Complaint 88-72571 and Exhibits
8401 18 Mile Road #29
|Sterling Heights, Michigan 48078-3099
|25 February 1988
|MSPB Case No. CHB31L85C0424
SUBJECT: Petition for Review of MSPB Decision on Disparate
Equal Employment Opportunity Commission
Office of Review and Appeals
5203 Leesburg Pike, Suite 900
Falls Church, Virginia 22041
This is a petition for review of the sua sponte 29 Jan. 1988 MSPB decision denying review of the 30 Sept. 1987 MSPB initial decision upholding disparate treatment by the Office of Personnel Management (OPM).
The continuing disparate treatment at issue arises from continuing disregard of case law guidance, e.g., on 5 U.S,C. 8345(b)(2)(B). "Comparison with a single employee is sufficient to meet the burden of proof," McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 96 S.Ct. 2574, 49
L.Ed.2d 493, cited in Clark Oil & Refining Corp. v . Golden, 114 Ill.App.3d 300, 70 Ill.Dec. 80, 448 N.E.2d 958 at 964.
I meet the "burden of proof" by citing another employee whose case under 5 U.S.C. 8345(b)(2)(B) was decided quite differently than mine, though the salient facts of the two cases are identical. That case is Woodall v. F.E.R.C., 28 M.S.P.R. 192. Each of us was placed on "enforced leave status" without "statutory notice of or opportunity to respond to its
decision to place appellant in enforced leave status," 28 M.S.P.R. at 196.
In each case, as "the agency did not afford appellant the procedural [constitutional] protections of 5 U.S.C. 7513(b), the action cannot be sustained," 28 M.S.P.R. at 196.
The bottom 1ine is that when there is no "statutory notice of or opportunity to respond . . . the action cannot be sustained." 28 M.S.P.R. at 197 goes on to cite corrective actions—action "to cancel the enforced leave," restore "active duty status," "award back pay and benefits," and set a
corrected effective date. While these things were done for
Woodall, they have not been done for me.
25 Feb. 1988
It is disparate treatment to not do for me the same as for that employee. I have done what the Supreme Court says, i.e., I have provided "Comparison with a single employee . . . sufficient to meet [the] burden of proof ,"McDonald, 427 U.S. 273, supra.
In the record below, which this again hereby requests OPM/MSPB to transmit to you, I cite 40+ additional examples of other disparate treatment (various rule violations) herein, and "Comparison with" many more than one other "single employee," examples including but not limited to
Because this is a disparate treatment case including on the lack of advance notice and specificity, I remain a TACOM employee as a matter of law IAW Sullivan v. Navy, 720 F.2d 1266 at 1274, thus OPM has experienced great difficulty in setting an effective date. This is because an effective date cannot be set for an employee who remains an employee "on the rolls of the employing agency" as a matter of law. OPM has "set" three different effective dates so far—effective dates varying not just by a day or so, but by years: 1982, 1981, lastly 1980. OPM recognizes that "Your [my] supervisor, on the SF 2801A, did not identify any duties of your position [Job No. DA-905c] which you are unable to perform. In fact, the documentation in your claim file does not establish the presence of any
deficiency in performing any of the duties of your job . . . ." (OPM, 17 April 1985, p. 2, item 1). Also, "OPM does not dispute the appellant's ability to perform the duties of his [Job No. DA-905c3 position without restriction," (OPM, 19 June 1985, p. 3, item 15). Every examining doctor and I agree;
that is why I refuse to apply for disabi1ity retirement, and am appealing concerning same.
- Spriggs v. U.S. Postal Service, CH07526510374 (agency cited no specifics of duties employee was unable to perform, so adverse acti on was reversed; my situation was treated disparately as non—specific agency action was upheld even though I am ready, wil1ing and able to perform my duties of record as every examining physician
- Jones v. Veterans Admin., 25 M.S.P.R. 328 and
Nadolney v. E.P.A., 25 M.S.P.R. 544 (agency must use official performance appraisal system; in my case, the agency did not use any performance appraisal system);
- Ross v. Dep't. of Commerce, 9 MSPB 675 (alternatives must be considered; alternatives were not considered in my case);
- Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1467, 64 L.Ed.2d 494 (as a matter of due process, advance notice must be given,
and opportunity to respond; no advance notice was given me); and
- Polk v. Yellow Freight Sys., Inc., 801 F.2d 190 at 192-3 (Michigan Employment Security Commission (MESC) decisions must be given preclusive effect; the MESC decisions upholding my ability to work were flouted in my case)—all detai1ed in the record below.
