Petition to the U.S. Supreme Court for
Certiorari to the Sixth Circuit in the
Case of Pletten v MSPB, Army and Marsh.

Appealing Retaliation For Repeated Whistleblowing and Having Won a Case Securing the "Right to Fresh and Pure Air."

Petitioner's whistleblowing verified and compounded by his win had angered mutinous local management rule-violators. They were using and enabling others use of, a dangerous toxic delivery agent illegal under federal law since 1905 and illegal in Michigan since 1909, illegal for many reasons.
Note the government's own publication on the "reputation" of such users.
Local agency management, in violation of directives from the agency head and others, retaliated against the whistleblower. They suspended, firing, and retired him, at age 33-34. They did all three violations as they really, really wanted him gone!
Next, to obstruct review of what they were doing, they defied EEOC case processing orders. And they ex parte arranged for fraud, fabrication, falsification by judges and others. As was foreseeable, people have died as a result of the rule of law not being obeyed.
Additional details are in the Petition.


No. 90-5961
____________________________________

IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1990
____________________________

LEROY J. PLETTEN,

PETITIONER

vs.

MERIT SYSTEMS PROTECTION BOARD,
DEPARTMENT OF THE ARMY, and
JOHN O. MARSH, JR., Secretary,
Department of the Army,

          RESPONDENTS
____________________________

PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
____________________________

PETTION FOR WRIT OF CERTIORARI
____________________________________

LEROY J. PLETTEN
[2 Oct 1990]Petitioner
8401 18 Mile Road #29
Sterling Heights, MI 48313
(313) 739-8343


-i-

QUESTIONS PRESENTED

A. May a court fail to abide by administrative review orders issued by the Equal Employment Opportunity Commission?

B. Where conditions precedent / administrative actions, including review ordered by the Equal Employment Opportunity Commission have not occurred, is there jurisdiction to adjudicate merits before the administrative actions and review have occurred?

C. Is there jurisdiction to decide employment issues (such as qualifications, qualified handicapped person, and accommodation) notwithstanding absence of conditions precedent including notice, existence, and publication, in a not-in-employment matter?

D. Where conditions precedent / administrative acts including review ordered by Equal Employment Opportunity Commission have not occurred, is there


-ii-

jurisdiction to adjudicate merits of issues other than those to be raised in administrative review?

E. May spurious findings of fact, whether or not arising from the lack of conditions precedent / administrative acts and review, be utilized in decisions by federal courts?

F. Are spurious findings made apart from the record indicative of bias and prejudice?

G. May federal personnel decisions be made by non-impartial persons?

H. Where conditions precedent / administrative acts including review ordered by Equal Employment Opportunity Commission have not occurred, should liability for consequences rest upon the party responsible for same?


-iii-

TABLE OF CONTENTS
Page
 
QUESTIONS PRESENTEDi
 
TABLE OF AUTHORITIESv
 
OPINIONS BELOWxiii
 
JURISDICTIONxvi
 
CONSTITUTIONAL PROVISIONS, STATUTES, AND
REGULATIONS INVOLVED
xvii
 
STATEMENT OF THE CASE1
 
REASONS FOR GRANTING THE WRIT14
 
This Case Presents
The Important Federal Question
Of Enforceability Of Decisions
Of The Equal Employment
Opportunity Commission
14
 
This Case Presents The
Important Federal Question
Of Jurisdiction Of Courts To
Decide Merits Before The
Conditions Precedent
Administrative Processing
Has Occurred
19
 
The Decision Below Conflicts
With The Holdings Of This
Court in Morton v. Ruiz,
415 U.S. 199 (1974) And Bowen
v. City of New York,
476 U.S. 467 (1986)
23

-iv-
 
This Case Raises The
Important Federal Question
Whether A Case May Be
Adjudicated On Issues Other
Than To Be Raised In
Administrative Review
38
 
This Case Raises The
Important Federal Question
Of The Use Of Spurious
Findings of Fact
44
 
This Case Raises
The Important Federal Question
Of Non-Impartiality In Terms
Of Use Of The Record
55
 
This Case Provides This
Court With An Opportunity
To Reiterate The
Duty of Impartiality
56
 
This Case Presents The
Important Federal Question
Whether A Case May Be
Treated As Though Completed
Before It Has Commenced
59
 
CONCLUSION 62

-v-

TABLE OF AUTHORITIES
Page
CASES
 
Am. Tx. Mfrs. Int. v. Donovan,
452 U.S. 490 (1981)
43
 
Anthony v. Bowen, 270 U.S.App.D.C.
246, 848 F.2d 1278 (1988)
17
 
Austin v. State, 101 Tenn. 563 (1898) 23
 
Berends v. Butz,
357 F.Supp. 143 (D.Minn. 1973)
30
 
Bevan v. N. Y. St. T. R. System,
74 Misc.2d 443 (1973)
9
 
Boilermakers v. Hardeman,
401 U.S. 233 (1971)
38,   55
 
Bowen v. City of New York,
476 U.S. 467 (1986)
23,   28
 
Buckman v. Hill Military Academy,
190 Or. 194, 223 P.2d 172 (1950)
61
 
1 Burr's Trial 416 (1807) 56
 
Caprin v. Harris,
511 F.Supp. 589 (D.N.D.N.Y. 1981)
41
 
City of New Orleans v. Texas & Pac.
Ry. Co., 171 U.S. 312 (1898)
21,   59
 
Clark Oil & Refining Corp. v.
Golden, 114 Ill.App.3d 300 (1983)
38
 
Cleveland Bd. of Ed. v. Loudermill,
470 U.S. 532 (1985)
39
 
George v. Bekins Van & Storage Co.,
33 Cal.2d 834, 205 P.2d 1037 (1949)
25

-vi-
Page
Glus v. Brooklyn Eastern Dis.
Terminal, 359 U.S. 231 (1959)
20,   61
 
Hall v. Postal Service,
857 F.2d 1073 (6th Cir. 1988)
24,   25
 
Haskins v. Department of Army,
808 F.2d 1192 (6th Cir. 1988),
cert. den., 484 U.S. 815 (1987)
17
 
Hazel-Atlas Glass Co. v. Hartford-
Empire Co., 322 U.S. 238 (1944)
53
 
Hotch v. United States,
212 F.2d 280 (9th Cir. 1954)
8,   27
 
In re Ryman, 394 Mich. 167 (1975) 52
 
Int. Un. U.A.W. v. General Dynamics
Land Sys. Div., 259 U.S.App.D.C.
369, 815 F.2d 1570 (1987), cert.
den., 484 U.S. 976 (1987)
3
 
Jones v. V.A., 25 M.S.P.R. 328 (1984) 24
 
Martinez and Air Force,
37 E.C.A.B. 143 (1985)
22
 
Matter of Bertram, Worker Compensation
Case A9-190131 (1977)
5
 
Matter of Grimes, 414 Mich. 483 (1982) 52
 
McDonald v. Santa Fe Trail Transp. Transp.
Co., 427 U.S. 273 (1976)
38
 
Merritt v. United States,
332 F.2d 397 (1st Cir. 1964)
26
 
Milk Wagon Driver's Union v. Meadowmoor
Dairies, 312 U.S. 287 (1941)
44,   54

-vii-
Page
 
Mitchell v. State, 60 Ala. 26 (1877) 4
 
Miyai v. D.O.T., 32 M.S.P.R. 15 (1986) 20
 
Montgomery Ward v. Bureau of Labor,
280 Or. 163, 570 P.2d 76 (1977)
27
 
Moore v. C-M Bd. of Ed.,
402 U.S. 47 (1971)
36
 
Moore v. Devine,
780 F.2d 1559 (11th Cir. 1986)
17
 
Morton v. Ruiz, 415
U.S. 199 (1974)
23,   24,   28,   29, 30,   56
 
MTM Corp. v. Mid-Continent Petroleum
Corp., 49 F.2d 146 (10th Cir. 1931)
23
 
Nadolney v. E.P.A., 25 M.S.P.R. 544 (1985) 24
 
Nat'l. Rlty. & C. Co., Inc.
v. Occ. S. & H. R. Com'n.,
160 U.S. App.D.C. 133, 489
F.2d 1257 (1973)
43,   53
 
N.F.F.E. v. Cheney, 280 U.S.App.
D.C. 164, 884 F.2d 603 (1989)
42
 
Nestlerode v. United States, 74
U.S.App. D.C. 276, 122 F.2d 56 (1941)
4
 
New York Life Ins. Co. v. Nashville
Trust Co., 200 Tenn. 513 (1956)
53
 
Offutt v. United States,
348 U.S. 11 (1954)
57,   58
 
Peacock Records, Inc. v. Checker Records,
Inc., 430 F.2d 85 (7th Cir. 1970)
55

-viii-
Page
 
People v. Atcher,
65 Mich.App. 734 (1975)
6
 
People v. General Dynamics Land
Systems, 175 Mich.App. 701
(1989), leave to appeal denied,
435 Mich. 860 (1990)
3,   60
 
Piccone v. United States,
186 Ct.Cl. 752, 407 F.2d 866 (1969)
21
 
Polk v. Yellow Freight Sys., Inc.,
801 F.2d 190 (6th Cir. 1986)
9
 
Ramey v. Block,
738 F.2d 756 (6th Cir. 1984)
24
 
Rankin v. McPherson,
483 U.S. 378 (1987)
40
 
Roysdon v. R. J. Reynolds Tobacco Co.,
849 F.2d 230 (6th Cir. 1988)
47
 
Sabol v. Snyder,
524 F.2d 1009 (10th Cir. 1975)
30
 
School Bd. of Nassau County v. Arline,
480 U.S. 273 (1987)
13
 
S.E.C. v. Chenery, 332 U.S. 194 (1947) 58
 
Service v. Dulles, 354 U.S. 363 (1957) 21
 
Shimp v. N. J. Bell Telephone Co.,
145 N.J. Super. 516 (1976)
26
 
Siemering v. Siemering,
95 Wis.2d 111, 288 N.W.2d 881 (1980)
22
 
Spann v. McKenna,
615 F.2d 137 (3rd Cir. 1980)
6

-ix-
Page
State v. Massey,
20 Ala.App. 56, 100 So. 625 (1924)
4
 
Suarez v. Chmn. of Bd. of Directors of FDIC,
692 F.Supp. 43 (D.P.R. 1988)
21
 
Sullivan v. Dep't. of Navy,
720 F.2d 1266 (Fed. Cir. 1983)
10
 
Teamsters v. United States,
431 U.S. 324 (1977)
58
 
Tenorio v. N. L. R. B.,
680 F.2d 598 (9th Cir. 1982)
15
 
Texas & Pac. Ry. v. Behymer,
189 U.S. 468 (1903)
35,   37
 
Texas v. Johnson,
491 U.S. _[397]___, 109 S.Ct. 2533,
105 L.Ed.2d 342 (1989)
41
 
United States v. Blanton,
719 F.2d 815 (6th Cir. 1983)
56
 
United States v. City of Chicago,
549 F.2d 415 (7th Cir. 1977)
cert. denied, 434 U.S. 875 (1977)
27
 
United States v. Crisp,
435 F.2d 354 (7th Cir. 1970)
16
 
United States v. Russo,
708 F.2d 209 (6th Cir. 1983)
16
 
Wangerin v. State,
73 Wis.2d 427 (1976)
16
 
W. G. Cosby Transfer & Storage
Corp. v. Froehlke,
480 F.2d 498 (4th Cir. 1973)
30

-x-
Page
White v. Mathews,
559 F.2d 852 (2d Cir. 1977),
cert. den., 435 U.S. 908 (1978)
16
 
UNITED STATES CONSTITUTION
 
Amendment 1 xvii,   40
 
Amendment V xvii,   16
 
FEDERAL STATUTES
 
5 U.S.C. 552.(a)(1) xviii,   24,   37,   47
 
5 U.S.C. 2302(b)(6) xvii,   30,   47
 
5 U.S.C. 7513(a) xix,   20
 
5 U.S.C. 7513(b) xix,   8,   11,   53
 
5 U.S.C. 7513 (b)(1) xix,   15,   20,   31,   39,   53,   55
 
5 U.S.C. 7902 (d) xx,   3,   6,   13,   30,   [36],   42,   43,   45-47
 
28 U.S.C. 144 xx,   9
 
28 U.S.C. 455(a) xxi,   9,   55
 
29 U.S.C. 706(7)(B) xxi,   23,   33,   34,   56
 
42 U.S.C. 2000e-16, note 53 2
 
MICHIGAN STATUTES
 
M.C.L. 421.28(1)(c) xxii,   9
 
M.C.L. 750.213 xxii,   6

-xi-
Page
 
REGULATIONS
 
5 C.F.R. 831.1204(b) (1980) xxiii,   7,   40
 
5 C.F.R. 831.1206 (1980) xxiii,   7,   40,   47
 
29 C.F.R. 1613.403 xxiv,   8,   19,   20,   22
 
29 C.F.R. 1613.702(a) xxiv,   33,   34
 
29 C.F.R. 1613.702(f) xxv,   5,   [25,]   32
 
29 C.F.R. 1613.704(a) xxv ,   36
 
32 C.F.R. 203.2 xxv,   43
 
32 C.F.R. 203.3 xxvi,   5,   30,   42,   48
 
Army Reg. 1-8.2.a xxvi,   5,   [43,]   48
 
Army Reg. 1-8.3.b. xxvii,   43
 
Army Reg. 385-10.3-5a. xxvii,   3,   5,   40,   48
 
Army Reg. 385-10.3-5b. xxvii,   3,   5,   40,   48
 
Army Reg. 600-63.4-1.a xxviii,   43
 
Army Reg. 600-63.4-1.d xxviii,   43
 
TACOM Reg. 600-5.14-27 xxviii,   7,   39,   [45,]   47
 
TACOM Reg. 600-5.14-28.a. xxix,   7,   39,   [45,]   47
 
TACOM Reg. 600-5.14-28.d. xxix,   47

-xii-
Page
 
MISCELLANEOUS REFERENCES
 
29 Am.Jur.2d Evidence 278-80 (1967) 16
 
Annot., 34 A.L.R.2d 372 (1954) 23
 
Annot., 20 A.L.R.3d 893 (1968) 5,   24
 
Black's Law Dictionary (4th ed. 1968) 4
 
Black's Law Dictionary
(5th ed. 1979)
29,   36
 
Comptroller General GAO Reports 14,   15
 
Devine and Aplin, "Whistleblower
Protection--The Gap Between
the Law and Reality,"
31 Howard Law Journal
223 (1988)
10,   53,   59,   60
 
Diagnostic and Statistical Manual
of Mental Disorders, 3d. ed., 1980,
revised 1987. American Psychiatric
Association, Washington, D.C.
41
 
Schoon, "Private Rights of Action
for Handicapped Persons Under
Section 503 of the Rehabilitation
Act," 13 Valparaiso University
Law Review 453 (1979)
35
 
Schroder, "Special Focus:
Whistleblowers and the Public
Interest,""Introduction,"
4 Antioch Law J. 1 (Summer 1986)
60
 
Standard Form 78, Certificate of
Medical Examination
13,   23

-xiii-

OPINIONS BELOW

The opinion by the Court of Appeals (Table, 908 F.2d 973) is in Appendix A, pages 1a-15a.

The dismissal by the district court for the Eastern District of Michigan, Southern Division, is in Appendix C, 17a.   Its bench opinion is in Appendix D, 18a-19a.

A related dismissal by said district court is in Appendix E, 20a.

The order by said district court denying plaintiff's motion for summary judgment is in Appendix F, 21a.   Its order granting defendants' motion for summary judgment is in Appendix G, 22a-23a.   Its order granting defendant JOHN O. Marsh, Jr.'s motion to dismiss is in Appendix H, 24a-25a.   Its order granting defendant's motion to strike plaintiff's counsel's affidavit in support of his motion for summary judgment is in Appendix I, 26a-


-xiv-

27a.   Its order striking plaintiff's jury demand is in Appendix J, 28a.   Its bench opinion is in Appendix K, 29a-31a.

The decisions by the Equal Employment Opportunity Commission (EEOC) ordering administrative review to begin are in Appendix T, 51a-66a, and Q, 40a-46a.

Initial [anti-whistleblower] decisions by the Michigan Employment Security Commission (MESC) are in Appendix AA, 82a and Z, 80a-81a.   The [pro-whistleblower] decision by the MESC Referee reversing them is in Appendix Y, 74a-79a; and denying [the Army's request for] rehearing, in Appendix V, 69a-70a.

The MESC decision implementing the Referee's [pro-whistleblower] decision is in Appendix W, 71a.

Appellate decisions by the Michigan Employment Security Board of Review are in Appendix S, 49a-50a, and R, 47a-48a.

Actions by the Department of the Army are in [Appendices] DD, 87a;   CC, 85a-86a;   BB, 83a-84a;   X, 72a-73a;   U, 67a-68a;   M, 33a-34a; and L, 32a.


-xv-

Notices by the

- Office of Personnel Management are in Appendix P, 38a-39a; and B, 16a;

- Office of Management and Budget, in Appendix O, 36a-37a; and by the

- Department of Labor, in Appendix N, 35a.

In the absence of administrative processing and decisions wherein it would otherwise appear, background material is in Appendices EE, 88a-95a;   FF, 96a-102a;   HH, 107a-108a;   II, 109a-110a;   JJ, 111a-112a; and KK, 113a-115a.


-xvi-

JURISDICTION

The trial court's orders were entered 13 December 1988, 25 October 1988, and 24 February 1988. Jurisdiction is an issue herein. Pursuant to the right to sue letters from the Equal Employment Opportunity Commission, Appendix T, 51a-66a, and Appendix Q, 40a-46a, establishing a lack of administrative actions and review, thus a lack of counseling for informed choice by me, continuing from February 1980 - present, all of which are condition precedent to case commencement and jurisdiction by courts to adjudicate merits, the questions presented herein arise.

The opinion by the Court of Appeals for the Sixth Circuit was filed on 13 July 1990. Appendix A, 1a-15a.

The jurisdiction of this Court is invoked pursuant to 28 U.S.C. 1254(1).


-xvii-

CONSTITUTIONAL PROVISIONS INVOLVED

U.S. Constitution, Amendment I:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

U.S. Constitution, Amendment V:

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy or life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty. or property. without due process of law; nor shall private property be taken for public use, without just compensation.

(Emphasis added to pertinent clause)


-xviii-

FEDERAL STATUTORY PROVISIONS INVOLVED

5 U.S.C. 552. (a)(1)(C) - (D):

"(a)(1) Each agency shall separately state and currently publish in the Federal Register for the guidance of the public-

(C) rules of procedure, descriptions of forms available or the places at which forms may be obtained, and instructions as to the scope and contents of all papers, reports, or examinations;

(D) substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretation of general applicability formulated and adopted by the agency;

* * *

"Except to the extent that a person has actual and timely notice of the terms thereof, a person may not in any manner be required to resort to, or be adversely affected by, a matter required to be published in the Federal Register and not so published."

5 U.S.C. 2302.(b)(6):

"(b) Any person who has authority to take, direct others to take, recommend, or approve any personnel action shall not, with respect to such authority--


-xix-

(6) grant any preference or advantage not authorized by law, rule, or regulation to any employee or applicant for employment (including defining the scope or manner of competition or the requirements for any position) for the purpose of improving or injuring the prospects of any particular person for employment."

5 U.S.C. 7513.(a):

"(a) Under regulations prescribed by the Office of Personnel Management, an agency may take an action covered by this subchapter against an employee only for such cause as will promote the efficiency of the service."

5 U.S.C. 7513. (b)(1):

"(b) An employee against whom an action is proposed is entitled to--

(1) at least 30 days' advance written notice, unless there is reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment may be imposed, stating the specific reasons for the proposed action."


-xx-

5 U.S.C. 7902(d):

"(d) The head of each agency shall develop and support organized safety promotion to reduce accidents and injuries among employees of his agency, encourage safe practices, and eliminate work hazards and health risks."

28 U.S.C. 144:

"Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding."

"The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith."


-xxi-

28 U.S.C. 455(a):

"(a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned."

29 U.S.C. 706(7)(B):

"(B) Subject to the second sentence of this subparagraph, the term 'handicapped individual' means, for purposes of subchapters IV and V of this chapter, any person who (i) bas a physical or mental impairment which substantially limits one or more of such person's major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment. For purposes of sections 793 and 794 of this title as such sections relate to employment, such term does not include any individual who is an alcoholic or drug abuser whose current use of alcohol or drugs prevents such individual from performing the duties of the job in question or whose employment, by reason of such current alcohol or drug abuse, would constitute a direct threat to property or the safety of others."


-xxii-

MICHIGAN STATUTORY PROVISIONS INVOLVED

M.C.L. 421.28(1)(c):

"(c) The individual is able and available to perform suitable full time work of a character which the individual is qualified to perform by past experience or training, and of a character generally similar to work for which the individual has previously received wages, and the individual is available for such work, full time, either at a locality at which the individual earned wages for insured work during his or her base period or at a locality where it is found by the commission that such work is available."

M.C.L. 750.213:

"Any person who shall, either orally or by a written or printed communication, maliciously threaten to accuse another of any crime or offense, or shall orally or by any written or printed communication, maliciously threaten any injury to the person or property or mother, father, husband, wife or child of another with intent thereby to extort money or any pecuniary advantage whatever, or with intent to compel the person so threatened to do or refrain from doing any act against his will. shall be guilty of a felony, punishable by imprisonment in the state prison not more than twenty [20] years or by a fine of not more than ten thousand [10,000] dollars."

