           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                                             Fifth Circuit
                                                                          F I L E D
                                                                          August 30, 2007
                                     No. 06-61063
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk

KIMBERLY PARKS

                                                  Plaintiff - Appellant
v.

MISSISSIPPI DEPARTMENT OF TRANSPORTATION; MISSISSIPPI
TRANSPORTATION COMMISSION

                                                  Defendants - Appellees



                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                            USDC 1:04-cv-00240-MPM


Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Kimberly Parks appeals the district court’s denial of
her motion for judgment as a matter of law and new trial on four grounds: (1)
The use of polygraph tests by Defendants-Appellees Mississippi Department of
Transportation and Mississippi Transportation Commission (“Mississippi” or




       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                         No. 06-61063

“the State”) violates Title VII's anti-retaliation provision;1 (2) under Title VII,
Mississippi should have "posted" (i.e., made obvious on or in intra-office
materials) that polygraph tests would be required following the filing of a
discrimination claim; (3) the district court erred in admitting testimony that the
alleged sexual harasser had passed a polygraph examination; and (4)
alternatively, the district court erred in its instructions to the jury on the use of
the polygraph.
       First, Parks insists that mandating polygraph examinations for employees
who file sexual harassment claims is a per se violation of Title VII’s anti-
retaliation clause.         This argument fails because Parks fundamentally
mischaracterizes the facts of this case. Mississippi does not routinely require
an employee who asserts such a claim to take a polygraph test, and Mississippi
did not fire Parks for her refusal to take such a test in this instance. Parks’s
refusal was only the "last straw" in the State’s sexual harassment investigation.
As soon as Parks reported the alleged misconduct, Mississippi promptly
transferred her out of the department supervised by her alleged sexual harasser
and began what appears to have been a thorough, good faith investigation into
her claim. As she and her accused told diametrically opposed stories, the State
was faced with a stereotypical “he-says-she-says” swearing match, forcing the
employer to do what it could to ferret out the truth. Only when investigators
remained uncertain about the validity of Parks's allegations did Mississippi ask
both Parks and the alleged harasser to submit to polygraph tests. The alleged
harasser took the polygraph and passed, but Parks continually refused. This
refusal and all previous information accumulated during the course of its

       1
         The anti-retaliation provision of Title VII of the Civil Rights Act of 1964 provides that:
“It shall be an unlawful employment practice for an employer to discriminate against any of
his employees...because he has opposed any practice made an unlawful employment practice
by this subchapter, or because he has made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. §
2000e-3(a).

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investigation led Mississippi to conclude that Parks had lied. Mississippi fired
Parks because it concluded that she had submitted a false sexual harassment
claim, not because she refused to take a polygraph examination. Parks's refusal
to submit to the polygraph was only one of several factors that led to the belief
that she had submitted a false accusation; it was this belief that was the
proximate cause of her termination.
      Even if, arguendo, Mississippi had fired Parks solely because of her refusal
to take the polygraph, making her refusal to take the polygraph the precipitating
cause of her termination, her claim that mandating polygraph tests for
employees who report sexual harassment are unlawful retaliation as a matter
of law still would fail. A per se rule against polygraph exams in harassment
disputes under Title VII would be overbroad.         As this action illustrates,
harassment disputes tend to be fact-intensive and case-specific. We agree with
the district court that the question whether the use of polygraph tests is
retaliatory is best left to a jury in each case. The per se rule that Parks seeks
would be incompatible with the fact-sensitive nature of this and other
harassment disputes.
      Parks's second argument is also without merit. She does not provide any
compelling precedent to indicate that Mississippi had a duty to disclose its
polygraph examination "requirement." Although Parks's argument assumes
that Mississippi had a polygraph examination "requirement," the evidence
suggests the opposite, viz, that it was not Mississippi's standard operating
procedure in sexual harassment investigations to require all involved parties to
submit to polygraph exams. Mississippi asked Parks and the alleged sexual
harasser to take polygraphs only during the final stages of an investigation that
had, to date, yielded inconclusive results. Parks argues that Mississippi's level
of disclosure did not meet Title VII's standard, which specifies that an employer
"shall post and keep posted in conspicuous places upon its premises...information

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pertinent to the filing of a complaint."2 But Mississippi prominently displayed
posters in Parks's office area outlining employee rights under Title VII and
detailed the State's sexual harassment policy in its employee handbook, which
Park possessed. The State's level of disclosure gave Parks notice of her rights
and outlined the specifics of how she should file a claim. This disclosure satisfies
Title VII's "information pertinent" standard. Although Parks insists that if she
had known the State would request a polygraph examination, she would never
have filed a sexual harassment claim, we believe that it is highly improbable
that legitimate victims of sexual harassment would be deterred from filing a
harassment claim simply because they might be asked to submit to a polygraph
test.
        Finally, Parks contends that the district court erred in admitting
testimony that the alleged sexual harasser had passed the polygraph test or,
alternatively, that the court erred in its jury instructions concerning the
appropriate use of the polygraph. Regardless of whether Parks might be barred
from raising these arguments because she did not present them in her motion
for judgment as a matter of law and new trial, both of these arguments fail on
the merits because Parks again mischaracterizes the facts. As discussed above,
Mississippi did not terminate Parks simply for refusing to submit to a polygraph
examination, vel non, but because her refusal to submit to a polygraph tipped
the balance of the investigation against her, leading the State to conclude that
her claim was false. Both Parks's objection to testimony that the alleged
harasser passed a polygraph examination and Parks's proposed jury instructions
concerning the reliability of polygraphs misconstrue the purpose of the
polygraph evidence in this case. The reliability of polygraph examinations was
not at issue in the trial.             Mississippi did not offer the alleged harasser’s



        2
            42 U.S.C. § 2000e-10(a).

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polygraph examination for its truth or to prove that Parks lied about her claim.
It did so to demonstrate that it had a reasonable, good faith belief that Parks
had filed a false claim — that the State was justified in using Parks’s refusal to
submit to a polygraph, together with other evidence, to conclude that she had
filed a false claim and therefore should be terminated.
      The judgment of the district court is
AFFIRMED.




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