Seth B. Jones v. Department of the Army 05A00428 March 1, 2002 . Seth B. Jones, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency. Request No. 05A00428 Appeal No. 01A00427 Agency No. BGANFO09904J0380 DECISION ON REQUESTS FOR RECONSIDERATION Both complainant and the agency requested the Equal Employment Opportunity Commission (the Commission) to reconsider its decision in Seth B. Jones v. Department of the Army, EEOC Appeal No. 01A00427 (February 24, 2000). EEOC regulations provide that the Commissioners may, in their discretion, reconsider any previous Commission decision. 29 C.F.R. § 1614.405(b). The party requesting reconsideration must submit written argument or evidence which tends to establish one or more of the following two criteria: the appellate decision involved a clearly erroneous interpretation of material fact or law; or the decision will have a substantial impact on the policies, practices or operations of the agency. Id. For the reasons set forth herein, complainant's request is denied, but the agency's request is granted. Complainant alleged discrimination on the bases of race (African-American) and age when he was denied training opportunities, and was subjected to a polygraph examination by the Criminal Investigation Division (CID) during the investigation of a missing digital camera. The Commission affirmed the agency's dismissal of the training claim for untimely counselor contact, but reversed the failure to state a claim dismissal of the polygraph claim. See Jones v. Department of the Army, EEOC Appeal No. 01A00427 (February 24, 2000). On request for reconsideration, complainant failed to meet the requirements of 29 C.F.R. § 1614.405(b). Complainant has not provided any specific arguments to show that the previous decision involved a clearly erroneous interpretation of material fact or law or to show that the previous decision will have a substantial impact on the policies, practices or operations of the agency. Therefore, the Commission denies complainant's request. The agency argues that complainant suffered no harm from the polygraph test because it was conducted during the course of a CID investigation, and resulted in no adverse action against complainant. The Commission finds that the agency's request meets the requirements of 29 C.F.R. § 1614.405(b), and therefore grants the agency's request. Generally, the Commission views complaints concerning a CID investigation as a collateral attack on the CID process. See Wills v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998) (citation omitted). Such collateral attacks fail to state a claim. See id. Further, where complainant has suffered no adverse action as a result of a CID investigation, the administration of a polygraph test does not state a claim. See Nelson v. National Security Agency, EEOC Appeal No. 01994685 (June 29, 2000); cf. Cobb v. Department of the Navy, EEOC Appeal No. 01955836 (April 3, 1996) (requiring employee to retake polygraph as part of security clearance does not state a claim when no concrete harm was suffered by the employee); Regalado v. United States Postal Service, EEOC Appeal No. 01950396 (July 12, 1995) (no harm from threat to fire employee unless he submits to lie detector test). In the present case, complainant did not suffer any adverse action as a result of the CID investigation. The polygraph test was administered in the course of a CID investigation. Therefore, the Commission finds that this matter fails to state a claim and is properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(1). CONCLUSION After a review of both parties' requests for reconsideration, the previous decision, and the entire record, the Commission modifies its prior decision. Complainant's request for reconsideration is denied; the dismissal of complainant's training opportunities claim is affirmed. The Commission grants the agency's request, and reverses its prior decision with respect to the claim regarding the polygraph examination. The agency's dismissal of this claim for failure to state a claim is affirmed. There is no further right of administrative appeal on the decision of the Commission on a Request to Reconsider. COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. RIGHT TO REQUEST COUNSEL (Z1199) If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request that the Court appoint an attorney to represent you and that the Court permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File A Civil Action"). FOR THE COMMISSION: ______________________________ Frances M. Hart Executive Officer Executive Secretariat March 1, 2002 __________________ Date