Use of Polygraph Examinations in Investigating Disclosure of Information About Pending Criminal Investigations

• Court: Department of Justice Office of Legal Counsel
• Decided: February 22, 1980
• Status: Published

Opinion

Use of Polygraph Examinations in Investigating Disclosure of Information About Pending Criminal Investigations

T h e A tto rn e y G e n e ra l m ay o rd e r Ju stic e D e p a rtm e n t em p lo y ees to subm it to p o ly g ra p h tests to an sw er q u estio n s relatin g to p en d in g crim inal investigations, an d m ay d isc h a rg e an em p lo y ee fo r refusing to take such a test.

E v en w h e re an em p lo y ee is en titled to be d isc h a rg e d o n ly “ fo r cau se," failure to c o o p e ra te w ith an official inv estig atio n by taking a p o ly g ra p h test m ay c o n stitu te ad eq u ate cau se, as lo n g as th e em p lo y ee is g iven reasonable assu ran ces resp ec tin g th e n eed fo r th e test an d th e use to w h ic h its results m ay be put.

February 22, 1980

M EM O R A N D U M O P IN IO N F O R T H E A T T O R N E Y G E N E R A L

You have asked us to consider the following questions regarding the use o f polygraphs in investigating unauthorized disclosures of inform a­ tion about pending criminal investigations: (1) may a Justice D epart­ ment employee be dismissed for refusing to submit to a polygraph test; and (2) may the results o f a polygraph test be used against the employee |n (a) administrative proceedings and (b) criminal proceed­ ings? We conclude that the A ttorney G eneral may order D epartm ent employees to submit to polygraph tests to answ er specific questions relating to pending criminal investigations and that employees w ho refuse to take polygraph tests may be discharged. If any em ployee is threatened w ith dismissal for refusing to take a polygraph test, then any evidence obtained through the test may not be used against the em­ ployee in a subsequent criminal proceeding. Em ployees should be w arned prior to taking the test that their refusal to participate may lead to their dismissal, but that nothing they say can or will be used against them in a criminal proceeding. It is doubtful that evidence obtained by way o f polygraph would, in any event, be admissible in a federal criminal proceeding, unless the employee stipulates to its admissibility.

I. Polygraphs and Federal Employment

T he use o f polygraphs for federal em ploym ent purposes has been the subject o f controversy for a num ber o f years. T he discussion focuses on tw o conflicting trends: the grow ing scientific acceptance o f the reliabil­ ity o f polygraphy and the increasing concern that polygraph examina­

421 tions violate privacy rights and the F ourth, Fifth, and Fourteenth Amendments. In 1965, the House Com m ittee on G overnm ent O perations held hear­ ings and issued a report on the use o f polygraphs by the federal governm ent. H. Rep. No. 198, 89th Cong., 1st Sess. (1965). T he Com ­ mittee R eport noted that 19 federal agencies used polygraphs; the most frequently reported purpose o f the use involved security matters. A total o f just under 20,000 tests w ere administered in 1963. Eight agen­ cies used polygraphs to investigate employee misconduct. (The D epart­ ment o f Justice indicated its use was limited to security and criminal matters.) T he Com mittee strongly criticized the use o f polygraphs; it concluded that the accuracy o f such tests was unproven and that operators w ere generally unqualified and undertrained. Id. at 1-2. In 1968, the Civil Service Commission prom ulgated regulations which prohibit use o f polygraphs in em ploym ent screening and person­ nel investigations for members o f the com petitive service, except for national security purposes. This regulation, w hich does not apply to the excepted service, is currently in force. Federal Personnel Manual chap­ ter 736, Appendix D .1 Senator E rvin introduced a num ber o f bills which would have prohibited the use o f polygraphs in the hiring or firing o f federal employees and employees o f industries affecting interstate commerce. S. 2156, 91st Cong., 2d Sess. (1971); S. 2836, 93d Cong., 1st Sess. (1973), reprinted in 119 Cong. Rec. 42681 (1973). See also H.R. 2596, 94th Cong., 1st Sess. (1975). None o f these measures was enacted. A dditional congressional hearings w ere held in 1974 before the House G overnm ent O perations C om m ittee.2 A D eputy Assistant A tto r­ ney G eneral for the Criminal Division testified that polygraphs had proven useful in a small num ber o f investigations involving a “closed” group o f persons— e.g., persons with access to stolen or embezzled property. H ow ever, he noted that even in these circumstances, the Criminal Division viewed the results “w ith caution and opposes their introduction into evidence . . . .” Hearings at 414. A representative of the Federal Bureau o f Investigation (FB I) testified that “the F B I’s official position has always been that [it does] not consider polygraph examinations sufficiently precise to perm it absolute judgm ent o f guilt or non-guilt—lie o r truth—w ithout qualifications.” Id. at 418. He added, how ever, that w ith proper ethics by the polygraph examiner and tight adm inistrative control by the user agency, there is no question but that the polygraph can be a valuable investi­