25 Feb. 1998
Because OPM is being coerced by MSPB and its support of the disparate treatment at issue herein, in a pattern of mail fraud by TACOM and MSPB personnel, OPM experiences great difficulty in setting an effective date; as the correspondence reveals, TACOM sends OPM wrong information. OPM cannot set an effective date for someone who, as a matter of law, remains "on the rolls" IAW the Sullivan, 720 F.2d 1266, criteria.
In this disparate treatment case, the effective date guidance of Woodall, 28 M.S.P.R. 192, is not being followed. Please note that Woodall at 197 establishes that effective dates are not to be set before OPM acts, as "active duty status" applies unti1 such time. When OPM acted is shown in the record as not before 18 Oct. 1985.
EEOC has already estab1ished disparate treatment; and the
pattern is continuing. In EEOC decisions 23 Feb. 1982, Docket 01800273, etc., and 8 April 1983, Docket 03810087, EEOC cites disparate treatment examples including but not 1imited to refusal to recognize regulations (regulations are recognized
in other cases); disregard of USACARA Report in my favor (other employees have their USACARA Reports honored); refusal of review on the merits (other employees are all owed review on the
merits) ; denying me a hearing despite my requests for a hearing
(other employees receive hearings); retroactive enforced leave (other employees are not lawfully subjected to retroactivity); use of false claims to obstruct processing (others are allowed case processing); and refusal to let me have EEO counseling and EEOC review (other employees are allowed to have EEO counseling and EEOC review).
The disparate treatment already found by EEOC arises from TACOM unlawfully discharging me as EEOC said 8 April 1983, p.
6, "The consequences of the agency's action, i.e., petitioner no longer worked at the agency, was essentially the same as a suspension or termination," the same concept the Federal Circuit Court describes in Thomas v. General Svcs. Admin., 756 F.2d 86 at 89-90; Mercer v. Dept. of Health & Human Svcs., 772 F.2d 856; and Pittman v. MSPB, 832 F.2d 598.
EEOC found that the record has contradictory references to "actions . . . not even attempted" (others are given specific statements of events in an "advance notice"). When there are contradictions and other errors so the agency should have known better than to proceed, other suspensions are reversed (see Yorkshire v. MSPB, 746 F.2d. 1454, and citations therein), whereas in my case, the "enforced 1eave" without advance "statutory notice" was upheld despite the contradictions EEOC so wel1 documented. The EEOC finding that "enforced 1eave" without advance notice is a suspension has been upheld in other cases including Thomas, 756 F.2d at 89-90, Mercer, 772 F.2d
25 Feb. 1988
856, and Pittman, 832 F.2d 598, supra.
EEOC 's accurate decisions finding disparate treatment arise from the gross disparate treatment of the agency finng/retiring the person (me) who reports smoker hazardous behavior. Disparate treatment is clear as I have provided more than "Comparison with a single employee . . . sufficient to meet [the] burden of proof," McDonald, 427 U.S. 273, supra, including my citing precedents wherein employers discharge smokers who engage in hazardous behavior, not coworkers who report smokers' hazardous behavior:
Other precedents of discharge for smoking (not discharging
the coworker who reports the smoking) include:
- Co1umbian Rope Co. , 7 Lab.Arb. (LA) 450 (1947); Standard Oil Co., 19 LA 795 (1952), "The discharge penalty for violation of the no smoking rules is firmly established in practice and upheld in arbitraition");
- Cit-Con Oil Corp., 30 LA 252 (1958);
- U.S. Industrial Chemical Co., 64-2 ARB 8481 (1964); and Caraco Ship Supply, 64-3 ARB 8961 (1964), upholding discbarging a supervisor, "He was not discharged for smoking. His termination was based upon his dereliction in enforcing the relevant Company rule" (which clearly should be done to TACOM supervisors refusing to "recognize"/enforce AR 1-8/32 C.F.R. 203.
Federal court rulings upholding discharge for smoking include Golden v. Communication Technology Corp., 36 E.P.D. 35,095, "smoking in an unauthorized area"; and Grusendorf v.
