01973627
04-20-2000
David H. Ward, Complainant, v. Janet Reno, Attorney General, Department of Justice, Agency.
David H. Ward v. Department of Justice
01973627
April 20, 2000
David H. Ward, )
Complainant, )
) Appeal No. 01973627
v. ) Agency No. F-95-4694
)
Janet Reno, )
Attorney General, )
Department of Justice, )
Agency. )
____________________________________)
DECISION
The Commission accepts complainant's timely appeal from a final agency
decision ("FAD") concerning his complaint of unlawful employment
discrimination in violation of Section 501 of the Rehabilitation Act
of 1973, as amended, 29 U.S.C. � 791 et seq.<1> In his complaint,
complainant alleged that he was discriminated against based on his record
of a disability (alcoholism) when the agency denied him employment as
a Litigation Support Attorney, GS-15 (the "position"), on the basis
that his polygraph results showed patterns indicative of deception.
The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to
be codified at 29 C.F.R. � 1614.405). For the reasons set forth below,
the FAD is AFFIRMED.
In August 1994, complainant was advised that he was appointed to the
position subject only to passing a background character investigation.
This investigation included the requirement that complainant pass
a polygraph examination in order to obtain the Top Secret security
clearance required for the position. The polygraph was administered by a
certified agency polygrapher who followed all routine practices, including
an explanation of the questions to be asked. If complainant believed
that he could not answer the questions with a "yes" or a "no" answer,
he was to explain his reasons to the polygrapher, who would reformulate
the question to permit a "yes" or "no" answer. Complainant advised the
polygrapher that prior to 1985, he was an active alcoholic and was unable
to recall his actions during alcohol-induced blackout periods. Therefore,
the polygrapher reformulated certain questions regarding past actions.
For example, rather than asking whether complainant had ever used illegal
drugs, the polygrapher asked whether he recalled using illegal drugs.
Complainant responded "no" to the following questions: (1) Do you
now recall ever having used any illegal drugs; (2) Have you ever sold
illegal drugs; and (3) Have you intentionally withheld any important
information from your application. Because the polygrapher found that
complainant's physiological responses to these questions were indicative
of deception, the polygrapher explored these areas further during the
post-polygraph interview. Complainant stated that he had been told by
a person whose name he could not recall that he (complainant) had used
marijuana at a party while under the influence of alcohol. Therefore,
complainant felt that he could not categorically deny illegal drug usage.
After this discussion, the polygrapher administered a follow-up polygraph
which asked: (1) Have you used any illegal drugs more times than you
have told me about and (2) Are you now deliberately withholding the full
extent of your drug use. Complainant answered "no" to each question.
However, the polygrapher again determined that complainant's physiological
responses were indicative of deception. The polygrapher submitted the
results to the FBI Laboratory, Polygraph Unit (the "Unit") for review
by a supervisor. The supervisor concurred with the determination that
complainant's physiological responses were indicative of deception.
Consequently, complainant was denied employment.
After complainant sought EEO counseling, he was permitted to take a
second polygraph examination by a new polygrapher. This polygrapher
discussed complainant's concerns with him and enlisted his assistance
in formulating questions which complainant believed he could truthfully
answer "yes" or "no." In this examination, complainant answered "no"
to the following questions: (1) To the best of your recollection, have
you used illegal drugs more times than you have told me about and (2)
Are you deliberately withholding any more information about the extent
of your use of illegal drugs. This polygrapher also determined that
complainant's physiological responses were indicative of deception. The
results were submitted to a supervisor in the Unit who had no knowledge
of the initial examination for a "blind review." The supervisor agreed
that complainant's physiological responses were indicative of deception;
consequently, complainant was not offered employment.
Thereafter, complainant filed his instant EEO complaint, which was
accepted and investigated by the agency. In his complaint, complainant
contended that the agency's insistence that he limit his answers to
"yes" or "no" when responding to generalized questions concerning his
inability to recall actions taken prior to 1985 constituted a failure
to accommodate his history of alcoholism.<2> Complainant maintained that
the agency should have accommodated him by relying on three blood tests,
taken as part of his military service in 1971, 1979, and 1984, all of
which found no illegal drugs in his system. After complainant failed
to request a hearing, the agency issued its FAD finding no discrimination.
In the FAD, the agency noted that complainant had not provided medical
records to substantiate his claim of alcoholism, but nonetheless assumed
that he was an individual with, or with a record of, a substantially
limiting disability.<3> 29 C.F.R. � 1630.2(g). The agency found
that complainant could not establish that he was subjected to disparate
treatment as all applicants were required to pass polygraph examinations.
See Prewitt v. United States Postal Service, 662 F.2d 292 (5th Cir. 1981).
