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ISCR Case 15-06705.h1 — CASE

ISCR Case 15-06705.h1granted

Case Headnote

ISCR Case No. 15-06705.h1

grantedAug 31, 2016· Hon. Carol G. Ricciardello· hearing

Summary

This security clearance decision involved a 29-year-old former Army service member whose eligibility was reviewed under Guideline E (Personal Conduct). Concerns arose from a positive drug test for cocaine, leading to the application of disqualifying conditions E2.A5 and E2.A5.e.

However, the judge applied mitigating conditions E2.A6 and E2.A6.b, ultimately granting the applicant's security clearance. The applicant provided credible testimony, asserting that the positive drug test resulted from prescribed medications, not illegal drug use. This claim was supported by multiple witnesses, including supervisors and colleagues, who testified to his integrity and strong work ethic.

The judge found no evidence that the applicant intentionally falsified information regarding his drug use. Furthermore, the judge concluded there was insufficient evidence to suggest the applicant resigned due to knowledge of the failed drug test. The applicant's consistent employment in government contracting also contributed to his demonstrated credibility.

Why the Applicant Prevailed

The applicant provided credible testimony denying illegal drug use and asserting that the positive drug test was due to prescribed medications.
Multiple witnesses, including supervisors and colleagues, testified to the applicant's integrity and work ethic, supporting his claims of not using illegal drugs.
The judge found insufficient evidence to conclude that the applicant resigned due to knowledge of the failed drug test.

Conditions Referenced

Disqualifying

E2.A5raisedDeliberate Omission, Concealment, or Falsification of Relevant Facts
E2.A5.eraisedPersonal Conduct That Creates a Vulnerability to Exploitation

Mitigating

E2.A6appliedThe Individual Has Taken Positive Steps to Reduce or Eliminate Vulnerability to Exploitation
E2.A6.bappliedThe Individual Has Demonstrated a History of Responsible Conduct

Key Rule Quoted

“The protection of the national security is the paramount consideration.”

Procedural Posture

SOR issuedAug 26, 2015
Answer filedOct 15, 2015
Hearing heldJul 18, 2016
Decision dateAug 31, 2016

Cite For

Mitigation of Personal Conduct Concerns Under Guideline E
Credibility of Witness Testimony in Support of an Applicant's Claims
Consideration of Prescribed Medications in Drug Testing Outcomes

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

Standardized Decision Profile

SEAD-4 Guideline E (Personal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: granted

The judge found that the applicant mitigated the personal conduct concerns under Guideline E. The applicant's eligibility for a security clearance was granted, indicating that the judge did not find the allegations substantiated.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
1.a–1.d	4 sub-charges — specific text not stated in this decision (for the applicant).	For Applicant		—		—	—	—

Descriptive standardized rendering of a decided public case (Guideline E). The verbatim source decision is shown in full below.

Full decision

The complete, official text — footnotes and signatures included — is in the original PDF.

Decision text, by section

DEFENSE OFFICE OF HEARINGS AND APPEALS

HEARING

APPEARANCES

DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS

In the matter of: ) ) ) ISCR Case No. 15-06705 ) ) Applicant for Security Clearance

For Government: Ross Hyams, Esq., Department Counsel For Applicant: Ronald C. Sykstus, Esquire

08/31/2016 ______________

STATEMENT OF CASE

______________

RICCIARDELLO, Carol G., Administrative Judge:

Applicant mitigated the security concerns under Guideline E, personal conduct. Applicant’s eligibility for a security clearance is granted.

Statement of the Case

On August 26, 2015, the Department of Defense Consolidated Adjudications Facility (DOD CAF) issued to Applicant a Statement of Reasons (SOR) detailing security concerns under Guideline E, personal conduct. The action was taken under Executive Order 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG) effective within the DOD on September 1, 2006.

Applicant answered the SOR on October 15, 2015, and requested a hearing before an administrative judge. The case was assigned to me on June 6, 2016. The Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing on June 22, 2016. I convened the hearing as scheduled on July 18, 2016. The Government offered exhibits (GE) 1 through 6. Applicant and seven witnesses testified. He offered Applicant Exhibits (AE) A through I. All exhibits were admitted into evidence without objection.1 The record remained opened until August 2, 2016, to permit Applicant to submit additional documents. He submitted AE J and it was admitted without objection. DOHA received the hearing transcript (Tr.) on July 27, 2016.

