A. The "Decision to Terminate" Lacked 30 Days Advance Notice
1. This situation involves the TACOM "decision to terminate" Leroy J. Pletten, Position Classification Specialist, GS-221-12.
2. Local Equal Employment Opportunity Commission (EEOC) official Henry Perez, Jr., cited TACOM's already clear "decision to terminate" Mr. Pletten as of April 1980 (Exhibit 7).
4. Federal law 5 USC § 7513.(b) (Exhibit 32) mandates due process in the form of a 30 days advance notice of charges to accused employees, and provides rights to collect affidavits in one's defense. The Supreme Court has upheld due process as a constitutional right, Cleveland Bd of Educ v Loudermill, 470 US 532; 105 S Ct 1467; 64 L Ed 2d 494 (1985).
5. What is an advance notice? It is a "statement or citation of the written regulations . . . said to have been violated [and a] detailed statement of the facts" to show the violations. Boilermakers v Hardeman, 401 US 233, 245; 91 S Ct 609, 617; 28 L Ed 2d 10, 21 (1971). See also paragraphs 93-100, infra.
6. This dual rule/fact combination requirement is specified in FPM Supplement 752-1, "Adverse Actions by Agencies," § S4-1c.(1), page 46 (Exhibit 13). The 30 days advance notice must state not only "what the employee was doing" but also "why what the employee was doing was wrong," i.e., must state the laws/rules violated. TACOM rambles about smoking, but smoking is listed as an example offense by smokers, not by nonsmokers.
7. TACOM did not provide notice 30 days in advance of the "decision to terminate" noted by the aforesaid EEO personnel (Perez, Adler, and Williams, Exhibits 7-9). By itself, without more, TACOM erred. Mr. Pletten thus remains on the rolls. Sullivan v Navy, 720 F2d 1266, 1273-4 (Fed, 1983); Hanifan v U.S., 173 Ct Cl 1053; 354 F2d 358, 364 (1965).
8. The local Army base TACOM is part of the unemployment system. In Michigan, said unemployment system is of course managed by the State of Michigan. Pursuant to the evidence of TACOM's "decision to terminate" him, Mr. Pletten sought unemployment compensation.
9. Unemployment cannot be granted to ineligible people, for example, employees suspended or removed for misconduct, or in non-pay status with their employer for other disqualifying reasons. Absent a 30 days advance notice of charges, and subsequent decision affirming same, no such disqualifying factor could exist against Mr. Pletten. None did.
10. Nonetheless, TACOM opposed Mr. Pletten's unemployment compensation claim, alleging disqualifying reasons (re smoking, notwithstanding that smoking is listed as a violation by smokers, not nonsmokers, Exhibit 13). The State of Michigan was initially deceived by TACOM. But unlike TACOM and its hostile working environment and hatred and contempt for and fear of due process, Michigan respects due process of law, so when Mr. Pletten asked for a formal hearing, same was promptly scheduled, and conducted.
11. At hearing, all evidence was of course in Mr. Pletten's favor, including testimony from his former Employee Relations GS-13 supervisor, Helen F. Cochran. TACOM offered no evidence that the Pletten was guilty of anything, of any disqualifying factor in law or fact.
12. Michigan accordingly granted unemployment compensation to Mr. Pletten in July 1981, retroactive to January 1981 (Exhibit 14). TACOM repeatedly appealed. Each of its three appeals was denied, in September 1981, May 1982, and June 1982 (Exhibits 17-19).
13. Michigan in short followed the law, MCL § 750.27, MSA § 28.216 (Exhibit 34), banning what TACOM alleges (without evidence, and certainly not from the job description or other official documentation) by innuendo is a "medical qualification requirement." Michigan law bans what TACOM pretends is required! Federal laws 29 USC §§ 651 - 678 and 5 USC § 7902.(d) (Exhibit 33) require employers/agencies to "eliminate work hazards and health risks." Michigan followed the obvious principle that an employee's not meeting a non-requirement--no matter how emphatically proven--"can never prevent performance of the job." Montgomery Ward v Bureau of Labor, 16 FEP 80; 280 Or 163; 570 P2d 76 (1977).
