasis added) The Secretary also found, however, that there had been sufficient ground for discharge of the employee even prior to administration of the polygraph test, and that Respondents were entitled to the administer the test under the ongoing investigation exemption (although that entitlement was nullified by its failure to heed post-testing requirements). I find that it was quite possible that this employee would have been discharged or suspended even if the polygraph test had never been administered. (see Respondent's Exhibits 3 to 8; testimony of Richard Scrivener, Tr. at 143 acceptable levels of cash shortages, Tr. at 144-157, 159-161, 173-182, 185-187, 207-208, discussion of circumstances relating to suspicion of employee; and Patsy Dennis, Tr. at 190-206). On the other hand, it cannot be denied that at least part of the immediate motivation for the suspension was the result of the polygraph test, and that it was the proximate contributing factor in the decision to suspend the employee. Thus, at least some of the employee's ultimate loss of employment with Respondents is related to the administration of the polygraph test.

   Although it is likely that the employee suffered some denigration of income by the suspension, the record is devoid of evidence of the quantity of any such loss. In fact, the employee testified that she was working another job at the same time she was working for Respondent, and that she continued that work after the suspension by Respondent. (Tr. 123) Accordingly, I cannot find that the employee suffered any specific economic loss or damage as the result of Respondent's administration of a polygraph test.

   Not all loss or damage is quantifiable in pecuniary terms. The employee here did suffer damage to her legal right to be provided with a copy of the examiner's opinion and questions prior to adverse employment action. Undoubtedly this is the very loss or damage that the civil money penalty is meant to address, however, and it is a neutral factor in terms of mitigation or aggravation of the penalty under the facts and circumstances of this case.

   Thus, I find that although there was probably some pecuniary loss or damage to the employee's income, it is not a significant aggravating factor in this case because

only part of that loss was directly attributable to the polygraph test (the rest being attributable to the pre-test events leading up to the suspension, such as the employee's history of problems with resolving her cash drawer) and because there is no evidence in the record identifying the scope of that probable loss or damage.

Commitment to future compliance
[29 C.F.R. § 801.42(b)(8)]

   In regard to this element, Respondents' point to their commitment "to the field auditor to forego the administration of any other polygraph examination until this matter was finally determined." (Respondents' remand brief at 20; see also Tr. 89-90). This is not a commitment to future compliance, and cannot be considered a mitigating factor. I note the Regional Deputy Administrator's testimony that, in fact, Respondent considered the EPPA to be designed to protect thieves and similar individuals. (Tr. 89) Given the hearsay nature of this testimony, and the fact that this point was not developed at the hearing, I do not consider it to be an aggravating factor in this case.

Knowing and willful violations

   In State Employees Credit Union, the Secretary mentioned as a mitigating factor the absence of a reason to believe that the violations were knowing and willful. In the instant case, the record shows that Respondent provided the employee with a notice that explicitedly states the post-testing requirements. (JX 2, p 3) Thus, it appears to have been a knowing violation. I cannot, however, find that this was a willful violation because Mr. Scrivener's testified that he suspended the employee because he wasn't sure what to do, and needed to talk to the manager and other office personnel. (Tr. at 162) Nonetheless, Mr. Scrivener acted with reckless disregard for the post-testing requirements when he almost immediately suspended the employee upon learning the results of the polygraph test. I find this to be an aggravating factor.

Summary of mitigating and aggravating factors

   In sum, I find one strong mitigating factor in this case -- absence of prior violations. I find as a significant aggravating factor that Mr. Scrivener recklessly disregarded the post-testing requirements of the EPPA, and as a slight aggravating factor Respondents' failure to take steps to obtain the charted responses from the examiner. All other factors listed in 29 C.F.R. § 801.42(b) in this case are neither mitigating nor aggravating under the facts of this case, and I find no other mitigating or aggravating factors in the record.

VIOLATION(S) ASSESSED

   In this matter, the Administrator assessed a penalty of $2,000 for the violation of section 3(1) of the Act, 29 U.S.C. § 2002(1) (administering an unlawful polygraph), and $10,000 for the violation of section 3(3) of the Act, 29 U.S.C. § 2002(3)(taking adverse employment action based on the polygraph results). Specifically, the Administrator provided the following "Penalty Assessments by Statutory Section" as an attachment to its determination letter to Respondents:

Section 3(1): In contravention of this section, the employee named below was unlawfully administered a polygraph examination. The examination was not administered within the scope of the ongoing investigation exemption in that the employee was not provided with a written statement specifying with particularity reasonable suspicion and in that the employer, prior to suspending/terminating the employee, did not satisfy the post-test phase requirements of section 8 of the Act.

          Employee Name                     Penalty Amount
          _____________                      _____________  
          Deana M. Box                              $2,000.

Section 3(3)(B): In contravention of this section, the employee named below was discharged based on the results of an unlawful polygraph examination.

          Employee Name                     Penalty Amount
          _____________                      _____________
          Deana M. Box                            $10,000.

                                                    ___________
      Total Amount of Assessment         $12,000.

(JX 7, p 3)

   In addition, the record contains W-H Form 525 Employee Polygraph Protection Act Civil Money Penalty Report which shows a similar calculation of the civil money penalty by the Compliance Officer. (Respondent's Exhibit 13). The record also contains the testimony of the Deputy Regional Administrator in which he describes how the civil money penalty amount was determined. (Tr. 54-92) In all of this evidence, it is clear that the $2,000 penalty was intended to cover violations of both pre-testing and post-testing requirements, and that the $10,000 penalty was for the actual suspension.

    Respondents are hereby ordered to pay a civil money penalty of $2,500 for the violation of 29 U.S.C. § 2007(b)(4).

At Washington, D.C.

JOHN M. VITTONE

Chief Administrative Law Judge

JMV/trs

NOTICE OF REVIEW: Within twenty days after the date of this Decision and Order, Respondents, the Administrator, or any other party desiring review, may file with the Secretary a petition for issuance of a Notice of Intent to modify or vacate this Decision and Order. Any such petition must conform to the procedural requirements stated in 29 C.F.R. § 801.69. It should be noted that on April 17, 1996, the Secretary delegated to the Administrative Review Board the authority and responsibility to act for the Secretary of Labor in issuing final agency decisions on questions of law and fact arising in review or on appeal of decisions by ALJs under the Employee Polygraph Protection Act. See 61 Fed. Reg. 19978 (1996).