FINDINGS OF FACT

Applicant denied all of the allegations in SOR. After a thorough and careful review of the pleadings, exhibits, and testimony, I make the following findings of fact.

Applicant is 29 years old. He made a decision to leave high school early and obtain his General Education Diploma so he could join the Army. He felt compelled to do so after the terrorist attacks of September 11, 2001. He served from August 2004 until his honorable discharge in May 2010. He deployed to Iraq for 13 months and served in a combat zone while in the Army. He was awarded an Army Commendation Medal and two Army Achievement Medals, among other medals and ribbons. Since his discharge from the military, except for a short period when he worked as a personal trainer, he has worked exclusively for government contractors in his field of expertise. He worked overseas in Iraq from October 2010 to October 2011. He has been employed with his current employer since September 2014. He holds multiple licenses and certificates required for employment in his field.2

Applicant was married from 2010 until 2013. He has a daughter from the marriage who is six years old, for whom he provides child support and is actively involved in her life. He remarried in 2014 and has an infant daughter from the marriage.3

Throughout Applicant’s military service and civilian career working for government contractors, he has been required to submit to pre-employment drug tests and random drug tests. In the past, he has never had a positive drug test for use of any illegal drug or misuse of a legal drug. In March 2014, Applicant’s random drug sample tested positive for cocaine.4

Upon returning from Iraq in October 2011, Applicant was separated from his wife, and living and working in State C while working for Company B. His girlfriend was living there and completing college. Applicant was separated from his wife, and she and his daughter were living in State A. Due to the government shutdown and sequestration in mid-2013, Applicant became unemployed.5 Applicant testified that he is a competitive and sponsored body-builder. In March 2013 he injured his knee while lifting weights. He worked with a medical doctor on a pain management plan, which he provided a copy. He was prescribed three drugs to help with the pain, all of which are controlled substances. The pain management program was prescribed because Applicant intended on leaving the state due to employment issues and the doctor was not permitted to prescribe the painkillers without the plan. Applicant indicated this is a state requirement so a patient does not abuse the medications and become addicted to them. The prescription is written for short periods, and the patient is required to submit to drug testing to ensure they are not misusing the drugs.6

Applicant remained in State C until he could no longer pay his bills. He was incurring credit card debts and his unemployment benefit was inadequate to live on. He searched for employment outside of State C. In August 2013, Applicant accepted a job with Company S located in State A where his daughter lives.7 This would allow him to spend more time with her. He credibly testified that when he accepted the job, he was told by Company S that it had a lucrative defense contract that would keep him working for several years, and there would be significant opportunities for overtime pay. Later after Applicant accepted employment with Company S and moved, he learned that the military service that used a certain aircraft was no longer going to use them, so Company S’s contract was drastically reduced. Applicant was then informed that his workload would be reduced, and there would be no opportunity for overtime.8

Applicant credibly testified that he was not happy at Company S because he did not believe the company’s operations were consistent with the industry’s standards. He stated he was passionate about his work and had a difficult time “going with the flow” of how the company performed work.9 His military background and experience in how work was performed was different than many of the supervisors and employees of the company who came from different backgrounds. He did not get along with his supervisor. Applicant also indicated that from the beginning when he started to work at Company S, it became apparent that he was not going to be accepted because he was not from the local community. Applicant started to feel resentment toward his employer based on its treatment of him.10

In late January and February 2014, Applicant was contacted by his former supervisor at Company B in State C. They talked about Applicant returning to State C to work for a new employer, Company P, that needed to hire employees because it had received a federal contract. Company P needed employees with Applicant’s skill set and licenses. The job was similar to the one Applicant had previously held in State C. They talked over several weeks regarding the available positions that would be opening and the pay scale. Applicant testified that after his former supervisor contacted him about the job openings, he had to think about the offer, because he would need to relocate, away from his daughter. Applicant’s former supervisor indicated he spoke with Applicant over several weeks about the job opening before Applicant accepted the job.11

Applicant testified that during this same period he was still experiencing financial problems and was “drowning in debt.”12 He was sharing a hotel room, paying child support, helping pay for the household expenses where his fiancé was living in State C, and had expenses associated with his pet and other expenses. Accepting the job with Company P would allow him to consolidate his household expenses and earn more money, but he would live farther away from his daughter.13

