4. Whether an agency that categorically refuses to consider disability-based accommodations or to engage in the interactive process required by 29 C.F.R. §1630.2(o)(3) may nevertheless be deemed to have acted lawfully under the Rehabilitation Act when its justifications are shifting, medically unsupported, and contrary to its own binding regulations.

A federal agency that categorically refuses to consider disability-based accommodations or to engage in the interactive process required by 29 C.F.R. § 1630.2(o)(3) (incorporated into the Rehabilitation Act via EEOC regulations) may not be deemed to have acted lawfully, particularly when its justifications are shifting, medically unsupported, and contrary to its own binding regulations.

Core Obligations Under the Rehabilitation Act and EEOC Regulations.

The Rehabilitation Act (Section 501) adopts the standards of the Americans with Disabilities Act (ADA), requiring federal agencies to provide reasonable accommodations to qualified individuals with disabilities unless doing so would cause undue hardship. A key component is the interactive process: an informal, good-faith dialogue between the agency and the employee to identify effective accommodations (EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the ADA, as applied to the Rehabilitation Act).

• Categorical refusal to consider accommodations or engage interactively is a per se violation. The EEOC has repeatedly held that failing to participate in the interactive process—e.g., ignoring requests, denying without exploration, or blanket policies against certain accommodations—constitutes discrimination, even if an accommodation might ultimately cause undue hardship.
• Agencies must respond expeditiously and in good faith. An outright refusal breaks the process and violates the Act.

Impact of Flawed Justifications

• Shifting justifications: Inconsistent or changing reasons for denial (e.g., initially citing one policy, later another) raise an inference of pretext (EEOC Enforcement Guidance on Retaliation and Related Issues, applicable here via overlapping standards). This undermines claims of legitimate nondiscriminatory reasons, such as undue hardship or business necessity.
• Medically unsupported reasons: Denials must be based on individualized assessments, often requiring medical documentation review. Unsupported assertions (e.g., ignoring provided medical evidence or relying on unsubstantiated assumptions about a condition) fail to meet the interactive process requirement and may evidence bad faith or discrimination.
• Contrary to binding regulations: Federal agencies must follow their own mandatory internal rules (e.g., DoD instructions or agency-specific procedures under Executive Order 13164). Disregarding them in accommodation decisions supports findings of arbitrary action or violation of the Act, as procedural noncompliance is reviewable even in sensitive contexts.

Practical and Legal Outcomes

The EEOC and courts view such conduct as evidence of failure to accommodate, potentially leading to liability. Good-faith engagement is required; categorical policies or flawed rationales do not shield agencies. National security or undue hardship defenses must be substantiated individually, not applied blanketly.

In summary, categorical refusal combined with shifting, unsupported, or regulation-contrary justifications strongly indicates unlawful conduct under the Rehabilitation Act. Employees can challenge this via the agency's EEO process or EEOC.

3. Whether courts may extend Department of the Navy v. Egan, 484 U.S. 518 (1988), beyond clearance adjudications to cover ordinary personnel and medical accommodation decisions, effectively placing federal employees’ statutory rights outside judicial review even when no security clearance has been suspended, revoked, or unfavorably adjudicated.

Courts generally may not broadly extend Department of the Navy v. Egan, 484 U.S. 518 (1988), beyond the merits of security clearance adjudications (grants, denials, or revocations) to shield ordinary personnel actions or medical/reasonable accommodation decisions from judicial review under the Rehabilitation Act, particularly where no clearance has been suspended, revoked, or unfavorably adjudicated.

Core Scope of Egan

Egan held that the Merit Systems Protection Board (and by extension, courts) lacks authority to review the substantive merits of a security clearance determination absent clear congressional authorization. This stems from the President's constitutional authority over national security and the predictive nature of clearance judgments (e.g., trustworthiness and risk assessment). Courts extend this to bar review of discrimination claims (including under Title VII or the Rehabilitation Act) only if resolving them requires second-guessing the executive's predictive security judgment (e.g., cases like Ryan v. Reno (D.C. Cir. 1999) and recent reaffirmations in Lee v. Garland (D.C. Cir. 2024)).