C. TACOM's Leave without Pay (LWOP) Cover Story
14. This refers to the time during which TACOM was fighting / appealing Michigan's decision in favor of Mr. Pletten. Mr. Pletten by then had been the subject of the "decision to terminate" for almost two years. No return to duty date existed. It was clear that TACOM had imposed a de facto termination. It was clear that TACOM would never allow Mr. Pletten to return. TACOM was refusing him access to the EEOC 29 CFR § 1613 forum in which review would even occur. TACOM went to the extreme in June 1981 of cancelling the investigation (Exhibit 31 and p 2) being done in the said EEOC 29 CFR § 1613 review forum.
15. Unemployment compensation would of course be clearly warranted under such clear termination circumstances.
16. TACOM management decided to falsify, to fake a return to duty (RTD) date. That might bluff Michigan.
17. TACOM's method of falsifying, of faking RTD date, was to issue paperwork claiming that such a date existed! This refers to the Leave Without Pay (LWOP) cover story TACOM retroactively invented. See Standard Form (SF) 50 (Exhibit 15). Therein TACOM falsified, faked that Mr. Pletten had a RTD date! - 13 December 1981!
18. A lay reader untrained in reading SF-50's might be bluffed. But to the trained eye, the SF-50 is flawed, defective. First, LWOP must follow the regulations including TACOM's Regulation 600-5, Chapter 14, e.g., p 19 (Exhibit 16), on leave. LWOP must be requested by the employee! Mr. Pletten had not requested! (indeed, opposed it).
19. Second, the LWOP's SF-50, Box 14, has a glaring flaw/defect. Form SF-50 has a box, Box 14, that states the legal basis or authority. The box is blank!! The SF-50 cites no authority, no legal basis! TACOM knows it has none. In contrast, for legitimate requested and authorized LWOP, the authority for genuine LWOP is "DAM" under "Reg. 630.101." (See the OPM Guide to Personnel Data Standards.)
20. Third, no reasons in Box 30 are stated. The "decision to terminate" had long since been made, as the EEO documents show (Exhibits 7-9). TACOM issued the retroactive SF-50 for the LWOP after Mr. Pletten (pursuant to EEOC's Mr. Perez' April 1980 letter, Exhibit 7) had testified to the State of Michigan with respect to his unemployment that he had been "fired." (MESC Transcript, p 9) To obstruct this fact, is why TACOM issued the LWOP SF-50 pretending that Mr. Pletten had the aforesaid RTD date of 13 December 1981!
21. The State of Michigan was not fooled by this TACOM bluff. TACOM of course had no intention to let Mr. Pletten return to duty. The pretended RTD date was sheer fabrication and fraud. The "decision to terminate" had long since been made, as the various EEO memos show (Exhibits 7-9). TACOM of course did not intend to follow through, did not intend to allow Mr. Pletten to return to duty.
22. As time would reveal, pursuant to the hostile work environment, TACOM indeed did not let Mr. Pletten return to duty (RTD). TACOM continued to keep Mr. Pletten away, again, without authority to do so. Knowing it lacked authority, TACOM issued no LWOP Extension SF-50 (code 773 in the OPM Guide to Personnel Data Standards). Issuing such a document would verify, confirm, its refusing to return Mr. Pletten to duty on 13 December 1981, the false cover story date on the SF-50, Box 12 (Exhibit 15). TACOM issued no SF-50 at all for 13 December 1981 - 22 January 1982, leaving that gap in the personnel records.
23. The lack of an SF-50 for the 13 Dec 1981 - 22 Jan 1982 gap period confirms that there is neither authority nor a personnel code (773) for the gap. TACOM refused to let Mr. Pletten return to duty on its own chosen date, 13 Dec 1981, nor cited "reasons" in a notice as mandated by the 30 days advance notice law, 5 USC § 7513.(b). So it must be reversed.
24. About two years had now gone by since the "decision to terminate" (Exhibits 7-9). Now as its LWOP bluff (Exhibit 15) had failed, TACOM decided to proceed to actually issue a SF-50 to record its "decision to terminate" Mr. Pletten. This would be in addition to the de facto termination that had already long since occurred (Exhibits 7-9).
25. Again, as people who fabricate, confabulate, make things up, may not get their story straight, TACOM committed more inconsistencies. The documents TACOM now belatedly chose to issue (SF-52 and SF-50), themselves contain even more inconsistent terminology. These inconsistencies refer to two wholly different types of personnel action: "terminate," "separation-medical disqualification," and "removal."
26. The inconsistent terminology relates to wholly different personnel actions, tantamount to the difference between (a) "medical discharge" and (b) "dishonorable discharge."