On March 6, 2014, Applicant was selected by Company S to submit a urine sample for a random drug test. Applicant testified that he was taking his prescribed pain medications at this time. He submitted his sample. There were approximately 30 to 50 employees that were also selected to submit to the test. Applicant testified they were all at the testing site at the same time.14

Applicant testified that he had an argument with his supervisor at Company S on March 10, 2014. He talked to his contact at Company P on that day and was told a positon was opening up.15 Applicant testified he walked over to his supervisor’s desk, laid his employee badge on his supervisor’s desk, and left the company compound. His supervisor was not present. Later upon returning to his desk, his supervisor sent an email to the company’s human resource division and advised them that he found Applicant’s badge on his desk. A coworker contacted Applicant to find out what was going on and was advised by Applicant that he had left, but would not state why he quit. Based upon this information the company terminated Applicant’s employment. Applicant indicated that he was never contacted by Company S to inquire about the failed drug test or ask him why he resigned. He was never advised by Company S that it terminated his employment.16

Applicant testified he was driving to see his fiancé later that day after he quit, and sometime that day or the next day, he received a phone call from a medical person regarding his random drug test results from March 6, 2014. He was told by the medical person that his urinalysis test had tested positive for a controlled substance. Applicant stated he told the medical person that his tests always come back positive, but he no longer worked for Company S. Applicant testified that his drug tests are positive for opiates and barbiturates based on the prescription medications that he takes for pain and inflammation. Applicant was not told at that time by the medical person that his urine tested positive for cocaine, or that he failed the drug test, only that his sample tested positive for a controlled substance. There was no further discussion with the medical person once Applicant told him he no longer worked for Company S. Applicant stated he did not learn that the test results indicated cocaine until he received the discovery documents from the Government in April 2016. The SOR only alleges Applicant failed a drug test. It does not state the name of the drug. His test results were never forwarded to the federal licensing agency by Company S. Applicant stated that if he had a positive drug test for an illegal drug, his employer would contact the licensing authority, and it would revoke his licenses.17

Applicant took a pre-employment drug test for Company P on April 2, 2014. He was required to take it immediately and he did so an hour after he was offered the job.18 He was officially hired by Company P on April 14, 2014, with a significant increase in pay.19 Applicant has since left the employment of Company P. When he was applying for his current job, he sent his resume to the employer. In the resume Applicant includes his employment with Company S from October 2013 to April 2014 and the location of the company. The positive drug test has never been brought to the attention of any of his employers. In his new job he works closely with his former employer, Company S, and the drug test has never been brought up.20

Applicant credibly testified that he was and is aware that random drug testing is a condition of employment in his field. He completed drug tests throughout his military service. He has taken drug tests at all of his places of employment. He was also required to take two additional drug tests as part of a flight physical and is required to take a drug test every six months to comply with the flight physical requirements. Since he quit employment at Company S in March 2014, he has taken approximately five drug tests as part of his employment. He has also taken six random drug tests as part of his pain management program. He questioned the validity of the drug test results from Company S because it did not include the prescribed drugs he knew were in his system. Had he been timely advised that his sample tested positive for cocaine, he would have requested it be retested and investigated why the sample did not test positive for opiates and barbiturates.21

Applicant credibly testified that he has never used cocaine or marijuana in his life. He rarely consumes alcohol, having about 12 drinks a year. His life consists of working, providing for his family, and body-building training. He has worked in his field of expertise for 14 years and is fully aware that if he used cocaine or any other illegal controlled substance that he would be terminated from his employment, and his licenses would be revoked. He continues to have medical problems and is on a pain management program and takes prescription medications. He adamantly testified that he does not use illegal drugs and has never used illegal drugs.22

Applicant denied he resigned from his position with Company S in lieu of being terminated after he was informed by the medical person that he failed a company administered drug test in March 2014.23

Applicant completed a security clearance application (SCA) on October 2014. In response to section 23, which asked if in the last seven years Applicant had illegally used drugs or controlled substances, he answered “no.” Applicant asserted he did not falsify material facts on this SCA because he did not use cocaine as was alleged. He answered this question honestly.24

Applicant testified that he did not falsify material facts on his October 2014 SCA when he stated the reason he left Company S was because it “lost [the] contract and I wasn’t sure how stable work flow was going to be and [Company P] in [State C] offered me my job back at [city and State C].”25

Applicant testified that he did not falsify material facts on his August 2014 SF 85 when he responded “no” to section 14 which asked if in the last year he had used, possessed, supplied or manufactured illegal drugs.26