However, Egan is narrow:

• It does not create absolute immunity for all security-related actions.
• Lower courts consistently refuse to extend it to non-clearance decisions or procedural/discrimination challenges that do not probe the merits of a clearance adjudication.

Application to Ordinary Personnel and Accommodation Decisions

• No extension to reasonable accommodation claims: Where an action involves failure to accommodate a disability (e.g., alternative screening, reassignment, or waivers) without involving a formal clearance revocation/denial, courts review Rehabilitation Act claims. For instance, in Sanchez v. U.S. Dep't of Energy (10th Cir. 2018), the court reviewed a failure-to-accommodate claim despite security concerns, distinguishing it from Egan's bar on clearance merits.
• Personnel actions not tied to clearance adjudication: Courts review discrimination or accommodation claims in security-sensitive roles if they target procedural violations, interactive process failures, or pretext, without requiring review of a predictive clearance judgment (e.g., challenges to reassignment denials or medical deferrals).
• No clearance action involved: If no clearance has been adversely adjudicated (e.g., polygraph unsuitability leading to accommodation denial without revocation), Egan does not apply. Courts reject broad invocations to evade statutory duties under the Rehabilitation Act, which requires interactive engagement and accommodations unless undue hardship (including legitimate security risks) is proven.

Limits and Exceptions

• National security can justify "undue hardship" denials of accommodation, and courts defer to agency judgments on risks.
• If a claim inescapably requires evaluating why a clearance was (or would be) denied/revoked, Egan bars review—even for constitutional or discrimination allegations in some circuits.
• Procedural compliance (e.g., following internal rules) remains reviewable.

In summary, Egan protects the executive's core discretion over clearance merits but does not blanket ordinary personnel or accommodation decisions—especially absent any clearance adjudication—from Rehabilitation Act scrutiny. Courts police overextensions to preserve statutory rights.

2. Whether mandatory Department of Defense regulations, including DoDI 5210.91—which (a) prohibit adverse administrative action based solely on an unresolved polygraph result and (b) require medical deferral or exemption for individuals who are psychologically or medically unsuited for testing—are judicially enforceable under the Rehabilitation Act, or instead may be disregarded under a theory of unreviewable “security discretion.”

Mandatory Department of Defense (DoD) regulations in DoDI 5210.91 (Polygraph and Credibility Assessment Procedures) are generally judicially enforceable in the context of a Rehabilitation Act claim, and agencies may not disregard them under a broad theory of unreviewable "security discretion."

Core Holding from Department of the Navy v. Egan (1988)

The Supreme Court in Egan held that merits of security clearance decisions—including grants, denials, or revocations—are committed to executive discretion and generally not subject to judicial review. This protects predictive judgments about risks to national security. Courts have extended this to bar review of discrimination claims (including under Title VII or the Rehabilitation Act) when resolution requires second-guessing the substance of a clearance decision (e.g., recent cases like Lee v. DOJ (D.C. Cir. 2024), where revocation after failed polygraphs barred review of discrimination claims).

However, Egan does not create absolute immunity for all security-related actions. Courts may review claims alleging that an agency violated its own mandatory procedures or statutory obligations, particularly where the challenge targets procedural compliance rather than the predictive security judgment.

Application to DoDI 5210.91 Provisions

DoDI 5210.91 establishes binding procedures for DoD polygraph programs, including:

• Prohibition on adverse action based solely on unresolved polygraph results — Agencies must have additional supporting evidence or resolution before acting.
• Requirement for medical deferral or exemption — Examiners must postpone or exempt individuals deemed psychologically or medically unsuitable (e.g., conditions affecting physiological responses), often involving evaluation by medical authorities.

These are mandatory internal rules ("shall" language in the instruction), not discretionary guidelines.

In a Rehabilitation Act context:

• If an agency ignores these provisions—e.g., taking adverse action solely on an inconclusive polygraph or refusing a required medical deferral/exemption for a documented disability—an employee can argue this violates the duty to engage in the interactive process or provide reasonable accommodation (e.g., alternative assessment methods, waiver, or reassignment).
• Such a claim challenges procedural noncompliance with DoD's own binding regulations, not the merits of whether the employee poses a security risk.
• Courts and the EEOC routinely review whether agencies followed their own rules in discrimination cases, even in security-sensitive contexts, as long as the inquiry does not probe the substantive clearance judgment.