27. The former ("medical discharge") is for inability to meet some specified medical requirement(s) stated in the job description, whereas the latter (removal, "dishonorable discharge") is for misconduct in violation of conduct rules, e.g., the "Table of Penalties," typically for willful, insubordinate, or repeated misconduct wherein prior discipline (warning, admonition, reprimand, suspension) failed to correct the pattern of misconduct.
28. Here, the Standard Form 50 (SF-50), Notification of Personnel Action (Exhibit 11), cites "removal" as the "nature of action" (Box 12). But the explanation (Box 30) cites nothing of a misconduct nature, e.g., no "Table of Penalties" rule violation.
29. Instead, the SF-50 alleges some "medical disqualification," but inconsistently, one for which no medical qualification requirement exists! -- neither by regulation nor by job duty in the job description. Review of the Position Classification job description and medical qualifications of record (Exhibit 20, and p 2) reveals no such requirement has ever existed, nor has ever been applied to any other employees, not even those on the same Pos. Class. job description.
"Removal" is "A disciplinary separation action, other than for inefficiency or unacceptable performance . . . where the employee is at fault," p 11.
31. A "removal" is only effected pursuant to pre-identified (30 days prior) written notice of charges of violating conduct rules, e.g., the "Table of Penalties" or performance standards, citing the rules and/or performance standards allegedly violated, and citing examples, incidents, dates, witness names, etc., and any prior corrective action (warnings, unsatisfactory ratings, reprimands, suspensions, etc.) having failed to secure improvement.
32. A "removal" for civilians is tantamount to a "dishonorable discharge" for the military, and is thus the most damaging personnel action. It is a quite different action than. say, a medical discharge.
33. "Termination" in contrast to "removal" is "where the employee is not at fault," p 15 (Exhibit 12). One example cited is "disability."
34. Court precedents say likewise. See Jones v J. J. Security, 767 F Supp 151, 152 (ED Mich, 1991), citing Gantz v City of Detroit, 392 Mich 348, 356; 220 NW2d 433 (1974):
"While removal, like discharge, results in separation, it is a quite different action. Separation by discharge is through the power of discipline. Separation because of ineligibility [disqualification] is not because of discipline at all. It is like a circuit judge having to vacate his office because he moved from his residence within the circuit. It is the non-existence of a sine qua non to employment."
35. Moreover, different personnel terms have different three digit numeric codes for recording on the Standard Form 50, Box 12. (See the OPM Guide to Personnel Data Standards.) Thus different personnel terms must be used for different actions, clearly distinguished, not muddled together as TACOM did. This is true for all personnel actions, including separations. See the "Separations" section of the said OPM Guide.
36. See also the Removal SF-50 (Exhibit 11), Box 14, "Authority," which cites "ZLM, Auth 5 USC 7512," as the authority for the action. But the correct code for "removal" is "RAH." See the "Legal Authority" section of the said OPM Guide to Personnel Data Standards.
37. Clearly, prima facie, as TACOM's own inconsistent documentation shows, TACOM issued no 30 days advance notice prior to the "decision to terminate." Thus, as a matter of law, Mr. Pletten must be deemed as not terminated but rather remaining on the rolls. Sullivan v Navy, 720 F2d 1266, 1273-4 (Fed, 1983); Hanifan v U.S., 173 Ct Cl 1053; 354 F2d 358, 364 (1965).
38. In the background of all these inconsistent actions in TACOM's hostile work environment is TACOM's retaliation against Mr. Pletten's whistleblowing.
39. Mr. Pletten's whistleblowing was pursuant to Army Regulation 385-10.3-5, inter alia:
40. Mr. Pletten's whistleblowing pursuant thereto, included, for example, to OSHA (Exhibit 1), Safety Office (Exhibit 2), Inspector General (Exhibit 3), in context of data the Army admits by Proclamation (Exhibit 4) and Literature Review (Exhibit 5).
41. TACOM management opposed compliance with the regulations and laws which were the subject of Mr. Pletten's whistleblowing, pursuant to his adherence to Army Regulation 385-10.3-5, so they, in this hostile work environment situation, retaliated against Mr. Pletten.
42. See, for example, the retaliatory 5 October 1979 memorandum (Exhibit 6) by Personnel Officer Archie Grimmett urging the Commanding General (MG Oscar C. Decker, Jr.) to refuse Mr. Pletten an "Open Door" meeting. MG Decker accordingly refused to meet him.