With respect to complainant's claim that the agency failed to reasonably
accommodate his disability, the agency found that he failed to establish
a nexus between his disability and the agency's refusal to employ
him based on the finding that his physiological responses during the
polygraphs were indicative of deception. See Sturman v. Department of
the Treasury, EEOC Appeal No. 01964112 (October 16, 1998). The agency
found no basis for concluding that complainant's disability "should have
affected his capacity to truthfully answer the questions asked" inasmuch
as each polygrapher specifically formulated questions which focused on
complainant's recollection of drug use and not his actual use of drugs,
and whether he had deliberately withheld any information about his
prior drug use. The agency found that it had reasonably accommodated
complainant by so formulating the questions. The agency discussed
evidence in the record to the effect that a polygraph examination measures
"one's perceptions rather than the reality of those perceptions." Thus,
so long as "one believes what he or she is saying, regardless of the
veracity of that perception, no physiological responses consistent with
deception result." While complainant contended that he should not have
been required to limit his responses to "yes" or "no," and should be
"absolved of having to respond to any questions regarding drug usage
during the period of [his] disability," the agency noted that a polygraph
examination requires that answers be so limited. In any event, the
agency again found no evidence that his disability precluded him from
honestly answering "yes" or "no" to questions concerning his recollection
of drug use.
As relief for the alleged discrimination, complainant had sought (among
other matters) the agency's agreement not to disclose the results of his
polygraph examinations to other employers. Complainant also contended
that the agency's refusal to agree not to disclose his results constituted
a denial of reasonable accommodation. The FAD noted that prior to taking
the examinations, complainant had signed a "waiver disclosing Provisions
of Public Law 93-579 (Privacy Act of 1974)" and found that, under
applicable Executive Orders, the agency would be required under certain
circumstances to disclose the polygraph results to specified officers
or employees of agencies and departments of the federal government.
On appeal, complainant makes a number of contentions, including that the
agency uses polygraph examinations as an arbitrary method to exclude
persons with alcoholic related disabilities. Complainant challenges
the reliability of polygraph examinations, noting that the United
States Supreme Court has stated that there is no consensus regarding the
reliability of polygraph evidence, with the government extensively using
polygraphs in making vital security determinations but inconsistently
arguing that polygraphs are unreliable when criminal defendants seek to
introduce favorable results at trial. See United States v. Scheffer,
523 U.S. 303 (1998). Complainant cites his three pre-1985 blood tests
and asserts that since 1985, he has held responsible positions which
also required drug tests. Complainant states that the results of these
tests should be deemed a sufficient substitution for the polygraph
examination. Complainant also appears to reassert his withdrawn claim
of race discrimination, contending that the agency is particularly
antagonistic toward minorities with a record of alcoholism or drug use.
See n.1, supra.
In its comments, the agency notes that there is no showing that its
policy and practice of rejecting applicants who are unable to pass
a polygraph examination was applied in a discriminatory manner or
was imposed to discriminate against individuals with disabilities.
The agency contends that it accommodated complainant by modifying the
questions asked during the polygraphs. The agency argues that it would
impose an undue hardship to require it to exclude questions regarding
drug use and to instead consider only complainant's blood tests, which
were sporadic and covered only a limited time.
Although it is well settled that the Commission lacks jurisdiction to
adjudicate the merits of claims pertaining to the denial or revocation of
a security clearance (see Department of the Navy v. Egan, 484 U.S. 518
(1988)), the Commission has the authority to determine whether the
grant, denial or revocation of a security clearance was conducted in
a discriminatory manner. See Schroder v. Department of Defense, EEOC
Request No. 05930248 (April 14, 1994); see also Policy Guidance on
the Use of the National Guidance on the Use of the National Security
Exception contained in 703(g) of Title VII of the Civil Rights Act of
1964, as amended, EEOC Notice N-915-041 (November 2, 1989).<4> Inasmuch
as the record demonstrates that all applicants for agency employment were
required to successfully undergo polygraph examinations, complainant is
unable to establish that he was subjected to disparate treatment when
he was required to take and pass such an examination. Accordingly,
complainant's contention that polygraphs are unreliable and inaccurate
is irrelevant.
Further, after a careful review of the entire record, the Commission
finds that the agency provided reasonable accommodation for complainant's
disability by modifying its polygraph questions to address his current
recollections regarding his use of illegal drugs. The Commission finds
that the agency properly determined that complainant was not subjected
to disparate treatment and was granted reasonable accommodation for
his disability. See Prewitt, supra. Therefore, the Commission finds
that he cannot prevail on appeal by now renewing his claims of race
discrimination and asserting discrimination based on "disability plus
race." Accordingly, it is the decision of the Commission to AFFIRM
the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, MUST BE FILED
WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR
DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS OF
RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.405); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.604). The request or opposition must
also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
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:
April 20, 2000
_______________ _____________________
Date Frances M. Hart
Executive Officer
Executive Secretariat
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date
1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at WWW.EEOC.GOV.
2 Complainant's formal complaint also alleged discrimination on the
bases of race and reprisal, but he later withdrew those claims.
3 The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found on EEOC's
website: WWW.EEOC.GOV.
4 The Commission notes that the District of Columbia Circuit Court of
Appeals has held that a complainant may not "attempt to circumvent Egan
by characterizing the challenged employment actions as procedural,
divorced from any substantive security determination," and, thus,
any adverse employment action based on the denial or revocation of a
security clearance is not actionable under Title VII. Ryan v. Reno,
168 F.3d 520 (D.C. Cir. 1999).