Applicant’s wife testified. She holds a security clearance. She has never observed Applicant use any illegal drugs. She stated he rarely drinks alcohol. She verified that Applicant was under a lot of stress maintaining two households, and he was unhappy with the management at Company S.27

Applicant’s roommate when he was living in State A testified that he has worked for Company S for three years. He and Applicant were in Iraq in 2010 as civilians. He has known him since 2009. They shared a hotel room and then an apartment. They worked and socialized together. He stated that Applicant rarely drank alcohol and spent most of his off-time in the gym. He confirmed that when they both were hired by Company S they were told they would have plenty of work and overtime. The program they were to work on did not materialize, and they did not have the work as promised. The witness confirmed that the supervisor at Company S was difficult, and Applicant was not happy with the situation because they were not given the correct tools to perform the jobs. The witness also confirmed that three to four weeks before Applicant quit, he was talking with personnel from a company in State C, and it had offered Applicant a job. The witness stated that it would be uncharacteristic of Applicant to use cocaine because Applicant was always concerned about what he put into his body. The witness described Applicant a gym person who was focused on his body-building.28

A current supervisor of Applicant’s testified that he oversees Applicant’s work and has daily contact with him. Applicant is one of his most competent technicians. He does everything in accordance with proper procedure and is passionate about his work and ensuring the job is done correctly. He is valued and trusted. He does not believe Applicant used cocaine.29

Two other supervisors testified that Applicant is an outstanding worker whose performance is exemplary. He works extremely hard and exercises good judgment and is trustworthy. Neither would question his veracity or truthfulness.30

A witness who became associated with Applicant through a men’s service organization testified. The organization is focused on making good men better. He has known Applicant for a year. Applicant became interested in the philanthropic organization and two months later was initiated. Applicant has participated in many service projects. He is considered honest and is a respected member. The witness would trust Applicant to watch his child.31

Applicant provided numerous letters attached to his Answer. He is described as knowledgeable, valuable, and mission-oriented. One letter stated Applicant constantly takes the “hard right” path over the “easy wrong” path. He is unafraid to “ruffle a few production feathers in his quest to ensure the work was done correctly and safely.”32 He is considered honest and trustworthy. He is considered a person of integrity and character.33

POLICIES

When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines. In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are used in evaluating an applicant’s eligibility for access to classified information.

These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, these guidelines are applied in conjunction with the factors listed in the adjudicative process. The administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. According to AG ¶ 2(c), the entire process is a conscientious scrutiny of a number of variables known as the “whole-person concept.” The administrative judge must consider all available, reliable information about the person, past and present, favorable and unfavorable, in making a decision.

The protection of the national security is the paramount consideration. AG ¶ 2(b) requires that “[a]ny doubt concerning personnel being considered for access to classified information will be resolved in favor of national security.” In reaching this decision, I have drawn only those conclusions that are reasonable, logical, and based on the evidence contained in the record. Likewise, I have not drawn inferences grounded on mere speculation or conjecture.

Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, an “applicant is responsible for presenting witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by applicant or proven by Department Counsel and has the ultimate burden of persuasion to obtain a favorable security decision.”

A person who seeks access to classified information enters into a fiduciary relationship with the Government predicated upon trust and confidence. This relationship transcends normal duty hours and endures throughout off-duty hours. The Government reposes a high degree of trust and confidence in individuals to whom it grants access to classified information. Decisions include, by necessity, consideration of the possible risk the applicant may deliberately or inadvertently fail to safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation of potential, rather than actual, risk of compromise of classified information. Section 7 of Executive Order 10865 provides that decisions shall be “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information).

ANALYSIS

Guideline E, Personal Conduct

AG ¶ 15 expresses the security concern for personal conduct:

Conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules and regulations can raise questions about an individual's reliability, trustworthiness and ability to protect classified information. Of special interest is any failure to provide truthful and candid answers during the security clearance process or any other failure to cooperate with the security clearance process.

AG ¶ 16 describes two conditions that could raise a security concern and may be disqualifying. I find the following potentially applicable:

(a) deliberate omissions, concealment, or falsification of relevant facts from any personnel security questionnaire, personal history, statement, or similar form used to conduct investigations, determine employment qualifications, award benefits or status, determine security clearance eligibility or trustworthiness, or award fiduciary responsibilities; and

(e) personal conduct, or concealment of information about one’s conduct, that creates a vulnerability to exploitation, manipulation, or duress, such as (1) engaging in activities which, if known, may affect the person’s personal, professional, or community standing.