43. Such refusal of access to the "Open Door" is retaliatory, see, e.g., EEOC v Board, 957 F2d 424 (CA 7, 1992); EEOC v General Motors Corp, 826 F Supp 1122 (D ND Ill, 1993). This early (October 1979, Exhibit 6) hostile working environment event shows retaliation already decided upon by TACOM management.
44. Throughout the "decision to terminate" (or "remove," or "separate," TACOM terms varied as per no 30 days advance notice stating for the record which term was meant), the record shows that TACOM never complied with its own Regulation 600-5, Chapter 18, its own discipline regulation. This aspect is so significant as to warrant analysis in its own right, which see.
45. Pursuant to Equal Employment Opportunity Commission (EEOC) regulation 29 CFR § 1613, Mr. Pletten sought EEO review of TACOM's hostile work environment, actions and retaliation against him in 1979 and thereafter, including the "decision to terminate."
46. Said 29 CFR § 1613 renders EEO review a multi-step process including (a) counseling, (b) investigation, (3) local on-site formal hearing with cross-examination, (4) written decision, etc., and specifically in that progressive case-record developing order.
47. (This thorough EEOC review system is in sharp contrast to the minimalist MSPB process, which provides only for a hearing, and even that at a distant expensive notorious out-of-state location, and, worse, even that, if and only if MSPB feels like it. MSPB's is a wholly subjective standard, entirely arbitrary and subject to capricious/malicious denial without regard to evidence, and with no, or frivolous, or false statement(s) as to why the refusal of even that minimal step.)
48. Thus, to obtain the genuine thorough review in a professional progressive case-record developing system, TACOM foresaw that Mr. Pletten naturally would choose EEOC's 29 CFR § 1613 forum. After the counseling step, investigation was to begin, and USACARA Investigator Jonell Y. Calloway was assigned.
49. USACARA investigators are trained (a) to gather evidence including affidavits and (b) to apply the rules on disciplinary actions including terminations. In Spring 1981, affidavits were in fact in process of being obtained from witnesses, fellow employees, staff, etc.
50. TACOM management realized and feared that same were in Mr. Pletten's favor:
51. So TACOM management wanted the in-process investigation cancelled regardless of regulation mandating investigation. TACOM management asked agency attorney Emily S. Bacon (a) to violate her duty to the agency, (b) to represent them in their opposing agency and other rules, (c) to serve in essence as their personal attorney while being paid by the government, (d) to ex parte contact USACARA, (e) to arrange peremptory cancellation of the in-process investigation, and (f) to state a false pretext-that she would falsely pretend the arranging of an EEOC hearing!
53. Re her false pretextual claim of supposedly scheduling a hearing (without the case record having been developed by a completed investigation which she had maliciously aborted), she knew that neither she nor TACOM had any intention of ever allowing an EEOC hearing. So her hearing claim was "a promise made without any intention of performing it [as] one of the forms of actual fraud," Langley v Rodriguez, 122 Cal 580; 55 P 406 (1898).
54. No such hearing as personal attorney Emily S. Bacon alleged, has ever, repeat, ever, been even attempted, nor scheduled, much less, convened.
55. Worse, once the case file with the evidence and affidavits assembled by Investigator Calloway, was thus turned over to TACOM (Exhibit 31and p 2), that was the last ever seen of said evidence and affidavits. To obstruct and prevent Pletten from (a) defending himself against TACOM's multiple violations and retaliations, (b) from replying to the ouster, (c) from using the data in any other subsequent forum, TACOM refused and continues to refuse to provide a copy of any of the assembled evidence and affidavits to Mr. Pletten.
56. The "decision to terminate" had long since been made, as the various EEO documents show (Exhibits 7-9).
57. It was now late 1981. Pursuant to the de facto October1979 "decision to terminate" Mr. Pletten (Exhibit 9), Michigan had long since been granting Mr. Pletten unemployment compensation effective as of the beginning of that year (Exhibits 14, 17-19).
58. TACOM still had not issued an advance notice of charges against Mr. Pletten, notwithstanding that doing so is mandatory under both the Constitution (due process of law, a constitutional right, Cleveland Bd of Educ v Loudermill, 470 US 532; 105 S Ct 1467; 64 L Ed 2d 494 (1985)),and federal law 5 USC § 7513.(b).
59. In order to effect a personnel action, management must submit a request. Such request is made and recorded on a Standard From 52, Request for Personnel Action.
60. Note the SF-52 requesting the "termination" of Mr. Pletten in January 1982 (Exhibit 10). Box K shows no "clearances" by the appropriate offices, meaning classification and placement or employment.