Limits of "Unreviewable Security Discretion"

Agencies cannot invoke "security discretion" to disregard mandatory regulations. While broad deference applies to ultimate clearance outcomes, procedural violations tied to anti-discrimination laws remain reviewable (e.g., via EEOC federal sector process or limited judicial review under the Administrative Procedure Act for arbitrary/capricious action). National security can justify "undue hardship" denials of accommodation, but it does not shield outright noncompliance with DoDI 5210.91.

Practical Outcomes

• No reported cases directly litigate these exact DoDI provisions under the Rehabilitation Act, but analogous challenges (e.g., failure to follow security regulations in discrimination claims) have proceeded past motions to dismiss where framed procedurally.
• Employees can raise noncompliance in EEO complaints, arguing it evidences failure to accommodate or pretext.

In summary, while security clearance merits are largely unreviewable, mandatory procedural protections in DoDI 5210.91 are enforceable in Rehabilitation Act claims challenging agency disregard of those rules. Outcomes turn on case specifics, such as how the polygraph interacts with the disability and job requirements.

I posed the four questions presented in my case to Grok, and this is what it came up with -

1. Whether a federal agency may, consistent with the Rehabilitation Act of 1973 and EEOC regulations, redefine a security screening requirement—such as a counterintelligence scope polygraph (CSP) examination—as an “essential job function,” thereby eliminating the duty to provide reasonable accommodation to employees whose documented medical conditions render them unsuitable for such testing.

A federal agency generally may not redefine a security screening requirement—such as a counterintelligence scope polygraph (CSP) examination—as an "essential job function" solely to eliminate the duty to provide reasonable accommodation under the Rehabilitation Act of 1973 (Section 501) and EEOC regulations.

Key Principles Under the Rehabilitation Act and EEOC Guidance

The Rehabilitation Act prohibits federal agencies from discriminating against qualified individuals with disabilities and requires them to provide reasonable accommodations unless doing so would cause undue hardship. A "qualified individual" is one who can perform the essential functions of the job with or without reasonable accommodation (29 C.F.R. § 1630.2(m), incorporated into federal sector rules).

Essential functions are the fundamental duties of the position, not marginal ones. Factors for determining them include:
• The employer's judgment
• Written job descriptions
• Time spent performing the function
• Consequences of not requiring it

Courts and the EEOC defer to employer judgments on essential functions but scrutinize attempts to manipulate them to avoid accommodation obligations.

Application to Security Requirements Like CSP

Positions requiring access to classified information (e.g., in intelligence or defense agencies) often mandate security clearances, which include polygraph screenings like CSP for counterintelligence purposes. Holding or obtaining such a clearance is frequently considered a qualification standard or essential eligibility requirement for the role.

However:

• Agencies cannot arbitrarily relabel a screening requirement as "essential" to bypass the interactive process for reasonable accommodation.
• If a documented medical condition (e.g., certain anxiety disorders, heart conditions, or other impairments that affect physiological responses) renders an employee unsuitable for polygraph testing, the agency must explore accommodations—such as alternative screening methods, reassignment to a non-sensitive position, or waivers—if they would enable the individual to perform the job's core duties without undue hardship.

EEOC guidance emphasizes that medical examinations (including those that may interact with disabilities) must be job-related and consistent with business necessity. Polygraphs are not classified as medical examinations under the ADA/Rehabilitation Act, but if a disability prevents successful completion, the agency cannot simply declare the test itself "essential" without justification tied to the position's fundamental duties.

Relevant Considerations and Limitations

•      National security exception: In roles involving sensitive classified information, courts often uphold denial of accommodations that compromise security (e.g., waiving a clearance requirement could pose a direct threat or fundamental alteration). Undue hardship in the federal context can include risks to national security.
•      No direct precedent on CSP: There are no widely reported court cases specifically addressing CSP polygraphs and reasonable accommodation claims under the Rehabilitation Act. Analogous cases involving security clearances (e.g., Kaplan v. Northrop Grumman Corp. or EEOC v. Exxon) treat clearance as an essential requirement where core job duties involve protected information.
•      Employee options: If denied accommodation, an employee may challenge the designation via the EEOC federal sector process, arguing the agency failed to engage interactively or that the polygraph is not truly essential.

