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Re: DIA's Insider Threat Program
Reply #240 - Apr 25th, 2023 at 9:04pm
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UPDATE

As my case sits on the DC District Court docket, I feel the need to share something.

The Agency has repeatedly escaped culpability in my complaints by claiming that they were not aware of my disabilities.

This is a report that was written by a DIA psychologist which describes my condition less than an hour after my 5th and final polygraph interrogation.

Polygraph abuse is real.
  


"The polygraph examination is a supplement to, not a substitute for, other methods of investigation.† No, unfavorable administrative action shall be taken based solely on its results."† ~ DODI 5210.91.
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Re: DIA's Insider Threat Program
Reply #241 - May 3rd, 2023 at 1:37am
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Here is the brief in support of my appeal to the EEOC.

  

"The polygraph examination is a supplement to, not a substitute for, other methods of investigation.† No, unfavorable administrative action shall be taken based solely on its results."† ~ DODI 5210.91.
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Re: DIA's Insider Threat Program
Reply #242 - May 3rd, 2023 at 1:37am
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And here is the Agency's Opposition to my appeal.
  

Morter+-+Opposition+to+Appeal.pdf ( 320 KB | 12 Downloads )

"The polygraph examination is a supplement to, not a substitute for, other methods of investigation.† No, unfavorable administrative action shall be taken based solely on its results."† ~ DODI 5210.91.
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Re: DIA's Insider Threat Program
Reply #243 - May 3rd, 2023 at 1:39am
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And here is the Administrative Judge's final ruling. Ultimately, I filed a timely Request for Reconsideration, which was swiftly rejected.
  

2020005490+DEC.pdf ( 311 KB | 19 Downloads )

"The polygraph examination is a supplement to, not a substitute for, other methods of investigation.† No, unfavorable administrative action shall be taken based solely on its results."† ~ DODI 5210.91.
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Re: DIA's Insider Threat Program
Reply #244 - May 3rd, 2023 at 11:43am
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John M. wrote on Feb 17th, 2020 at 7:58pm:
Just so you all know, the story still isnít over. In fact, after a long six years, itís about to get real. Stay tuned.

It is now.  As Don Meredith used to say, turn out the lights, the party's over!
  
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Re: DIA's Insider Threat Program
Reply #245 - May 3rd, 2023 at 9:09pm
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quickfix wrote on May 3rd, 2023 at 11:43am:
It is now.  As Don Meredith used to say, turn out the lights, the party's over!

I take it you missed my post at the top of this page.
  

"The polygraph examination is a supplement to, not a substitute for, other methods of investigation.† No, unfavorable administrative action shall be taken based solely on its results."† ~ DODI 5210.91.
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Re: DIA's Insider Threat Program
Reply #246 - Jun 23rd, 2023 at 2:15pm
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Upon being notified that I was being summoned to HQ for another Polygraph Credibility Assessment, I presented the responsible officials with this official diagnosis of my disabilities. It was brushed aside, and I traveled up to DC to be subjected to the most abusive interrogation of them all. (the psychologist's report from that session is at the top of this page)
  

Rothburd_diagnosis_31_Jul_14.pdf ( 202 KB | 12 Downloads )

"The polygraph examination is a supplement to, not a substitute for, other methods of investigation.† No, unfavorable administrative action shall be taken based solely on its results."† ~ DODI 5210.91.
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Re: DIA's Insider Threat Program
Reply #247 - Jun 23rd, 2023 at 2:32pm
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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 ó(Docket No. 93-1794, issued October 16, 1995); David G. Joseph, 47 ECAB ó (Docket No. 94-1288, issued March 26, 1996); Edward J. Meros, 47 ECAB ó (Docket No. 94-1 636, issued May 24, 1996); William E. Seare, 47 ECAB ó (Docket No. 94-2370, issued July 16, 1996); Donna J. DiBernardo, 47 ECAB ó (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" ó 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.
  

RothburdEval_23OCT14.pdf ( 1283 KB | 10 Downloads )

"The polygraph examination is a supplement to, not a substitute for, other methods of investigation.† No, unfavorable administrative action shall be taken based solely on its results."† ~ DODI 5210.91.
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Re: DIA's Insider Threat Program
Reply #248 - Jun 23rd, 2023 at 2:51pm
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Without revealing too much right now, this is a portion of the psychiatric evaluation that I submitted to the OWCP and the EEOC.
  

"The polygraph examination is a supplement to, not a substitute for, other methods of investigation.† No, unfavorable administrative action shall be taken based solely on its results."† ~ DODI 5210.91.
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Re: DIA's Insider Threat Program
Reply #249 - Jun 30th, 2023 at 4:56pm
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John M.:  just out of curiosity (and if you don't mind answering), how much have you spent on legal fees pursuing this matter?
  
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Re: DIA's Insider Threat Program
Reply #250 - Jul 4th, 2023 at 4:26pm
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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.

  

"The polygraph examination is a supplement to, not a substitute for, other methods of investigation.† No, unfavorable administrative action shall be taken based solely on its results."† ~ DODI 5210.91.
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Re: DIA's Insider Threat Program
Reply #251 - Jul 7th, 2023 at 8:51pm
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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.

Whatís 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."

  

"The polygraph examination is a supplement to, not a substitute for, other methods of investigation.† No, unfavorable administrative action shall be taken based solely on its results."† ~ DODI 5210.91.
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Re: DIA's Insider Threat Program
Reply #252 - Jul 28th, 2023 at 2:56pm
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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.

  

FOIA_-_13_AUG_2014_email.pdf ( 89 KB | 11 Downloads )

"The polygraph examination is a supplement to, not a substitute for, other methods of investigation.† No, unfavorable administrative action shall be taken based solely on its results."† ~ DODI 5210.91.
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Re: DIA's Insider Threat Program
Reply #253 - Jul 28th, 2023 at 5:01pm
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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."
  

"The polygraph examination is a supplement to, not a substitute for, other methods of investigation.† No, unfavorable administrative action shall be taken based solely on its results."† ~ DODI 5210.91.
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