61. Indeed, no such requirement exists, neither in the job description, nor for the personnel occupation (Exhibits 20-30). See pertinent precedents such Commonwealth v Hughes, 468 Pa 502; 364 A2d 306 (1976) (the firefighter deaths smoker-caused fire case immediately preceding the promptly issued Department of Defense Instruction 6015.18 aka 32 CFR § 203; and Shimp v New Jersey Bell Tele Co, 145 N J Super 516, 523; 368 A2d 408, 411 (1976). Shimp is a smoking-permission-cessation case. Shimp verified that it is not necessary to fill the air with tobacco smoke for the job to be done. There is "no necessity to fill the air with tobacco smoke in order to carry on defendant's [Army personnel] business."
62. Thus, "the job requirements and qualifications had never been formally changed" to even reference tobacco smoke neither in the job description nor any medical qualifications requirements data (not even de minimis reference), quoted from Sabol v Snyder, 524 F2d 1009, 1011 (CA 10, 1975). The duty is to "examine the position descriptions," look for "legitimate job requirements," Coleman v Darden, 595 F2d 533 (1979), Stalkfleet v Postal Service, 6 MSPB 536, 541 (1981). Tobacco smoke is not "in the requirements for any position," 5 USC § 2302(b)(6) (Exhibits 20-30). Non-requirements "can never prevent
performance of the job," Montgomery Ward v Bureau of Labor, 16 FEP 80; 280 Or 163; 570 P2d 76 (1977). Indeed, the last, only, statement by anyone at TACOM citing medical qualification requirements of Mr. Pletten's job was the verification that Mr. Pletten met same (issued in August 1969 when TACOM hired him, Exhibit 20, and p 2).
63. Management recognized that Mr. Pletten meets all the qualifications of record (Exhibits 20-30), met them since 1969, and was still meeting them. Hence, management never charged/accused Mr. Pletten of not meeting the qualifications of record, certainly not in a pre-decision 5 USC § 7513(b) 30 days advance notice.
64. Likewise, TACOM never initiated a qualifications-based Fitness for Duty Medical Examination of Pletten, as he would forthwith pass same, due to his meeting the medical qualification requirements of record, met them then, continues to meet them now.
65. TACOM, if it believed it has a case, would have arranged such an exam. TACOM's not doing so confirms that TACOM knows it has no case for "medical disqualification."
66. Inconsistently, the January 1982 SF-52 asked for "Separation - Medical Disqualification" (Exhibit 10), a no-fault action (Exhibit 12). The date is very early January 1982, Box B, meaning, the first SF-52 Request by the entire Directorate for the year 1982, as shown by the SF-52 number, A-82-1 (Box B).
67. Let's give TACOM the benefit of the doubt, let's say the earliest 1982 workday, 2 January 1982. As the SF-50 became effective 22 January 1982, that 2 January 1982 date is clearly only 20 days notice, not the required 30 days advance notice.
68. But although the SF-52 asked for a no-fault (Exhibit 12) "Separation - Medical Disqualification" (Exhibit 10), that is not what the resultant SF-50 (Exhibit 11) says. It says something different, "Removal" - an "employee at fault" action (Exhibit 11).
69. The change to "Removal" -an "employee at fault" action wholly different than a no-fault medical separation - is handwritten in on the typed SF-5s in Box K(5) (Exhibit 10). The date shows 8 January 1982. That is a mere 14 days before the effective date, clearly only 14 days notice, not the required 30 days advance notice. And one must also factor in additional delay, for mailing time.
70. Clearly, whichever date (2 or 8 January 1982, or some subsequent date of receipt of the mailed SF-50 (Exhibit 11)), none meets the 30 days advance notice rule, whereby the agency must alert the accused employee in advance of what the agency intends to do.
71. In sum, an advance notice about medical separation, had there been one with the requisite specificity citing job description and medical qualification requirements of record and saying which one(s) TACOM was accusing Mr. Pletten of not meeting, is wholly different than an advance notice about a removal, tantamount to dishonorable discharge, based on alleged misconduct under, e.g., the "Table of Penalties.".
72. Here, this major change in nature of action is not even written on the official document until a mere 14 days before the effective date. This is clearly not the required 30 days advance notice.