There is sufficient credible evidence to believe that Applicant quit his employment after he had an argument with his supervisor and had accepted employment in another state. The evidence supports Applicant’s assertion that he had been in contact with a person from Company P about being hired weeks before his sample tested positive. There is insufficient evidence to conclude that he resigned after he became aware that he had failed a drug test. Applicant admitted that he was contacted by a medical person about a positive test for a controlled substance, after he quit. A reliable timeline was not established to show Applicant was aware of the results of the test before he quit. I find none of the above disqualifying conditions apply to SOR ¶ 1.a.

Applicant denied the allegations in SOR ¶¶ 1.b, 1.cand 1.dthat he falsified material facts on his SCA and SF 85. When a falsification allegation is controverted or denied, as in this case, the Government has the burden of proving it. Proof of an omission, standing alone, does not establish or prove an applicant’s state of mind when the omission occurred. An administrative judge must consider the record evidence as a whole to determine whether there is direct or circumstantial evidence concerning an applicant’s state of mind at the time the omission occurred.34

I found Applicant’s testimony credible that he was not told that his sample tested positive for cocaine by the medical person, but rather was only told that he had a positive test result for a controlled substance. He expected such and was not surprised because he was taking prescription painkillers at the time, which would have caused his sample to test positive for a controlled substance. Once he told the medical person he was no longer employed with the company, no further information was provided to Applicant. In addition, the SOR does not identify or allege what the controlled substance was in his urine sample. Applicant credibly testified that he was unaware until he received the government’s discovery documents that his sample tested positive for cocaine. This is also supported by his Answer to the SOR, which was provided before he received his discovery where he requested the government provide him its evidence. The government submitted evidence that Applicant’s sample tested positive for cocaine. The test does not reflect a positive result for the painkillers Applicant testified he was taking at the time, which raises questions regarding the chain of custody and the validity of the test. It could also mean that painkillers were not in Applicant’s system when he submitted his sample. I have weighed both possibilities.

Applicant works in a highly technical specialized field that requires him to have licenses obtained from a federal entity. He was aware that those licenses would be revoked if he tested positive for illegal drugs. He has worked in the field for 14 years. There is considerable evidence that he is passionate about his work, following proper procedures, and performs in an ethical manner. He willingly addresses discrepancies even if it “ruffles a few production feathers.”35 He is characterized as an outstanding employee. He has had numerous random drug tests while serving in the Army and as a civilian. He is a bodybuilder, and as his former roommate noted, he spent most of his time at the gym. Of particular significance is that Applicant’s resume includes his employment at Company S and its location. This information would be available to a prospective employer to contact Company S and inquire about Applicant. If Applicant had intentionally used cocaine and was terminated by Company S rather than quitting, it is unlikely he would have included that employment on the resume.

During the hearing, I had an opportunity to assess and evaluate Applicant’s demeanor and candor, along with weighing the evidence. There was substantial evidence presented that Applicant leads a conservative lifestyle; is involved in philanthropic projects; is a devoted husband and father; and is committed to ensuring he provides exemplary service. After listening to Applicant testify and observing his demeanor, I conclude that Applicant quit his job with Company S because it lost the contract he was hired to work on, and he was dissatisfied with the potential reduction of work hours. He also quit because of his dissatisfaction with the employer’s management, and he had received a better job offer. He did this before he was notified about the drug test results. He was not notified by Company S that it had terminated him after he quit. Because I believe Applicant was truthful and was unaware of the drug test results before he quit, I conclude his responses on his SCA and SF 85 regarding illegal drug use and his explanation for why he left Company S were also truthful. Based on all of the evidence, I find his explanations credible. Therefore I conclude that Applicant did not deliberately falsify material facts on his SCA or SF 85, and none of the above disqualifying conditions apply to SOR ¶¶ 1.b, 1.c, and 1.d. Hence, a discussion of the applicability of mitigating conditions is not warranted. Applicant sufficiently refuted all of the SOR allegations.