In summary, while agencies have broad discretion to define essential functions—especially for security-sensitive roles—they cannot redefine requirements merely to evade accommodation duties. The determination must be based on legitimate job needs, and the interactive process is required. For specific situations, consult an attorney or file with the agency's EEO office/EEOC, as outcomes depend on case facts, job description, and agency mission.

You may access the Petition and Appendix on the Court's website here: 

https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/publi...

Today, my petition for a writ of certiorari was docketed in the US Supreme Court. #25-737.

I’m representing myself, and I’m hoping that anyone with relevant expertise — psychologists, researchers, clinicians, attorneys, or scholars — might consider whether these issues warrant independent amicus (friend-of-the-court) support. Any such involvement would be entirely voluntary and independent, and focused on the broader legal and scientific issues rather than my personal situation.

The Questions Presented are:

1.      Whether a federal agency may, consistent with the Rehabilitation Act of 1973 and EEOC regulations, redefine a security screening requirement—such as a counterintelligence scope polygraph (CSP) examination—as an “essential job function,” thereby eliminating the duty to provide reasonable accommodation to employees whose documented medical conditions render them unsuitable for such testing.

2.      Whether mandatory Department of Defense regulations, including DoDI 5210.91—which (a) prohibit adverse administrative action based solely on an unresolved polygraph result and (b) require medical deferral or exemption for individuals who are psychologically or medically unsuited for testing—are judicially enforceable under the Rehabilitation Act, or instead may be disregarded under a theory of unreviewable “security discretion.” (App. F)

3.      Whether courts may extend Department of the Navy v. Egan, 484 U.S. 518 (1988), beyond clearance adjudications to cover ordinary personnel and medical accommodation decisions, effectively placing federal employees’ statutory rights outside judicial review even when no security clearance has been suspended, revoked, or unfavorably adjudicated.

4.      Whether an agency that categorically refuses to consider disability-based accommodations or to engage in the interactive process required by 29 C.F.R. §1630.2(o)(3) may nevertheless be deemed to have acted lawfully under the Rehabilitation Act when its justifications are shifting, medically unsupported, and contrary to its own binding regulations.
 
If you're interested, or would like more information, I am also available on Signal at sammorter.11

[quote author=606478727A777869110 link=1487351318/260#260 date=1753455681]John M, you lose again.  Another victory in the fight against insider threats.

Has anyone heard from John M. for his take?  Would like to hear his thoughts.

quickfix wrote on Jul 25^th, 2025 at 3:01pm:

Has anyone herd from John M. for his take?  Would like to hear his thoughts.

Thank you. I haven't heard of such a waiver ever being granted in any federal agency. I'm not sure such a requirement can't be waived. I would expect that the heads of most agencies with a polygraph requirement would have the authority to grant a waiver. But as a practical matter, it seems that it never (or at most very rarely, and without public notice) happens.

Never.  In my almost 40-year polygraph career with 3 different DOD polygraph agencies, I have never seen or heard of it happening.  We have had individuals with a legitimate medical reason for not being suitable for testing, and they are simply not granted the access, removed from access (as John Morter was) or not hired.  It is simply a myth that a polygraph requirement can be "waived".

quickfix wrote on Jul 25^th, 2025 at 3:01pm:


Are you familiar with any instances where the polygraph requirement was waived for a person holding a position that would normally require polygraph screening? If so, under what sort of circumstances has that happened?

John M, you lose again.  Another victory in the fight against insider threats.

Regarding Nathan Vilas Laatsch's alleged attempted espionage, see the U.S. Department of Justice's press release dated 29 May 2025:

https://www.justice.gov/opa/pr/us-government-employee-arrested-attempting-provid...

The release notes "In March 2025, the FBI commenced an operation after receiving a tip that an individual — now known to be Laatsch — offered to provide classified information to a friendly foreign government."