(Emphasis added to pertinent clause)


-xxiii-

REGULATORY PROVISIONS INVOLVED

5 C.F.R. 831.1204(b) (1980):

"Decision. After considering the employee's retirement file, the Associate Director either approves or disapproves the application. The Associate Director's decision shall be in writing and a copy shall be given to the employee and to the agency concerned. The decision shall set forth the Associate Director's findings and conclusions and shall inform the employee and the agency of the right to request reconsideration by the Associate Director."

5 C.F.R 831.1206 (1980):

"An agency shall retain an employee in an active duty status until it receives the initial decision of the Associate Director for Compensation on an agency application for disability retirement, except that the agency on the basis of medical evidence, may place an employee on leave with his/her consent, or without his/her consent when the circumstances are such that his/her retention in an active duty status may result in damage to Government property, or may be detrimental to the interests of the Government, or injurious to the employee, his/her fellow workers, or the general public. If the leave account of the employee is or becomes exhausted, any suspension or involuntary leave without pay shall be effected in accordance with applicable laws, Executive orders, and regulations.


-xxiv-

29 C.F.R. 1613.403:

"An aggrieved person may initially file a mixed case complaint with an agency, pursuant to this part, or (s)he may file a mixed case appeal directly with the MSPB, pursuant to 5 CFR 1201.151, but not both. An agency shall inform every employee who is the subject of an action which is appealable to the MSPB and who has raised the issue of discrimination either orally or in writing, during the processing of the action, of his/her right to file a mixed case complaint, if the employee believes the action to be based, in whole or in part, on discrimination, or to file a mixed case appeal with the MSPB. The person shall be advised that (s)he may not initially file both and that whichever is filed first (the mixed case complaint or the appeal) shall be considered an election to proceed in that forum. For the purposes of this subsection, filing of a mixed case complaint occurs when the complaint is filed with an appropriate agency official, in accordance with § 1613.214 (a)(3) of Subpart B of this part."

29 C.F.R. 1613.702(a):

"(a) 'Handicapped person' is defined for this subpart as one who: (1) Has a physical or mental impairment which substantially limits one or more of such person's major life activities, (2) has a record of such an impairment, or (3) is regarded as having such an impairment."


-xxv-

29 C.F.R. 1613.702(f):

"(f) 'Qualified handicapped person' means with respect to employment, a handicapped person who, with or without reasonable accommodation, can perform the essential functions of the position in question without endangering the health and safety of the individual or others and who, depending upon the type of appointing authority being used: (1) Meets the experience and/or education requirements (which may include passing a written test) of the position in question, (2) meets the criteria for appointment under one of the special appointing authorities for handicapped persons."

29 C.F.R. 1613.704(a):

"(a) An agency shall make reasonable accommodation to the known physical or mental limitations of a qualified handicapped applicant or employee unless the agency can demonstrate that the accommodation would impose an undue hardship on the operation of its program."

32 C.F.R. 203.2:

"Applicability and scope. The provisions of this part apply to the Office of the Secretary of Defense, the Military Departments, the Organization of the Joint Chiefs of Staff, the Defense Agencies, and the Army-Air Force Exchange System. This part applies to all DoD occupied facili-


-xxvi-

ties. It does not cancel or supersede other instructions where smoking is controlled because of fire, explosive, or other safety considerations."

32 C.F.R. 203.3:

"203.3 Background. The Surgeon General of the United States has determined that the smoking of tobacco can constitute a hazard to health. DoD recognizes the right of individuals working or visiting in DoD occupied buildings to an environment reasonably free of contaminants. DoD also recognizes the right of individuals to smoke in such buildings, provided such action does not endanger life or property, cause discomfort or unreasonable annoyance to nonsmokers, or infringe upon their rights."

Army Regulation 1-8.2.a.:

"2. General. a. The Surgeon General of the United States Public Health Service has determined that the smoking of tobacco can constitute a hazard to health. DA recognizes the right of individuals working in DA occupied buildings to an environment reasonably free of contamination. DA also recognizes the right of individuals to smoke in such buildings, provided such action does not endanger life or property, cause discomfort or unreasonable annoyance to nonsmokers, or infringe upon their rights."


-xxvii-

Army Regulation 1-8.3.b.:

"b. The provisions are also applicable to DA elements occupying Federal Government owned and leased space which is assigned by GSA, and space obtained on use permit, or normal rental or rent free basis. In such cases, the Department policy will apply within the confines of the assigned space over which DA has exclusive custody and control. It does not cancel or supersede other instructions where smoking is controlled because of fire, explosive, or other safety considerations."

Army Regulation 385-10.3-5a.:

"3-5. Reports of unsafe or unhealthful conditions. a. Reports of unsafe or unhealthful conditions by Army personnel are important in detecting hazards that cause accidents. Such reports will be handled at the operating level to ensure prompt, efficient processing. However, provision will be made as outlined below for personnel to bring such complaints directly to installation level, bypassing intermediate commands or supervisory elements."

name="pxxvii385b">Army Regulation 385-10.3-5b.:

"Commanders will publicize all channels for reporting unsafe or unhealthful conditions, emphasizing personnel responsibility for making such reports. Personnel will be


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directed to use the available means in this order of priority:

(1) Oral reports directly to the supervisor.

(2) Reports through operational channels where established.

(3) Reports through a special reporting system designated the Army Hazard Reporting System."

Army Regulation 600-63.4-1.a.:

"a. Smoking tobacco harms readiness by impairing physical fitness and by increasing illness, absenteeism, premature death, and health care costs. Readiness will be enhanced by establishing the standard of a smoke-free environment that supports abstinence from and discourages use of tobacco."

Army Regulation 600-63.4-1.d.:

"d. This policy does not cancel or supersede other instructions that control smoking because of fire, explosive, or other safety considerations."

TACOM Regulation 600-5.14-27:

"14-27. Definition. A temporary non-pay status and absence from duty during regularly scheduled work hours granted/approved at the employee's request."


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TACOM Regulation 600-5.14-28.a:

"a. Supervisors may not direct the use of leave without pay (LWOP). Leave without pay may be charged only upon an employee's request or consent. However, such consent is understood when an employee applies for and is granted another type of leave where leave balance(s) are insufficient to cover. The only exception is when the commander authorizes excused absence for reasons beyond management control and an employee is not eligible for excused absence. (See "Excused Absence," page 23)."

TACOM Regulation 600-5.14-28.d:

"d. Leave without pay will be granted only when there is reasonable assurance of return to duty after the absence."

Ed. Note: For more on TACOM Reg. 600-5.14, click here.

-1-

STATEMENT OF THE CASE

Petitioner Leroy Pletten was hired 26 August 1969, based on his qualifications, as a civilian employee of the Department of Army ("Army") at its Tank-Automotive Command ("TACOM") in Macomb County, Michigan. Macomb County is one of the smallest counties in Michigan. The size of TACOM is about 1/5 of 1% the size of the county.

TACOM, says the U.S. Equal Employment Opportunity Commission ("EEOC"),

"as early as February, 1980 . . . denied [me] EEO counseling and prevented [me] from filing [EEO] complaints" (App. T, 53a); and

"made some effort to limit [my] number of complaints, [my] right to file complaints and to seek EEO counseling." (App. T, 57a).

Counseling is condition precedent to review, including judicial review, of EEO matters. This case concerns the lack of

(a) conditions precedent for TACOM's conduct, and

(b) conditions precedent for review.


-2-

TACOM issued me favorable ratings, awards, promotions, and appreciation for my good performance of my job. 1   Praise and recognition of my good performance is from both within and without my assigned organization. App. EE, 88a-95a.

TACOM has an Employee Recognition Program for employees with low use of sick
____________________________
1 As administrative review has not begun, background normally in a Court decision is absent. Per the nature of the case, background would have included job "essential functions," performance standards, qualification requirements, fact of co-workers, and assignments relative to which to allege accommodation, which my outstanding work record shows I do not need. Without it, I have done and remain ready, willing, able and eager to do all my duties at my job site. As administrative review has not begun, but has been denied since February 1980, the Court decisions purporting to decide the merits usurp counseling [the administrative review process beginning at step one]. Until administrative review begins as EEOC twice ordered, the Courts' assertions are premature (prior to the record), thus speculative, spurious, and not impartial. Pursuant to case law at note 53, 42 U.S.C. 2000e-16, it is premature for Courts to adjudicate merits prior to administrative review. Obeying EEOC's orders for administrative review would have promoted judicial economy, by not having forced me to come to this Supreme Court about the lack of counseling [the administrative process from step one on].


-3-

leave. Praise of my attendance record, and my never using sick leave, came from many TACOM officials. App. EE, 88a-95a.

I took my duties seriously. Personnel officials must set a sterling example of integrity, good behavior and compliance with rules so as to have the credibility to deal with others' violations. I did.

We in personnel must know a law as basic as 5 U.S.C. 7902(d), which says to

“encourage safe practices, and eliminate work hazards and health risks.”

Army Regulation ("AR") 385-10.3-5a. and b. has words

“emphasizing personnel responsibility for making . . . reports" "of unsafe or unhealthful conditions.”

TACOM employees were endangered. 1
____________________________
2 TACOM's Tank Plant hazard is the subject of Int. Un. U. A.W. v. General Dynamics Land Sys. Div., 259 U.S.App.D.C. 369, 815 F.2d 1570, cert. den. 484 U.S. 976 (1987), and People v. General Dynamics Land Systems, 175 Mich. App. 701 (1989), leave to appeal denied, 435 Mich. 860 (1990).


-4-

TACOM's own Dr. Francis J. Holt admits why TACOM employees were endangered. He admits against interest TACOM's bad ventilation system and the resultant hazard to all:

“. . . mechanical failures happen all the time." (Deposition, page 25).

"And there's a hazard for all these other people. Isn't that also true? Yes. Yes.

Have you been asked --

People smoking in their vicinity is hazardous to them." (Dep., p. 42).

The universal malice3   conduct injured
____________________________
3 "Universal malice" subsumes toxics causing "premature death" "without knowing or caring who may be the victim,"Black's Law Dictionary 1110 (4th ed. 1968), citing Mitchell v. State, 60 Ala. 26, 30 (1877). "Precisely what happened is what might have been expected as the result . . . and is the natural and probable consequence . . . Malice is presumed under such conditions," Nestlerode v. U.S., 74 U.S.App. D.C. 276, 279, 122 F.2d 56, 59 (1941). Tobacco universal malice "is not directed to any particular individual, but is general and indiscriminate . . . putting the 1ives of many in jeopardy . . . without the intent to kill any particular person, but . . . likely to [kill] some one or more persons . . . 'regardless of human life, although without any preconceived purpose to deprive any particular person of life,'" State v. Massey, 20 Ala.App. 56, 58, 100 So. 625, 627 (1924).


-5-

my co-worker Evelyn Bertram. She filed a workers compensation claim,4   Matter of Bertram, Case A9-190131 (1977), which was approved. To avoid reprisal, she did not ask halt of the hazard [smoker conduct that had injured her].

Ed. Note: In The Tank Automotive News, 7 Jan 1980, Vol X (Issue # 26), p 2, was a question on whether employees feared reprisal for giving their views in the newspaper. The editor, Frank Gaal, Jr., lamented that nobody answered the question; none of those whom he surveyed would answer. Fear of TACOM's policy of reprisal was clearly rampant at TACOM, understandably so, as mine is an example of said policy. "The proof of the [reprisal] pattern or practice supports an inference that any particular decision, during the period in which the policy was in force, was made in pursuit of that policy." Teamsters v U.S., 431 US 324, 362; 97 S Ct 1843, 1868; 52 L Ed 2d 396, 431 (1977).]

I took my job duty set by AR 385-10. 3-5.a. and b. seriously: in 1979, I "blew the whistle" on the universal malice hazardous [smoker] conduct.5

Army investigated TACOM and told it to obey 32 C.F.R. 203.3 / AR 1-8.2a conditions precedent (precluding smoking being permitted when it endangers others) as
____________________________
4 Every court that has examined the point finds smoking is not in employment. 20 A.L.R.3d 893 (1968). TACOM admitted this for Mrs. Bertram, admitting "She is not exposed to fumes, chemicals, or other irritants as a condition of her work." When administrative processing begins, a counselor will find sex/race discrimination as TACOM treats me differently [than her].

5 As accommodation relates to matters in "employment," 29 C.F.R. 1613.702(f), which smoking behavior is not in, I did not label my whistleblowing an "accommodation" matter. Neither I, nor any personnel worker, find smoking to be in employment / "an accommodation" matter.


-6-

mandated by 5 U.S.C. 7902(d) ("eliminate work hazards and health risks").

App. BB, 83a, is TACOM acceptance [of the Army investigation of TACOM], mandatory pursuant to Spann v. McKenna, 615 F.2d 137 (3rd Cir. 1980). In reality, TACOM did not obey. EEOC confirms at App. T, 53a. Col. Benacquista against interest admits undermining his own [acceptance] order:

"All he had to do was to say, 'I agree that this [TACOM jobsite] is reasonably free of contaminants.'" (4/23/82 Dep. p. 62).

"All" I "had to do was to" change my anticipated testimony, or be put on enforced leave, fired, retired. "All he [I] had to do was to" lie, deny the extant hazardous conduct; I'd still be at TACOM. Same is extortion. M.C.L. 750.213 [MSA § 28.410]; People v. Atcher, 65 Mich.App. 734 [238 NW2d 389] (1975).

Ed. Note: The extortion meant embezzlement of leave balance, reducing it to zero, as verified by TACOM's own Civilian Pay Officer James Beeler, Jr., p 32 infra.

TACOM addicts, in reaction to my job duty whistleblowing about their hazardous conduct, began a pattern of reprisal and discrimination described by EEOC. App. T, 53a and (57a. The pattern includes:


-7-

(a) denial of EEO counseling and refusal to process my review requests after February 1980, i.e., refusal to let administrative processing begin;

(b) treating my whistleblowing as a medical condition. E. E. Hoover, who was not impartial (his own [smoking] conduct [mental disorder] was at issue) applied [in retaliation for my exposing this] to retire me at age 34; and

(c) placing me on retroactive leave without pay ("LWOP"). App. X, 72a-73a. TACOM Regulations 600-5.14-27 and 28.a. preclude enforced LWOP. 5 C.F.R. 831.1206 (1980) mandates retention in

"active duty status until . . . the initial decision of the Associate Director for Compensation"

pursuant to 5 C.F.R. 831.1204(b) (1980). No such decision has been made. As this condition precedent for LWOP is lacking, once administrative review begins, an EEO counselor will find that TACOM must retain me in "active duty status." No "30 days' advance written notice"


-8-

was issued citing a medical qualification by which to do "medical disqualification." TACOM did it anyway. App. U, 68a, Item 30. There is no such requirement. App. P, 39a;   O, 36a;   N, 35a;   and B, 16a. Lack of this condition precedent, set by 5 U.S.C. 7513 (b), is (a) undisputed, and (b) "a jurisdictional point," Hotch v. U.S., 212 F.2d 280, 281 (9th Cir. 1954).

TACOM provided no data on choice of a "forum." 29 C.F.R.1613.403. Such data is condition precedent to my making an informed "forum" choice. Absent "forum" choice data, I sought EEO counseling [step one of the multi-step EEOC review process].

Continuing TACOM's pattern since Feb. 1980, TACOM "denied [me] EEO counseling" on the removal. TACOM did no counselor interview; no counselor report; no complaint investigation; no offer of hearing; no hearing; i.e., none of the review that others receive.

As I was and am eager, ready, willing


-9-

and able to do the whole job (more than just the "essential functions," and as my record shows, better than peers, App. EE, 88a-95a, I sought and won unemployment compensation pursuant to Michigan M.C.L. 421.28 (1)(c). 6   Apps. Y, 74a-79a; and W, 7 la. TACOM appeals lost. Apps. V, 69a-70a; S, 49a-50a; and R, 47a-48a. 7

I repeatedly return to work See Bevan v. N. Y. St. T. R. Sys., 74 Misc. 2d 443 [345 NYS2d 921] (1973), a parallel non-requirement case. As that employee continued to return to work, as he met all actual job requirements of record, so do I.
____________________________
6 My [unemployment compensation] request was initially denied. App. AA, 82a, and App. Z, 80a-81a. Review has been sought of the role of Mr. S. Martin Taylor, the husband of Judge Anna Diggs Taylor [and head of the unemployment decision office]. Her impartiality is at issue pursuant to 28 U.S.C. 144 and 455(a).

7 When administrative review begins, I will seek res judicata effect for these decisions pursuant to Polk v. Yellow Freight Sys., Inc., 801 F.2d 190, 192-3 (6th Cir. 1986), as would now be in effect but for TACOM fear of, and refusal to do, the EEOC-ordered review.


-10-

Under the circumstances each of which

"divests the removal . . . of legality, leaving the employee on [the] rolls of the employing agency and entitled to his pay," Sullivan v. Dep't. of Navy, 720 F.2d 1266, 1274 (Fed. Cir. 1983).

The pattern of misconduct here in described arises because federal agencies

". . . go well beyond merely defeating a whistleblower . . . prove to others that no one is safe . . . make the most outrageous charges possible . . . A soft-spoken, self-effacing individual will be branded a loud-mouthed ego-maniac . . . for purposes of teaching others a lesson, the more obvious the inconsistency [with truth and law] the better . . . ." Thomas M. Devine, Donald G. Aplin, "Whistleblower Protection--The Gap Between the Law and Reality," 31 Howard Law J. [#2] 223, 226 ([Winter] 1988).

At 231-2, they report that a now federal appeals judge [Alex Kozinski] taught

"a course for federal managers on how to fire employees without [review] . . . how to avoid conceding first amendment violations and still fire whistleblower . . . for exposing . . . safety violations."

With this training from a now appeals judge, agency misdeeds would be tailored:


-11-

My Job Was ToAgency Thus Does
 
Assure advance
notice and
specificity in
discipline cases
Flout 5 U.S.C.
7513
advance
notice & speci-
ficity rules
 
Discipline
employees only
for cause based
on specific
charges of record
Enforce leave,
remove me with
no charges on
a point not in
"employment"
 
Write job
descriptions
Ignore my job
description.
 
Do leave cases
on other employees
Ignore leave rules
 
Counsel super-
visors/employees
on administra-
tive review
process before
judicial review
Refuse me the
administrative
review. Do ju-
dicial review
before adminis-
trative review
 
Did essential
functions/duties
better than peers
Say I need ac-
modation to
do them
 
Never used sick
leave, was
issued praise
for that.
Say my condi-
tion is so bad
I need accom-
modation, but
can't be done,
I need so much!
 
Reviewed doctor's
letters on other
employees; quoted
them accurately
Ignore doctors'
letters on me.
Misrepresent
their contents.

That is what was taught, and what we find.


-12-

TACOM Col. John J. Benacquista says:

"if you looked at them closely it's quite obvious in there that what the doctor was saying was that the environment in his [my] present work space was not reasonably free of contaminants." (Dep. p. 24).

He told the truth -- against interest in view of the [extortion] charge against him (page 6 above) which could have led him to misrepresent what was said [by the doctors].

Smoking is a "specific disease," "one of our most serious diseases," "spreading infection," App. FF, 96a, a universal malice hazard, "a danger to life itself." "It threatens a substantial body of the population." App. FF, 99a. It causes the hazard Col. Benacquista cites, as a major symptom of the disease smoking is a propensity to repeatedly violate safety rules. App. FF, 98a,   102a.

Being a nonsmoker (as I am) is not a disease, not a medical condition. The court rulings below [filled with spurious findings] obscure that fact.


-13-

It is smoking that is the disease at issue. A smoker is a person with:

"medical findings which . . . would make him a hazard to himself or others." (Standard Form 78). [Ed. Note: This proviso against negligent hiring is easily followed. The law already long precluded hiring anyone with such "medical findings." Had this criterion been adhered to, the 13 Washington, D.C. Navy Yard deaths on 16 September 2013 would have been prevented, as the perpetrator would not have been hired in the first place.]

Congress in 5 U.S.C. 7902(d) says to

"encourage safe practices, and eliminate work hazards and health risks." 8

Congress does not say to exempt smokers. The decisions below turn the law
____________________________
8 Justices Rehnquist and Scalia in School Board of Nassau County v. Arline, 480 U.S. 273, 292 (1987) (dissent) say, "the Court points to nothing . . . suggesting that Congress contemplated that a person [e.g., a smoker] with a condition posing a threat to the health of others may be considered handicapped." Smoking is a classic example of a condition (a) posing a hazard to both self and others, and (b) not to be accommodated. Nothing in Nassau suggests that this court intends to accommodate smokers (i.e., to exempt them from having to obey safety law). Doing that would conflict with 5 U.S.C. 7902(d). Nothing in Nassau suggests that an addictive, infectious handicap (e.g., smoking) is exempted from compliance with that federal service law. Respondents' desire to accommodate smokers contradicts (a) the government view cited at note 14 and (b) 5 U.S.C. 7902(d).


-14-

REASONS FOR GRANTING THE WRIT
A. THIS CASE PRESENTS THE IMPORTANT FEDERAL QUESTION OF ENFORCEABILITY OF DECISIONS OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION.

The U.S. General Accounting Office ("GAO"), repeatedly finds the EEO system has widespread inadequacies, e.g., lack of counseling, timeliness, solid investigations, and follow-up system to assure that agencies do obey EEOC orders when an employee has so good a case as to overcome the obstacles and obtain an EEOC [processing] order. GAO says EEOC even fails to act timely, if at all, on previous GAO findings.