73. With respect to the alleged "medical qualification requirement" (alleged by the SF-50, Exhibit 11, para 30), the referenced behavior is prohibited by law, MCL § 750.27, MSA § 28.216 (Exhibit 34). Note also 29 USC §§ 651-678 and 5 USC § 7902.(d) requiring employers/agencies to "eliminate work hazards and health risks." What is prohibited by law cannot be required!!
74. A "medical qualification" requirement must be recorded in official documents, typically the job description, and the medical form signed by the TACOM physician.
75. Of course, no such "medical qualification" as TACOM alleged, was listed on either document, nor any other personnel file document of record, nor anywhere else (Exhibits 20-30). Everyone involved in this case knew this at the time, and still knows it.
76. TACOM knew this, and knew it had no basis for claiming such, as to do so, it would have to petition for a law change, and change the Job Description for all TACOM's Position Classification Specialists, GS-12. (All doing uniform identical duties, all were on the same job description for uniformity.)
77. TACOM did not even make an effort to change the job description! The other employees would have been impacted. In short, "the job requirements and qualifications had never been formally changed," Sabol v Snyder, 524 F2d 1009, 1011 (CA 10, 1975), to even reference what TACOM alleged on Exhibit 11 (not even de minimis reference).
78. Pursuant to 5 CFR § 339.202 (Exhibit 29), medical qualifications must be written and have written rationale, and be "uniformly applied" as distinct from invented retroactively to rationalize removal of one employee.
79. Pursuant to 5 CFR § 339.203 (Exhibit 30), medical qualifications must be "essential for successful job performance," and "clearly supported by the actual duties of the position and documented in the position description" whereas tobacco smoke is none of these.
80. In reality, there is "no necessity to fill the air with tobacco smoke in order to carry on defendant's business," Shimp v New Jersey Bell Tele Co, 145 N J Super 516, 523; 368 A2d 408, 411 (1976), e.g., to do Position Classification duties. Shimp is the smoking-permission-cessation case immediately preceding the promptly issued DOD Inst. 6015.18; 32 CFR § 203). Shimp had found "no necessity to fill the air with tobacco smoke in order to carry on defendant's business," here, to classify positions).
81. No such medical qualification requirement exists. See denials by the qualifications writing agency, OPM and again, by the Dept of Army itself, and by its superior agency, Dept of Defense, by the US Dept of Labor and the Office of Management and Budget, and by the Mich. Dept of Civil Rights (Exhibits 22-28).
82. Management has a duty to investigate before it initiates adverse action. This investigative duty is known in both the private section, Grief Bros Coop Corp, 42 Lab Arb (BNA) 555 (1964) and Combustion Engineering, Inc, 42 Lab Arb (BNA) 806 (1964) (seven point criteria), and the federal sector, Douglas v Veterans Admin, 5 MSPR 280, 305-306 (1981) (twelve point civil service criteria) and Yorkshire v MSPB, 746 F2d 1454, 1456 (CA Fed, 1984) (five-point civil service criteria).
83. The seven point private sector criteria of Grief Bros Coop Corp, 42 Lab Arb 555, and Combustion Engineering, Inc, 42 Lab Arb 806, supra, are as follows:
"'No' answer to one or more normally signifies that just and proper cause did not exist." [Here, all answers are NO, both on the merits, and pursuant to TACOM fear to allow investigation.]
84. The twelve point civil service investigation criteria of Douglas v Veterans Admin, 5 MSPR 280, 305-306 (1981) are:
85. The court-stated five point civil service criteria of Yorkshire v MSPB, 746 F2d 1454, 1456 (CA Fed, 1984), are:
86. TACOM refused to investigate. The whole purpose of the peremptory "decision to terminate" (Exhibits 7-9) was to harass and punish Mr. Pletten for his exercising protected rights, including but not limited to his whistleblowing pursuant to AR 385-10.3-5.
87. When at Mr. Pletten's repeated request, investigation was attempted via the after-the-fact EEO process under 29 CFR § 1613, TACOM cancelled it (Exhibit 31).
88. Said exhibit 31 and p 2 overrules TACOM's Kenneth R. Adler, TACOM EEO Officer, who pursuant to Mr. Pletten's seeking review in the EEOC 29 CFR § 1613 review system, had attempted in 1981, however belatedly re incidents beginning 1979, to secure investigation. While this was after-the-fact investigation, in contrast to the management duty to do a before-the-fact investigation, it would at least be better than nothing.
90. Clearly Mr. Pletten's seeking review was pending. Nonetheless TACOM was forcing the ouster process without waiting. Case law shows that the contrary should occur.