Although not stated, I think it's highly likely that the tip came from the government that Laatsch approached. Such was the case with Jonathan and Diana Toebbe, who attempted to sell information about U.S. nuclear submarines to Brazil: the Brazilians promptly informed the U.S. government about the attempt, and undercover agents proceeded with a sting operation, with the cooperation of the Brazilian embassy.

The choice for a government friendly to the United States is an easy one: why risk taking an American walk-in as a source when in all likelihood, it may be an undercover U.S. agent testing how that government would handle such a situation? Why risk the harm it could cause to bilateral relations?

In Laatsch's case, it seems that the U.S. government was on to him essentially from the get-go.

So, with respect to polygraph policy, it would seem that fear of the polygraph did not deter Laatsch, and if he was polygraphed during the approximately two months from the time he approached the friendly foreign government until the time of his arrest, then DIA's polygraph unit was likely briefed on the situation.

Name correction:   
*Nathan Vilas Laatsch

Nathan Vilas, who worked for the DIA Insider Threat Program, was himself, the insider threat!  LOL.  He just got arrested by FBI for trying to pass classified information.  I wonder how long he did this for and when he "passed" his most recent polygraph?


https://www.justice.gov/opa/pr/us-government-employee-arrested-attempting-provid...

10 years after its inception, DIA's Insider Threat Program is thoroughly embarrassed, as one of its own is arrested by the FBI for intentionally mishandling classified material.

They need to stop wasting resources on their beloved polygraph program and focus on conducting proper background checks.

Quote:

Pierre: My case is currently on the docket at the US Court of Appeals for the District of Columbia Circuit - Case No. 24-5056.

John M. wrote on Jul 4^th, 2023 at 4:26pm:

John M.:  I see on another thread that you lost your appeal in February.  Is that the end?

Furthermore, during his interrogatory, the Insider Threat Program Coordinator, Steven Douglas McIntosh, remarked that, "if a claim of disability was presented, it would not have altered the outcome as the issue is the DIA employee being unsuccessful in completing the CSP examination and presenting a threat, risk, or vulnerability to national security information and operations."

While preparing for my court hearing, I'm perusing and cataloging the massive amount of information that I've collected over the past 8+ years.

The attached email was written August 13th, 2014 - a week after my TDY to DIA for the 5th interrogation by polygraph. Notably, there is no mention of the DIA Psychological Report that was submitted by Dr. Jill Tucillo after that session (reply #240 posted on Apr 25th, 2023).

There are several incriminating statements in this email, but this one stands out: "At present, we do not anticipate a medical diagnosis that would support a medical deferment from the CSP examination. In any case, the InTP does not have the ability to mitigate the loss of the CSP tool (either by SUBJECT's inability to successfully complete the examination process, or through a medical deferment from the CSP examination process) while SUBJECT is assigned to USSOCOM spaces.

The attached document "Insider Threat Program" was written by then DIA Insider Threat Program Coordinator, Steven D. McIntosh.  In it, he describes how they circumvented the approved and relevant regulations and policies to punish individuals with unresolved polygraph examinations. 

What’s relevant to my case is when he says, "A key function of the Panel is to address situations wherein an employee or affiliate is deemed medically or psychologically unsuitable for polygraph testing. Historically, DIA lacked a formal process to address these situations and cases languished for months and even years. The DIA InTP established a formal process addressing suitability determination, medical and/or psychological validation, and presentation of the case to the Panel, which in turn develops a mitigation strategy to account for the employee's non-suitability for polygraph examination."

In my case, the mitigation strategy they came up with was to yank my clearance/access, remove me from my position, and reassign me to an unclassified position 1,000 miles away in DC. According to Title 32, these are all considered unfavorable administrative actions.

In my first set of interrogatories for my EEO case, I asked for a current list, or an accurate percentage of DIA employees that have been exempted or postponed from PCA testing because of their mental, psychological, or emotional disabilities. The Agency answered, "A total of 43 DIA employees  (about 0.2%) were temporarily deferred from Counterintelligence Scope Polygraph (CSP) examinations due to psychological or emotional conditions."

I then asked for a complete list of DIA employees who have been subjected to unfavorable administrative actions solely as  a result of their inability to successfully complete the PCA examination.