City of Oklahoma City, 816 F. 2d 539, discharae upheld for taking "three puffs from a cigarette while on a 1unch break from his job." It is disparate treatment to discharge/retire
- U.S. Powder Co., Division of Commercial Solvents Corp., 67-2 ARB 8454
(1967); Ward Furniture Manufacturing Co., 68-2 ARB 8702 (1968);
Royce Chemical Co., 70-1 ARB 8138 (1969), "It is a common
industrial rule . . . The grlevant [a discharged smoker] admitted he was smoking in an undesignated area; therefore his discharge was for just cause";
- U.S. Plywood-Champion Papers, Inc., Del-Mar Industries Division, 70-1 ARB 8340 (1970);
- A. E. Staley Manufacturing Co., 71-1 ARB 8203 (1971), "the discharge penalty has been applied for violations of the no-smoking rule";
- Hercules Inc., 74-2 ARB 8487 (1974); Illinois Fruit & Produce Corp., 66 LA 498 (1976);
- Wisconsin Steel Coal Mines of Intern at'1. Harvester Co., 76-2 ARB 8348 (1976);
- Gladieux Food Svcs, Inc., 70 LA 544 (1978), "Prior misuse of smoking or failure to conform to the prohibition, does not create any right to smoke or diminish any obligation to use every means or effort to eradicate it," including discharge;
- Bostik West, Division of USM Corp., 78-2 ARB 8545, 71 LA 954 (1978);
- Consolidation Coal Co., Robinson Run Mine, Jones Run Portal, 82-2 ARB 8600 (1982); and
- Olin Corp., McIntosh Plant, 81 LA 644 (1983).
25 Feb. 1988
the reporter (me) of others' hazardous behavior, in the face of precedents that it is rule-violating smokers who are to be discharged.
The rule is "An employer has a duty to prevent and suppress hazardous conduct," Nat'l. Rlty. & C. Co., Inc. v. O.S.H.R.C., 160 U.S.App.D.C. 133, 141, 489 F.2d 1257, 1266, N.
36. "We need look no further . . . than the Surgeon General's warning on the side of every box of cigarettes sold in this country that cigarette smoking is hazardous to health," Grusendorf, 816 F. 2d at 543, supra. "It has been past practice that a supervisor who is caught violating the No-Smoking Rule, is instantly discharged," Olin Mathieson Chemical Corp., 28 LA
29 at 32. EEOC has already confirmed that AR 1-8 is not being "recognized" despite the USACARA Report expressly calling attention to it--clearly disparate treatment, as the TACOM supervisors who are refusing to "recognize" (enforce) the regulation have not been discharged, whereas I have been discharged/retired for reporting the non-compliance.
EEOC accurately found that "The agency presented no evidence that it considered the [conditions precedent] rights of the non-smokers or even recognised that its own regulations permitted smoking only to the extent that it did not cause [danger,] discomfort or unreasonable annoyance to others,"1
(EEOC, 8 April 1983, p. 5). It has been a well-established principle for many years that "'to express one thing is to exclude others,'" Reynolds Alloy Co., 2 LA 554 (1943). The unrecognized AR 1-8 expresses "one thing" (threshold conditions precedent before smoking can be "permitted"), and thereby "excludes" discharging/retiring the person (me) who reports the non-cornpliance with those conditions precedent.
The USACARA Report shows TACOM violation of AR 1-8; the
USACARA Report has a second use: as "evidence of differing views within the agency," Mercer, 772 F.2d at 859, warranting
1"The right to smoke in public places is not a protected right, even for adults. In Gasper v. Louisiana Stadium and Exposition District, 577 F.2d 897 (5th Cir. 1978), cert. denied, 439 U.S. 1073, 99 S.Ct. 846, 59 L.Ed.2d 40 (1979), the Fifth Circuit did deny the right of a group of non smokers to enjoin smoking [as a pure constitutional issue aside from citi ng 1aws such as safety 1aws] in the Louisiana Superdome,
but the court stated:
"'We assume that Silverdome authorities, if they saw fit, could prohibit smoking in the faci1ity . . . .' 577 F.2d at 898," Craig by Craig v. Buncombe Cnty. Bd. of Educ.,
80 N.C.App. 683, 685, 343 S.E.2d 222, 223, appeal dismissed, 318 N.C. 281, 348 S.E.2d 138, paralleling Gladieux Food Svcs, Inc., 70 LA 544, supra.
25 Feb. 1988
overturning enforced leave. Had I been given an advance notice with specificity, and had the agency and MSPB not refused to consider the merits, refusing to even mention them, "the outcome could have been different," Mercer, at 860. Here,"'the only meaningful opportunity to invoke the discretion of the decision maker is 1ikely to be before the termination [effective date] takes effect,'" Mercer, 859, quoting
Loudermill supra, 470 U.S. 532, 105 S.Ct. at 1494.
