                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                                       PUBLISH
                                                                        August 29, 2006
                      UNITED STATES CO URT O F APPEALS
                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
                                  TENTH CIRCUIT



 M A RK FER NA N D EZ; D O N A BREU,

              Plaintiffs-Appellants,

 v.                                                     No. 05-2130

 M ORA-SAN M IGUEL ELECTRIC
 CO OPERA TIVE, INC .; FOURTH
 JUDICIAL DISTRICT ATTORNEY’S
 O FFICE; LU CER O PR OFESSIO NAL
 SERVICES, LTD.; CARL ARM IJO , in
 his individual and official capacities,

              Defendants-Appellees,

 and

 M ORA COUNTY SHERIFF’S
 OFFICE; ERNESTO GONZA LES;
 LEV I A LC ON ; Y V ETTE A LC ON,

              Defendants.



            A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
                     FOR T HE D ISTRICT OF NEW M EXICO
                         (D.C. No. CIV-03-1334 RB/W DS)


Submitted on the briefs: *


  *
         After examining the briefs and appellate record, this panel has determined
  unanimously that oral argument would not materially assist the determination of
  this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
                                                                           (continued...)
M ichael E. M ozes, Law Offices of M ichael E. M ozes, P.C., Albuquerque,
New M exico, for Plaintiff-Appellants.

Jerry A. W alz, W alz and Associates, Cedar Crest, New M exico, for
Defendants-Appellees Fourth Judicial District Attorney’s Office and Carl Armijo.

David A. Rammelkamp, Elizabeth A. Heaphy, Rammelkamp, M uehlenweg &
Cordova, P.A., Albuquerque, New M exico, for Defendant-Appellee Lucero
Professional Services, Ltd.


Before BR ISC OE, M cKA Y, and BROR BY, Circuit Judges.


BR ISC OE, Circuit Judge.




      M ark Fernandez and Don Abreu appeal the district court’s pre-trial

disposition of certain claims in this suit against polygraph examiner Lucero

Professional Services (LPS), the N ew M exico Fourth Judicial District Attorney’s

Office (DAO), the DAO’s chief inspector Carl Armijo, and Fernandez and

Abreu’s former employer M ora-San M iguel Electric Cooperative, Inc. (the

Co-op). Specifically, both Fernandez and Abreu appeal the district court’s grant

of summary judgment to LPS under the Employee Polygraph Protection Act

(EPPA ), 29 U.S.C. § 2001-2009. Abreu also appeals (1) the district court’s grant

of judgment on the pleadings to Armijo and the DAO on his state-law tort claim




*
 (...continued)
therefore ordered submitted without oral argument.

                                        -2-
of conspiracy to violate constitutional rights, and (2) the district court’s grant of

summary judgment to the Co-op and Armijo on his 42 U.S.C. § 1983 claim that

they violated his constitutional and statutory rights. W e have jurisdiction under

28 U.S.C. § 1291, and we AFFIRM .

                                           I.

      Fernandez and Abreu were employed by the Co-op. During the weekend of

April 11-13, 2003, one of the Co-op’s air compressors disappeared. The Co-op

notified the M ora County Sheriff’s Office (M CSO ), and Officer Ray Cordova

began an investigation. Because the air compressor had disappeared from a yard

with a locked gate that was not forced, the investigation focused on the C o-op’s

employees. Near the end of June, the DAO became involved in the investigation.

      W hen the investigation failed to yield results, the Co-op decided to have

suspected employees take polygraph tests. In early July, the Co-op’s attorney,

Nicholas Leger, contacted Eric Lucero, the principal of LPS, and requested that

LPS conduct polygraph examinations of some of the Co-op’s employees. Lucero

stated that he could not test employees for the Co-op, but that he would

administer polygraph tests to Co-op employees if requested in conjunction with a

criminal investigation.

      W ithin a few days, the DAO’s chief investigator, Carl Armijo, called

Lucero and requested LPS conduct polygraph tests of the Co-op’s employees.

The day before the examinations, Leger sent Lucero a memorandum describing

                                          -3-
the facts known to the Co-op and setting the schedule for the examinations.

Lucero then administered polygraph tests to four Co-op employees, including

Fernandez and Abreu. Fernandez and Abreu failed the examinations.

