RETIRED AGENT BATTLES FBI OVER AGE BIAS SIX-YEAR LEGAL FIGHT DRAGS ON.

Byline: Jesse Hiestand Staff Writer

AGOURA HILLS - Three years before he hit the mandatory retirement age at the FBI, former special agent Joseph T. Varley said he made one last, ultimately unsuccessful attempt to be trained as a polygraph expert.

The Agoura Hills resident said the agency told him he did not have the right personality to deliver the lie detector tests, so he was refused entry into the Department of Defense's elite Polygraph Examiners School.

When the opening went to an agent 11 years his junior, Varley suspected age discrimination, sparking a six-year legal battle in which his claims were repeatedly upheld by federal investigators - but the FBI still refuses to train him to administer lie detector tests.

Varley has now asked a federal judge to compel the FBI to send him to the school, as has been recommended by the federal Equal Employment Opportunity Commission.

``All this time, it's been dragging on, it's forced me to retire,'' said Varley, now 59. ``But now they (the FBI) say they can't send me to polygraph school because I'm retired. It's a Catch-22.''

As far as the Federal Bureau of Investigation is concerned, Varley is more than 57, the mandatory retirement age for a federal law enforcement officer, so there's no point making him a polygrapher.

``This question is one of mootness now - we did not make him retire,'' said FBI assistant general counsel David Frost from Washington, D.C. ``It was and is our position that there simply was no age discrimination.''

But discrimination was found by the Equal Employment Opportunity Commission in three separate investigations, according to Varley's attorney, Robert Risley.

``As a practical effect, the absence of the training hurts him economically,'' Risley said. ``It would help him in his retirement. If he could be a polygrapher, he would have his plate full.''

Varley freely admits the training would have given him an advantage in his new career as a private investigator.

``In the outside world, everybody involved in this field understands that this is probably the best training offered in the entire country and if you have that as one of the points on your resume it's going to add immensely to your value,'' Varley said.

But he said he expected to work for at least two years as a polygrapher with the FBI in Los Angeles, and possibly longer if he were granted an exemption to retirement rules.

Varley hopes such an exemption will allow him to rejoin the FBI to get the training, although he said the prospects of that are slim.

He said his interest in polygraphy stretches back to 1978, when he first sought out the training early in his 28-year career, served mostly in the Los Angeles field office.

Varley said he learned he had been passed over for the training in January 1995 and soon filed an EEOC complaint that triggered an investigation.

An administrative law judge in May 1996 found discrimination by the Bureau and said Varley should be assigned to the school's next training class, according to the complaint filed by Risley.

The FBI refused to honor the judge's recommendations and Varley appealed to the EEOC, which did not reaffirm its finding until December 1998.

The FBI then asked the Employment Commission to reconsider its order, but it was again reaffirmed, Risley said.

On June 16, Bureau officials said they would not comply with the rule because Varley had retired some three years earlier.

On Aug. 11, Risley said he filed a writ asking the Los Angeles District Court to force the FBI to follow the EEOC's recommendations. A hearing date has not yet been set. Varley is also seeking attorneys fees and punitive damages.

Both sides say the EEOC's own administrative process forced the case to drag on for so long.

``The bureau has reacted quickly, and any delays in the proceedings of this have not been on the part of the Justice Department or the bureau or even the applicant himself,'' Frost said. ``Any actions we took in this or any other matter would be consistent with our interpretation of the law but also, we believe, with the letter and spirit of the law.''

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Former FBI agent Joseph Varley says his age made him a target of discrimination.

Joe Binoya/Special to the Daily News