TACOM in the Bertram case, File No. A9-190131, denies that
tobacco smoke endangering her is in employment, "a condition of her work," or in her job description requirements. MSPB ignores 1ong standing precedents when it refuses to even address the matters raised: "An initial decision must contain findings of fact and conclusions, as well as the reasons or bases therefor. 5 C.F.R. Section 1201.111(b)(1)(1979). The
material legal issues must be addressed 'in a fashion that reveals the presiding official's conclusions of law, legal reasoning and the authorities on which the reasoning rests.' Spithaler v. Office of Personnel Management, 2 MSPB 2, 2, 1 M.S.P.R. 587, 587 (1980)," cited in Pittman v. O.P.M., 2 M.S.P.R. 546, 550 (1980). MSPB ignores its very first case precedents in its very first volumes, by refusing to address the matters of ernployment, qualifications requirements, validation, job description, etc. As part of the pattern of refusal to address the merits, as EEOC already documented, 23 Feb. 1982, p. 2, false statements were and are made by TACOM and MSPB. (MSPB discusses "accommodation"/retirement before discussing advance notice, employment, legitimate requirements, and the job description—akin to discussing a "pardon" before determining guilt.)
OPM obviously has trouble setting an effective date; there has been no specificity shown, as OPM itself realizes. There has been no reference to the merits; the merits have been ignored and refused consideration as EEOC points out 23 Feb. 1982, p. 2. The Loudermi1l, 470 U.S. 532, constitutional due process rights have clearly been ignored, in terms of refusing me advance notice and specificity. The refusal to allow case processing and the refusal to even mention the Constitutional
and civil service rights (e.g., Pittman, 832 F.2d 598) and the disregard of the favorable USACARA Report, the MESC decisions, etc. , etc. , constitutes "a 'scheme to defraud . . citizens [here, me:] of their statutory right," U.S. v. Buckley, 689 F.2d 893 at 898. EEOC has documented TACOM's violations, but TACOM officials have not been discharged for defying EEOC—nor for their continuing to prevent process!ng of my case IAW the rules, for which latter violation discharge is appropriate, i.e., for "'knowingly participating in a plan to prevent Government investigators from learning the truth . . .'" McClaskey v. Dept. of Energy, 13 M.S.P.R. 73, affirmed, 720
F.2d 583. OPM cannot set an effective date in the face of the obvious disparate treatment of no discipline for those TACOMers "knowingly participating in a plan to prevent Government investigators from learning the truth," while such is being dispensed to others.
So OPM obviously has trouble setting an effective date. My appeals in EEO channels remain open, pending halt to TACOM's refusal to process them—appeals including but not 1imited to those on the underlying matters of getting the unrecognized rules enforced, as wel1 as my disabi1ity
retirement appeal materials. My EEO appeals are pending, but TACOMers are "knowingly participating in a plan to prevent Government investigators [USACARA and EEOC] from [case processing] learning the truth," McClaskey, 720 F.2d 563, supra.
Please note the disparate treatment whereby I am treated differently than in the cited cases including Woodall, supra. And see Woodall, 21 M.S.P.R. 290. Like him, I am "entitled to back pay in excess of his annuity for the time in enforced leave status and the additional service time and 1eave accruing to him during this period could affect the amount of his disabi1ity annuity. See 5 U. S. C. 8339(g); 5 C.F.R. 831.302, 831.701(f)," 21 M.S.P.R. at 293. Disparate treatment is clear; such issues (expressly cited for ) are refused any discussion at all for me. Discussing the matter for one employee but not for me is clearly disparate treatment.
EEOC on 8 April 1983, p. 1, notes that the "enforced leave" was imposed retroactively to 17 March 1980 by a 28 March 1980 1etter, i.e., without advance "statutory notice" cited in Woodall, 28 M.S.P.R. at 196. "EEOC rightly notes lack of "cornpliance with any of the applicable standards of proof required of an agency" (p. 4), i.e., no specificity was provided identifying a single duty that I am unabie to perform
(see Spriggs CH07528510374), whereas other employees are provided specific!ty. Please note Loudermill, 470 U.S. 532, supra, whereby notice and opportunity to respond in advance of
adverse action are constitutionally required. Advance notice and specificity are provided to others; not doing so for me is disparate treatment.
Please enter a favorable ruling to cancel the disparate treatment noted here and in the record; and please make appropriate findings to have the disparate treatment halted and corrective action taken accordingly, i.e., the same actions taken as in Woodall, 28 M.S.P.R. at 197—action "to cancel the enforced 1eave," restore "active duty status," "award back pay and benefits," and have a corrected effective date.
Doing these for Woodall but not for me is disparate treatment.
- Sincerely yours
- /s/Leroy J. Pletten
- Leroy J. Pletten