91. Even mere separation of an employee for disability (not to mention, disciplinary "removal," Exhibit 11) is premature while appeals are in process. Piccone v U.S., 186 Ct Cl 752; 407 F2d 866 (1969). The moving party, here TACOM, is "not permitted to proceed . . . where the parent's [here, employee] appeal remains pending," Family Independence Agency v Melissa Kucharski, 468 Mich. 202; 661 NW2d 216; Lexis 939 (2003).
92. In sum, an "agency's action is [not] fully effective to separate the employee for all purposes; as is often the case in judicial proceedings, an appeal or application for review by the Commission suspends the final operative effect of the initial decision. It follows that an employee who has been deprived of a procedural right by the Commission must be regarded as not yet lawfully removed and thus entitled to his pay otherwise due," Hanifan v U.S., 173 Ct Cl 1053; 354 F2d 358, 364 (1965).
93. To even begin to have a basis for beginning the discipline process, even at a mere reprimand or suspension level, much less, a termination or removal, a federal agency must, as cited in, e.g., paras. 4-5 supra, first comply with federal law 5 U.S.C. § 7513.(b) and case law pursuant thereto, which jointly and severally preclude agencies from taking such actions absent reasons cited of record with advance opportunity for employee to respond.
95. TACOM did not provide any, much less, "numerous examples of specific errors," Long v Air Force, 683 F2d 301 (CA 9, 1982), for the reason that Mr. Pletten had committed NO "specific errors" whatsoever, and was in fact, receiving awards, recognition, pay raises! for excellent performance better than colleagues. See also Smith v Dept of Interior, 9 MSPR 342, 344 (1981), the accusing agency must provide "specific examples" of "alleged performance deficiencies" "to meet the 'specificity' test" as "[a] notice of proposed adverse action is required to be specific enough so that the employee is presented with sufficient information to enable him or her to make an 'informed reply.' S. Rep. No. 95-969, 95th Cong., 2d Sess. 50 (1978), U.S. Code Cong. & Admin. News 1978, p 2723, Report of the Senate Committee on Governmental Affairs."
96. Reasons to be adequate must specify not only the incidents but also "names . . . places . . . dates" of the employee's alleged misdeeds and witnesses thereto, Money v Anderson, 93 US App DC 130, 134; 208 F2d 34, 38 (1953). (In Pletten's case, neither alleged incidents nor any such specificity was cited by the agency).
97. Reasons cannot be merely conclusory, Mulligan v Andrews, 93 US App DC 375, 377; 211 F2d 28, 30 (1954). (Here, no non-conclusory reasons are shown in the controlling document of record, neither the SF-52, "Request for Personnel Action (Exhibit 10)," nor the SF-50, "Notification of Personnel Action (Exhibit 11).")
98. Charges must have reasons with specificity so as to enable the accused to do more than merely "general denials," Deak v Pace, 88 US App DC 50, 52; 185 F2d 997, 999 (1950). (TACOM has never provided specifics, only the generalities shown heretofore.)
99. TACOM did not provide reasons that were both "lengthy and detailed," to which the employee could respond, Baughman v Green, 97 US App DC 150; 229 F2d 331 (1956).
100. TACOM cited no specifics at all, much less,"item by item," Mandel v Army TACOM, 509 F2d 1031, 1032 (CA 6) cert den 422 US 1008 (1975). (In Pletten's situation, none were provided, neither generally nor "item by item." The Mandel case at TACOM shows that TACOM knows better than to fail to provide specifics.)
101. The "decision to terminate" occurred in 1979 (Exhibits 7-9). But thereafter, as a cover-up, TACOM issued the LWOP documentation (Exhibit 15) notwithstanding regulatory prohibition of same (Exhibit 16). But even assuming arguendo the LWOP as somehow legitimate, federal employers cannot use "approved leave" as basis for discipline such as a removal. Bond v Vance [Army], 117 US App DC 203, 204; 327 F2d 901, 902 (1964); Washington v Dept of Army, 813 F2d 390, 394 (CA Fed, 1987). (I didn't request! and forced LWOP is prohibited by the agency's own regulation 600-5.14-27 and 28 (Exhibit 16). Moreover, TACOM had overruled its own chosen examining doctor specialist Dr. David Schwartz who had supported Dr. Jack Salomon's view of Mr. Pletten being ready, willing, and able to perform all duties of record.