Under oath, their answer was "No DIA employee has been subjected to adverse administrative actions solely as a result of their inability to successfully complete a Counterintelligence Scope Polygraph (CSP) examination."

Hello, Pierre.

Let's just say that it's more than enough to buy a new car, but not enough to buy a house.

BTW, I have kept meticulous records, and I have agreed to publish all of them on ap.org when this is all over.

John M.:  just out of curiosity (and if you don't mind answering), how much have you spent on legal fees pursuing this matter?

Without revealing too much right now, this is a portion of the psychiatric evaluation that I submitted to the OWCP and the EEOC.

This is a report by Dr. Rothburd, and it is one of the psychological evaluations that I used to apply for OWCP benefits and disability retirement.

I know that I have posted this before, but the Department of Labor denied me OWCP benefits. Here is their reasoning:

In order for a claim to be accepted under the Federal Employees' Compensation Act (FECA), the claim must meet 5 basic elements. The claim must: 

(1)   Be Timely Filed. 
(2)   Be made by a Federal Civil Employee. 
(3)   Establish Fact of Injury, which has both a factual and medical component. Factually, employment incident(s) alleged must have actually occurred. Medically, a medical condition must be diagnosed in connection with the specified employment incident. 
(4)   Establish Performance of Duty. The medical condition must have arisen during the course of employment and within the scope of compensable work factors. 
(5)   Establish Causal Relationship, which means the medical evidence establishes that the diagnosed condition is causally related to the accepted employment factors. 

You have established that you are a Federal civilian employee who filed a timely claim; that the injury, accident or employment factor occurred; and that a medical condition has been diagnosed in connection with the injury or event(s). However after a thorough review of all evidence, your claim for compensation is denied because the fourth basic element. Performance of Duty, has not been met.

Specifically, your case is denied because the evidence is not sufficient to establish that a medical condition arose during the course of employment and within the scope of compensable work factors.

The following findings of fact are made regarding the events and circumstances implicated in the 
claim and whether they constitute factors of employment for compensation purposes: 

Accepted Event(s) That Are Factors of Employment:

There are no accepted events that are factors of employment. 

Accepted Event(s) That Are Not Factors of Employment:

1. You noted that from March 2011 through August 2014, you were forced to endure the intense psychological stress and excessive harassment of five separate interrogation/polygraph sessions. This is an administrative function of your employing agency and administrative actions by the agency can only be compensable if you prove that the employing agency erred or abused their discretionary authority beyond your mere perception. You employing agency noted you underwent Counterintelligence Scope Polygraph (CSP) on the following dates: March 23, 2011, March 25, 2011, January 31, 2012, June 26, 2012, and August 4, 2014. Your employing agency also stated you were given multiple attempts to successfully pass the Polygraph Creditability Assessment (PGA) so that you could return to your regular duties. Your employing agency also noted that two polygraph examinations in a year, as was the case for you is not consider excessive by the Defense Intelligence Agency standards. 

Where an employee alleges harassment and cites to specific incidents and the employer denies that harassment occurred, the Office or some other appropriate fact finder must make a determination as to the truth of the allegations. The issue is not whether the claimant has established harassment or discrimination under standards applied by the Equal Employment Opportunity Commission. Rather the issue is whether the claimant, under the FECA, has submitted evidence sufficient to establish an injury arising in the performance of duty. To establish entitlement to benefits, the claimant must establish a factual basis for the claim by supporting allegations with probative and reliable evidence. Kathleen A. Donati, 54 ECAB (Docket No. 03-1333, issued August 13, 2003).

For harassment to give rise to a compensable disability there must be evidence that harassment or discrimination did, in fact, occur. Mere perceptions of harassment are not compensable. Unsubstantiated allegations of harassment or discrimination are not determinative of whether such harassment or discrimination occurred. To establish entitlement to benefits, a claimant must establish a factual basis for the claim by supporting his or her allegations with probative and reliable evidence. Helen P. Allen, 47 ECAB —(Docket No. 93-1794, issued October 16, 1995); David G. Joseph, 47 ECAB — (Docket No. 94-1288, issued March 26, 1996); Edward J. Meros, 47 ECAB — (Docket No. 94-1 636, issued May 24, 1996); William E. Seare, 47 ECAB — (Docket No. 94-2370, issued July 16, 1996); Donna J. DiBernardo, 47 ECAB — (Docket No. 94-1 31 7, issued August 20, 1996).