The GAO Reports include:

"The Equal Employment Opportunity Commission Has Made Limited Progress in Eliminating Employment Discrimination," HRD-76-147 (28 September 1976)

"System For Processing Individual Equal Employment Opportunity Discrimination Complaints: Improvements Needed," FPCD-76-77 (8 April 1977)

"Further Improvements Needed in EEOC Enforcement Activities," HRD-81-29 (9 April 1981)


-15-
"Age Discrimination and Other Equal Employment Opportunity Issues in the Federal Work Force," Letter B-205303 (20 November 1981)

"EEOC and State Agencies Did Not Fully Investigate Discrimination Charges," HRD-89-11 (October 1988)

This case arises from that context. EEOC twice ordered administrative review. App. T, 51a-66a, and Q, 40a-46a. TACOM refuses to obey. Without 5 U.S.C. 7513(b)(1) notice, to punish me for my [AR 385-10] job duty pro-rule [first Amendment freedom of] expression, TACOM put me on enforced leave, fired me, and retired me, each act predicated upon the prior act. 9

TACOM had made me a Crime Prevention Officer. App. DD, 87a. Anti-whistleblower teaching (pp. 10-11 above) says to tailor attack to the whistleblower's background.
____________________________
8 Discharge, "the most serious sanction an employer can impose," requires "special care in handling" review. Tenorio v. N. L. R. B., 680 F.2d 598, 602 (9th Cir., 1982). Access to review was cut off in Feb.1980 (App. T, 53a), immediately followed by the enforced leave, a reckless and arbitrary disregard for the rule of law, not a rational decision making process.


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TACOM did [tailor reprisal to my background], resorting to extortion, p. 6.

TACOM refuses to obey EEOC's two orders to begin review. 10 It said 30 days.

Compounding system inadequacies, the court denied jurisdiction to enforce the EEOC orders, App. E, 20a, the subject of my petition (89-7594) for certiorari.

Since then, the court changed position. It has now summarily overturned the
____________________________
10 The 30 day orders are at App. T, 58a, and Q, 45a. Refusal to obey deprives me of due process,   Amend. V,   as mere trying (a "glacial pace") to schedule review is not constitutionally adequate. White v. Mathews, 559 F.2d 852 (2d Cir. 1977), cert. den., 435 U.S. 908 (1978). But TACOM is not trying; the gross disregard of the 30 day orders shows the more fundamental problem is criminal:

"flight [from review] has probative value to guilt . . . United States v. Crisp (7th Cir. 1970), 435 F.2d 354. This is the general rule followed in the criminal law. 29 Am. Jur. 2d Evidence secs. 278-80 . . . (1967)." Wangerin v. State, 73 Wis.2d 427, 243 N.W.2d 448, 453 (1976).

TACOM refuses to do as it was ordered to do. Why? to prevent resolution of the underlying extortion (p. 6). Extortioners refuse "to process grievances." U. S. v. Russo, 708 F.2d 209, 212 (6th Cir. 1983).


-17-

EEOC orders (Apps. T and Q, 43a) to review the "different incidents several months apart." App. A, 13a-15a. TACOM has not let processing begin on my evidence (on sex/race discrimination) on the incidents.

Other courts enforce, not overrule, EEOC orders., e.g., the Eleventh Circuit:

"the applicable federal regulations and case law . . . require that the district courts enforce final EEOC decisions favorable to federal employees when requested to do so." Moore v. Devine, 780 F.2d 1559, 1560 (11th Cir. 1986).

The District of Columbia Circuit Court of Appeals allows coming

"to court seeking interlocutory supervision of the administrative processing of his discrimination claims . . . to force investigation." Anthony v. Bowen, 270 U.S. App.D.C. 246, 250, 848 F.2d 1278, 1282 (1988).

The Sixth Circuit itself admits that

"a federal employee can request a federal court to enforce a favorable EEOC order." Haskins v. Department of Army, 808 F.2d 1192, 1199 (6th Cir.), cert. den., 484 U.S. 815 (1987).

-18-

EEOC decisions use a stronger word ("mandatory") than "request." App. T, 58a; and Q, 45a. Though the agency could have sought reopening within "time limitations" cited, App. T, 61a, it made no request. So it was sua sponte of the Sixth Circuit to overturn the EEOC orders. App. A, 13a-15.

As that different reaction (a sua sponte summary reversal instead of either compliance or enforcement) so markedly at variance from what EEOC said and from what other circuits say shows a conflict with EEOC and/or between circuits, this Court should grant this petition to be enabled to resolve this important nation - wide issue of compliance with EEOC orders. Causing compliance to be done as of the date it would have been done but for refusal will induce agencies to obey EEOC order voluntarily, reduce need for resort to court enforcement requests, and so promote judicial economy.


-19-
B. THIS CASE PRESENTS THE IMPORTANT FEDERAL QUESTION OF JURISDICTION OF COURTS TO DECIDE MERITS BEFORE THE CONDITIONS PRECEDENT ADMINISTRATIVE PROCESSING HAS OCCURRED

EEOC found my access to administrative review ceased February 1980. App. T, 53a. That finding is both res judicata and the law of the case.

Lack of administrative action has a deep consequence. The court concedes this is a mixed case. App. A, 10a.   29 C.F.R. 1613.403 requires agencies to

"inform every employee who is the subject of an action which is appealable to the MSPB and who has raised the issue of discrimination orally or in writing . . . of his/her right to file a mixed case complaint . . . or . . . appeal . . . whichever is filed first shall be considered an election to proceed in that forum."

TACOM "placed [me] on leave without pay on December 14, 1980," App. A, 2a;   App. X, 72a-73a, Items 12, 13, and 14, effected retroactively. Item 35. TACOM removed me 22 January 1982. App. U,


-20-

67a-68a, Items 12 and 13 with under ten days notice. Item 35.

The significance is, this occurred after [the review access cut-off] February 1980. 11

"To decide the case we need look no further than the maxim that no man may take advantage of his own wrong."Glus v. Brooklyn Eastern District Terminal, 359 U.S. 231, 232 [79 S Ct 760, 762; 3 L Ed 2d 770, 772] (1959).

Deciding my case in disregard of EEOC's processing orders does "take
____________________________
11 "The agency in this case has not shown--or even alleged--that it ever notified the appellant of his right to file an appeal or of any limitations on that right . . . it evidently has maintained consistently that the appellant has no appeal rights," Miyai v. D.O.T., 32 M.S.P.R. 15, 20 (1986). "The Board has held . . . that [an employee] filing [apart from proper notice] does not constitute an informed election under [5 USC] section 7121 when the agency failed to afford the employee proper notice of his potential avenues of recourse." TACOM's "complete failure to provide these [due process] protections . . . constitutes harmful error." Here, many conditions precedent are unmet: TACOM gave no 5 U.S.C. 7513 (b)(1) notice; no 7513(a) cause; no opportunity at the meaningful time (before decision) to reply; and no 29 C.F.R. 1613.403 "election" data (etc., as will be raised during the counseling process).


-21-

advantage of [TACOM's] own wrong."

Others receive [the 29 CFR § 1613 EEO process starting with] counseling. 12   TACOM is treating me differently. Courts cannot attain jurisdiction to decide merits of my situation when "accomplished through the violation of a controlling regulation," Piccone v. U.S., 186 Ct. Cl. 752, 762, 407 F.2d 866, 871 (1969), relying on Service v. Dulles, 354 U.S. 363 (1957).

Compliance with the "mandatory" EEOC processing orders has not occurred.

Judicial review on the merits

"is suspended until the condition is performed . . . . performance of the condition must precede the execution [merits decision] . . .'till then . . . there is only an expecta-tion . . . pendente conditione nondum debetur, sed spes est debitum iri.'" City of New Orleans v. Tex. & P. Ry. Co., 171 U.S. 312, 333, 18 S.Ct. 875, 883, 43 L.Ed. 178, 186 (1898).
____________________________
12 Courts take judicial notice of counselor reports. Suarez v. Chmn.of Bd. of Directors of FDIC, 692 F.Supp. 43, 46-47 (D.P.R. 1988). Not citing [by the CA 6 decision] any confirms that counseling has not occurred.
-22-

The condition precedent doctrine does apply to cases, 13   e.g., in a matter that

"is a condition precedent to commencing the action. That condition not having been met, the action was never commenced. The petition could not be amended after the condition was met. A pleading in an action never commenced cannot be amended." Siemering v. Siemering, 95 Wis.2d 111, 115 [288 NW2d 881, 883] (1980).

"A pleading in an action never commenced cannot be amended" [or decided]. Absent [the multiple] conditions [precedent herein cited], the court decisions below "never commenced." This Court should take this opportunity to affirm that courts should not adjudicate cases "never commenced." Deciding only "commenced" cases will promote judicial economy.
____________________________
13 Informed choice is a condition precedent, e.g., the U.S. Dept. of Labor Employee Compensation Appeals Board in Martinez and Air Force, 37 E.C.A.B. 143, 145 (1985) overturned a case because "in the absence of an informed election . . . by appellant there is no evidence establishing the existence of" the matter at issue. Here, also, is "no evidence" of "election" by me: TACOM has not provided 29 C.F.R. 1613.403 "election" data.


-23-
C. THE DECISION BELOW CONFLICTS WITH THE HOLDINGS OF THIS COURT IN Morton v. Ruiz, 415 U.S. 199 (1974) AND Bowen v. City of New York, 476 U.S. 467 (1986).

"Workmen are not employed to smoke." MTM Corp. y. Mid-Cont. Petroleum Corp., 49 F.2d 146, 150 (10th Cir. 1931). [Federal] Standard Form 78, Certificate of Medical Examination, which we in [federal] personnel [work] use to avoid reckless selection/retention, 34 A.L.R.2d 372 (1954), precludes hiring an applicant (e.g., a smoker / drug user) with any

"medical findings which . . . would make
him a hazard to himself or others."

Smokers do not meet this hiring criterion, a well established fact alluded to in Austin v. State, 101 Tenn. 563, 566-7 [48 SW 305; 70 Am St Rep 703 (1898) [aff'd 179 US 343 (1900)]. App. FF, 97a. So as a precluded factor, smoking cannot be used to measure a nonsmoker's job performance, handicap or accommodation, all of which "relate to employment." 29 U.S.C. 706(7)(B). [Ed. Note: The duty to avoid negligent hiring is easily complied with. The law already long precluded hiring anyone with "medical findings which . . . would make him a hazard to himself or others," quoted from the federal applicant analysis form, Standard Form 78.]

Bowen v. City of New York, 476 U.S.


-24-

467 [106 S Ct 2022; 90 L Ed 2d 462] (1986) rejects secret eligibility rules. Morton v. Ruiz, 415 U.S. 199 [94 S Ct 1055; 39 L Ed 2d 270] (1974) uses 5 U.S.C. 552.(a)(1) to invalidate an unpublished qualification standard. Here, the premature [CA 6] court decision 14   relies on

- secret tobacco qualification requirement

- secret job description requirement, and

- secret proof smoking is in employment.

None of these exist. Smoking is not in employment. 20 A.L.R.3d 893 [1968]. Nothing of record puts smoking "in employment": no law, no regulation, no job description, no qualification standard. Apps. P, 39a;   O, 36a;   N, 35a; and B, 16a.   (If it [smoking] were [indeed] required [as a qualification], I need not meet it; see [qualifications]waiver [for the very same job at issue!]: App. CC, 86a, Item 30). Army does not say
____________________________
14 It [CA 6] ignores its own [precedent] Ramey v. Block, 738 F.2d 756, 762 (1984), saying "the Secretary must generate specific standards . . . and apply them in a uniform fashion . . . 'determination of eligibility cannot be made on an ad hoc basis.'" Its Hall v. Postal Service, 857 F.2d 1073, 1078-9 (1988), requires a job description link, as do administrative cases, e.g., Jones v. V.A., 25 M.S.P.R. 328 (1984) and Nadolney v. E.P.A., 25 M.S.P.R. 544 (1985). [None is shown here, nor even exists to be shown.]


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smoking has any trait [characteristic, feature] that brings it into "employment." Its [the Army's own] Proclamation calls it [smoking conduct] a behavior "to eliminate." App. M, 33a.

Smoking is not job "essential functions," and will not be found in any job description, once "individualized inquiry" on job description requirements begins. Hall, 857 F.2d, 1078-9.

Ed. Note: Smoking is mere "practice." A "practice" "not based upon any rule of law" must be rejected, Biafore v Baker, 119 Mich App 667; 326 NW2d 598 (1982); The T. J. Hooper, 60 F2d 737, 740 (CA 2, 1932), as "what ought to be done is fixed by a standard . . . whether it usually is complied with or not."--Texas & Pac Ry v Behymer, 189 US 468, 470; 23 S Ct 622, 623; 47 L Ed 903 (1903). And the safety laws and anti-smoking rules herein cited were written "designed to disrupt" said practice.--U.S. v City of Los Angeles, 595 F2d 1386, 1391 (CA 9, 1979).

Though adjudicating a matter "with respect to employment," 29 C.F.R. 1613.702(f), the courts below never assert smoking is in it. App. G, 22a-23a; App. K, 29a-31a; and App. A, 6a. The absence is conspicuous and is plain error.

Case law (which the courts below departed from) has a long record that it

"apparently follows the rule of the English courts that the act of smoking in itself is not in the course of the employment, but . . . the employer will be liable for damages caused by smoking . . . liable despite the care he has taken to prevent smoking . . ." George v. Bekins Van & Storage Co., 33 Cal.2d 834, 841, 205 P.2d 1037, 1042 (1949).

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The government won a case on the same point, getting the First Circuit to rule against smoking being in employment. In Merritt v. United States, 332 F.2d 397, 398-9 (1st Cir. 1964),

"A sergeant . . . negligently set fire to the house by smoking in bed . . . Plaintiff . . . contends that . . . was in the scope of his employment. We would need persuasive authority to show that . . . ."

Of course, there wasn't (and still isn't) any such "persuasive authority."

"Cigarette smoke . . . is not a natural by-product of . . . business. Plaintiff works in an office. The tools of her trade are pens, pencils . . . a telephone. There is no necessity to fill the air with tobacco smoke in order to carry on . . . business . . . It is evident that [I am] confronted with a [behavior / gateway drug use of] a nonnecessary toxic substance," Shimp v. New Jersey Bell Telephone Co., 145 N.J. Super. 516, 523-4, 368 A.2d 406, 411 (1976).

Smoking is not in employment, so no requirement to tolerate smoking is found in selection criteria, tests, background investigations, performance prediction


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material, promotion criteria, etc. These are personnel basics. U.S. v. City of Chicago, 549 F.2d 415, 429-434 (7th Cir.) cert denied, 434 U.S. 875 (1977). 15

If there were a direct accusation saying I fail to meet the non-requirement, which there is not [as there was no 5 USC § 7513 notice of charges, whether misconduct, malperformance, or anything], that [my not meeting the non-requirement not in employment] "can never prevent performance of the job," Montgomery Ward v. Bureau of Labor, 280 Or. 163, 166 [570 P2d 76; 16 FEP 80] (1977). Absence of existence and publication is "a jurisdictional point," Hotch,
____________________________
15 On 23 April 1982, i.e., after the December 1980 leave without pay, which the courts allege was based on inability to accommodate me, my superviser, Carma J. Averhart, when asked, "Did you consider Mr. Pletten handicapped?," said, "I don't know. I don't really think of it in that sense." "You asked me if I thought of him as handicapped. [Questioner: Yes.] And I said that when I think of him I don't think, 'Mr. Pletten, handicapped.'" (Dep. p. 73). She added, "I''m not saying I don't think he is handicapped. You asked me if I thought of him as handicapped. I think of him as Leroy Pletten.' (Dep., 74). Asked, "well, how do you define reasonable accommodation?," she replied, "I haven't really thought about defining reasonable accommodation." Col. Benacquista called smoking "personal habits," not requirements. (Dep. p. 25).

Ed. Note: This testimony helps establish that the "accommodation" stories were invented long after the "decision to terminate" me cited by EEOC's Henry Perez, Jr., April 1980. The "accommodation" stories were retroactively invented outside the rule of law, and are a sham "fashioned for the purposes of litigation," paralleling Alaniz v. Office of Personnel Management, 728 F.2d 1460, 1465 (Fed. Cir. 1984). They are not just a sham, they are an antedated sham, "ante-dated [fabricated, back-dated] to make them appear as if they were genuine," as in the unprofessional attorney conduct case of In re Ryman, 394 Mich. 167, 176 (1975). Against such antedating, tantamount to forgery of retroactive reasons, the "'legal system [and Mr. Pletten] is virtually defenseless,'" Matter of Grimes, 414 Mich. 483, 494 (1982). "An [employee] is unfairly deprived of an opportunity to cross-examine or to present rebuttal evidence and testimony when [he] learns the exact nature of [claims] only after the [decision]," National Rlty. & C. Co., Inc. v Occ. S. & H. R. Com'n, 160 U.S.App.D.C. 133, 489 F.2d 1257, 1267 (1973). Once my defense is someday allowed to be presented, I will call attention to precedents saying that accommodation issues are deemed "affirmative defense" to, e.g., an extant advance notice, e.g., Bolling v Navy, 43 MSPR 668, 671 (1990); Brown v Postal Service, 47 MSPR 50, 59 (1991). Here, no such notice exists, so the "accommodation" issue, even if it shall someday have validity, is grossly premature, indicative of ex parte agency suborning of adjudicators to make such claims].

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212 F.2d 281. 16   Respondents'

"complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all of the other facts immaterial." App. A, 5a.

When [29 CFR § 1613 EEO] administrative review begins, a counselor will find I have no handicap so need no accommodation to do my 'essential functions." As my work record shows, App. EE, 88a-95a, I do my essential functions / duties well, better than my peers. App. EE, 9la and 95a. Other personnel workers are complained about; I receive praise. I need no accommodation [for all the reasons cited herein and to be cited once administrative review begins] as [for example] the matter is not in employment.

Your Morton and Bowen [precedents] show that both existence and publication are conditions precedent to an alleged disqualification, here one (at App. U, 68a, Item 30) used to
____________________________
16 Respondents gave no proof on point. Smoking is "not a precondition or job requirement" [a fact and point of law] which the attorney called to court attention. Lack of jurisdiction is a matter of law, so the orders at Apps. 21a; G, 22a-23a; and I, 26a-27a, err. (See p. 9, note 6 above, on personal bias [by judges below motivating them to ignore evidence and rules of law].)


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assert an unreasonable "accommodation" need. There is no tobacco qualification requirement to "relate to employment" by which to disqualify me.

Black's Law Dictionary (5th ed. 1979) defines "employment" at page 471 in words including the following:

"occupation, profession, trade, post or business . . . Includes the doing of the work and a reasonable margin of time and space required."

Smoking is not "required," is not in employment, so cannot be a factor for a 'qualified handicapped person" determination nor for removal. One falls, both fall. Refuting one, refutes both.

Even if there were a tobacco qualification standard (there is not), Morton, 415 U.S., 231, says:

"the agency must, at a minimum, let the standard be generally known so as to assure that it is being applied consistently and so as to avoid both the reality and the appearance of arbitrary denial."

In Morton, 415 U.S., 232, you say:


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"determination of eligibility cannot be made on an ad hoc basis." 17

You say why in Norton, 415 U.S., 232:

"to avoid the inherently arbitrary
____________________________
17 Administrative review will find that tobacco smoking behavior is not in "the requirements for any position," 5 U.S.C. 2302(b)(6). An ad hoc standard was fabricated (applied to me, not Evelyn Bertram.) Army assigns employees, e.g., me, job requirements writing duties, so knows 'job requirements and qualifications had never been formally changed," Sabol v. Snyder, 524 F.2d 1009, 1011 (10th Cir.1975). Col. Benacquista admits "personal habits," not requirements (Dep. p. 25). Smoking behavior is neither listed in job descriptions, nor required. Law, e.g., 5 U.S.C. 7902(d), and agency rules, 32 C.F.R. 203.3, forbid hazardous conduct; they do not require it.

Administrative review will find glaring inconsistency. Army repeatedly gave me awards for superb performance of duties on the same job for which it both (a) issued me a qualifications waiver (App. CC, 86a, Item 30) of actual requirements and (b) disqualified me in relation to a non-requirement (App. U, 68a, Item 30). "The command of the Administrative Procedure Act [5 U.S.C. § 500 et seq. (1946)] is not a mere formality. [People] are entitled to have notice of the standards." Berends v. Butz, 357 F.Supp. 143, 155 (D.Minn. 1973).

This is not Army's first offense of non-compliance with 5 U.S.C. 552.(a)(1). [See prior violation cited in] W. G. Cosby Transfer & Storage Corp. v. [Army Secretary] Froehlke, 480 F.2d 498 (4th Cir. 1973).


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nature of unpublished ad hoc determinations. See generally S. Rep. No. 752, 79th Cong., 1 Sess., 12-13 (1945); H. R. Rep. No. 1980, 79th Cong., 2d Sess. 21-23 (1946).”

But here, a "qualified handicapped person" determination is made apart from

—any published factor in employment, and

—any showing of duties purportedly to be accommodated. (There is no showing of such duties as there was no 5 U.S.C. 7513 (b)(1) advance notice on point.)

You say in Morton, 415 U.S., at 235:

“The Secretary has presented no reason why the requirements of the Administrative Procedure Act [5 U.S.C. § 500 et seq. (1946)] could not or should not have been met.”

When administrative review begins, a counselor will find I have the education and experience to qualify to do the job's essential functions, did them for years, and TACOM issued me recognition and awards for doing so. App. EE, 88a-95a.

A counselor will find that many Army personnel took the time, sua sponte, to


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put in writing my faithful attention to duty, dedication, diligence, responsiveness, positive attitude, cooperation, efficiency, and superior performance.

In personnel work, we hire and fire employees; we increase and reduce employee pay, etc. Though personnel work is "a very difficult functional area," App. EE, 91a, officials complained about other personnel workers, but not about me. Their sua sponte praise is worthy of great weight.