102. The record shows violation of the agency's own regulations. Agency violation of its own regulations has long been judicially rejected, see, e.g., Watson v Dept of the Army, 162 F Supp 755 (1958); Piccone v U.S., 186 Ct Cl 752; 407 F2d 866, 871 (1969); Service v Dulles, 354 US 363; 77 S Ct 1152; 1 L Ed 2d 1403 (1957), so is no excuse.)
103. Army lawyer Capt. Scott D. Cooper reviewed the Pletten situation: "The MSPB [erroneously] ruled that it had no jurisdiction [not for the correct 29 CFR § 1613.403 now § 1614.302(b) regulatory reason but on the pretext] that it had no jurisdiction over enforced leave cases because enforced leave was not an adverse action (this is no longer good law; after Valentine v. Department of Transportation, 31 M.S.P.B. 358 (1986), enforced leave is now an adverse action)," "Handling Tobacco-Related Discrimination Cases in the Federal Government," 118 Military Law Review 143, n 206 (Fall 1987).
104. See also this principle: "The failure to comply with promulgated regulations, which must go through a considerable vetting process before they take effect, may be viewed as intentional discrimination." Association for Disabled Americans, Inc v Concorde Gaming Corp, 158 F Supp 2d 1353, 1362 n 5 (SD Fla, 2001) (an ADA case).
105. Here, the term would be retaliation for Mr. Pletten's whistle blowing as noted by Archie Grimmett's retaliatory October 1979 memorandum (Exhibit 6) to the Commanding General, compounded by Mr. Pletten's immediately subsequent whistle blowing to the Inspector General of the Department of the Army 19 November 1979 (Exhibit 3).
106. The evidence shows due process violations and inconsistencies. But both due process and consistency are mandatory. See FPM Supplement 752-1, "Adverse Actions by Agencies," § S4-1d.(3), page 46 (Exhibit 13). Such inconsistencies warrant ruling for the accused employee. Yorkshire v MSPB, 746 F2d 1454, 1457 n 4-5 (CA Fed, 1984). And due process is a constitutional right, Cleveland Bd of Educ v Loudermill, 470 US 532; 105 S Ct 1467; 64 L Ed 2d 494 (1985). Wherefore, reversal of the termination is warranted.
Whistleblower Data / Correspondence Examples
Retaliation in the Form of Closing the Commander's "Open Door"
10. SF-52 requesting non-disciplinary discharge of Pletten, o/a 2 January 1982, and p 2
15. TACOM's retroactive bluff SF-50 pretending mere LWOP
16. TACOM's own Regulation, p 19, forbidding said LWOP
20. by TACOM (the only medical qualifications document ever issued on Mr. Pletten from TACOM, and p 2, verifying his medical eligibility)
21. SF-50, qualifications waiver, on the same job re which later "disqualified"
22. by Army's superior agency, Department of Defense
23. by Department of the Army
26. by the US Department of Labor
27. by the Office of Management and Budget
28. by the Mich. Dept of Civil Rights
29. 5 CFR§ 339.202, medical qualifications must be written and have written rationale, and be "uniformly applied" as distinct from invented retroactively to rationalize removal of one employee
30. 5 CFR § 339.203, medical qualifications must be "essential for successful job performance," and "clearly supported by the actual duties of the position and documented in the position description" whereas tobacco smoke is none of these. In reality, there is "no necessity to fill the air with tobacco smoke in order to carry on defendant's business," Shimp v New Jersey Bell Tele Co, 145 N J Super 516, 523; 368 A2d 408, 411 (1976), e.g., to do Position Classification duties (the smoking ban case immediately preceding the promptly issued DOD Inst. 6015.18; 32 CFR § 203). And see Commonwealth v Hughes, 468 Pa 502; 364 A2d 306 (1976) (the immediate preceding case of a smoker-caused fire in turn causing firefighter deaths)
32. 5 USC § 7513.(b), law requiring 30 days advance notice before decision, and mandating that agencies must follow Office of Personnel Management guidance
33. 5 USC § 7902.(d), law requiring agencies to "eliminate work hazards and health risks," law banning what TACOM claims is somehow a medical qualification requirement! albeit without TACOM ever citing any written record of such a so-called requirement in any document it has issued (medical qualifications list, job description, performance standards, or anything)
34. MCL § 750.27, MSA § 28.216, law banning what TACOM claims is somehow a medical qualification requirement! albeit without TACOM ever citing any written record of such a so-called requirement in any document it has issued (medical qualifications list, job description, performance standards, or anything).