decided. as amended december 17 1981.: December 10, 1981.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 80-2646)
Before Aldisert, Higginbotham and Sloviter, Circuit Judges.
Plaintiff Bonnie Polsky appeals from the summary judgment granted to defendant Radio Shack in a diversity action in which she alleges that her discharge from employment violated Pennsylvania law and public policy. Polsky claims that she was discharged because of the results of a polygraph test which were obtained in violation of a Pennsylvania statute prohibiting an employer from requiring an employee to submit to a polygraph examination "as a condition for employment or continuation of employment." The statute provides, in relevant part:
A person is guilty of a misdemeanor of the second degree if he requires as a condition for employment or continuation of employment that an employee or other individual shall take a polygraph test or any form of a mechanical or electrical lie detector test.
18 Pa.Cons.Stat. § 7321(a).*fn1
Radio Shack does not contest that Polsky was given a polygraph test and it does not contest, for purposes of this appeal, that the results of that test contributed to her discharge. Instead, it moved for summary judgment based on a written release signed by Polsky prior to the administration of the test. The district court concluded that the release was binding and granted the motion, holding that "(w)here, as here, the release signed by plaintiff advised her of her rights under § 7321, and she was not physically compelled to sign, she may not later renounce the statement contained in the release and contend she was compelled to sign it in order to preserve her job." Polsky v. Radio Shack, No. 80-2646, slip op. at 3 (E.D.Pa. Jan. 29, 1981) (footnote omitted). The district court rejected Polsky's contentions that the release was invalid because signed under duress and because contrary to Pennsylvania public policy as expressed in section 7321. We conclude that plaintiff's evidence demonstrates a genuine issue as to the material fact that she was required to sign the release as a condition of continued employment, and vacate the summary judgment.
Polsky was hired by Radio Shack as a management trainee in July 1978; in September 1979 she became manager of Radio Shack's East Norriton store in the Philadelphia area. The staff of the store consisted of Polsky and two other employees. Polsky alleges that on the morning of October 25, 1979,*fn2 she opened the store as usual and discovered that it had been burglarized of approximately $1,500 worth of merchandise. She reported the theft to the police and to her superiors at Radio Shack. Since there was no sign of forced entry, Radio Shack surmised that the theft had been an "inside job."
On October 30, 1979, Polsky was given a polygraph examination which, according to the complaint, "falsely indicated that plaintiff was lying, and that plaintiff had stolen from defendant and committed other crimes." Prior to taking the polygraph test, Polsky signed a written release advising her of her right under section 7321 not to be required to submit to a polygraph examination as a condition of continued employment; reciting that "(with) full knowledge of these rights, and without duress, coercion, force or promise of immunity or reward, I do hereby request a Polygraph examination to be given to me ..."; and releasing Radio Shack from all claims, actions and liability arising directly or indirectly from her taking the polygraph examination.*fn3
At her deposition, Polsky testified that she submitted to the polygraph examination because she believed that she had to in order to keep her job. Polsky Dep. at 34.*fn4 She testified that the issue of a polygraph test was first raised by Radio Shack's district manager Burggraf, and recounted the following conversation:
Q (defense counsel) What did you say when he said that he wanted everybody to take the polygraph test?
A (Polsky) I said, "If I have to, I have to."
Polsky Dep. at 33-35. Polsky testified that she told Burggraf, "I don't want to take the polygraph, but if I have to do it to keep my job, I will take the polygraph," and that he responded, "You have to take the polygraph." Polsky Dep. at 36. In Perks v. Firestone Tire & Rubber Co., 611 F.2d 1363, 1365 (3d Cir. 1979), we held that in light of 18 Pa.Cons.Stat. § 7321(a) the discharge of an employee at will because of a refusal to submit to a polygraph examination required by an employer gives rise to a cause of action for tortious discharge under Pennsylvania law. Under analogous reasoning, Polsky's testimony, if ...