      Lucero sent his report to Armijo and Cordova, and he sent LPS’s bill to

Armijo. Leger contacted Lucero and told him that the DAO would not pay for the

tests. He told Lucero that the Co-op would pay for the tests and that Lucero

should send him an invoice. When Leger asked for the results of the tests, Lucero

told him that he could not disclose the test results to the Co-op. He suggested

that Leger talk to Armijo, because the DAO might release the test results to the

Co-op as a crime victim. The DAO provided the results of the tests to the Co-op,

which then terminated Fernandez and Abreu’s employment.

      Fernandez and Abreu sued the Co-op, LPS, Armijo, the DAO, and the

M CSO under the EPPA , 42 U.S.C. § 1983, and New M exico state law. The

district court disposed of the majority of the claims prior to trial, dismissing some

and granting summary judgment on others. The EPPA claims against the Co-op

went to trial, and a jury found in favor of Fernandez and Abreu. Fernandez and

Abreu now appeal the pre-trial disposition of their EPPA claims against LPS, and

Abreu appeals the pre-trial disposition of his tort claims against the DAO and

Armijo and his § 1983 conspiracy claim against Armijo and the Co-op.




                                          -4-
                                         II.

                                         A.

      First, both Fernandez and Abreu assert that LPS violated the EPPA . The

district court granted summary judgment to LPS on the grounds that the EPPA

only covers “employers” and that LPS w as not an “employer” as defined by that

statute. Summary judgment is appropriate if the record shows “that there is no

genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(c). This court reviews “the

district court’s grant of summary judgment de novo, applying the same legal

standard used by the district court.” Simms v. Okla. ex rel. Dep’t of M ental

Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir. 1999).

“[W]e view the evidence and draw reasonable inferences therefrom in the light

most favorable to the nonmoving party.” Id.

      The EPPA restricts the conduct of, and provides remedies against, an

“employer” regarding the use of lie detector tests. See 29 U.S.C. §§ 2002, 2005.

The statute defines “employer” as “any person acting directly or indirectly in the

interest of an employer in relation to an employee or prospective employee.”

Id. § 2001(2). Under the regulations, a polygraph examiner generally is not

considered an “employer.” See 29 C.F.R. § 801.2(c) (“A polygraph examiner

either employed for or whose services are retained for the sole purpose of




                                         -5-
administering polygraph tests ordinarily would not be deemed an employer with

respect to the examinees.”). “Ordinarily,” of course, does not mean “never.”

      Other courts have adopted the “economic reality” test to determine whether

a polygraph examiner is an “employer” for purposes of the EPPA. This test

focuses on whether “as a matter of economic reality, that person or entity exerts

some degree of control over the employer’s compliance with EPPA .” Rubin v.

Torneau, Inc., 797 F. Supp. 247, 253 (S.D.N.Y. 1992). It stems from cases

interpreting the Fair Labor Standards Act, which defines “employer” the same

way as the EPPA. See id. at 252 (“Just as the phrase ‘acting directly or indirectly

in the interest of an employer in relation to an employee’ is applied to effect

FLSA’s purpose, so too, . . . must it be applied to effect EPPA’s

purpose— restricting the use of lie detectors in the work place.”). Given

C ongress’s use of the same language in defining the term “employer” in the two

statutes, and because we agree with the reasoning of other courts that have

adopted this test, we approve using the economic reality test in evaluating

w hether a polygraph examiner is an “employer” for purposes of EPPA.

      The Fifth Circuit summarized four factors courts have considered in

applying the economic reality test:

      [D]istrict courts have considered whether the examiner (1) decided
      that a polygraph examination should be administered; (2) decided
      which employee would be examined; (3) provided expertise or advice
      to the employer regarding compliance with EPPA ’s requirements, or
      the employer relied on the examiner to ensure compliance; or

                                         -6-
      (4) decided whether the examined employee would be subjected to
      disciplinary action, or merely reported the results of the polygraph
      examination to the employer.

Calbillo v. Cavender Oldsmobile, Inc., 288 F.3d 721, 727 (5th Cir. 2002).

Like the Fifth Circuit, we “do not, and need not, further define the scope of the

‘economic reality’ test” to consider w hether LPS qualifies as an employer. Id.

      It is undisputed that LPS had no role in the decision to terminate Fernandez

and Abreu’s employment, so appellants’ arguments focus on the other three

factors. First, appellants argue that, by directing the Co-op how to get the tests

taken, LPS decided that polygraphs should be taken. Appellants’ suggestion is

rather attenuated. The record shows that it was the Co-op, then Armijo, who

contacted LPS about taking polygraphs. This indicates that it was the Co-op

and/or Armijo who decided polygraphs should be taken. This factor does not

support imposing liability on LPS.