For harassment or discrimination to give rise to a compensable disability, there must be evidence introduced which establishes that the acts alleged or implicated by the employee did, in fact, occur. Mere perceptions of harassment or discrimination are not compensable under the FECA. Unsubstantiated allegations of harassment or discrimination are not determinative of whether such harassment or discrimination occurred. Charles D. Edwards, 55 ECAB (Docket No. 02-1956, issued January 15, 2004); Beverly A. Spencer, 55 ECAB (Docket No. 03-2033, issued May 3, 2004); Mary J. Summers, 55 ECAB (Docket No. 04-704, issued September 29, 2004). Stress related to a claimant's pursuit of a claim before the Office does not constitute a compensable factor of employment. John D. Jackson, 55 ECAB (Docket No. 03-2281, issued April 8, 2004). 

2. You stated from October 7, 2014 until August 4, 2014, you were denied the opportunity to perform your job for the sole reason of not being able to successfully complete the counterintelligence scope polygraph. This is an administrative function of your employing agency and administrative actions by the agency can only be compensable if you prove that the employing agency erred or abused their discretionary authority beyond your mere perception. Your employing agency stated you were reassigned to Defense Intelligence Agency (DIA) headquarters to mitigate successful completion of the counterintelligence scope examination a basic security requirement for all DIA employees.

Dissatisfaction with the type of work assigned, or desire to perform different duties, does not come within coverage of the FECA. Katherine A. Berg, 54 ECAB (Docket No. 02-2096, issued December 23, 2002). 

An employee's dissatisfaction with holding a position in which he or she feels underutilized, performing duties for which he or she feels overqualified or holding a position which he or she feels to be unchallenging or uninteresting is not a compensable employment factor. A claimant's reaction to such conditions and incidents at work is self- generated and results from his or her frustration in not being permitted to work in a particular environment or to hold a particular position. Paul L. Stewart, 54 ECAB (Docket No. 03- 1107, issued September 23, 2003. 

3. You stated were reassigned to a menial position, relegated to answering phones and manning an often-empty office. This is an administrative function of your employing agency and administrative actions by the agency can only be compensable if you prove that the employing agency erred or abused their authority beyond your mere perception. Your employing agency stated that you physically reassigned to another work location and subsequently loss access to classified workstations and networks. The employing agency also noted that you were not being stripped of SCI access as documented in the normal intelligence community security tracking system. The employing agency further noted you were treated as having a SCI clearance but reassignment action; you held a top secret/SCI clearance and simply needed to be rebriefed in to regain secret/SCI status. The employing agency noted you are still employed by the DIA bout would not work at your preferred location. 

Administrative and personnel matters, although generally related to the employee's employment, are administrative functions of the employer rather than the regular or specially assigned work duties of the employee and are not covered under FECA.[10] However, the Board has held that where the evidence establishes error or abuse on the part of the employing establishment in what would otherwise be an administrative matter, coverage will be afforded.[11] In determining whether the employing establishment has erred or acted abusively, the Board will examine the factual evidence of record to determine whether the employing establishment acted reasonably.[12] 

Appellant's allegations relate primarily to administrative and personnel actions by the vocational rehabilitation staff. In McEuen,[19] the Board held that an employee's emotional reaction to administrative actions or personnel matters taken by the employing establishment is not covered under FECA unless there is evidence of administrative error or abuse. Generally, such actions pertain to procedures and requirements of the employer and do not bear a direct relation to the work required of the employee. Absent evidence of error or abuse, the emotional condition is not employment generated. To determine whether error or abuse has occurred, the Board must examine whether the employing establishment acted reasonably.[20] 

4. You states based solely on the results of my polygraph examinations, you were relieved of employment at HQ USSOCOM and involuntarily reassigned to headquarter DIA. This is an administrative function of your employing agency and administrative actions by the agency can only be compensable if you prove that the employing agency erred or abused their discretionary authority beyond your mere perception. 