‘ T h e regulations require that agencies using polygraphs advise the individual o f his o r her privilege against self-incrim ination and right to counsel. T h e individual must voluntarily consent to the exam ina­ tion and a refusal to consent may not be included in his o r h er personnel file. a The Use o f Polygraphs and Sim ilar Devices by Federal Agencies, Hearings Before the House Committee on Government Operations, 93d C ong., 2d Sess. (1974) (" Hearings").

422 gative aid to supplement interrogation in selected criminal and national security cases. Interrogation is a basic tool of any investigative agency and the FBI considers the poly­ graph technique a thorough and specialized interview pro­ cedure in which a skillful interrogator is attem pting to simply ascertain the truthful facts from a consenting indi­ vidual regarding a m atter in which we have jurisdiction. In some instances suspects will admit deception and furnish confessions an d /o r signed statements. In most in­ stances valuable new information or investigative direc­ tion is developed as a result o f the examination and fol- lowup interrogation. Id. at 419. T he use o f polygraphs was strongly criticized by the A m eri­ can Civil Liberties Union on constitutional and scientific grounds. Id. at 2-84. A study prepared in 1974 by the staff o f the Subcommittee on Constitutional Rights o f the Senate Judiciary Com mittee reached a conclusion similar to the House Com mittee in 1965. It stated that [cjompulsory submission to a polygraph test is an affront to the integrity o f the human personality that is uncon­ scionable in a society which values the retention o f indi­ viduals’ privacy. . . . T he Congress should take legisla­ tive steps to prevent Federal agencies as well as the private sector from requiring, requesting, or persuading any employee o r applicant for em ploym ent to take any polygraph tests. Staff o f the Subcomm. on Constitutional Rights o f the Senate Comm, on the Judiciary, 93d Cong., 2d Sess., Privacy, Polygraphs, and Em ploy­ ment, 17-18 (Comm. Print 1974). T he study also concluded, after re­ viewing the literature on polygraphs, that “doubt must be cast upon the objectivity, accuracy, and reliability o f the polygraph test.” Id. at 9. Based on the above, it is clear that use o f polygraphs for federal employment purposes remains controversial.3 While civil service regu­ lations prohibit their use for the com petitive service, Congress has been made aw are that no prohibition exists regarding the excepted service. Several bills that would have prohibited such use have not been enacted.

II. Attorney General’s Authority to Terminate Employment

Analysis o f the authority o f the A ttorney G eneral to dismiss an employee for refusing to submit to a polygraph examination must begin

s States have taken an active role in limiting use o f polygraphs in the em ploym ent context. Eighteen states have licensing procedures for polygraph examiners; IS states prohibit use o f polygraphs. See C om m ent, Privacy: The Polygraph in Employment. 30 A rk. L. Rev. 35, 37-38 (1976).