WHOLE PERSON CONCEPT

Under the whole-person concept, the administrative judge must evaluate an applicant’s eligibility for a security clearance by considering the totality of the applicant’s conduct and all relevant circumstances. The administrative judge should consider the nine adjudicative process factors listed at AG ¶ 2(a):

(1) the nature, extent, and seriousness of the conduct; (2) the circumstances surrounding the conduct, to include knowledgeable participation; (3) the frequency and recency of the conduct; (4) the individual’s age and maturity at the time of the conduct; (5) the extent to which participation is voluntary; (6) the presence or absence of rehabilitation and other permanent behavioral changes; (7) the motivation for the conduct; (8) the potential for pressure, coercion, exploitation, or duress; and (9) the likelihood of continuation or recurrence.

Under AG ¶ 2(c), the ultimate determination of whether to grant eligibility for a security clearance must be an overall commonsense judgment based upon careful consideration of the guidelines and the whole-person concept.

I considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case. I have incorporated my comments under Guideline E in my whole-person analysis. Some of the factors in AG ¶ 2(a) were addressed under those guidelines, but some warrant additional comment.

Applicant is a 29-year-old military veteran who is the father of two children. He has worked in his field of expertise for 14 years and holds licenses from a federal entity. He has an exemplary work record. He is a devoted to ensuring his work is completed correctly and safely. I have carefully considered all of the evidence, including his witnesses’ testimony. This case comes down to the credibility of Applicant, and whether he is to be believed that he answered questions on his SCA and SF 85 honestly and whether he quit his job after he learned of a positive drug test. Having the opportunity to personally observe Applicant and weigh all of the evidence, I conclude he did not falsify his security documents, and he quit his job and was never informed that he was terminated. I do not have questions about his judgment, reliability, and trustworthiness. Overall, the record evidence leaves me with no questions and doubts about Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant refuted the personal conduct security concerns.

FORMAL FINDINGS

Formal findings for or against Applicant on the allegations set forth in the SOR, as required by section E3.1.25 of Enclosure 3 of the Directive, are:

Paragraph 1, Guideline F: FOR APPLICANT

Subparagraphs 1.a-1.d: For Applicant

CONCLUSION

In light of all of the circumstances presented by the record in this case, it is clearly consistent with the national interest to grant Applicant a security clearance. Eligibility for access to classified information is granted.

_____________________________ Carol G. Ricciardello Administrative Judge

FOOTNOTES

1 Hearing Exhibit I is a copy of Department Counsel’s discovery letter to Applicant. 2 Tr. 15-25; Answer to SOR. 3 Tr. 15-16, 38-39 GE 1, 2. 4 Tr. 22, 25. 5 Tr. 26-27; AE F, G, H, I. 6 Tr. 28-34.AE I are copies of the pain management plan from September 2013 to September 2014, which included a drug test. 7 Tr. 34; AE D. 8 Tr. 27, 35-36. 9 Tr. 37. 10 Tr. 36, 41, 78, 84-85, 90-91. 11 Tr. 39-40, 75-81; AE J. 12 Tr. 37. 13 Tr. 37-38, 76-77, 94. 14 Tr. 61. 15 Tr. 40; AE J is an affidavit from the person Applicant was talking to from Company P. 16 Tr. 41, 75-76, 83, 88-90; GE 6. 17 Tr. 41-45, 48-51, 58, 65-67, 73-75. GE 5 is a copy of the test results and the form Applicant signed before submitting his sample. In the form, it states that after the medical review officer receives the results, he/she may contact the employee to ask about prescriptions and over-the-counter medications the employee may have taken. It advised that the employee may want to make a list of those medications for their own record. In capitalized letters it states: THIS LIST IS NOT NECESSARY. It also advised: DO NOT PROVIDE THIS INFORMATION ON THE BACK OF ANY OTHER COPY OF THE FORM. 18 AE B. 19 Tr. 48; AE C. 20 Tr. 46-48, 59; AE B. 21 Tr. 43-45, 59-64, 71-72; GE 5. 22 Tr. 44-46, 48, 52, 54-55. 23 Tr. 52. 24 Tr. 53-54; GE 2. 25 Tr. 53-54; GE 2. 26 Tr. 53-54; GE 1. 27 Tr. 98-106. 28 Tr. 113-119. 29 Tr. 106-111. 30 Tr. 126-134. 31 Tr. 120-125. 32 Answer to SOR, attachment F. 33 Answer to SOR attachment F 34 See ISCR Case No. 03-09483 at 4 (App. Bd. Nov. 17, 2004) (explaining holding in ISCR Case No. 02- 23133 at 5 (App. Bd. Jun. 9, 2004)). 35 Answer to SOR, attachment F.