The Board has held that, "The assignment of a work schedule or tour of duty is recognized as an administrative function of the employing establishment and, absent any error or abuse, does not constitute a compensable factor of employment." See Helen Allen, 47 ECAB 141 (1995); Peggy R. Lee, 46 ECAB 527 (1995). 

Appellant's allegations relate primarily to administrative and personnel actions by the vocational rehabilitation staff. In McEuen,[19] the Board held that an employee's emotional reaction to administrative actions or personnel matters taken by the employing establishment is not covered under FECA unless there is evidence of administrative error or abuse. Generally, such actions pertain to procedures and requirements of the employer and do not bear a direct relation to the work required of the employee. Absent evidence of error or abuse, the emotional condition is not employment generated. To determine whether error or abuse has occurred, the Board must examine whether the employing establishment acted reasonably.[20] 
The Board has held that denials by an employing establishment of a request for a different job, promotion or transfer are not compensable factors of employment under the FECA, as they do not involve appellant's ability to perform his or her regular or specially assigned work duties, but rather constitute a desire to work in a different position. Charles D. Edwards, 55 ECAB (Docket No. 02-1956, issued January 15, 2004). 

5. You stated on August 1, 2014, you filed a formal Equal Employment Opportunity (EEC) complaint (case number 0142014-00052) due to the fact that officials have discriminated against me based on my disability. The case remains unresolved at this time. The investigation is still in progress. The Board has long held that grievances and EEC complaints by themselves do not establish that workplace harassment or unfair treatment occurred. [22] the evidence submitted does not support appellant's allegations of harassment or discrimination on the part of her supervisors or coworkers. She did not submit adequate documentation of the dates such incidents arose, the parties involved or support her allegations with statements from any witnesses. 




Incident(s) Alleged Which the Office Finds Did Not Occur:

1. You stated you were ridiculed by co-workers, as being one of the "misfit toys" — a term associated with Individuals who had committed an offense (DUI, positive drug test domestic violence, etc.) which resulted in their being reassigned to this section. 

The Employees' Compensation Appeals Board held in Effie O. Morris, 44 ECAB 470 (1993) that, "unless a claimant alleges a compensable factor of employment substantiated by the record, it is unnecessary for the Office to address the medical evidence.

2. You stated over the next 10 months, some coworkers were told not to communicate with me and others treated me like you were untrustworthy due to your status. I filed several appeals and complaints - all of which were ignored. I endured the embarrassment and humiliation of being falsely accused and demoted to performing menial duties with no recourse available. As a result, I developed severe depression which was untreated for nearly eight months. 

An employee's emotional reaction to an administrative or personnel matter is not, in general, covered under the Act and would be considered as self-generated. Error or abuse by the employing agency, in what would otherwise by a personnel or administrative matter, may afford coverage under the Act. Where the evidence of record demonstrates that the employing establishment did not act reasonably in the administration of a personnel matter, coverage under the FECA may be afforded. 

3. You noted during this entire process, I was continually denied opportunities to address higher management and left without support, at times even spurned by those appointed to help with administrative issues. You presented no probative evidence that there events occurred. The Employees' Compensation Appeals Board held in Effie O. Morris, 44 ECAB 470 (1993) that, "unless a claimant alleges a compensable factor of employment substantiated by the record, it is 
unnecessary for the Office to address the medical evidence." 

4. You stated that the DIA authorities have violated policy and misused the PCA by not following Department of Defense Instructions (DoDI 5210.91) that require them to have "procedures to assess and determine whether an individual is mentally, psychologically, and emotionally fit to undergo an examination". Also, the regulation states that written procedures must exist to "Exempt or postpone examinations when individuals are considered psychologically, or emotionally unfit to undergo an examination". Their negligence to follow set policy has led to undue mental and physical pain and suffering as I had nervous breakdowns after each of the above listed sessions. You presented no probative evidence that these events occurred. 

Based on these findings, your claim is denied on the fourth basic element. Performance of Duty, because the requirements have not been met for establishing that you sustained an emotional condition that arose during the course of employment and within the scope of compensable work factors as defined by the FECA. Medical treatment is not authorized and prior authorization, if any, is terminated.