423 w ith an understanding o f the statutory and regulatory protections af­ forded different classes o f D epartm ent employees. U nder the civil service laws, D epartm ent attorneys and employees of the FBI are in the excepted service. 28 U.S.C. § 536 (FBI); 5 C.F.R. § 213.3102(d) (governm ent attorneys). T he Office o f Personnel Manage­ ment (OPM ), by regulation, has exempted personnel in the excepted service from the statutory provisions regarding removal o f civil serv­ ants. See 5 C.F.R . § 752.401(c). H ow ever, persons in the excepted service w ho are non-probationary “preference eligibles,”—primarily veterans and the spouses and m others o f disabled and deceased veter­ ans—are afforded the civil service law protections. 5 U.S.C. § 7511(a)(1)(B). See id. § 2108 (defining “preference eligible”). T he civil service law protections are substantive and procedural. A preference- eligible em ployee may be rem oved “only for such cause as will pro­ mote the efficiency o f the service.” Prior to removal, an employee is entitled to 30 days’ advance w ritten notice o f the reasons for the action, a reasonable time to respond to the charges, the assistance of an attor­ ney, a w ritten decision, and an appeal to the Merit System Protection Board (MSPB). 5 U.S.C. § 7513; D O J O rder 1752.1. D epartm ent employees w ho are in the excepted service and are not preference-eligibles have no rights arising from a statute or OPM regu­ lation to a statem ent o f reasons for discharge or to an appeal from an adverse action. See Paige v. Harris, 584 F.2d 178, 181 (7th Cir. 1978). H ow ever, the D epartm ent is bound by its ow n substantive standards and procedures even though the em ployee may have no legitimate expectation o f continued em ploym ent and could, under relevant stat­ utes, be summarily discharged by the A ttorney G eneral at any time. See Vitarelli v. Seaton, 359 U.S. 535, 539-40 (1959); Paige v. Harris, 584 F.2d at 184; M azaleski v. Treusdell, 562 F.2d 701, 717 n.38 (D.C. Cir. 1977). D epartm ent O rder 1752.1 (1975), as supplem ented by a M arch 27, 1979 notice, establishes minimal procedures for D epartm ent attor­ neys w ho are not preference-eligibles. C hapter 6 o f the order entitles them only to “a letter o f term ination prior to the effective date o f the term ination . . . [which provides] a brief statem ent o f the reasons for the term ination.” 4 Substantively, D epartm ent attorneys are provided no protections by D epartm ent regulations. And since they are not covered by the “for cause” standard o f the civil service laws, attorneys apparently serve at the pleasure o f the A ttorney General. T he A ttorney G eneral’s authority to rem ove Assistant United States A ttorneys (A U SA ) is expressly rec­ ognized by statute. See 28 U.S.C. § 542(b). T his conclusion must be qualified because o f recent cases that have held that agency handbooks and informal understandings may establish

4 FB I em ployees are excluded alto g eth er from D O J O rd e r 1752.1.

424 substantive protections for federal employees. In Ashton v. Cm letti, 613 F.2d 923 (D.C. Cir. 1979), the D.C. Circuit held that “ the FBI has fostered rules and understandings which [entitle an FBI employee] to believe that he would lose his jo b only for a job-related reason.” 613 F.2d at 928.5 T he court recognized that FBI employees are in the excepted service and that “ [standing alone, the exception could suggest to an employee that he held his jo b at the sufferance o f his em ployer.” It went on to find, how ever, that the FBI Handbook, Manual o f Instructions, and the plaintiffs letter o f appointm ent created an implied promise that the employee would be dismissed “only for failing to perform his duties satisfactorily and w ithout prejudice to the F B I’s achievem ent o f its law-enforcem ent mission.” 613 F.2d at 930. In es­ sence, the court held that FB I employees, even though placed in the excepted service by statute, may be discharged only upon a finding o f cause similar to that required for dismissal o f members o f the com peti­ tive service.6 Once it is determ ined that an employee has a legitim ate claim to continued em ploym ent—Le„ that he o r she may be not be fired at any time—then procedural due process applies: the em ployee must be afforded a hearing and other procedural safeguards. We are unaw are o f any handbooks or guidelines upon w hich D ep art­ ment attorneys could rely to establish a legitimate claim to continued employment. W e cannot, how ever, rule out the possibility that an attorney could point to a letter o f appointm ent or to informal under­ standings which a court w ould deem sufficient to establish a property interest.7 In sum, the A ttorney G eneral probably has the authority to dismiss a non-veteran D epartm ent attorney for any reason, and the attorney is entitled only to a statem ent o f reasons for the discharge. N on-veteran FBI agents probably may be discharged only for job-related reasons, even though they are in the excepted service; they are entitled to a due process hearing. D epartm ent employees w ho are veterans may be dis­ charged only for cause and are entitled to statutory, OPM and D O J procedural rights.