TACOM and I had a good relationship for years--till the time of the extortion, the events of pages 6-7 herein, and all they led to. In this context, let us note the standards for "qualified handicapped person" and "accommodation" in depth.

As the body of case law shows smoking is not in employment, and "qualified handicapped person" is for "with respect to employment," 29 C.F.R.1613.702(f), the term is not reachable.


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Three definitions of "Handicapped person" are in 29 U.S.C. 706(7)(B) and 29 C.F.R.1613.702(a). Definition one is:

"Has a physical or mental impairment which substantially limits one or more of such person's major life activities."

When administrative review begins, a counselor will find I have no "impairment" that "limits" any of my "major life activities." App. EE, 88a-95a. TACOM's own Dr. Francis Holt admits against interest:

"Medically disqualified? We have people with asthma who work at TACOM for years. That wouldn't disqualify him from working" (Holt Dep. p. 10).

"And there's a hazard for all these other people. Isn't that also true? Yes. Yes.

Have you been asked --

People smoking in their vicinity is hazardous to them.

Have you been asked for medical disqualification for any of those other people [named]?

No." (Holt's 5/21/82 Dep. p. 42.) 18

Definition two of 29 U.S.C. 706(7)(B)
____________________________
18 "The danger cigarettes . . . pose . . . threatens a substantial body of the population, not merely a peculiarly susceptible fringe group." App. FF, 99a.


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and 29 C.F.R. 1613.702(a) is: "Has a record of such an impairment." When review begins, a counselor will find the "record" shows no "such an impairment," only good performance. App. EE, 88a-95a.

Definition three of 29 U.S.C. 706(7) (B) and 29 C.F.R.1613.702(a) is, "is regarded as having such an impairment." When review begins, a counselor will find the record shows I was not so "regarded,' App. EE, 88a-95a; and my supervisor Carma Averhart said when asked:

"Did you consider Mr. Pletten handicapped?

"I don't know. I don't really think of it in that sense . . . ." (23 April 1982 Dep., page 73)

When review begins, a counselor will find I have the education and experience to qualify to do, and do well, all duties/essential functions of the job; was one of few praised, App. EE, 88a-95a, i.e., am a qualified person with a record of doing the job functions better than peers.


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"What usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not," Texas & Pac. By. v. Behymer, 189 U.S. 468, 470 [23 S Ct 622, 623; 47 L Ed 903] (1903).

I am a qualified person. Period. By the standard (is the matter of smoking in employment? -- No), spurious issues of "qualified handicapped person" and accommodation are not reachable, not relevant. The court decisions at App. K, 29a-31a; G, 22a-23a; and A, 4a-9a, in discussing such issues, are dicta. 19
____________________________
19 "Clearly, when dealing with a person merely perceived as disabled or with an erroneous record of disability, the employer has no particular problems because the individual's ability is not affected." "The employer may only disqualify a person for job performance related impairments." Eugene A. Schoon, "Private Rights of Action for Handicapped Persons Under Section 503 of the Rehabilitation Act," 13 Valparaiso Univ. Law Rev. [#3] 453, 461, 485 ([Spring] 1979). As my "ability is not affected," I have no handicap, that is why my supervisor Carma Averhart said, "I haven't really thought about defining reasonable accommodation." (Dep. p. 73, 4/23/82). I do not need any!


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Mine is the normal situation in assessing qualifications. Every day in personnel we see people who are qualified to do jobs. Qualified is the key word. I am qualified. I have no handicap. 20

Accommodation is for people who genuinely need it. Many people in the federal service and nation actually have such a need. I am not one with such need.
____________________________
20 Because the claim I need accommodation is spurious, that is why the entire court discussion of the subject ignores the duty that "An agency shall make reasonable accommodation . . . unless [it] can demonstrate undue hardship on the operation of the program." 29 C.F.R. 1613.704(a). [The word] "Shall . . . has the invariable significance of excluding the idea of discretion." Black's Law Dictionary (5th ed. 1979) 1333. 5 U.S.C. 7902(d) shall be obeyed regardless of whether doing so causes a hardship. But obeying produces benefits, and benefits only: promoting 'health and readiness . . . critical military skills." App. M, 33a, as [Army] Secretary Marsh himself says. I agree; I "desire precisely the same result," Moore v. C-M Bd. of Ed., 402 U.S. 47, 48 [91 S Ct 1292; 28 L Ed 2d 590] (1971). I am joined with the respondents in opposing "accommodation" being applicable. Thus, per Moore, there is no case for the courts below to have adjudicated on point.


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This Court as long ago as 1903 said

"what ought to be done is fixed by a
standard." Behymer, 189 U.S., 470.

Because it is vital for people who actually do need accommodation that courts stick to the standards for deciding such matters, this Supreme Court should grant certiorari to emphasize the importance of abiding by the actual standards for deciding "qualified handicapped person" status and accommodation.

Disregard of 5 U.S.C. 552 (a)(1) is recurring despite your rulings. A pattern of [government and lower court] disrespect for basic principles in the glaring manner shown, provides you basis to [correct them and] reaffirm the law. You are respectfully requested to grant this petition and put a stop to the pattern of disregard.


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D. THIS CASE PRESENTS THE IMPORTANT FEDERAL QUESTION WHETHER A CASE MAY BE ADJUDICATED ON ISSUES OTHER THAN TO BE RAISED IN ADMINISTRATIVE REVIEW
When administrative review begins, I shall raise issues other than "qualified handicapped person" and "accommodation" [the spurious confabulations the lower courts were ex parte suborned to fixate upon] The following are examples [of what my real issues will be]:

(1) Sex and race discrimination as TACOM treats me differently than my peers, e.g., Evelyn Bertram, etc.

"Comparison with a single employee is sufficient to meet [my] burden of proof (see McDonald v. Santa Fe Trail Transportation Co. (1976), 427 U.S. 273, 96 S.Ct. 2574, 49 L. Ed. 2d 493), so long as the conduct engaged in is of comparable seriousness." Clark Oil & Refining Corp. v. Golden, 114 Ill.App.3d 300, 448 N.E.2d 958, 964 (1983).

My work record shows only good conduct and performance better than peers. App. EE, 88a-95a. There was no

"statement or citation of the written regulations that [I] was said to have violated [and] a detailed statement of the facts relating [same]," Boilermakers v. Hardeman, 401 U.S. 233, 245 [91 S Ct 609, 617; 28 L Ed 2d 10, 21] (1971).

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When review begins, a counselor will find no misconduct, no performance deficiency, no 5 U.S.C. 7513(b)(1) "advance written notice" alleging any; so will find sex and race discrimination vis-a-vis others: my better than equal performance and conduct.

(2) Sex and race discrimination re the lack of a 5 U.S.C. 7513(b)(1) "advance written notice." TACOM experience is that some 30 day notices it issues make charges not later upheld. But TACOM never ousted an employee without advance notice/charges (conduct/performance or both). Charges are required, advance charges. Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532 [105 S Ct 1467; 64 L Ed 2d 494] (1985). When review begins, a counselor will find sex and race discrimination vis-a-vis others: others receive notice/charge(s.)

(3) Sex and race discrimination re TACOM refusal to obey

(a) TACOM Regs. 600-5.14-27 and 28.a against enforced leave without pay; and


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(b) 5 C.F.R. 831.1206 (1980) re

"active duty status until . . . the initial decision
of the Associate Director for Compensation"

pursuant to 5 C.F.R. 831.1204(b) (1980), whose decision has not yet been issued. When review begins, a counselor will find sex and race discrimination vis-a-vis others; these rules are obeyed for others.

(4) Sex and race discrimination re TACOM refusal to have long ago dealt with this case at counselor level. When administrative review begins, a counselor will find sex and race discrimination, i.e., that others (a) receive counseling, and (b) sooner than years after-the-fact.

(5) Sex and race discrimination re TACOM reprisals against me for my AR 385-10.3-5a. and b. job duty freedom of expression. Rankin v. McPherson, 483 U.S. 378, 384 [107 S.Ct. 2891, 97 L.Ed.2d 315] (1987), on   Amend. I  balances non-job duty freedom of speech and employer interest in efficiency and discipline. A


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counselor will find the agency and I have an identity of interest. I do the same as other personnel workers do: quote and support the employer's own writings and rules (even if offenders disagree). 21

Texas v. Johnson, 491 U.S. _[397]_, 109 S.Ct. 2533, 2545, 105 L.Ed.2d 342, 360, again rejects acts to "prescribe what shall be orthodox." A counselor will find that underlying this case is that at TACOM, it is not "orthodox" to express the hazard and smoking's role in discipline,
____________________________
21 Absent administrative processing, no [on-merits 29 CFR §1613 administrative record including] EEO counselor report exists, so Apps. FF-KK must substitute to show my inoffensive expression treated as offensive by non-impartial addicts.Good [professional, competent] personnel workers such as me maintain awareness of relevant professional writings. Smoking is listed in the Diagnostic and Statistical Manual of Mental Disorders, 3d. ed., 1980, pages 159-160, 176-178; revised 1987, pages 150-151, 181-182. (Caprin v. Harris, 511 F.Supp. 589, 590, n. 3 (D.N.D.N.Y. 1981) took judicial notice.) I cite writings on smoking as a gateway drug to other drug use, and its relationship to and role in alcoholism, discipline and drug abuse. App. FF, 99a-100a. Keeping current on personnel issues is what personnel workers of my grade [rank] are supposed to do, and do do.


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alcoholism, and drug abuse. TACOM's Col. Benacquista gives the addict [hostile] view of law:

"It doesn't make sense to have a Command getting involved in the personal habits of its employees" (Dep. p. 25) 22

Addicts' judgment is impaired, App. FF, 96a, so feel compliance is unreasonable.

When administrative review begins, a counselor will find sex and race discrimi-
____________________________
22 In N.F.F.E. v. Cheney, 280 U.S.App D.C. 164, 884 F.2d 603 (1989) [cert den 493 US 1056; 110 S Ct 864; 107 L Ed 2d 948 (1990)], "The Army argued that compulsory [drug] testing was justified by compelling governmental interests in the safety, security, and integrity of its workforce" (607). "Army's compelling interest in preventing drug use . . . carries a collateral interest in ensuring effective detection" (614). With smoking "a gateway drug to use of stronger or illicit drugs" ("NIDA", App. FF, 99a), "effective" prevention means preventing drug use at the gateway, smoking. Drug user views (like TACOMers doing enforced leave, removal, and retirement) are cited at 608, n.7, as opposing use of Supreme Court precedent on "'reasonableness'" grounds -- the same objection made to my using 5 U.S.C. 7902(d) and 32 C.F.R. 203.3 incorporation of safety as a condition precedent. The drug problem, a smoker problem to which nonsmokers are virtually immune, is compounded when the expression of data from professionals results in enforced leave, removal and retirement [outside the rule of law].


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8:32 AM 9/23/2005

nation basis that others are not "placed" on enforced leave or removed due to their [job duty / freedom of] expression on personnel safety issues. 23

When courts adjudicate cases before the administrative review [i.e., before they have heard the case, before it is ripe for decision] can be, and here are, on matters other than to be raised in the administrative review.

This Supreme Court should take this opportunity to affirm that courts cannot adjudicate EEO cases before administrative processing on actual issues to be raised.
____________________________
23 Safety is "above all other considerations," as "Congress itself defined," Am. Tx. Mfrs. Inst. v. Donovan, 452 U.S. 490, 509 [101 S Ct 2478; 69 L Ed 2d 185] (1981). 5 U.S.C. 7902(d) says "eliminate work hazards and health risks." 32 C.F.R. 203.2 and 3; AR 1-8.2.a and 3.b; and AR 600-63.4-1.a. and d, make safety a condition precedent, thus "above all other considerations" where there is a hazard in a given facility, e.g., TACOM. "A workplace cannot be just 'reasonably free' of a hazard.'" Nat'l. Rlty. & C. Co., Inc. v. Occ. S. & H. R. Com'n., 160 U.S.App.D.C. 133, 141, 489 F.2d 1257, 1265 (1973). Based on these rules, "Army Regulation 1-8 does give officials the authority to ban smoking in areas under their jurisdiction." TACOM Chief Counsel Memo 6/19/79.


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E. THIS CASE RAISES THE IMPORTANT FEDERAL QUESTION OF THE USE OF SPURIOUS FINDINGS OF FACT.

This Supreme Court does

"enforce constitutional liberties even when denied through spurious findings of fact in a state court" (citation omitted). Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U.S. 287, 299 [61 S Ct 552; 85 L Ed 836] (1941).

Ed. Note: Government lying to win cases is a common pattern. "It should . . . . make you more suspicious of all legal and judicial institutions. Trust no one in power, including — especially — judges. Don't take judicial opinions at face value. Go back and check the transcript [record]. Cite-check the cases. You will be amazed how often you will find judges 'finessing' the facts and the law. Too often, legal observers take as a given judges' intellectual honesty."—Prof. Alan M. Dershowitz, Letters to a Young Lawyer (Basic Books, 2001), p 11. P 80 notes that pro-government lying is common, rampant.
See also
  • Malcolm B. E. Smith, "Concerning Lawful Illegality," 83 Yale Law J. 1534 (1974)
  • Malcolm B. E. Smith, "May Judges Ever Nullify the Law?," 74 Notre Dame L.R. (#5) 1657-61 (June 1999)
  • Malcolm B. E. Smith, "Do Appellate Courts Regularly Cheat?," 16 Crim. Jus. Ethics 11-19 (2, Summer/Fall 1997)
  • Sanford H. Kadish and Mortimer R. Kadish, Discretion to Disobey: A Study of Lawful Departures from Legal Rules (Stanford, CA.: Stanford Univ Press, 1973).
    Example: "'He [Judge Robert Bork] is ruthlessly result-oriented,' complains one attorney, who accuses Bork of deciding the outcome of cases in advance even if it requires misstating arguments presented to him."—Ted Gest, "A New Majority Moves to the Right," 103 US News & World Report (#2) pp 28-29 (13 July 1987).
    Example citing Judge Taylor herself: "Under legal-ethics rules, deliberately failing to call to a court’s attention legal authority contrary to one’s position is grounds for disciplinary action. In addition to the above, here are several more examples of this unpardonable legal sin in Judge Taylor’s opinion. . . . Regrettably, the only plausible explanation is that she wanted the result she wanted and was willing to ignore and misread vast portions of constitutional law to get there, gambling the lives and security of her fellow Americans in the bargain." Says Bryan Cunningham, "Amateur Hour? A judge's first-year failing-grade opinion" (National Review, 18 August 2006).
    A lawyer with a "reputation . . . for truth and veracity . . . so notoriously bad that [he / she is] not to be believed under oath" (so surely, in decisions) is to be disbarred, not be a lawyer anymore, says the Michigan Supreme Court, In the Matter of Mills, 1 Mich 392, 398 (1850).]
  • (1) A spurious finding says leave without pay (LWOP) was "because TACOM was unable to 'reasonably accommodate' plaintiff's medical condition." App. A, 2a. The document (App. X, 72a-73a, Item 30) says no such reason. Item 14 ("Civil Service or Other Legal Authority") is blank.

    Ed. Note: Honest judges follow the Supreme Court precedent, SEC v Chenery, 332 US 194; 67 S Ct 1575; 91 L Ed 1995 (1947) on-point, i.e., they "judge the propriety of [agency] action solely by the grounds invoked"; they do not retroactively invent reasons; they do not go by "counsel's post hoc rationalizations"; but only by what is "given."]

    (a) The spuriousness avoids saying the LWOP was retroactive, not issued till 4 Aug. 1981. App. X, 63a, item 35.

    (b) The "December 14, 1980" date is spurious. App. A, 2a. James Beeler, TACOM Chief, Civilian Pay Section, responsible for pay accuracy, cites my "Last Day of Pay - 9 March 1981." App. L, 32a.


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    (c) Calling it "leave" is spurious. I did not request leave. TACOM Regs. 600-5.14-27 and 28.a preclude being "placed" on "leave without pay."

    (d) Calling it "leave without pay" at App. A, 2a, is spurious. The statutory precise correct word is "suspension." The term used evades allowing review, imposed without 5 U.S.C. 7513(b)(1) notice.

    (e) It is spurious to connote "accommodation." The district court found:

    "the new policy is not one of accommodation . . ." App. K, 31a.

    The [CA 6] spurious finding contradicts that.

    (f) Compliance with 5 U.S.C. 7902(d) on universal malice hazardous conduct is not accommodation. TACOM disobeys 5 U.S.C. 7902(d), accommodating smokers (a distinct issue other than accommodating me). Col. Benacquista admits:

    "All he had to do was to say, 'I agree that this [TACOM job site] is reasonably free of contaminants [notwithstanding the hazard to all].'" (4/23/82 Dep. p. 62).

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    Accommodation had not [yet even] been considered on 4/23/82, much less, before, in December 1980. Extortion, not compliance with 5 U.S.C. 7902(d), not accommodation, was

    "the sequence leading up to, I guess, the time when the suspension came about --" (Benacquista, Dep., p. 47).

    My supervisor Carma Averhart had not "really thought about defining reasonable accommodation." (4/23/82 Dep., p. 73).

    (2) A spurious finding of fact says

    "TACOM offered appellant a smoke-free private office." App. A, 2a.

    EEOC lists [my] "requests," e.g., "a smoke-free office to work in." App. T, 52a. [EEOC honestly admits, finds, that] I "failed to obtain" same. App. T, 53a. TACOM did extortion, p. 6 above, NOT an offer.

    (3) It is a spurious finding to say

    "according to plaintiff's physicians," "plaintiff required" "work environment totally free from tobacco smoke." App. A, 2a.

    [TACOM Chief of Staff] Col. [John J.]Benacquista shows that is spurious:

    "if you looked at them closely it's quite obvious in there that what the doctor was saying was that the

    -47-
    environment in his [my] present work space was not reasonably free of contaminants." (Dep. p. 24).

    For a doctor to repeat Army's own hazard findings does not repeal 5 C. F. R. 831.1206 (1980) and TACOM Reg. 600-5, Secs. 14-27, 14-28.a / d.; each precludes enforced leave. No treating physician ever says repeating Army hazard findings means I should be "placed" on leave.

    (a) Smoking is not "environment," but behavior, conduct, "personal habits" (Col. Benacquista, Dep. p. 25). Such words show it is not in "the requirements for any position," 5 U.S.C. 2302 (b) (6), nor published as such, [contrary to the] 5 U.S.C. 552(a)(1) [publication requirement].

    (b) Doctors do not "require" [fellow] workers to behave safely; Congress does. 5 U.S.C. 7902(d) says "eliminate work hazards and health risks." Smoking poses "grave health risks," Roysdon v. R. J. Reynolds Tobacco Co., 849 F.2d 230, 236 (6th Cir. 1988). Congress says "eliminate" same at "work."


    -48-

    (4) A spurious claim says "on his own" I did regulation "research." App. A, 2a. Researching rules is personnel work, done for years, without even having to reach the AR 385-10.3-5a. and b. duty.

    (5) It is spurious to omit AR 1-8.2.a and 32 C.F.R. 203.3 conditions precedent for smoking to occur "in any given DA facility." App. A, 3a. Smoking shall not

    "endanger life or property, cause discomfort or unreasonable annoyance to nonsmokers, or infringe upon their rights."

    The hazard is clear. App. FF, 96a-102a; App. M, 33a-34a. [Army] Secretary Marsh says

    "Tobacco usage impairs . . . critical military skills . . . a substantial threat to the well-being of our Army, and we must take immediate steps to eliminate its usage."

    In the "given DA facility" (TACOM), its own witness, Dr. Francis Holt, admitted:

    ". . . mechanical failures happen all the time." (Dep., page 25).

    "And there's a hazard for all these other people. Isn't that also true?


    -49-
    Yes. Yes.

    Have you been asked --

    People smoking in their vicinity is hazardous to them." (Dep., p. 42).

    In the "given DA facility," the conditions precedent to permit smoking are absent. It is spurious to omit that fact.

    (6) It is spurious to omit the reason at App. A, 4a, for my writing to various potential helps. TACOM, as EEOC found,

    "as early as February, 1980 . . . denied [me] EEO counseling and prevented [me] from filing [EEO] complaints." (App. T, 53a).

    "made some effort to limit [my] number of complaints, [my] right to file complaints and to seek EEO counseling." ((App. T, 57a).

    Considering the danger to my coworkers, it would be disloyalty to them for me to not seek initiation of administrative review.

    (7) App. A, 4a, spuriously says:

    "Plaintiff's sole claim throughout is that he is a 'qualified handicapped individual' by statute."

    (a) I deny that by repeatedly showing no requirement, no matter in employment,


    -50-

    no duties needing accommodation. My work record shows superb performance, better than my peers. App. EE, 88a"95a.

    (b) Judicial examples of what has been done arise from safety law, not accommodation. App. GG, 103a-106a.

    (c) No smoker discharge case alleges accommodation. Apps. HH, 107a-108a; and II, 109a-110a. My personnel background (including discharging others) refutes the idea a safety matter is [a] "qualified handicapped person' matter. The idea is absurd.

    (d) A.L.R.s and Supreme Court cases on smoking never cite it as a "qualified handicapped individual" matter! Apps. JJ, 111a-112a; and KK, 113a-115a. The accusation [that "Plaintiff's sole claim throughout is that he is a 'qualified handicapped individual' by statute"] departs far from the body of law, and far from my personnel background.

    (8) App. A, 6a, spuriously says

    "the Tank Command establishment . . . in and of itself was quite large."

    [The truth is] It is in Macomb County, one of the


    -51-

    smallest counties in Michigan. TACOM is about 1/5 of 1% the size of the county.

