* 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.

United States Court of Appeals

Fifth Circuit

FILED

August 30, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-61063

Summary Calendar

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
No. 06-61063

1 The anti-retaliation provision of Title VII ofthe 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). 

2

“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 thatthe

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 antiretaliation 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 harassmentinvestigation.

As soon as Parks reported the alleged misconduct, Mississippi promptly

transferred her out ofthe 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
No. 06-61063

3

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
No. 06-61063

2 42 U.S.C. § 2000e-10(a). 

4

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 notterminate Parks simply for refusing to submitto 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 andParks'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
No. 06-61063

5

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.