5 T he case concerned the F B I's discharge o f an em ployee because o f his adm itted hom osexuality. T h e court held that (he em ployee w as entitled to a due process hearing prior to term ination to determ ine w h eth er his hom osexuality constituted a jo b -related basis fo r his dismissal. 6 See also Paige v. Harris, 584 F.2d 178 (7th Cir. 1978) (H U D H andbook provides rules and understandings creating legitim ate claim to continued em ploym ent for em ployees in the excepted service); Colm v. Vance, 567 F.2d 1125 (D .C . Cir. 1977) (rem anding for consideration o f w h eth er the Foreign Service A ct requires prom otion to be based solely on perform ance and m erit, even though plaintiff could dem onstrate no constitutional p ro p erty entitlem ent to prom otion). 7 F o r example, it is conceivable that a c o u rt could find that w hen an A U SA agrees to a 3-year com m itm ent w ith a U.S. A tto rn ey 's Office, that that agreem ent constitutes a prom ise by the D e p art­ ment not to discharge the a tto rn ey d u rin g that period w ithout good cause. A c o u rt m ight also hold that the D epartm ent's regulation requiring a statem ent o f reasons for term ination im plicitly requires the. D epartm ent to have a “g o o d ” reason.

425 III. What Constitutes “Cause”

As noted above, the civil service laws authorize removal o f covered civil servants “only for such cause as will prom ote the efficiency o f the service.” 5 U.S.C. §7513. T he D.C. Circuit has similarly held that an FB I em ployee may be dismissed “only for failing to perform his duties satisfactorily and w ithout prejudice to the F B I’s achievem ent o f its law- enforcem ent mission.” Ashton v. Civiletti, supra.6 T he question is w hether failure to obey an order to submit to a polygraph examination is sufficient cause for discharge under these standards. T he following discussion assumes that at the time the em ployee is ordered to take the test, the employee is assured both that he or she may be discharged for refusing to take the test and that no inform ation obtained in the course of, or as a result of, the examination may be used against him or her in a subsequent criminal proceeding.9 A t the minimum, failure to obey a legitimate order of a superior constitutes insubordination—an offense punishable by removal. See FBI Manual o f Instructions, Part I, § 1-20-2 (refusal to cooperate during an interview regarding w ork-related m atters permits discipline for insubor­ dination); § 13, Schedule o f Offenses and Penalties for FB I Employees (insubordination punishable by censure to removal). A refusal to submit to a polygraph test also arguably impedes investigation o f governm ent misconduct. It thus directly effects the efficiency o f the D epartm ent by hindering removal o f offending employees and restoration o f public confidence in the D epartm ent. T he Schedule o f Disciplinary Offenses and Penalties for D O J Employees, included in D O J O rder 1752.1, identifies the offense o f “refusal to cooperate in an official governm ent

8 It is quite clear that the underlying co n d u ct—disclosure o f facts o f a pending criminal investiga­ tion—perm its rem oval o f the offending employees. T h e co nduct may violate various crim inal statutes and plainly violates a num ber o f O PM and D O J standards o f conduct. See, e.g.. 5 C .F .R . §§ 735.201a(c) (im peding governm ent efficiency); (e) (m aking a governm ent decision outside official channels); (0 (affecting adversely the confidence o f the public in the integrity o f the governm ent); 73S.206 (misuse o f inform ation not made available to the general public); 735.209 (conduct prejudicial to the governm ent); 28 C .F .R . §§ 45.735-2(c)(3) (im peding governm ent efficiency); (c)(6) (affecting adversely the confidence o f the public in the integrity o f the governm ent); 45.735-10 (im proper use o f official inform ation); 45.735-18 (1980) (conduct prejudicial to the governm ent). It is possible that an em ployee charged w ith unauthorized disclosure may assert a First A m endm ent defense: that the governm ent may not constitutionally prohibit him o r her from com m enting on m atters o f public im portance. W hile the em ployee may have an interest in com m enting upon m atters o f public interest, this interest must be balanced against the g overnm ent's interest in prom oting the efficiency o f the public services it perform s th ro u g h its em ployees. See Pickering v. Board o f Education, 391 U.S. 563 (1968). T h e D .C . C ircuit has identified the relevant factors in the “balancing test" as: the sensitivity and confidential nature o f the em ployee’s position and the governm ent's consequently legitim ate need for secrecy; the subject m atter o f the speech; the truth o r falsity o f the speech; the interference w ith jo b perform ance; the context o f the speech; the effect o f the speech on agency m orale and w orking relationships w ith im m ediate superiors. Hanson v. Hoffman. 628 F.2d 42, 50 (D .C . Cir. 1980). It w ould appear that the g o vernm ent’s interest in preventing disclosure is at its maximum in regard to inform ation relating to pending crim inal investigations. 9 W ithout these assurances, an em ployee could not constitutionally be fired for refusing to take the polygraph test. See Kalkines v. United States, 473 F.2d 1391 (Ct. Cl. 1973); see also Sanitation Men v. Sanitation Commissioner. 392 U.S. 280(1968).