    (9) It is spurious to say this claim:

    "appellant's job took him to all parts of the Tank Command establishment." App. A, 6a. (Also 8a).

    It did not, and could not. The Personnel Directorate has 2 parts, a military and a civilian part, each handling its percent of workers. I am in only 1 of the 2 parts, the civilian part. It has 5 parts. I am in only 1 of the 5. With co-workers, each of us has a percentage share of work. I admit doing better quality work. But I never had 100% quantity of the "establishment." Such a disproportionate work share would have led to complaint!

    (10) It is spurious to say I have

    "undisputed medical need for absolutely pure air." App. A, 8a.

    Col. Benacquista shows that [CA 6 judges' claim] is spurious:

    "if you looked at them closely it's quite obvious in there that what the doctor was saying was that the environment in his [my] present

    -52-
    work space was not reasonably free of contaminants." (Dep. p. 24).

    (11) Considering Col. Benacquista's admission, against interest in view of the [extortion] charge against him (page 6, above, which could have led him to misrepresent what the doctors said as the court does), it is spurious to say they required so much

    "that no reasonable accommodation would be possible." App. A, 8a.

    5 U.S.C. 7902(d) says "eliminate." As it [the law] requires more than what was said, it is not only "possible" to bring TACOM up to that level of compliance, it is mandatory.

    Analysis: Spurious findings are

    "ante-dated [fabricated claims] to make them appear . . . genuine,"

    as in the unprofessional [attorney] conduct case of In re Ryman, 394 Mich.167, 176 [232 NW2d 178] (1975). Against such antedating, tantamount to forgery of retroactive reasons, the

    "legal system [and Mr. Pletten] is virtually defenseless,'" Matter of Grimes, 414 Mich. 483, 494 [326 NW2d 380] (1982).

    -53-
    "An [employee] is unfairly deprived of an opportunity to cross-examine or to present rebuttal evidence and testimony when [he] learns the exact nature of [claims] only after the [decision]," National Rlty, 160 U.S.App.D.C., 143, 489 F.2d, 1267.

    Saying TACOM claims are "undisputed" shows there was no 5 U.S.C. 7513(b)(1) notice of them for me to reply to. That is fraud.

    "'Fraud which . . . prevents [me] from presenting an available defense lis] a proper ground for equitable relief against the judgment,'" New York Life Ins. Co. v. Nashville Trust Co., 200 Tenn. 513, 519 [292 SW2d 749] (1956).

    That [decision] relied on Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238 [64 S Ct 997; 88 L Ed 1250] (1944). TACOM's claims won't be "undisputed" once TACOM issues a 5 U.S.C. 7513(b) notice. I will dispute vigorously.

    Anti-whistleblower teaching says to tailor attack (false assertions) to the whistleblower's background. The prevalence is notorious (I am not the only victim). 31 Howard Law Journal 223 (1988). As a federal appeals judge [Alex Kozinski] is accused therein,


    -54-

    as I am victim of the method of attack described therein, and as Sixth Circuit judges are following in the said pattern, integrity of the judiciary to uphold due process and fair review is at stake. Judicial integrity is a vital matter unquestionably worthy of your attention.

    It would promote judicial economy to grant this petition, thus obviate need for more litigation to seek equitable relief. Please cause administrative review to begin. When it begins, a counselor will see the spurious nature of the cited App. A assertions. Same will not be testified to, will not be repeated under oath [as the claims are perjurious].

    It is bad policy for a federal court to do what Meadowmoor Dairies, 312 U.S., 299 [61 S Ct 552; 85 L Ed 836 (1941)], shows unacceptable by state courts. This Court should grant certiorari and

    "enforce constitutional liberties even when denied through spurious findings of fact." Meadowmoor Dairies, 312 U.S., 299.

    -55-
    F. THIS CASE RAISES THE IMPORTANT FEDERAL QUESTION OF NON-IMPARTIALITY IN TERMS OF USE OF THE RECORD

    Part E. is incorporated by reference. There was no 5 U.S.C. 7513(b)(1) "advance written notice" of the matters therein, no

    "statement or citation of the written regulations that [I] was said to have violated [and] a detailed statement of the facts relating [same]," Boilermakers, 401 U.S., 245,

    no showing of any duties undone (needing accommodation). App. EE. The courts below made findings outside the official record, a 5 U.S.C. 7513(b)(1) "notice" [of charges].

    Making assertions outside the record evidence system (here, the advance notice system) is "indicating personal bias and prejudice," P.R.I. v. C.R.I., 430 F.2d 85, 89 (7th Cir. 1970). The judges should have disqualified themselves. 28 U.S.C. 455(a).

    As impartiality is vital, this Court is respectfully requested to grant this petition to resolve this matter.


    -56-
    G. THIS CASE PROVIDES THIS COURT WITH AN OPPORTUNITY TO REITERATE THE DUTY OF IMPARTIALITY.

    Addicts misrepresent my pro-rule job duty [freedom of] expression [aka whistleblowing] as asking accommodation of myself, not as [what it is, the] halt of [the banned] accommodation for them. 29 U.S.C. 706(7)(B). No secret law says pro-rule expression = accommodation. Morton, 415 U.S. 199. Talking for rules is personnel workers' job. Non-addicts obey rules; addicts do ad hominem attacks.

    Smoking is the disease, App. PP, 96a-102a, not nonsmoking. Addicts are not impartial so misrepresent who has the "medical condition" to accommodate.

    "'A fair trial in a fair tribunal is a basic requirement of due process.' . . . Chief Justice Marshall in 1 Burr's Trial 416 (1807) [distinguishes] light impressions which may fairly be supposed to yield to the testimony [from] 'these strong and deep impressions, which will close the mind against the testimony that may be offered in opposition to them; which will combat that testimony and resist its force, do constitute a sufficient objection to him.'" U.S. v. Blanton, 719 F.2d 815, 830, n. 3 (6th Cir. 1983).

    -57-

    Drug addiction [e.g., smoking] is a closed mind, a formed opinion to use a drug despite even voluminous evidence. TACOM drug [tobacco] users

    "identify offense to self with obstruction to law." Offutt v. U.S., 348 U.S.11, 13 [75 S Ct 11; 99 L Ed 11] (1954).

    Treating my [385-10.3-5 job duty freedom of] expression as "offense to self," as their judgment is impaired, App. FF, 96a, TACOM addicts [smokers] cite no "medical condition" for placing me on enforced leave (retroactively). App. X, 72a, Item 14. TACOM's own Dr. Francis Holt says:

    "Medically disqualified? We have people with asthma who work at TACOM for years. That wouldn't disqualify him from working" (Holt Dep. p. 10).

    "And there's a hazard for all these other people. Isn't that also true?

    Yes. Yes.

    Have you been asked --

    People smoking in their vicinity is hazardous to them.

    Have you been asked for medical disqualification for any of those other people [named]?

    No." (Holt's 5/23/82 Dep. p. 42.)

    A counselor will find that said others similarly situated were not put on LWOP nor accused in "medical condition" or


    -58-

    accommodation terms [i.e., singling me out as I raised the safety issue]. Non-impartiality invokes Offutt as S.B.C. v. Chenery, 332 U.S. 194, 196 (1947), says review

    "must judge the propriety of [agency] action solely by the grounds invoked by the agency."

    [Here, the lower Court did otherwise even though] TACOM addicts gave no reason [for the agency action]. Note addict view of law (Col. Benacquista Dep., p. 25)

    "It doesn't make sense to have a Command getting involved in the personal habits of its employees"

    combined with the refusal to implement the [rules and the] 2/15/80 order (App. BB, 83a-84a) [to obey them] as EEOC found (App. T, 53a) and the refusal to do administrative review: a pattern:

    "The proof of the pattern or practice supports an inference that any particular decision, during the period in which the [non-compliance] policy was in force, was made in pursuit of that policy." Teamsters v. U.S., 431 U.S. 324, 362 [97 S Ct 1843, 1868; 52 L Ed 2d 396, 431] (1977).

    Addict views are strong, deep, resistant to change, not impartial, and permeate all the ad hominem decisions. This Court should grant certiorari and reiterate the duty of impartiality.


    -59-
    H. THIS CASE PRESENTS THE IMPORTANT FEDERAL QUESTION WHETHER A CASE MAY BE TREATED AS THOUGH COMPLETED BEFORE IT HAS COMMENCED

    EEOC found that TACOM

    "as early as February, 1980 . . . denied [me] EEO counseling and prevented [me] from filing [EEO] complaints" (App. T, 53a).

    TACOM is responsible for the lack of counseling that is condition precedent to later steps in the [EEO 29 CFR § 1613 administrative processing] sequence: counselor interview, counselor report, complaint investigation, offer of hearing, hearing, etc. TACOM has not done

    "the order in which they must necessarily follow each other in the progress of performance." City of New Orleans, 171 U.S., 334 [18 S Ct 875; 43 L Ed. 178],

    i.e., the pre-judicial review sequence of processing actions.

    "The point of the above tactics is to overwhelm the whistleblower." 31 Howard Law Journal 223, 227.

    These tactics have a societal cost:

    "In 1980, 19 percent [of employees] who witnessed significant misconduct cited fear of reprisal as the reason for remaining silent. By

    -60-
    1983, the figure was 37 percent--what the board called 'a significant increase in fear of reprisals'" 31 Howard Law Journal 223, 230.

    Ed. Note: In The Tank Automotive News, 7 Jan 1980, Vol X (Issue # 26), p 2, was a question on whether employees feared reprisal for giving their views in the newspaper. The editor, Frank Gaal, Jr., lamented that nobody answered the question; none of those whom he surveyed would answer. Fear of TACOM's policy of reprisal was already clearly rampant at TACOM.]
    "Just over one minute into flight, the space shuttle 'Challenger' exploded into a raging fireball . . . . Congress voted to protect whistleblowers to facilitate communication of key information to those who can avert disaster." Rep. Patricia Schroeder, "Special Focus: Whistleblowers and the Public Interest," "Introduction," 4 Antioch Law Journal 1 (Summer 1986).

    A worker was killed here [at TACOM], People v. Gen. Dyn. Land Sys., 435 Mich. 860, a case that may soon reach this Court. Others' cases result when whistleblowers are reprisal victims. Safety (why "Congress voted to protect whistleblowers") prevents cases from happening that result from lack of safety. Protecting whistleblowers saves lives and promotes judicial economy.

    TACOM's violation pattern is worse than a mere contract violation. But contract law provides insight. There,

    "'the party who is guilty of the first breach is generally the one

    -61-
    upon whom rests all the liability for nonperformance.'"Buckman v. Hill Military Academy, 190 Or. 194, 223 P.2d 172, 174 (1950).

    "[N]o man may take advantage of his own wrong," Glus, 359 U.S., 232 [79 S Ct 760, 762; 3 L Ed 2d 770, 772]. TACOM is "the party . . . guilty of the first breach." The "point of [TACOM] tactics is to overwhelm the whistleblower." If it did 'overwhelm" me (the [crime] victim, p. 6 above) by its victim - bashing, please put all the liability on TACOM.

    This Court should grant this petition and affirm that victim-bashing is not acceptable; i.e., that due to the public interest in protecting whistleblowers, a case cannot be treated as completed when the overwhelmed whistleblower has not received administrative review. Please send a message that liability is put on those doing the overwhelming, not on the overwhelmed victim.


    -62-

    CONCLUSION

    Smoking is a disease, a gateway to other drug use. It is bad policy to assert dealing with it is "accommodation." The evidence smoking is not in employment is so one-sided, unanimously stated by other courts, that the ruling below is outside the body of law.

    To be competitive, society needs (a) its workers on the rolls, not ousted for non-impartial personal desires of gateway drug users, and (b) its resources used in production, not drug wars being undermined by gateway drug users.

    EEOC twice ordered administrative review to begin. This case presents issues of conditions precedent, enforcement of EEOC orders, of not disregarding EEOC orders years after the time limit for the agency to request reopening, of court jurisdiction, secret law, freedom of expression, premature judicial decision


    -63-

    before administrative review, spurious findings, and lack of impartiality. For these reasons, I respectfully request that this Court grant certiorari, adjudicate controlling jurisdictional and conditions precedent issues, declare the cases "not commenced," and remand with directions to begin administrative review.

    Respectfully submitted,
    /s/ Leroy J. Pletten
    LEROY J. PLETTEN
    Petitioner
    8401 18 Mile Road #29
    Sterling Heights, MI 48313
    (313) 739-8343


    ______________

    APPENDIX
    ______________


    APPENDIX TABLE OF CONTENTS
    Page
    A. Opinion of the Court of Appeals
    for the Federal Circuit
    13 July 1990
    1a
     
    B. Notice by OPM Assistant Director
    for Standards Development
    2 June 1989
    16a
     
    C. Order by District Court Granting
    Defendants' Motion to Dismiss
    13 December 1988
    17a
     
    D. Bench Opinion by District Court
    from Transcript Pages 11-12
    13 December 1988
    18a
     
    E. Order by District Court Granting
    Merit Systems Protection
    Board's Motion to Dismiss
    25 October 1988
    20a
     
    F. Order by District Court Denying
    Plaintiff's Motion For
    Summary Judgment
    24 February 1988
    21a
     
    G. Order by District Court Granting
    Defendant's Motion For Summary
    Judgment, and Dismissing
    Complaint
    22 February 1988
    22a
     
    H. Order by District Court Granting
    Defendant JOHN O. Marsh's
    Motion to Dismiss
    22 February 1988
    24a
     
    I. Order by District Court Granting
    Defendants' Motion to Strike
    Plaintiff's Counsel's Affidavit
    in Support of Motion For
    Summary Judgment
    22 February 1988
    26a
     


    Appendix Table of Contents (cont'd.)
    Page
    J. Order by District Court Striking
    Plaintiff's Jury Demand
    22 February 1988
    28a
     
    K. Bench Opinion by District Court
    from Transcript Pages 12-13
    22 February 1988
    29a
     
    L. Statement by TACOM’‘s Chief of
    Civilian Pay on Effective Date
    19 June 1986
    32a
     
    M. Proclamation by Secretary of
    Army JOHN O. Marsh, Jr.
    17 April 1986
    33a
     
    N. Notice by Department of Labor
    16 April 1986
    35a
     
    O. Notice by Office of Management
    and Budget 20 March 1986
    36a
     
    P. Notice by OPM Assistant Director
    for Standards Development
    30 January 1984
    38a
     
    Q. Decision by EEOC Ordering Case
    Processing (Separate Incidents)
    4 March 1983
    40a
     
    R. Decision by Michigan Employment
    Security Board of Review (MESBR)
    Denying Rehearing
    22 June 1982
    47a
     
    S. Decision by MESBR Denying TACOM'S
    Appeal of Michigan Employment
    Security Commission (MESC)
    Referee’s [Pro Whistleblower] Decisions
    14 May 1982
    49a


    Appendix Table of Contents (cont'd.)
    Page
    T. Decision by EEOC Ordering
    Case Processing
    23 February 1982
    51a
     
    U. Order by TACOM Disqualifying Me
    22 January 1982
    67a
     
    V. Order by MESC Referee Denying
    TACOM Application for Rehearing
    2 September 1981
    69a
     
    W. Decision by MESC Implementing
    Referee's 7/30/81 Decision
    14 August 1981
    71a
     
    X. Order by TACOM of Retroactive
    Enforced Leave Without Pay
    4 August 1981
    72a
     
    Y. Decision by MESC Referee
    Reversing MESC Decisions
    Denying My Claim
    30 July 1981
    74a
     
    Z. Redetermination by MESC
    11 May 1981
    80a
     
    AA. Initial Decision by MESC
    Denying My Claim
    2 March 1981
    82a
     
    BB. Order by TACOM Accepting
    Army USACARA Report
    15 February 1980
    83a
     
    CC. Order by TACOM Waiving
    [My] Qualification Requirements
    18 September 1977
    85a
     


    Appendix Table of Contents (cont'd.)

    Page
    DD. Order by TACOM Appointing
    Me Crime Prevention Officer
    19 November 1976
    87a
     
    EE. Summary of Career 1969-1980 88a
     
    FF. Citations to Hazard/Drugs 96a
     
    GG. Judicial Examples of What to Do 103a
     
    HH. Discharges of Smokers
    Reduced to Suspensions
    107a
     
    II. Discharges of Smokers Upheld 109a
     
    JJ. A.L.R.'s on Tobacco 111a
     
    KK. Supreme Court Tobacco Citations 113a


    -1a-

    APPENDIX A

    Nos. 88-1467, 89-1086
    [908 F2d 973]

    UNITED STATES COURT OF APPEALS
    FOR THE SIXTH CIRCUIT

    LEROY PLETTEN,       Jul 13 1990
     
    Plaintiff-Appellant,
     
    -v-
    ON APPEAL FROM THE
    UNITED STATES DISTRICT
    MERIT SYSTEMSCOURT FOR THE EASTERN
    PROTECTION BOARD,DISTRICT OF MICHIGAN ET AL.,
     
    _Defendants-Appellees._

    BEFORE: KENNEDY and RYAN, Circuit Judges; and SMITH, District Judge*.

    SMITH, District Judge. Appellant Leroy Pletten appeals within this consolidated appeal the district court's grant of summary judgment for the defendants in his appeal of a Merit Systems Protection Board decision and, the district court's grant of defendant's motion to dismiss plaintiffs complaint regarding his Equal Employment Opportunity Commission claims.
    ____________________________
    * The Honorable George C. Smith, United States District Judge for the Southern District of Ohio, sitting by designation.



    -2a- -15a-

    -16a-

    APPENDIX B

    United States
    Office of Personnel Management
    Washington, D.C. 20415

    JUN -2 1989

    Mr. Leroy J. Pletten
    8401 - 18 Mile Road, #29
    Sterling Heights, Michigan 48078-3099

    Dear Mr. Pletten:

    This is in reply to your Freedom of Information request dated May 26, 1989, concerning smoking requirements in the Federal work place.

    The Office of Personnel Management has no documents relating to your inquiry.
    Sincerely,
     
    /s/ Stephen H. Perloff
    Stephen H. Perloff, Chief
    Qualification Standards Branch
    Staffing Policy and Operations
    Career Entry and Employee
    Development Group

    [Ed. Note: A “condition precedent” for a “disqualification” is that a “requirement” exist which the person does not meet!]

    -17a-

    APPENDIX C

    UNITED STATES DISTRICT COURT
    EASTERN DISTRICT OF MICHIGAN
    SOUTHERN DIVISION

    LEROY J. PLETTEN,
     
    Plaintiff,
    Civil No. 88-CV-72254-DT
     
    -vs-
    Hon. Anna Diggs Taylor
     
    U.S. DEPARTMENT OF THE ARMY AND
    JOHN O. MARSH, JR., in his official capacity
    as Secretary of the Department of the Army,
    _______Defendants.________________________/

    O R D E R

    Upon consideration of defendants' motion to dismiss or for summary judgment, and the response thereto filed by plaintiff, and for the reasons stated in oral argument, it is hereby

    ORDERED that defendant's motion to dismiss is GRANTED and plaintiff's complaint is DISMISSED.

    /s/ Anna Diggs Taylor
    Anna Diggs Taylor
    United States District Judge
    Entered: DEC 13 1988


    -18a-

    APPENDIX D

    UNITED STATES DISTRICT COURT
    EASTERN DISTRICT OF MICHIGAN

    BENCH OPINIONDec. 5, 1988

    LEROY J. PLETTEN,
    CIVIL ACTION NO.
    Plaintiff,
    88-CV-72254-DT
    Hon. Anna Diggs Taylor

    v.

    U.S. DEPARTMENT OF THE ARMY, and
    JOHN O. MARSH, JR., in his official capacity
    as Secretary of the Department of the Army,

    _________Defendants._________________________TR 11-12/

    THE COURT: Thank you.

    The Court will grant the motion to dismiss defendants because it is clear this case is subject to the doctrine of res judicata.

    I note that the responsive brief of the plaintiff to defendants' motion says there can be no doubt that plaintiff's claims raises issues pertaining to handicap discrimination. However the complaint also lays claim to damages arising out of reprisals visited upon the plaintiff by the defendants as a result of



    -19a-

    -20a-

    APPENDIX E

    IN THE UNITED STATES DISTRICT COURT

    FOR THE EASTERN DISTRICT OF MICHIGAN

    CIVIL CASE NO. 88CV7257-DT
    JUDGE: RALPH FREEMAN

    LEROY J. PLETTEN,)
     
    Plaintiff, v.
    )
     
    CONSTANCE HORNER, ET AL.,)
     
    Defendants.)
    _________________________________)

    ORDER

    Upon consideration of the motion to dismiss of the defendant Merit Systems Protection Board, it is this the 25th day of October, 1988,

    ORDERED that the motion should be and hereby is GRANTED; and it is further

    ORDERED that the plaintiff's complaint be dismissed.

    /s/ Anna Diggs Taylor
    UNITED STATES DISTRICT JUDGE


    -21a-

    APPENDIX F

    UNITED STATES DISTRICT COURT
    EASTERN DISTRICT OF MICHIGAN
    SOUTHERN DIVISION

    LEROY PLETTEN,
     
    Plaintiff,
    CASE NO. 84-CV-75360-DT
    v.HONORABLE ANNA DIGGS TAYLOR

    MERIT SYSTEMS PROTECTION BOARD, DEPARTMENT
    OF THE ARMY, and JOHN O. MARSH, JR.,

    Defendants.

    ________________________________/

    ORDER DENYING PLAINTIFF'S
    MOTION FOR SUMMARY JUDGMENT

    At a session of said court in the
    United States Courthouse and Federal
    Building on February 22, 1988

    Plaintiff having filed a motion for summary judgment; and the defendants having filed a brief in response thereto; and for reasons more fully stated on the record in open court today

    IT IS ORDERED that the plaintiffs motion for summary judgment be, and is hereby, DENIED.