      Appellants also suggest that LPS advised the Co-op how employees should

be selected for the polygraphs. Again, this inference is too attenuated to support

liability. The record indicates that Lucero stated that he could not test Co-op

employees as Leger originally requested, and that he would perform tests if

requested by law enforcement and the individuals to be tested were identified by

law enforcement. There is no suggestion that Lucero suggested or identified the

specific employees to be tested, directly or indirectly. This situation is

distinguishable from the examiner having a role in selecting the particular

                                          -7-
employees to be tested. Cf. Rubin, 797 F. Supp. at 253 (noting that the examiner

allegedly “represented it would inform [the employer] w hich employees could

be examined law fully”). Thus, this factor also does not support imposing liability

on LPS.

       Finally, appellants assert that Lucero advised the Co-op about compliance

with the EPPA and the circumstances under which the Co-op employees should be

polygraphed. In support, they primarily rely on Lucero’s comments to Leger that

the tests would have to be taken in conjunction with a law enforcement

investigation and that the Co-op might be able to get the results of the tests from

the DAO.

       W e have found only one case discussing the “advice” factor in any detail.

In Rubin v. Torneau, Inc., the examiner, who was also an investigator, was hired

to investigate missing inventory. 797 F. Supp. at 248. He allegedly assured the

employer he would identify which employees could lawfully be polygraphed and

he would conduct the examinations in compliance with the EPPA. Id. at 248-49,

253. Construing the facts in the light most favorable to the appellants, the court

determined the examiner might qualify as an employer and declined to dismiss the

case. 1 Id. at 253.




1
      Contrary to appellants’ argument, Rubin involved a motion to dismiss for
lack of subject matter jurisdiction, not summary judgment.

                                         -8-
      The only other case allowing a claim against a polygraph examiner to

proceed because the examiner may have exercised “some degree of control over

the employer’s compliance with the EPPA” does not explain exactly what the

examiner did. James v. Professionals’ Detective Agency, Inc., 876 F. Supp. 1013,

1016 (N.D. Ill. 1995). That case involved a motion to dismiss, and the complaint

made the appropriate allegations of employer status. Id. The court suggested

that, if the evidence did not show that the examiner did more than administer the

tests, the examiner should file a motion for summary judgment. Id.

      In contrast to the situation in Rubin, Lucero did not make any assurances to

the Co-op about EPPA compliance, and LPS was not hired to ensure EPPA

compliance. Notably, Lucero’s contacts with the C o-op were through the C o-op’s

attorney, whose duty it was to advise the Co-op about its legal responsibilities.

See Calbillo, 288 F.3d at 728 n.4 (stating that it was not reasonable to infer that

the employer looked to the polygraph examiner for legal advice, when the

employer had hired attorneys to advise it). Further, the statements were in the

nature of gratuitous comments, not so much about EPPA compliance, as

explanations why LPS w ould not assist the Co-op. In Calbillo, the Fifth Circuit

declined to find employer status for an examiner, despite inferring from the

record that the examiner “may have answered the attorneys’ questions regarding

the technical procedures involved in performing a polygraph examination and he




                                          -9-
might have even discussed some of the general requirements under the EPPA and

the Secretary’s regulations.” 288 F.3d at 728 n.4.

      Appellants contend that Lucero should have known the arrangement was a

sham to allow the C o-op to circumvent the EPPA, arguing “from the very

beginning LPS knew that the Cooperative was the driving force behind the

polygraphs. LPS then worked with the C ooperative to satisfy the employer’s

request for these polygraphs.” Aplt. Br. at 17. So long as LPS did not involve

itself sufficiently to be considered an “employer,” however, whether it knew or

should have known that the arrangement was a sham is not relevant to its liability

under the EPPA. Simply put, if LPS is not an “employer,” it is not subject to

EPPA liability. An examiner is not necessarily liable merely because a particular

examination violated the EPPA. See Calbillo, 288 F.3d at 728 (affirming

summary judgment for examiner); Fallin v. M indis M etals, Inc., 865 F. Supp. 834,

840 (N .D. Ga. 1994) (granting summary judgment to examiner).

      For these reasons, the district court did not err in granting summary

judgment to LPS on appellants’ EPPA claims.

                                         B.

