* Pursuant to Local Rule 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opinion should not be published and is not precedent except under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 Local Rule 47.5.4. UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 96-30624

Summary Calendar

ANGELA S. LUCIUS,

Plaintiff-Appellant,

VERSUS

BARGER INC.; ROYAL INSURANCE COMPANY OF AMERICA,

Defendants-Appellees.

Appeal from the United States District Court

For the Western District of Louisiana

(92-CV-1484)

January 20, 1997

Before JONES, DeMOSS, and PARKER, Circuit Judges.

PER CURIAM: *

From January 1989 until August 1989, Angela Lucius was

employed as a sales clerk by Barger, Inc., d/b/a Barger’s Pharmacy

(hereinafter referred to as “Barger”) in West Lake, Louisiana. In

August 1989, Lucius was caught in the act of stealing a picture2

frame from the pharmacy. The following day, Barger asked Lucius to

participate in a polygraph examination. She complied. Prior to

taking the examinat ion, Lucius signed a handwritten statement in

which she described other instances when she had taken cash or

merchandise from Ba rger. Lucius also signed a typewritten

statement prepare d by Charles H. Goen, the independent polygraph

examiner who had been hired by Barger to conduct the examination.

I n this typewritten statement, Lucius explained that she was

voluntarily requesting the polygraph examination and released the

examiner and the officers and members of Barger, Inc. in connection

therewith. After the examination, Lucius ceased working for Barger

and remitted $1,100 in restitution to Barger thereby avoiding any

further trouble or liability arising from her activities as a sales

clerk at Barger’s Pharmacy.

In 1991, Lucius applied for a job with the Houston Police

Department. In June of that same year, the police department

rejected her employment applica tion after a background screening

revealed the results of the polygraph examination administered by

Goen at Barger’s request. On August 3, 1992, almost three years

after the polygraph examinatio n

, plaintiff filed suit against

Barger in federal court seeking $250,000 in damages for Barger’s

failure to comply with specific provisions of the Employee

Polygraph Protection Act (“EPPA”), 29 U.S.C. § 2001-2009. Lucius

alleged that Barger’s failure to comply with the EPPA caused the

Houston Police Department to reje ct her employment application,3

which resulted in “lost wages, loss of earning capacity, as well as

emotional distress.” Lucius’ original petition relies exclusively

upon the EPPA.

In December 1993, Lucius filed an amended complaint naming as

additional defendants (i) the Louisiana Retailers Association Self

Insurers Fund (“LRA”), Barger’s worker’s compensation insurance

carrier, and (ii) Royal Insurance Company of America (“Royal”), who

had issued a policy of insurance to Barger containing various

coverag es for “Business Liability.” Both LRA and Royal filed

answers denying coverage under their respective policies. In July

1994, Royal filed a motion for summary judgment. The district

court initially denied the motion in October 1994. Upon motion by

Royal for reconsideration, the distri ct court did reconsider

Royal’s motion for summary judgment and entered an order on

December 22, 1994, which (i) recognized error on the part of the

district court in its prior interpretation of the policy coverage

provision, (ii) vacated its prior order denying Royal’s motion for

summa ry judgment, and (iii) granted Royal’s motion for summary

judgment as to Royal only.

In January 1995, LRA filed its motion for summary judgment and

in March 1995, the district court granted LRA’s motion. Lucius

attempted an interlocutory appe al to this Court of the order

granting LRA’s motion for summary judgment; but such appeal was

dismissed by this Court for lack of appellate jurisdiction.4

In November 1995, Lucius filed a motion for summary judgment

against Barger as to the issue of liabili ty under the EPPA. The

motion was referred to the magistrate j udge for report and

r ecommendation. The magistrate judge filed a report in December

1995 recommending that the court grant Lucius’ partial motion for

summary judgment determining that Barger violated the EPPA in

connection with the administration of the polygraph test. The

district court adopted the report and recommendation and granted a

partial summary judgment for Lucius against Barger in January 1996.

On April 25, 1996, the district court entered an order of dismissal

which stated:

The court noting that plaintiff’s claims

against Royal Insurance Company of America and

Louisiana Retailers Self Insurers Fund have

previously been dismissed, and having been advised

that plaintiff, Angela S. Lucius, and defendant,

Barger, Inc., have settled the above action, it is

ORDERED that this action is hereby dismissed

as to Barger, Inc. without prejudice to the right,

upon good cause shown within sixty (60 ) days, to

reopen the action if settlement is not consummated.

On May 15, 1996, the district court entered a “Judgment of

Dismissal” which stated:

On motion of counsel for plai n tiff in the

above entitled and numbered cause:

IT IS ORDERED, ADJUDGED AND DECREED that said

suit be dismissed, with prejudice, against BARGER,

INC. and LOUISIANA RETAILERS ASSOCIATION SELF

INSURERS FUND, with each party to bear its own

costs and attorneys’ fees, and with plaintiff

reserving her right to proceed against[] Royal

Insurance Company of America.5

O n June 14, 1996, Lucius filed a notice of appeal from the

judgment entered on December 22, 1994, “which became final and

definitive as a result of the ruling of final judgment on the 15th

day of May 1996.”

We have carefully reviewed the briefs, the reply briefs, the

record excerpts, and relevant portions of the record itself. For

essentially the reasons stated by the district court in its

memorandum ruling of December 22, 1994, we affirm.

AFFIRMED

.