    /s/ Anna Diggs Taylor
    Entered:ANNA DIGGS TAYLOR
    FEB 24 1988United States District Judge



    -22a- -31a-

    -32a-

    APPENDIX L

    STATEMENT

    DEPARTMENT OF THE ARMY
    United States Army Tank-Automotive Command
    Warren, Michigan 48397-5000

    AMSTA-EFPC19 Jun 86

    Information pertaining to Leroy J. Pletten SSN: 713-87-4969 is as follows:

    a. SF 2806 (Preliminary Disability) forwarded to OPM on transmittal numberCSC 81-41, dtd 21 April 1981 (deduction thru 1980).

    SF 2806 (Removal) effective 22 January 1982, forwarded to OPM on the transmittal number CSC 82 - 86, dtd 1 November 1982, to include 1981 and 1982 deductions.

    b. Last Day of Pay - 9 March 1981

    Date of Separation - 22 January 1982

    (Removal)

    Sick Leave Balance - 0 hours [all embezzled]

    s/ James Beeler, Jr.
    JAMES BEELER, JR.
    C, Civ Pay Sec


    -33a-

    APPENDIX M

    DEPARTMENT OF THE ARMY
    WASHINGTON, D.C. 20310-0200

    17 April 1986

    PROCLAMATION

    The readiness and well being of Total Army members and their families challenge us to deal with the problem of tobacco use. Medical evidence shows overwhelmingly that the use of tobacco products adversely impacts on the health and readiness of our force. Tobacco usage impairs such critical military skills as night vision, hand-eye coordination, and resistance to cold weather injuries. Moreover, it increases susceptibility to disease. It has become a substantial threat to the well-being of our Army, and we must take immediate steps to eliminate its usage.

    Every Army member is charged to make this goal a reality. All of us have a clear responsibility in making this happen. As part of the Army Tobacco Cessation Action Plan, we will encourage smokers


    -34a-

    to quit through a program of education, information, and assistance. We will also safeguard the health of smokers and nonsmokers alike by limiting the areas in which smoking will be permitted. Finally, we will check on all forms of tobacco usage from time to time to determine progress in meeting our goal. We believe this campaign is absolutely essential to maintain the health and readiness of our Army

    Ours is a profession unique in many respects, requiring physical fitness and stamina to get the job done. Each of us must be ready physically to endure the strains of a crisis. Additionally, caring leadership dictates that we demonstrate a sincere, unambiguous concern for the health and safety of those entrusted to our care.

    /s/John A. Wickham, Jr./s/John O. Marsh, Jr.
    JOHN A. WICKHAM, JR.John O. Marsh, Jr.
    General, United States ArmySecretary of the Army
    Chief of Staff

    -35a-

    APPENDIX N

    U.S. Department of Labor
    Office of the Assistant Secretary
    for Administration and Management
    Washington, D.C. 20210

    April 16 1986

    Mr. Leroy J. Pletten
    8401 18 Mile Road #29
    Sterlinq Heights, MI 48078

    Dear Mr. Pletten:

    The Secretary has asked me to reply to your Freedom o£ Information Act request of April 1, 1986. My office is unaware of any qualification standards that require the ability to smoke, tolerate smoking or avoid smoking. In addition, we are unaware of any forms asking for such information.

    Sincerely,

    /s/Larry K. Goodwin
    LARRY K. GOODWIN
    Director of Personnel Management


    -36a-

    APPENDIX O

    EXECUTIVE OFFICE OF THE PRESIDENT
    Office of Management and Budget
    Washington, D.C. 20503

    March 20, 1986

    Mr. Leroy J. Pletten
    8401 18 Mile Road #29
    Sterling Heights, Ml 48078

    Dear Mr. Pletten:

    This is in response to your March 3, 1986 Freedom of Information Act request for a copy of any qualification requirements that require smoking, tolerating, or avoiding smoking as a condition of Federal employment, and any forms asking for this information from applicants or employees.

    The Office of Management and Budget (OMB) is unaware of any qualification standards in use that require the ability to smoke, tolerate smoking, or avoid smoking. We are also unaware of the existence of any forms that ask for this information.

    The Paperwork Reduction Act of 1980 requires agencies of the executive branch to submit to OMB for review all


    -37a-

    collections of information imposed on 10 or more members of the public. Information collections approved or currently under review by OMB are available for public viewing in our docket library. There are some 6,450 forms in the library. There is no compilation of these information collections that address your request.

    However, you are free to do a manual search of the information collection in the docket library. The docket library is located in Room 3201 of the New Executive Office Building, 17th and Pennsylvania Avenue, NW., Washington, D.C.; it is open from 9 am to 5:30 pm Monday through Friday. It is advisable to call at 202-395-6880 before you come so arrangements can be made for you to be cleared into the building.

    I hope this information will be of help to you.

    Sincerely yours,
     
    /s/ Darrell A. Johnson
    Darrell A. Johnson
    Assistant Director for Administration


    -38a-

    APPENDIX P

    United States
    Office of Personnel Management
    Washington, D.C. 20415

    JAN 30 1984

    Mr. Leroy J. Pletten
    8401 18 Mile Road #29
    Sterling Heights, MI 48078

    Dear Mr. Pletten:

    This is in reply to your Freedom of Information request dated December 12, 1983, and received in this office on January 23, 1984. A copy of your letter was forwarded to this office for reply to those items pertaining to qualification requirements since this office has responsibility for the development of qualifications standards.

    Specifically, you requested a copy of any and all qualification requirements issued by OPM that require smoking as a condition of Federal employment. You asked that this include qualification requirements in Handbook X-118 as well as any OPM


    -39a-

    may have issued or may be using that are not a part of the X-118 system. You also requested that if there are no such requirements that we so state.

    This office is not aware of any qualifications standards issued or in use by OPM that require the ability to smoke. As a consequence, we cannot fill your request for copies of such material.

    Sincerely,
     
    /s/ Joseph W. Howe
    Joseph W. Howe
    Assistant Director for
    Standards Development


    -40a-

    APPENDIX Q

    EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
    WASHINGTON, D.C. 20506

    IN THE MATTER OF THE )
    REQUEST TO REOPEN BY)Request No.
    LEROY PLETTEN)05820275
    __________________________)

    ACCEPTANCE OF REQUEST TO REOPEN

    On July 2, 1982, Leroy Pletten (hereinafter referred to as appellant) filed a request with the Equal Employment Opportunity Commission to reopen and reconsider its decision in Leroy Pletten v. Army, Appeal No. 01801850 dated May 18, 1981.

    EEOC Regulation 29 C.F.R. Section 1613.235 sets forth the criteria for reopening a previous decision of this Commission. Under the Regulation, the Commissioners may, in their discretion, reopen and reconsider any previous decision if the party requesting reopening and reconsideration submits written


    -41a-

    evidence or argument which tends to meet one or more of the regulatory criteria.

    The Commission has carefully reviewed appellant's request to reopen its decision and the entire appellate record. Based on this review, the Commission finds that appellant's request does establish one of the regulatory criteria of Section 1613.235. In Docket No. 01801850, the Commission affirmed the agency's rejection of appellant's complaint because it contained identical allegations raised in a previous complaint. Appellant argues that this finding was an erroneous interpretation of fact and that his complaint should be processed.

    A review of the appellate file shows that the agency's final decision concerns a complaint filed by appellant on July 11, 1980 in which he alleges that the agency had discriminated against him because of his handicap.


    -42a-

    According to the counselor's report, the agency had taken certain action to accommodate appellant's condition in February 1980, which he believed to have been inadequate. This allegation was the main thrust of his complaint. The only synopsis of appellant's earlier complaint filed in June, 1980 was revealed in the EEO counselor's report. The counselor indicated that there appellant was complaining about the agency's failure to accommodate his handicap and its action in December, 1979, declaring him unfit and sending him home. The agency's final decision states that this prior complaint was at this time accepted for processing and being investigated.

    On appeal appellant asserts that the instant complaint although grounded upon the same basis of discrimination, i.e. physical handicap, concerned a separate incident and should have been accepted for


    -43a-

    processing. The Commission takes administrative notice of our decision issued February 23, 1982, which includes Docket Nos 01800273, 01810321, 01810322, 01810323, 01810324, 01810555, 01810887, 01811012 and 01812239. Our decision reversed all of these cases on procedural grounds finding that the agency erred in refusing and failing to process appellant's complaints.

    Under the applicable EEOC Regulation 29 C.F.R. Section 1613.215, an agency may only reject those allegations in a complaint which set forth identical matters contained in a previous complaint filed by the same complainant which is pending in the agency or has been decided by the agency. While the same type of discrimination was being alleged by appellant in his complaints, the record shows that the complaints resulted from different incidents several months apart.


    -44a-

    The Commission therefore finds that the agency erred in rejecting appellant's complaint filed July 11, 1980. The agency's final decision is hereby reversed and the case remanded for investigacion in accordance with the applicable EEOC Regulations. The agency may consolidate this case to the extent it is possible with the other complaints referred to above pending before the agency.

    CONCLUSION

    Based upon a review of the record and in light of appellant's request to reopen and reconsider our previous decision in Docket No. 01801850, it is thedecision of this Commission to accept appellant's request to reopen. Furthermore, the Commission finds that our previous decision erroneously affirmed the agency's rejection of appellant's complaint and is, by virtue of this decision, reversing the


    -45a-

    agency's final decision in this matter. The case is remanded to the agency for further processing as discussed herein.

    IMPLEMENTATION OF THE COMMISSION DECISION

    Under EEOC Regulations, compliance with the Commission's corrective action is mandatory. The agency must report to the Commission, within thirty (30) calendar days of receipt of the decision, that corrective action has been taken. The agency's report should be forwarded to the Compliance Officer, Office of Review and Appeals, Equal Employment Opportunity Commission, 2401 E Street, N.W., Washington, D.C. 20506. A copy of the report should be sent to the appellant.

    NOTICE OF RIGHT TO FILE A CIVIL ACTION

    Pursuant to 29 C.F.R. Section 1613.282, the appellant is hereby notified that this decision is final and that appellant has the right to file a civil action on


    -46a-

    the Rehabilitation Act claim in the appropriate United States District Court within thirty (30) days of the receipt of this decision.

    APPOINTMENT OF COUNSEL

    If you choose to file a civil action, and you do not have, or are unable to obtain the services of a lawyer, you may also request the court to appoint a lawyer to represent you. In such circumstances as the court may deem just, the court may appoint a lawyer for you and may authorize the commencement of the action without the payment of fees, costs or security. Any such request must be made within the above referenced 30 day time limit and in such form and manner as the court may require.

    FOR THE COMMISSION:
    3/4/83/s/Treva McCall
    DATETREVA McCALL
    Executive Secretary
    for the Commission


    -47a-

    APPENDIX R

    STATE OF MICHIGAN
    EMPLOYMENT SECURITY BOARD OF REVIEW

    In the Matter of the Claim of

    LEROY J. PLETTEN,Appeal Docket No.
    B-81-09032-RO-1-79856
    Claimant
    Social Security No.
    586-67-6611
    DEPARTMENT OF THE ARMY,
    U.S. ARMY TANK AUTOMOTIVE COMMAND,
      
    Employer

    ORDER DENYING APPLICATION FOR REHEARING

    This case is before the Board of Review upon application of the employer for a rehearing by the Board in respect to its decision dated May 14, 1982. The Board of Review, having read and considered said application, and having reviewed the record in the matter, is of the opinion that said application should be denied.

    IT IS THEREFORE ORDERED that said application shall be and the same is


    -48a-

    hereby denied.

      /s/Thomas L. Gravelle
      Thomas L. Gravelle, Member


      /s/Harry S. Benjamin, Jr.
      Harry S. Benjamin, Jr., Member
    MAILED AT DETROIT, MICHIGAN June 22, 1982

    This order will become final unless a written appeal therefrom is RECEIVED by the clerk of the appropriate circuit court on or before

      July 12, 1982

    TO PROTECT YOUR RIGHTS YOU MUST BE ON TIME.

    TACOM feared the integrity of Macomb County Circuit Court, so did NOT dare appeal. It had shot its last wad, and would focus on corrupting the federal review system, and corrupt its officials at MSPB and in the federal courts.


    -49a-

    APPENDIX S

    STATE OF MICHIGAN
    EMPLOYMENT SECURITY BOARD OF REVIEW

    In the Matter of the Claim of

    LEROY J. PLETTEN,Appeal Docket No.
    B-81-09032-RO-1-79856
    Claimant
    Social Security No.
    586-67-6611
    DEPARTMENT OF THE ARMY,
      
    Employer

    DECISION OF BOARD OF REVIEW

    This case is before the Board of Review on the appeal of the employer [TACOM] from a Referee's order denying a rehearing. The Board finds that the Referee did not abuse his discretion in issuing such order, and such order is hereby affirmed. A copy of said order issued on September 2, 1981 is attached hereto and by this reference made a part hereof.

    The Board, having reviewed the Referee's decision in the light of the evidence appearing in the record made prior to the


    -50a-

    employer's request for a rehearing, is of the opinion that said decision is in conformity with the law and facts and should be affirmed. A copy of said decision issued on July 30, 1981 is attached hereto and by this reference made a part hereof.

    The Referee's order denying the employer's request for rehearing is hereby affirmed. The Referee's decision is hereby affirmed.

      /s/Thomas L. Gravelle
      Thomas L. Gravelle, Member


      /s/Harry S. Benjamin, Jr.
      Harry S. Benjamin, Jr., Member
    MAILED AT DETROIT, MICHIGAN May 14, 1982

    Attachments

    This decision will become final unless a written request for rehearing or appeal to the appropriate circuit court is RECEIVED on or before     June 3, 1982

    TO PROTECT YOUR RIGHTS YOU MUST BE ON TIME.


    -51a-

    APPENDIX T

    EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
    WASHINGTON, D.C. 20506

    Leroy Pletten, )     Docket Nos.
    Appellant
    )01800273 01810324
    )01810321 01810555
    v.
    )01810322 01810887
    )01810323 01811012
    Department of the Army,)01812239
    Appellee.
    )

    DECISION

    INTRODUCTION

    Leroy Pletten (hereinafter referred to as appellant) timely initiated appeals to the Equal Employment Opportunity Commission from the final decisions of the Department of Army (hereinafter referred to as agency) rendered in all the above reference appeals as indicated in the Appendix, concerning his allegations of discrimination based upon [perceived, non-job-related] physical handicap (asthma) in violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 701 et. seq and based upon reprisal in violation of Title VII of the Civil Rights Act of 1964, as


    -52a-

    amended, 42 U.S.C. 2000e et seq. These appeals are accepted in accordance with EEOC Order No. 960, as amended.

    BACKGROUND

    Beginning in 1979, appellant filed a series of formal complaints of discrimination with the agency, alleging that actions of the agency discriminated against him on the basis of his handicapping condition [not enforcing / obeying its own pure air regulation, AR 1-8 issued pursuant to 32 CFR § 203] and in reprisal for filing EEO complaints.

    At the time of his first [whistleblowing to Safety Office] complaint, appellant was employed by the agency as a position classifer specialist, GS-12. [He never used sick leave.] In the summer of 1979, he was discovered to be suffering from acute asthma attacks brought on by contact with cigarette smoke. He made numerous requests of the agency to accommodate his handicap [NO, in reality, to enforce the above cited DOD and Army-incorporated pure air rules AR 1-8 and 32 CFR § 203], to include improving the [outmoded] ventilation system of his building, a smoke-free office to work in and prohibiting other employees from smoking


    -53a-

    within 25 feet of appellant. [His supervisor, Jeremiah Kator, agreed, but higher management forbad him to act.]

    When he [Pletten] failed to obtain the accommodations [enforcement actions] he believed to be necessary for his handicap [compliance with the above-cited rules], appellant sought EEO counseling and filed formal complaints.

    Simultaneously, he filed a labor grievance which was arbitrated in January, 1980 [in fact, adjudicated by the Army's own Civilian Appellate Review agency (USACARA)] with a recommendation of ways the agency had to accommodate appellant [enforce its own "pure air rights" rules]. When the agency failed to abide by the arbitration [USACARA Report], appellant filed even more EEO complaints.

    In none of the appeals pending before this Commission did the agency ever consider the merits of appellant's allegations. All of the complaints were rejected for the reasons stated in the Appendix. The record indicates that as early as February, 1980 [the "decision to terminate" time observed by EEOC's Henry Perez, Jr.], appellant was denied EEO counseling and prevented from filing further complaints. As indicated in the Appendix, the agency failed to provide this Commission with several complaint


    -54a-

    files and the only information concerning these complaints was supplied by appellant and must be accepted by this Commission as uncontradicted.

    ANALYSIS AND FINDINGS

    EEOC Regulations 29 C.F.R. 1613.212 and .709(a) provide for the establishment by the agency for regulations for the acceptance and processing of complaints of discrimination based upon physical handicap and reprisal. The Regulations further provide that federal agencies upon the filing of such complaints must conduct an investigation into the allegations raised in the complaint, 29 C.F.R. 1613.216, conduct a hearing on those allegations, if desired by the complain[an]t, 29 C.F.R. 1613.217(b)(i) and render a decision thereon, 29 C.F.R. 1613.221(1).

    A review of the record in Docket No. 01800273 establishes that appellant filed a formal complaint of discrimination


    -55a-

    alleging that in an agency's publication derogatory references were made to his physical handicap. The appellant's complaint properly alleges a basis of discrimination reocognized by the Regulations. The agency improperly rejected appellant's complaint on the basis it did not come within the purview of the Regulations. The agency, therefore, must accept the complaint for investigation and decision thereon.

    In all of appellant's complaints, he asserts that the agency was discriminating against him as an asthmatic nonsmoker who could not tolerate smoke in his work environment and, moreover, that the agency failed to accommodate his handicap [enforce / obey the pertinent agency and other rules]. Under the applicable EEOC Regulations 29 C.F.R. 1613.214(a)(1)(ii) an agency may accept a complaint for processing only if the complainant has brought to the attention of an EEO counselor the matter thought to


    -56a-

    be discriminatory within 30 calendar days from the date of the alleged discrimination occurred. It is a well recognized equitable principle that this time limit must be extended if appellant alleges and can show a continuing pattern of discrimination. As the court in Laffey v. Northwest Airlines, 567 F.2d 429, 13 FEP Cases 1068 (D.C. Cir. 1976) notes

    " . . . where, as here, discrimination is not limited to isolated incidents but pervades a series or pattern of events which continue to within (the time period) of filing charges, the filing is timely."
    Id. , 13 FEP Cases at 1100. See also, Cedeck v. Hamiltonian Federal S&L Assn., 551 F.2d 1136, 14 FEP Cases 1571 (8th Cir. 1977); Clark v. Olinkraft, Inc., 556 F.2d 1219, 15 FEP Cases 377 (5th Cir. 1977);. and, Rich v. Martin Marietta Corp., 552 F.2d 333, 11 Fep (sic) Cases 211 (10th Cir. 1977). It is clear that appellant was alleging a continuing pattern of
    -57a-

    discrimination against him because of his handicap. It is also clear the agency made some effort to limit his number of complaints, his right to file complaints and to seek EEO counseling. The agency, additionally, went so far as to utilize erroneous information or miscalculations upon which to base its rejection. See Appendix, Docket Nos. 01810323, 01810321, 01810555 and 01810324.

    In view of the foregoing, this Commission must conclude the agency's rejection of all appellant's complaints were erroneous on the grounds given. In that it appears that appellant was alleging a continuing pattern of discrimination and in that some of the agency's rejection of his complaints were based on the wrong information and in that the record reveals that the agency attempted to restrict and/or deny appellant the right to file EEO complaints


    -58a-

    and seek counseling, the Commission holds that all the above references cases must be reversed and rescinded [remanded] (sic)for further processing in accordance with EEO Regulations 29 C.F.R. 1613.211 et seq.

    CONCLUSION

    Based upon a review of the record, the decision of the Equal Employment Opportunity Commission is to reverse the final agency decisions in all the instant cases which rejected appellants' complaints for the reasons indicated and rescind (sic) said complaints for further processing in accordance with this decision. Upon reprocessing said complaints, the agency may consider the consolidation of all the instant cases.

    IMPLEMENTATION OF THE COMMISSION DECISION

    Under EEOC regulations, compliance with the Commission's corrective action is mandatory. The agency must report to the Commission, within thirty (30) calendar


    -59a-

    days of receipt of the decision, that corrective action has been taken. The agency's report should be forwarded to the Compliance Officer, Office of Review and Appeals, Equal Employment Opportunity Commission, 2401 E Street, N.W., Washington, D.C. 20506. A copy of the report should be sent to the appellant.

    ATTORNEY'S FEES

    If appellant has been represented by a member of the Bar, appellant shall be awarded attorney's fees under 29 C.F.R. § 1613.271(c). The attorney shall submit to the agency within twenty (20) days of receipt of this decision, the documentation required by 29 C.F.R. §1613. 271(c) (2). The agency shall process the claim within the time frames set forth in § 1613.271(c)(2).

    NOTICE OF RIGHT TO FILE A CIVIL ACTION

    Pursuant to 29 C.F.R. §1613.282, the appellant is hereby notified that this


    -60a-

    decision is final and that he has the right to file a civil action on the Title VII claim in the appropriate U.S. District Court within thirty (30) days of the date of receipt of this decision.

    APPOINTMENT OF COUNSEL

    If you choose to file a civil action, and you do not have, or are unable to obtain the services of a lawyer, you may also request the court to appoint a lawyer to represent you. In such circumstances as the court may deem just, the court may appoint a lawyer for you and may authorize the commencement of the action without the payment of fees, costs or security. Any such request must be made within the above referenced 30 day time limit and in such form and manner as the court may require.