      Abreu asserted a state-law tort claim that Armijo, the DAO, and the M CSO

conspired to violate his constitutional rights. As relevant on appeal, the district

court granted judgment on the pleadings to Armijo and the DAO, holding that the

state had not waived its sovereign immunity against such claims. Specifically,

                                        -10-
the court determined that the New M exico Tort Claims Act’s (NM TCA) waiver of

sovereign immunity for the actions of a “law enforcement officer” did not apply

to Armijo. This court reviews a defense motion for judgment on the pleadings de

novo. Soc’y of Separationists v. Pleasant Grove City, 416 F.3d 1239, 1240-41

(10th Cir. 2005). “As with a ruling under Fed. R. Civ. P. 12(b)(6), we uphold a

dismissal only when it appears that the plaintiff can prove no set of facts in

support of the claims that would entitle the plaintiff to relief.” Id. (quotation

omitted).

      The NM TCA preserves sovereign immunity against tort claims for state

governmental entities and public employees acting in the scope of their duties,

except as specifically waived. N.M . Stat. § 41-4-4(A). It waives sovereign

immunity for tort claims involving the conduct of a “law enforcement officer.”

Id. § 41-4-12. The statute defines “law enforcement officer” as “a full-time

salaried public employee of a governmental entity whose principal duties under

law are to hold in custody any person accused of a criminal offense, to maintain

public order or to make arrests for crimes, or members of the national guard when

called to active duty by the governor.” Id. § 41-4-3(D). Abreu’s claim against

the DAO must rest on its potential liability for Armijo’s conduct, because an

agency cannot be “a full-time salaried public employee” as required by the

definition of “law enforcement officer.” See Dunn v. M cFeeley, 984 P.2d 760,

766 (N.M . Ct. App. 1999).

                                         -11-
      Abreu argues that the district court “merely applied a mechanical and stiff

interpretation” of the NM TCA definition, and that “[s]uch an interpretation flies

in the face of the functional approach adopted by the New M exico courts.” Aplt.

Br. at 21. He contends Armijo and the DAO “performed routine, police-like

functions in investigating the missing compressor.” Aplt. Br. at 20.

      The New M exico approach pays more deference to the statutory definition

than Abreu implies. The New M exico courts take the definition as their starting

point, examining whether the particular defendant’s primary duties fit into any of

the statutory criteria. In Anchondo v. Corr. Dep’t, 666 P.2d 1255, 1257

(N.M . 1983), the N ew M exico Supreme Court stated, “[i]n determining whether a

person is involved in law enforcement work, this Court has adhered to the concept

of traditional law enforcement activities,” which it indicated “include preserving

the public peace, preventing and quelling public disturbances, [and] enforcing

state laws, including but not limited to the power to make arrests for violation of

state laws.” It is the employee’s primary duties which are the crux of the inquiry.

“The statutory requirement that the defendants be law enforcement officers does

not focus on the defendants’ specific acts at the time of their alleged negligence.

Instead it simply requires that the defendants’ principal duties, those duties to

which they devote a majority of their time, be of a law enforcement nature.”

Weinstein v. City of Santa Fe, 916 P.2d 1313, 1317 (N.M . 1996).




                                         -12-
        Further, even if a public employee is authorized to exercise some of the

traditional functions of law enforcement officers, he or she does not necessarily

come under the waiver provision. In Dunn v. New M exico, 859 P.2d 469, 472

(N.M . Ct. App. 1993), the court held the Director of the M otor Vehicle Division

was not a law enforcement officer, even though he was statutorily invested with

the pow er to act as a peace officer to enforce the M otor Vehicle Code, because

his duties primarily involved administrative matters. In Vigil v. M artinez,

832 P.2d 405, 411-12 (N.M . Ct. App. 1992), the court held that probation and

parole officers w ere not “law enforcement officers”; although they occasionally

held persons in custody and had some powers of arrest, neither was a principal

duty.

        The New M exico appellate court has held, in other circumstances, that

non-attorney employees of the DAO were not “law enforcement officers.”

See Abalos v. Bernalillo County Dist. Att’y’s Office, 734 P.2d 794, 801

(N.M . Ct. App. 1987) (holding that employees who processed paperwork to notify

detention center of indictment and warrant were not involved in holding accused

persons in custody so as to be considered “law enforcement officers”); see also

Coyazo v. New M exico, 897 P.2d 234, 236 (N.M . Ct. App. 1995) (holding that

“law enforcement officer” does not include “district attorneys in their

prosecutorial role” because they do not engage in traditional law enforcement

activities).