426 inquiry” and lists the suggested discipline as “official reprimand to removal.” T he obligation o f public officials to answer questions related to the perform ance o f their public duties is well-recognized. T he Supreme C ourt has upheld the right of public em ployers to fire employees solely for their refusal to sign affidavits or answer questions related to their fitness to perform their public functions. See, e.g., Lefkowitz v. Turley, 414 U.S. 70, 84 (1973); Sanitation Men v. Commissioner, 392 U.S. at 285; Beilan v. Board o f Education, 357 U.S. 399 (1958). These holdings are based on the recognized public interest in the accountability of public servants. This interest appears at its zenith when the integrity o f law- enforcement activities is at stake. As stated by Justice Harlan, [I]t is surely plain that [a State] may . . . require its employees to assist in the prevention and detection o f unlawful activities by officers o f the state government. T he urgency o f these requirem ents is the m ore obvious . . . w here the conduct in question is that o f officials directly entrusted with the adm inistration o f justice. The im portance for our systems o f justice o f the integrity of local police forces can scarcely be exaggerated. Garrity v. N ew Jersey, 385 U.S. 493, 507-08 (1967) (Harlan, J., dissenting).10 Thus, if the use o f polygraphs is deemed a necessary part of an investigation o f leaks, then a refusal to submit to such a test could impede the investigation and consequently hinder the efficiency o f the D epartm ent. D epartm ent standards o f conduct recognize the affirma­ tive duty o f employees to cooperate w ith official investigations, and refusals to cooperate are deemed serious enough offenses to w arrant removal in appropriate cases. W e can see no meaningful difference between compelling an employee to answer questions or sign an affida­ vit and compelling an employee to submit to a polygraph test.11 While the results o f the test may be open to question and debate, the refusal to take the test may properly be characterized as conduct which does not prom ote the efficiency o f the Departm ent. Accordingly, we believe that an employee could be dismissed for refusing to take a polygraph exam ination.12

10 A lthough the C o u rt held in Garrity that the incrim inating statem ents o f a public official obtained under threat o f dismissal could not be used in a criminal proceeding, the m ajority did not disagree w ith Justice H arlan's statem ent regarding the public interest that public officers provide information about the conduct o f their activities. See also Gardner v. Broderick, 392 U.S. 273, 278 (1968). 11 We reach this conclusion even though w e recognize that the use o f a polygraph is a g reater intrusion into an individual's privacy to the extent it probes unrelated m atter, private thoughts, and beliefs. 12 O ne district court has upheld the authority o f a city transit au th o rity to fire em ployees suspected o f intoxication w ho refuse to submit to urinalysis o r blood tests. T he c ourt relied upon the Garrity line o f cases for the proposition that public em ployees may be discharged for refusal to properly account for the perform ance o f their duties. Division 241, Am algam ated Transit Union v. Suscy. 4fi5 F. Supp. 750 (N .D . III. 1975), a ffd , per curiam, 538 F.2d 1264 (7th Cir.), cert, denied. 429 U.S. 1029 (1976).