    NOTICE OF RIGHT TO REQUEST REOPENING

    The appellant and the agency are hereby notified that the Commissioners may, in their discretion, reopen and


    -61a-

    reconsider any previous decision when the party requesting reopening submits written argument or evidence which tends to establish that:

    1. New and material evidence is available that was not readily available when the previous decision was issued;

    2. The previous decision involves an erroneous interpretation of law or regulations or misapplication of established policy; or

    3. The previous decision is of precedential nature involving a new or unreviewed policy consideration that may have effects beyond the actual case at hand or is otherwise of such an exceptional nature as to merit the personal attention of the Commissioners.

    This notice is in accord with 29 C.F.R. Section 1613.235. The agency's attention is directed to 29 C.F.R. Section 1613.235(b) for time limitations on agency


    -62a-

    requests to reopen.

    FOR THE COMMISSION:
      
    FEB 23 1982/s/Nestor Cruz
    Date
    Nestor Cruz, Director
    Office of Review and
    Appeals

    APPENDIX

    APPEALS OF LEROY PLETTEN

    1. EEOC DOCKET Number: 01800273 2/

      Date of Formal EEO Complaint: 11/07/79; amended 11/23/79
      Date of Final Agency Decision: 12/19/79
      Date of Appeal: 12/26/79
      Brief Description of Complaint: "Publication of article agency's newsletter"
      Reason for Agency's Rejection: "Not within purview"

    2. EEOC DOCKET Number: 01810321

      Date of Formal EEO Complaint: 9/11/80
      Date of Final Agency Decision: 11/06/80
      Date of Appeal: 11/18/80
      Brief Description of Complaint: "Misconduct by medical officer against appellant"

    -63a-

      Reason for Agency's Rejection: "Untimely presented to EEO counselor 4/"

    3. EEOC DOCKET Number: 01810322

      Date of Formal EEO Complaint: 9/17/80
      Date of Final Agency Decision: 11/05/80
      Date of Appeal: 11/18/80
      Brief Description of Complaint: "Denial of telephone services"
      Reason for Agency's Rejection: "Untimely presented to EEO counselor 4/"

    4. EEOC DOCKET Number: 01810323

      Date of Formal EEO Complaint: 9/06/80
      Date of Final Agency Decision: 11/05/80
      Date of Appeal: 11/18/80
      Brief Description of Complaint: "Denial of medical aid in dispensary"
      Reason for Agency's Rejection: "Untimely presented to EEO counselor 4/"

    5. EEOC DOCKET Number: 01810324

      Date of Formal EEO Complaint: 9/9/80
      Date of Final Agency Decision: 11/05/80
      Date of Appeal: 11/18/80

    -64a-

      Brief Description of Complaint: "Wrong information conveyed to Merit Systems Protection Board"
      Reason for Agency's Rejection: "Untimely presented to EEO counselor 4/ 3/"

    6. EEOC DOCKET Number: 01810555

      Date of Formal EEO Complaint: 9/19/80
      Date of Final Agency Decision: 12/22/80
      Date of Appeal: 1/9/81
      Brief Description of Complaint: "Performance appraisals"
      Reason for Agency's Rejection: "Untimely presented to EEO counselor 6/"

    7. EEOC DOCKET Number: 01810887

      Date of Formal EEO Complaint: 9/18/80
      Date of Final Agency Decision: 1/16/81
      Date of Appeal: 2/04/81
      Brief Description of Complaint: "Appellant forced off base"
      Reason for Agency's Rejection: "Untimely presented to EEO counselor 5/

    8. EEOC DOCKET Number: 01811012

      Date of Formal EEO Complaint: 1/15/81
      Date of Final Agency Decision: 4/2/81

    -65a-

      Date of Appeal: 4/8/81
      Brief Description of Complaint: "Agency's failure to implement no smoking regulations"
      Reason for Agency's Rejection: "Untimely presented to EEO counselor 5/"

    9. EEOC DOCKET Number: 01812239

      Date of Formal EEO Complaint: 1/21/81
      Date of Final Agency Decision: 5/12/81 and 5/15/81
      Date of Appeal: 5/19/81
      Brief Description of Complaint: "Refusal by agency to accept complaint"
      Reason for Agency's Rejection: "Untimely presented to EEO counselor"

    10. EEOC DOCKET Number: 018112239 1/ 2/

      Date of Formal EEO Complaint: 1/20/81
      Date of Final Agency Decision: 5/12/81 and 5/15/81
      Date of Appeal: 5/19/81
      Brief Description of Complaint: "Refusal to provide EEO process to appellant"

    -66a-
      Reason for Agency's Rejection: "Untimely presented to EEO counselor 5/"

    11. EEOC DOCKET Number: 018112239 1/ 2/

      Date of Formal EEO Complaint: 4/26/81
      Date of Final Agency Decision: 5/12/81 and 5/15/81
      Date of Appeal: 5/19/81
      Brief Description of Complaint: "Refusal to provide EEO Counseling"
      Reason for Agency's Rejection: "Untimely presented to EEO counselor 5/


    "1/Complaints consolidated under this case number.

    2/ No agency file ever received in this case

    3/ No copy of final agency decision ever received in this case.

    4/ Erroneous calculation by agency of thirty day period prior to counseling.

    5/ Event giving rise to complaint occurred when agency refused to accept additional complaints from appellant.

    6/ Final agency decision cites erroneous date of alleged discriminatory act on appellant's formal complaint."


    -67a-

    APPENDIX U

    NOTIFICATION OF PERSONNEL ACTION
     
    Name: Pletten,Leroy J. Mr.
     
    2. [blank] 3. Birth Date 11-29-46
     
    4. SSN 586-73-9834 5. VP 1
     
    6. Tenure Group 17. SCD: 08-26-69
     
    8. [blank]9. FEGLI G
     
    10. Retirement 111. [blank]
     
    12. Code 330 Removal
     
    13. Effective Date 01-22-82
     
    14. Civil Service or Other Legal
    Authority ZLM, AUTH 5 USC 7512
     
    15. From Position Classification Specialist Pos No. DA-905c E
     
    16. GS-0221 17. Grade 12 Step 06
     
    18. Salary $32,955
     
    19. US Army Tank Automotive Command,
    Warren, MI 48090 Directorate for
    Personnel Training & Force
    Development, Civilian Personnel
    Division, Position and Pay
    Management Branch
     
    20. [blank] 21. [blank]
     
    21. [blank] 23. [blank]


    -68a-

    24. [blank]
     
    25. Duty Station Warren, Michigan
     
    26. Location Code 26 5110 099
     
    27. Appropriation 722896.N9000
     
    28. Position Occupied 129. [blank]
     
    30. Exempt—Fair Labor Standards Act.
    Request No. A-82-1
    Forwarding Address: 8401 18 Mile Rd.
    Apt. #29. Sterling Heights, MI 48078
    S47 Reasons for Removal: Medical
    Disqualification. The Command is not
    able to provide an absolutely smoke
    free work environment as required by
    his personal physician. [Ed. Note: For
    rebuttal, see, e.g., p 52, supra.]
     
    31. [blank]           32. [blank]33. Code AR 00
     
    34. /s/ Barbara Amyetov
    for AGNES SMITH
    Supervisory Personnel Clerk
    (2685)
     
    35. Date 01-12-82


    -69a-

    APPENDIX V

    DEPARTMENT OF LABOR
    MICHIGAN EMPLOYMENT SECURITY COMMISSION
    REFEREE DIVISION

    In the Matter of the Claim of|Employer Involved
    |USA TACOM
    LEROY J. PLETTEN|Civilian Payroll Sect DRSTA EFPC
    8401 18 Mile Road, Apt. 29|28251 Van Dyke
    Sterling Heights, MI 48078|Warren, MI 48090
    S.S. No. 598-67-6611|Appeal No. B81 09032

    REFEREE: MICHAEL BALDWIN

    ORDER DENYING
    APPLICATION FOR REHEARING

    This matter came before the Referee upon application of the employer's attorney received on August 19, 1981, for a rehearing by the Referee in respect to the decision dated July 30, 1981, and the Referee having read and considered said application, and having reviewed the record in the matter, is of the opinion that said application should be denied.

    IT IS THEREFORE ORDERED that said application shall be and the same is


    -70a-

    hereby denied.

      /s/Michael Baldwin
      MICHAEL BALDWIN, REFEREE

    Mailed at Detroit, Michigan on SEP 02 1981 (Date)

    IMPORTANT

    This decision will become final unless a written appeal to the Board of Review is received on or before SEP 02 1981 (Date)

    To be filed on time, an appeal to the Board of Review must be received by any office of the Commission or the Board on or before the above-indicated date.

    Information and/or forms for an appeal to the Board of Review may be obtained from the Board or from any Commission Office.

    The Act also permits an order or decision of the Referee to be appealed directly to the appropriate circuit court if all parties agree to do so by written stipulation filed with the Referee.


    -71a-

    APPENDIX W

    1. Claim filed on 1/2/81 IS
    [  ] Determined Allowed. See Item 15.
    [X] Determined As Shown in Item 14. 2. Branch Office No. 23

    3. Benefit Year: 12/28/80 THRU 12/26/81

    4. Employer 500|5. Employee 687 67 4499
    000 USA TACOMPletten, Leroy J.
    Civilian Payroll8401 18 Mile Apt 29
    Sect DRSTA-EFPCSterling Heights,
    28251 Van DykeMI. 48078
    Warren, Mich. 480901 46 Y 0000 520 166

    6. Total Employers & Credit Weeks: 1-35

    7. Average Weekly Wage: $567.53 8. Dep'cy Class/Code 0/101

    9. Weekly Benefit Rate: 182 10. Credit Weeks Allowed This Det.: 35

    11. Full Week Payts. Allowed This Det. 26

    12. Pull Week Payts. This & Prior Dets. 26

    13. Blank. 14. Per [ProWhistleblower] Referee Decision B81-09032 dated 7/30/81 hereby reversed redetermination issued 5/11/81. No ineligibility, employed.
    -----------------------------------------------------------------------------------
    IF YOU DISAGREE WITH THIS
    [X] DETERMINATION, YOU MAY REQUEST A REDETERMINATION IN PERSON OR BY MAIL.
    DATE MAILED OR PERSONALLY SERVED: AUG 14 1981


    -72a-

    APPENDIX X

    NOTIFICATION OF PERSONNEL ACTION
     
    1. Name: Pletten, Leroy J. Mr.
     
    2. [blank]3. Birth Date 22-30-57
      
    4. SSN 586-67-66115. VP 1
      
    6. Tenure Group 1 7. SCD 08-26-69
      
    8. [blank] 9. FEGLI 3
      
    10. Retirement 1 11. [blank]
      
    12. Code 460 LWOP NTE 12-13-81
      
    13. Effective Date 12-14-80
      
    14. Civil Service or Other Legal
    Authority [blank]
      
    15. From Position Classification Specialist
      
    Pos No. DA-905c E
    16. GS-0230
      
    17. Grade 12 Step 0418. Salary $31,41
      
    19. US Army Tank Automotive Command,
    Warren, MI 48090 Directorate for
    Personnel Training & Force
    Development, Civilian Personnel
    Division, Position and Pay
    Management Branch
      
    20. [blank] 21. [blank]
      
    22. [blank] 23. [blank]


    -73a-

    24. [blank]
     
    25. Duty Station Warren MI
     
    26. Location Code 26 - 5110 - 099
     
    27. Appropriation 722896.N9000
     
    28. Position Occupied 129. [blank]
     
    30. Exempt—Fair Labor Standards Act.
    Code G in Item 9 indicates employee
    has elected FEGLI coverage of basic
    plus additional opt
    Req. No. A-81-126
    DRSTA-ALS
     
    31. [blank]                 32. [blank] 33. Code AR 00
     
    34. /s/ Robin E. Morosini
    for AGNES SMITH
    Supervisory Personnel Clerk
    (2685)
     
    35. Date 08-04-81


    -74a-

    APPENDIX Y

    DEPARTMENT OF LABOR
    MICHIGAN EMPLOYMENT SECURITY COMMISSION
    REFEREE DIVISION

    DECISION

    In the Matter of the Claim of|Employer Involved
    |USA TACOM
    LEROY J. PLETTEN|Civilian Payroll Sect DRSTA EFPC
    8401 18 Mile Road, Apt. 29|28251 Van Dyke
    Sterling Heights, MI 48078|Warren, MI 48090
    S.S. No. 586-67-6611|Appeal No. B81 09032

    REFEREE: MICHAEL BALDWIN

    [X] Claimant
    appealed Redeterminationof May 11, 1981
    on May 11, 1981
    [ ] Employer

    Hearing(s) held on July 20, 1981, in Sterling Heights, Michigan.

    FINDINGS OF FACT AND REASONS

    The redetermination issued by the Commission on May 11, 1981, held the claimant ineligible for benefits in respect to the time period from November 30, 1980, through an "indefinite" period of time under Section 48 of the Act. An


    -75a-

    earlier determination was held affirmed. In essence, the claimant was held to be on a leave of the type recognized by Section 48 of the Act as rendering the individual not an unemployed individual within the meaning of the Michigan Employment Security Act.

    At the hearing held in Sterling Heights, Michigan, on July 20, 1981, the following persons appeared:

    Leroy Pletten,Claimant
    Helen Cochran,Witness Subpoenaed at the Request of the Claimant

    Ed. Note: TACOM, for fear of what its own people would admit, refused to allow any to testify! until a year later, in proceeding under its control.

    The claimant began working for the involved federal entity in August of 1969 and last performed work services for this employer on or about March 17, 1980. The application for unemployment benefits contained within the file [of] items submitted by the Commission to the Referee Division is indicated as being filed on January 2, 1981.


    -76a-

    Section 48 of the Act provides, in part, that

    "An individual shall not be deemed to be unemployed during any leave of absence from work granted by an employer either at the request of the individual or pursuant to an agreement with his duly authorized bargaining agent, or in accordance with law."
    The claimant's literal presentation was, in part, that there is no such employment condition [per TACOM Reg. 600-5.14] as a [forced] leave of absence that was recognized by the federal agency. However, the record does indicate that a federal agency does grant employees absences [they request] from work performance, under certain circumstances, while maintaining the employment relationship and anticipating a resumption of work service performance at a reasonably specific time in the future.

    Not all leaves of absence will render an individual not an unemployed individual within the meaning of Section 48 of the Act. There are only three recognized


    -77a-

    forms or initiating circumstances relative to leaves of absence that are pertinent.

    The claimant's testimony was clear that he did not request to be placed on a leave of absence or be removed from work service performance in respect to the time period under consideration. The claimant further stated that he was not of the view that he had a union or labor organization of which he was a member for bargaining purposes with the employer but that, in any event, he had made no request to anyone to act on the claimant's behalf in requesting a leave of absence. There is no indication that any leave of absence that may apply to the claimant was in accordance with the law relative to the pertinent subsection of the state statute.

    In terms of Section 48 of the Act, whether or not the claimant is on a leave of absence is somewhat moot under the circumstances as established in the record


    -78a-

    in that if the claimant is on a leave of absence, it is not of the type recognized in Section 48 of the Act as rendering an individual unentitled to receive unemployment benefits, i.e., a type that would cause the claimant not to be deemed an "unemployed" individual.

    DECISION

    The redetermination issued by the Commission on May 11, 1981, is hereby reversed. The provisions within Section 48 of the Act pertaining to leaves of absence of a certain type have no application in the instant matter.

    Further judgments in respect to this claim are left for future Commission consideration.

      /s/Michael Baldwin
      MICHAEL BALDWIN, REFEREE

    Mailed at DETROIT, MICHIGAN JULY 30, 1981


    -79a-

    IMPORTANT

    TO PROTECT YOUR RIGHTS, YOU MUST BE ON TIME

    This decision will become final unless a party takes ONE of the following actions: (1) files a written appeal to the Board of Review, OR (2) files a written request for rehearing before the Referee, OR (3) files a direct appeal to Circuit Court. The appeal or request for rehearing must be RECEIVED on or before AUG 19 1981


    Ed. Note: This decision in Pletten's favor, overruled TACOM, and confirmed Pletten's unrestricted ability to work. Reason: under Michigan law MCL 421.28, a claimant who can't work, can't get unemployment.
    And here Pletten's claim was approved.
    TACOM should then have honored that decision, and returned Pletten to duty, as per the precedent of Polk v Yellow Freight Sys, Inc, 801 F2d 190, 192-3 (CA 6, 1986).

    -80a-

    APPENDIX Z

    DEPARTMENT OP LABOR
    MICHIGAN EMPLOYMENT SECURITY COMMISSION
    37250 Van Dyke
    Sterling Hts., MI 48077

    NOTICE OF DETERMINATION OR REDETERMINATION

    Employing UnitClaimant
    USA TACOMPletten, Leroy J.
    Civilian Payroll8401 18 Mile Apt 29
    Sec. DRSTA-EFPCSterling Hts., MI
    28251 Van Dyke
    48078
    Warren Ml 48090
    Filing Date: Cont.Claim Date 4-27-81
    S.S. No. 786-67-4499

    [ ] DETERMINATION: [X] REDETERMINATION of
    determination dated 3-2-81

    [X] CLAIMANT IS INELIGIBLE FOR BENEFITS
          FROM 11-30-80     THROUGH Indefinite.

    ISSUE(S) AND SECTION(S) OF THE MES ACT INVOLVED:
    [X] Ability to work — 28(1) (c)
    [X] Employed — 48

    BASIS FOR (RE)DETERMINATION
    14. The claimant is presently on medical


    -81a-

    leave due to sensitivity to smoke [illegal levels of toxic chemicals constituting a universal malice]. While on leave

    [Ed. Note: contrary to TACOM’s own Regulation 600-5.14-27 and 28, and contrary to evidence from EEOC's Henry Perez, Jr., of TACOM’s having made and implemented “decision to terminate”],

    the claimant is considered to be in active status and is ineligible for benefits per Sec. 48 of the MES Act. Redetermination affirmed.

    RIGHT OF PROTEST OR APPEAL: Any protest or appeal from this determination or redetermination must be filed in person or by mail and must be received within twenty (20) dates after date mailed or personally served, or if such 20th day is a Saturday, Sunday or legal holiday, by the next day which is neither a Saturday, Sunday nor legal holiday. (See reverse side for instructions).

    DATE PERSONALLY SERVED:
    MAY 11 1981
    B. Davis/Jb
    Claims Examiner


    -82a-

    APPENDIX AA

    1. Claim filed on 1/2/81 IS

    [ ] Determined Allowed. See Item 15.
    [X] Determined As Shown in Item 14.

    2. Branch Office No. 23

    3. Benefit Year: None THRU None

    4. Employer USA5. Employee 586 67 4499
    TACOM CivilianPletten, Leroy J.
    Payroll Sect8401 18 Mile Apt 29
    DRSTA-EPPC, 28251Sterling Heights,
    Van Dyke, WarrenMich. 48078
    Mich. 480901 46 Y 0000 520 166

    6. Blank 7. Blank 8. Blank 9. Blank 10. Blank 11. Blank 12. Blank 13. Inelig/Employed 11/30/80 thru Indefinite

    14. Claimant is presently on a medical leave of absence due to his inability to work [being an extortion victim, see Col. Benacquista’s deposition]. While on leave claimant is considered to be an employed individual in accordance with Sect 48 of the Act.

    IF YOU DISAGREE WITH THIS
    [X] DETERMINATION, YOU MAY REQUEST A
    REDETERMINATION IN PERSON OR BY MAIL. DATE
    MAILED OR PERSONALLY SERVED: MAY 2 1981

    -83a-

    APPENDIX BB

    DEPARTMENT OF THE ARMY
    US Army Tank-Automotive
    Materiel Readiness Command
    Warren, Michigan 48090

    DRSTA-A

    15 FEB 1980

    Mr. Leroy Pletten
    Position and Pay Management Branch
    Civilian Personnel Division
    Directorate for Personnel, Training
    and Force Development
    US Army Tank-Automotive
    Materiel Readiness Command
    Warren, Michigan 48090

    Dear Mr. Pletten:

    1. Transmitted herewith is the report of findings and recommendations regarding your grievance concerning tobacco smoking and its hazards to your health.

    2. I have reviewed the Examiner's report and have accepted the recommendations. In regard thereto, I have directed the following:

    a. Air content studies of your work area will be conducted by an Industrial Hygienist.


    -84a-

    b. After analysis of the data, a determination will be made as to whether your immediate work area constitutes an environment which is reasonably free of contamination. If a determination is made that such an environment is present, periodic air content measurements will be taken to ascertain the stability of that environment. If a determination is made that such an environment is not present, further action will be taken, as required, in addition to the respirator previously provided to you.