                                         -13-
      Looking solely at the pleadings, judgment for appellees was warranted, as

Abreu’s complaint merely states that Armijo is the “chief investigator” for the

DAO. Aplt. App. at 71. It does not allege that Armijo is a “law enforcement

officer” or describe his duties to show that he fits within § 41-4-12’s waiver.

Cf. Dunn v. M cFeeley, 984 P.2d at 767 (“[O]ur appellate courts have repeatedly

found that a connection to law enforcement activity, even being a member of the

law-enforcement team, is insufficient by itself to make one a law enforcement

officer; the person’s duties must directly impact public order.”).

      Even if we were to look beyond the pleadings, the record does not indicate

that Armijo is a “law enforcement officer” for purposes of the NM TCA. Armijo

testified that his “main job is to assist the attorneys in preparation for preliminary

hearings, grand juries, trial, assist different agencies with their investigations,

help on search warrants.” Aplt. App. at 448. He supervises the assignments of a

deputy and two investigators. Id. at 449. He also accepts assignments from

district attorneys, the DAO office manager, the director of the pre-prosecution

diversion program, and DAO finance people. Id. These facts do not support an

inference that Armijo’s primary duties are holding persons in custody,

maintaining public order (except in the sense of putting criminals behind bars that

Coyazo rejected, 897 P.2d at 236), or making arrests for crimes.

      Armijo’s investigatory duties appear closest to a traditional law

enforcement activity. Looking at the pleadings, such duties arguably were

                                          -14-
invoked by the complaint’s description of Armijo’s position as “chief

investigator.” W e decline to hold, however, that investigations alone are

sufficient to make an employee a “law enforcement officer” for NM TCA

purposes. The statute does not mention a primary duty of investigating crimes,

instead focusing on other duties. M oreover, while criminal investigations are a

duty of police officers, see N.M . Stat. § 29-1-1, they can also be undertaken by

private investigators and other private parties. Thus, investigations qualitatively

differ from the duties described in the statutory definition and the

law-enforcement functions identified by the New M exico courts (i.e., making

arrests, custody of pre-trial detainees), which are generally reserved to police

officers.

      Because New M exico has not waived its sovereign immunity, the district

court did not err in granting judgment on the pleadings to Armijo and the DAO on

Abreu’s state-law tort claim.

                                          C.

      Finally, Abreu asserted that the Co-op and Armijo conspired to take the

polygraphs and thereby violated his constitutional and statutory rights. The

district court granted summary judgment to appellees on this claim. As stated, w e

review a grant of summary judgment de novo, viewing the facts in the light most

favorable to the non-moving party. Simms, 165 F.3d at 1326.




                                         -15-
      Abreu argues that the district court erred in stating he had presented

insufficient evidence to create a genuine issue of material fact. Our review

indicates, however, that there was no error in the district court’s evaluation.

Abreu seems to be advocating a “joint action” theory of § 1983 liability. See

Sigmon v. CommunityCare HM O, Inc., 234 F.3d 1121, 1125 (10th Cir. 2000)

(construing conspiracy argument as assertion of a “joint action” theory). “W hen a

plaintiff seeks to prove state action based on a conspiracy theory, a requirement

of the joint action charge . . . is that both public and private actors share a

comm on, unconstitutional goal.” Id. at 1126 (quotation omitted; ellipsis in

original). Abreu must demonstrate “a single plan, the essential nature and general

scope of which was known to each person who is to be held responsible for its

consequences.” Snell v. Tunnell, 920 F.2d 673, 702 (10th Cir. 1990) (quotation

and alteration omitted).

      On appeal, Abreu provides no record cites for the evidence that he claims

creates a genuine issue of material fact. In addition, he largely relies on a general

statement, saying, “[n]either time nor space allow for a complete rendition of the

facts A breu genuinely disputed and upon which the district court inappropriately

interpreted in granting Armijo summary judgment on the § 1983 conspiracy

claim.” Aplt. Br. at 25. These types of unsupported argument do not justify

reversal. See Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1546 (10th Cir. 1995)

(“W ithout a specific reference, we will not search the record in an effort to

                                          -16-
determine w hether there exists dormant evidence which might require

submission of the case to a jury.” (quotation omitted)).

      Even if Abreu had properly supported his argument, the facts do not appear

sufficient for a jury to find a single, unlawful plan. The evidence might establish

a common goal of taking polygraphs, but not necessarily of taking polygraphs for

the Co-op in violation of the EPPA.

                                        III.

      The judgment of the district court is AFFIRMED.




                                        -17-