427 An arguable objection to this conclusion may be phrased as follows. Polygraph tests have not achieved recognized acceptance among the courts and the experts as accurate indicators o f truth-telling. F or exam­ ple, the test may show deception w here a truthful subject is nervous, tense, over-tired, or angry, or when an examiner asks misleading or inadequate questions. See United States v. Alexander, 526 F.2d 161, 165 (8th Cir. 1975). Thus, w here an em ployee believes that the results of the polygraph will not be accurate, refusal to take the examination should not be grounds for removal. We believe that if the investigator can establish a reasonable basis for the use o f the polygraph in the course o f the investigation, then a refusal by an em ployee to take the test would be impermissible, not­ withstanding the subjective fear o f the employee. A reasonable basis would be established by showing the need for use o f the technology and the state o f the art. W e believe that adequate scientific evidence exists w hich w ould support an investigator’s decision that polygraphy could be helpful in the pursuit o f the investigation. See, e.g., United States v. D e Betham, 470 F.2d 1367 (9th Cir. 1972) (per curiam ), cert, denied, 412 U.S. 907 (1973) (although holding that district court did not abuse discretion in excluding polygraph evidence, court noted that evidence “vigorously su p p o rted ] the accuracy o f polygraphic evi­ dence”); United States v. Oliver, 525 F.2d 731, 737 (8th Cir. 1975), cert, denied, 424 U.S. 973 (1976) (upholding admission of polygraph evidence w here parties stipulated admissibility; court could not conclude that polygraph “is so unreliable as to be inadmissible in this particular case”); Tarlow , Adm issibility o f Polygraph Evidence in 1975: An A id in Determining Credibility In a Perjury-Plagued System, 26 Hastings L.J. 917 (1975).13 We recognize, how ever, that reliability of polygraphy remains hotly contested, and courts o f appeal have perm itted introduc­ tion o f polygraph evidence only when the parties have stipulated to its admissibility. See United States v. Alexander, supra (summarizing cases and denying trend o f adm itting polygraph evidence); Hearings, supra . 14 T he reasonableness o f the use o f a polygraph would be supported by a record establishing the reason for its use, the expected accuracy of the technology, the qualifications o f the examiner, and the reliance upon other evidence to establish and corroborate the results o f the investigation.15 Once the reasonable basis for the use o f polygraphy is established, we do not believe than an employee can, with impunity,

13 O ne factor frequently ciled by courts for excluding polygraph evidence is the probability that the ju ry will acco rd it undue w eight. O f course, this concfern is nbt present w hen adm inistrative proceed­ ings are contem plated. 14 T h e D .C . C ircuit continues to adhere to its per se rule against admissibility as established by the leading case o f Frye v. United States, 293 F. 1013 (D .C . Cir. 1923). See United States v. Skeens, 494 F.2d 1050 (D .C . Cir. 1974). 15 Presum ably, the quality o f the exam ination and the qualifications of the exam iner w ould be quite high if the exam ination is co n d u cted by FB I polygraph experts.

428 refuse to take the examination any more than he or she could refuse to submit to fingerprinting or blood-typing.

IV. Use of the Results of a Polygraph Test

As long as the employee is promised that any evidence obtained in the course of the polygraph test will not be used in a subsequent criminal proceeding, the Fifth Am endm ent does not bar its use in an administrative proceeding.16 O f course, such a promise, and the Fifth Amendment, prohibit use in any criminal proceeding. Garrity v. New Jersey, supra.

V. Conclusion

We conclude that the A ttorney General may discharge an employee for refusing to take a polygraph examination w here the examination is necessary to an official investigation of unauthorized disclosures about pending criminal investigations, provided that the employee has been w arned that failure to submit to the test could lead to his or her dismissal and that nothing obtained in the examination will be used against the employee in a subsequent criminal proceeding. Even if a court were to hold that D epartm ent attorneys may only be discharged “ for cause,” we conclude that, generally, failure to cooperate with an official investigation is adequate cause, although each situation must be evaluated on a careful case-by-case basis.

L arry A. H am m ond Acting Assistant Attorney General Office o f L egal Counsel

16 Because o f the controversy surrounding the use o f polygraphs, it is possible than an em ployee discharged solely on the basis o f polygraphic evidence w ould challenge the dismissal as arbitary and irrational agency action. W e do not believe that, absent a judicially recognizable property or liberty interest, an em ployee may challenge agency action as a violation o f due process unless the agency has not followed its ow n regulations. See Paige v. Harris, 584 F.2d at 184; c f Bishop v. Wood, 426 U.S. 341 (1976). A t least one court, how ever, has held that a governm ent decision is subject to challenge as arbitrary and capricious even w here the em ployee has no pro p erty right in continued em ploym ent. Heaphy v. U.S. Treasury Dept., 354 F. Supp. 396 (S.D .N .Y . 1973) (T yler, J.), a f f d on opinion below. 489 F.2d 735 (2d Cir. 1974). If a court w ere to permit a challenge to a dismissal based solely on the results o f a polygraph exam ination, the non-arbitrariness o f the action w ould depend upon such factors as the quality o f the exam ination, the skill and training o f the exam iner, and the inherent credibility o f the em ployee’s statements.