    3. This decision is final and binding and is not subject to further review within the Department of the Army.

    FOR THE COMMANDER:

    /s/John J. Benacquista
    1 InclJOHN J. BENACQUISTA
    asColonel, GS
    Chief of Staff

    -85a-

    APPENDIX CC

    NOTIFICATION OF PERSONNEL ACTION
     
    1. Name: Pletten, Leroy J. Mr.
      
    2. [blank]3. Birth Date 22-30-57
      
    4. SSN 586-67-66115. VP 1
      
    6. Tenure Group 1 7. SCD 08-26-69
      
    8. [blank] 9. FEGLI 3
      
    10. Retirement 1 11. [blank]
      
    12. Code 721 Reassignment
      
    13. Effective Date 09-18-77
      
    14. Civil Service or Other Legal
    Authority Reg. 335.102
      
    15. From Employee Relations Specialist
    Job No. DA-913c
    16. GS-0230
      
    17. Grade 12 Step 0418. Salary $22,48504
      
    19. US Army Tank Automotive
    Materiel Readiness Command, Warren,
    Michigan, Directorate for Personnel
    Training & Force Development,
    Civilian Personnel Division,
    Management Employee Relations
    Branch

    20. To Position Classification Specialist

    Job No. DA-905c
    21. GS-0221
      
    22. Grade 12 Level 0423. Salary $22,485


    -86a-

    24. US Army Tank Automotive
    Materiel Readiness Command, Warren,
    Michigan, Directorate for Personnel
    Training and Force Development,
    Civilian Personnel Division,
    Position and Pay Management Branch
      
    25. Duty Station Warren, Michigan
      
    26. Location Code 26 - 5110 - 099
      
    27. Appropriation 2182020 6D-8030 P72000
          20113 722896.N9000 AL11978H ALSOO
      
    28. Position Occupied 1 29. [blank]
      
    30. Req. No. AL(S)-117-97 DRSTA-ALS
    C/L 12-7 FLSA-Exempt
    Civilian Personnel Career Program
    Code 002-01-8-3 CPR 950-1.4-8c(4)
    Qualification requirements waived,
    surplus employee
     
    31. [blank]       32. [blank] 33. Code AR OO
      
    34./s/Christine V. Ziolkowski
    CHRISTINE V. ZIOLKOWSKI
    Supv Pers Stfg Spec (2685)
      
    35. Date 09-16-77


    -87a-

    APPENDIX DD

    DEPARTMENT OF THE ARMY
    U.S. Army Tank-Automotive
    Materiel Readiness Command
    Warren, Michigan 48090

    DRSTA-CP19 NOV 1976

    SUBJECT: Appointment as Crime Prevention Officer

    Mr. Leroy J. Pletten
    Management-Employee Relations Division
    Directorate for Civilian Personnel
    U.S. Army Tank-Automotive Materiel
    Readiness Command
    Warren, MI 48090

    1. In accordance with the 8 November 1976 directive from the Chief of Staff, you are appointed as the DCP Crime Prevention Officer.

    2. The instructions on your duties in this capacity have been provided you by separate correspondence.

    FOR THE COMMANDER:

      /s/ A. C. Strong
      A. C. STRONG
      Deputy Civilian Personnel Director


    -88a-

    APPENDIX EE

    SUMMARY OF CAREER 1969 - 1980

    6/12/1967 Graduation from University of Minnesota

    8/26/1969 Hired as Personnel Management Specialist, GS-7

    11/6/1969 Letter of Appreciation from a serviced organization

    supervisor, Edward Peszko, for my having

    “contributed immensely in . . . job descriptions."

    11/26/1969 Civilian Personnel Director Fred R. Goss forwarded this:

    “Although Mr. Peszko is only one employee of the Command who took the time to write the letter, I am sure he expressed the unwritten feelings of many of our employees.”

    9/6/1970 Promotion to Personnel Management Specialist, GS-9

    9/19/1971 Promotion to Employee Relations Specialist, GS-11

    1971 TACOM began the Employee Recognition Plan for employees

    with low use of sick leave.

    -89a-

    3/3/72 Letter of Appreciation on sick leave from Personnel Director

    Col. Benjamin Safar concerning my

    “excellent sick leave record” "since your appointment
    . . . you have used no sick leave.”

    11/10/72 Letter of Appreciation from the director of a

    serviced organization, John H. Cyrus

    “for his recent work in the areas of Disability Requests,
    Debt Complaints and Leave of Absence Requests.”

    3/5/73 Letter of Appreciation from Personnel Director Col. Donald E.

    Atkinson for my having

    "used no sick leave . . . a commendable record . . . which very few attain . . . since your appointment . . . you have used no sick leave . . . flawless record.”

    6/29/1973 Supervisor Verna L. Atkinson appointed me acting

    supervisor of the branch.

    1/28/1974 Suggestion Award ($185)

    2/27/74 Letter of Appreciation from


    -90a-

    Civilian Personnel Director William S. Moyers for my having

    "used no sick leave . . . a commendable record . . . which very few employees attain . . . since your appointment . . you have used no sick leave . . . flawless record."

    6/23/1974 Promotion to Labor Management Relations Specialist,

    GS-12, Job No. DA-907, responsible to do

    "positive advisory service to managers and supervisors on their basic responsibilities for personnel administration, identifying areas of possible supervisor weakness or other supervisor-employee relationships that tend to cause dissatisfaction"

    and to deal with

    "Personnel adverse actions [discipline], grievances and appeals, communications and employee counseling."

    9/1/74 Letter of Appreciation from Andrew Cook of a serviced

    organization, for

    “courtesy and efficient help . . . bringing
    it to a pleasant and complete solution."

    -91a-

    5/2/1975 Letter of Appreciation for me, addressed to Civilian Personnel

    Director William S. Moyers, from a serviced organization
    supervisor, Edward J. Leavy, for my having

    “provided valuable guidance [on] selection criteria [assessing employee qualifications].

    “We have all, verbally and in writing, complained about the service provided by your directorate; now, here is an action of which you can be proud.”

    5/06/1975 Director Moyers forwarded to my supervisor the 5/2/75

    praise:

    “Please convey my appreciation to Leroy for his assistance to Mr. Leavy. It's a pleasure to see that once in a while some kudos are received in a very difficult functional area.”

    6/3/75 Certificate of Achievement from Civilian Personnel Director

    William S. Moyers for my

    “not having used any amount of sick leave . . . [and]
    cooperative, diligent and faithful attendance"

    6/3/1975 Letter of Appreciation for my


    -92a-

    “commendable record in the accumulation of over 500 hours sick leave.”

    [Ed. Note: Civil service workers earn four hours sick leave each bi-weekly pay period (26 X 4 = 104 hours per year). Pletten never used any, so achieved the 500 hours in the fastest possible time.]

    7/21/75 Suggestion Award ($50)

    4/9/76 Letter of Appreciation from Director Moyers for my having

    “used no sick leave . . . since your appointment . . . you have never used sick leave . . . flawless record.”

    8/12/1976 Assignment to explain the new sick leave analysis system to

    “All Directors/Project Managers/Office Chiefs.”

    9/08/1976 Assignment to advise managers on

    “[their] several responsibilities in leave administration."

    11/10/76 Chosen Crime Prevention Officer.

    4/5/1977 Official Commendation from Acting Civilian Personnel

    Director Arthur C. Strong for

    “superior performance . . . [I] performed all of [my] duties in an outstanding manner.”

    4/10/77 Said award was accompanied by a quality pay increase [$681].


    -93a-

    4/19/77 Letter of appreciation from Civilian Personnel Director Archie

    D. Grimmett for my having

    “used no sick leave . . . helping the Directorate strive to remain within the norm [Ed. Note: 61.9 hours average use per employee] . . . excellent sick leave record.”

    6/3/1977 Letter of Appreciation from Marie W. Milmine for a

    suggestion on doing Army-initiated “Fitness for Duty
    Examinations.”

    9/18/1977 Reassignment to Position Classification Specialist, GS-12,

    Job DA-905c, “Qualification requirements waived,” responsible
    for

    "civilian positions assuring accuracy and consistency with
    established position and pay management regulations."

    12/19/1977 Letter of Appreciation from James Thompson to Director

    Grimmett for

    “outstanding job [I] performed . . . follow-up to resolve each problem . . . noteworthy. Such performance has won the respect of those whom you served (supervisors and personnel alike)."

    -94a-

    12/23/1977 Civilian Personnel Director Grimmett forwarded the

    12/19/77 praise, adding

    "This kind of performance not only enhances your professionalism, but significantly adds to the prestige of our office."

    11/20/78 Letter of Appreciation from Col. Irving Monclova of a

    serviced organization, saying

    “I greatly appreciate the assistance and cooperation
    provided by you . . . dedication and positive attitude. . .
    prompt, responsive, and understanding actions."

    2/20/79 Letter of appreciation from my supervisor Jeremiah H. Kator

    for my

    “commendable record in the accumulation of [another] 500 hours sick leave [further unused] indicative of diligent and faithful attention to duty.”

    2/20/79 Letter of appreciation from Personnel Director Col. Charles D.

    Phillips for my again having

    “used no sick leave . . . helping the Directorate strive to remain within the norm [Ed. Note: 61.9 hours use average per employee] established by the Department of the Army."

    -95a-

    3/16/79 Letter of appreciation from Jon Symon, Regional

    Representative, Department of Defense Wage Fixing Authority,
    to Director Grimmett:

    “The Detroit Full Scale Survey conducted by your office during January is very near completion. This survey and its preliminary work proceeded more efficiently than previous surveys conducted in the Detroit area in the past several years [Ed. Note: under Pletten's higher-grade, experienced predecessor]. This was due largely to the efforts of Mr. Leroy Pletten, the local chairman, a member of your staff.

    “A survey the size of Detroit is very demanding, and although this was Mr. Pletten's first year as the chairman, his aggressiveness and cooperative attitude made a difficult task much easier."

    3/1979 Director Grimmett forwarded it:

    "It is a pleasure to add my congratulations . . . Your personal efforts in this endeavor reflect great credit on this Command, our Directorate, and most especially on yourself.”

    6/15/80 Pay raise ($823) issued to me by my supervisor J. H. Kator for

    my continuing good quality work.

    [Ed. Note: These are excerpts. Actual job record
    was significantly more extensive. See full record.]

    -96a-

    APPENDIX FF

    CITATIONS TO HAZARD/DRUGS

    “Tobacco is a narcotic . . . an addicting substance [with] fatal implications.” Lt. Col. Charles T. Brown, “Tobacco Addiction: A Suggestion as to Its Remedy,” 50 Texas State Journal of Medicine 35 (Jan. 1954).

    “Addiction to tobacco, like addiction to opium, is a specific disease . . . . Its protracted course, the enormous numbers affected, and spreading infection make smoking one of our most serious diseases.” Johnston, Lennox, M.B. “Cure of Tobacco-Smoking,” 263 The Lance 480, 482 (6 Sept. 1952).

    “Smokers show the same attitude to tobacco as addicts to their drug, and their judgment is therefore biased in giving an opinion of its effect on them.” Lennox Johnston, M.B., “Tobacco Smoking and Nicotine,” 243 The Lancet 742 (19 Dec. 1942).

    “Overwhelming clinical evidence supports characterizing smoking as a physical addiction, one that persists even though the addict knows it subjects him to serious risk of death. Both medical and legal authorities now recognize such a condition as a disease.” Comment, “Deducting the Cost of Smoking Cessation Programs Under Internal Revenue Code Section 213,” 81 Mich. Law Review 237, 240 (Nov. 1982)

    -97a-

    “The crucial smoking problem is addiction . . . Smoking remains the foremost preventable cause of disease, disability and death in the United States . . . The better educated Americans have been the first to decide to preserve themselves and their offspring by discontinuing smoking.” Col. Eugene C. Jacobs, “Smoking: Insidious Suicide and Personal Air Pollution,” 135 Military Medicine 678, 679-680 (August 1970).

    “[C]igarettes . . . are . . . wholly noxious and deleterious to health. Their use is always harmful; never beneficial. They possess no virtue, but are inherently bad, and bad only . . . widely condemned as pernicious altogether. Beyond question, their every tendency is toward the impairment of physical health and mental vigor . . . Courts are authorized to take judicial cognizance of . . . those facts, which, by human observation and experience, have become well and generally known to be true.”

    “It is a part of the history of the organization of the volunteer army in the United States during the present year [1897] that large numbers of men, otherwise capable, had rendered themselves unfit for service by the use of cigarettes, and that, among the applicants who were addicted to the use of cigarettes, more were rejected by examining physicians on account of disabilities thus caused than for any other, and, perhaps, every other


    -98a-

    reason . . . cigarettes are wholly noxious and deleterious . . . an unmitigated evil.” Austin v. State, 101 Tenn. 563, 566-7 (1898), aff’d sub nom. Austin v. Tennessee, 179 U.S. 343 (1900).

    THE 1964 SURGEON GENERAL REPORT

    It lists tobacco chemicals on page 60 at levels in excess of safe limits (years later codified at 29 C.F.R. 1910.1000.Z), examples of which include:

    Tobacco
    Chemical
    P.P.M.
    Amount
    Safe
    Limit
    Carbon Monoxide 42,000100"
    “Formaldehyde30 5"
    “Acetaldehyde3,200200"
    Acrolein 150.5"
    “Acetone1,100200"
    “Methyl ethyl ketone500250"
    “Ammonia300150"
    “Nitrogen Dioxide2505"
    “Hydrogen Cyanide1,600 10"
    “Hydrogen Sulfide4020"
    “Methyl Chloride1,200100"

    -99a-

    “The danger cigarettes . . . pose to health is, among others, a danger to life itself . . . a danger inherent in the normal use of the product, not one merely associated with its abuse or dependent on intervening fortuitous events. It threatens a substantial body of the population, not merely a fringe group.” Banzhaf v. F.C.C., 132 U.S. App.D.C. 14, 29, 405 F.2D 1082, 1097 (1968), cert. denied, 396 U.S. 842 (1969).

    William Pollin, M.D., then Director, U.S. National Institute on Drug Abuse (“NIDA”), in 1977 said why NIDA gave “increased priority to” smoking. There are

    “several reasons: the increasing identification of smoking as a prototypic addiction, the status of smoking as a gateway drug to use of stronger or illicit drugs, and our focus on substance abuse as a generic phenomenon that includes tobacco.” (Monograph 17, page vi).

    William Pollin's predecessor as NIDA Director, Robert L. DuPont, Jr., M.D. (1973 - 1977), in “Teenage drug use: Opportunities for the pediatrician,” 102 J. of Pediatrics (Issue 6) 1003-1007 (June 1983), says at pages 1004-1005:


    -100a-

    “all drug use is positively correlated with all other drug use, so persons who use tobacco, for example, are more likely to smoke marijuana than those who do not use tobacco . . . these relationships are quantitative: those who use large amounts of marijuana are more likely to use heroin . . . whereas those who have never used marijuana virtually never use heroin at all . . . many who start with one drug do go on to other drugs. Conversely, decisions not to use a particular drug predict subsequent decisions not to use other drugs in the sequence . . . Put simply, prevention means stopping the progression of the drug-dependence process at each stage, experimentation, occasional use, regular use, and dependent use.”

    So Army USAARL Report No. 86-13, “Smoking and Soldier Performance: A Literature Review” (1986), page 149, says:

    “[I]f the military somehow could restrict enlistments to nonsmokers, there would be far fewer discipline, alcoholism, and drug abuse problems in the Army and other services.”

    “Nowhere is the practice of smoking a more imbedded institution than in the nation's prisons and jails, where the proportion of smokers to nonsmokers is many times higher than that of society in general . . . The 1989 report of the United States Surgeon

    -101a-

    General calls for . . . a smoke-free society as an essential and life saving long-term goal.”

    “Smoking . . . is the single most important preventable cause of death . . . a serious risk to the health of nonsmokers.” Doughty v. Bd. of County Com'rs for County of Weld, 731 F.Supp. 423, 424 (D.Colo. 1989).

    Army Pamphlet 600-63-7, Fit to Win, ANTITOBACCO USE (1987), p. 14, says

    “1. Nicotine is a physically and psychologically addictive drug. Therefore, any kind of tobacco use may be addictive. There is no safe level of tobacco use.

    “2. The U.S. Surgeon General States, '"Cigarette smoking is the chief, single avoidable cause of death in our society and the most important public health issue of our time.'

    “3. TOBACCO USE AFFECTS EVERYONE. We all have family, friends, and coworkers who use tobacco. Also, as non-smokers, if we live or work in a smoke-filled environment, we are at higher risk for cancer, cardio-vascular and chronic obstructive lung diseases.” (emphasis in text)

    Army Regulation 600-63.4-1a. (1987) summarizes Army experience on point:

    “Smoking tobacco harms readiness by impairing physical fitness and by

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    increasing illness, absenteeism, premature death, and health care costs.”

    “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 v. City of Oklahoma City, 816 F.2d 539, 543 (10th Cir. 1987).

    “Concentrations of the irritants formaldehyde and acrolein in side steam cigarette smoke plumes are up to three orders of magnitude above occuaptaional limits.” Howard E. Ayer, M.S., and David W. Yeager, B.S., “Irritants in Cigarette Smoke Plumes,” 72 American Journal of Public Health 1283 (Nov. 1982).

    “The smoker of cigarettes is constantly exposed to levels of carbon monoxide in the range of 500 to 1,500 parts per million when he inhales the cigarette smoke.” G. H. Miller, Ph.D., “The Filter Cigarette Controversy,” 72 Journal of the Indiana State Medical Association 903, 904 (December 1979).

    “The normal use of cigarettes is known by ordinary consumers to present grave health risks . . . 'tobacco has been used for over 400 years . . . [k]nowledge that cigarette smoking is harmful to health is widespread and can be considered part of the common knowledge,'” Roysdon v. R. J. Reynolds Tobacco Co., 849 F.2d 230, 236 (6th Cir. 1988).

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    APPENDIX GG

    JUDICIAL EXAMPLES OF WHAT TO DO

    1. Austin v. State, 101 Tenn. 563, 566-7, 48 S.W. 305, 306 (1898) says that in

    “the organization of the volunteer army that” “examining physicians” “rejected” “applicants who were addicted to cigarettes” “on account of disabilities thus caused.”

    2. Dzikowska v. Superior Steel Co., 259 Pa. 578, 583, 103 A. 351, 352 (1918) says the

    “foreman testified . . . he did not allow smoking inside” “the building.”

    3. Canning Co. v. Throwing Co., 94 W.Va. 346, 361, 118 S.E. 521, 527 (1923) says he [the smoker employee]

    “smoked . . . notwithstanding repeated warnings. Why was he warned? Because defendant [employer] knew of the danger. Then, when it saw [he] disobeyed its warnings, it was its duty to stop his smoking there, and, if necessary, to discharge him . . . put him out of the building.”

    4. Tiralongo v. Stanley Works, 104 Conn. 331, 332-3, 133 A. 98, 99 (1926) found that

    “The rules of the factory forbid smoking during working hours, and notices were posted in the lavatory and toilets of the plant reading ‘No smoking.'”

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    5. Allen v. Posternock, 107 Pa.Super. 332, 334, 163 A. 336 (1932) says the employer

    “claimed that she had given instructions . . . not to smoke.”

    6. Bradford's Case, 319 Mass. 621, 622, 67 N.E.2d 149, 150 (1946) says “smoking was not permitted inside the building.”

    7. In Albany Ins. Co. v. Holberg, 166 F.2d 311, 315 (8th Cir. 1948), the supervisor

    “in charge . . . testified that . . . he gave . . . very explicit instructions about not smoking.”

    8. George v. Bekins Van & Storage Co., 33 Cal.2d 834, 838, 205 P.2d 1037, 1041 (1949),

    “had a rigid rule, enforced by discharging violators, against smoking in the warehouse except in one designated area of the first floor.”

    9. The Bluestein v. Scoparino, 277 App. Div. 534, 536-7, 100 N.Y.S.2d 577, 578-9 (1950), employer had

    “a prohibition against smoking . . . signs to such effect posted about the premises . . . discharged [employee] for smoking.”

    10. De Mirjian v. I. Htg. Corp., 129 Cal.


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    App.2d 758, 761, 278 P.2d 114, 115 (1955) found

    “orders prohibiting smoking on the floor of the shop.”

    11. Petition of Republic of France, 171 F.Supp. 497, 508 (D.S.D.Tex. 1959) found

    “failure . . . to promulgate and enforce 'no smoking’
    regulations . . . constituted fault and negligence.”

    12. Boullier v. Samsan Co., 100 R.I. 676, 678, 219 A.2d 133, 134 (1966) found that

    “no smoking was permitted in the area where the thinners and the lacquers were located.”

    13. Commonwealth v. Hughes, 468 Pa. 502, 507, 364 A.2d 306, 308 (1976) says

    “the company had repeatedly warned against smoking on the premises.”

    14. Shimp v. New Jersey Bell Telephone Co., 145 N.J. Super. 516, 531, 368 A.2d 408, 416 (1976) found that

    “Cigarettes may not be smoked around the telephone equipment . . . extremely sensitive and can be damaged by the smoke. Human beings are also very sensitive and can be damaged by cigarette smoke . . . A company which has demonstrated such concern for its mechanical components should have at least as much

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    concern for its human beings. Plaintiff asks nothing more than to be able to breathe the air in its clear and natural state.”

    15. Dickerson v. Reeves, 588 S.W.2d 854, 855 (Tex.Civ.App. 1979) says the smoker

    “had been told not to smoke in the pouring room, and there were 'no smoking' signs in that room.”

    16. Swanson v. City of Tulsa, 633 P. 2d 1256, 1257 (Okl. Cr. 1981) found that

    “smoking of lighted tobacco is prohibited and punishable.”

    17. Smith v. W. Elec. Co., 643 S.W.2d 10, 12 (Mo.App., 1982), lists “the computer room (where smoking is prohibited).”

    18. Grusendorf v. City of Oklahoma Cit, 816 F.2d 539, 540 (10th Cir. 1987) says he [the smoker employee]

    “took three puffs from a cigarette while on a lunch break from his job . . . was fired that afternoon.”

    19. Doughty v. Bd. of County Com'rs for County of Weld, 731 F.Supp. 423 (D.Colo. 1989) found “a county-wide ban on smoking in public buildings.”


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    APPENDIX HH

    DISCHARGES OF SMOKERS
    REDUCED TO SUSPENSIONS

    Baltic Metal Products Co v United Electrical, Radio and Machine Workers of America, 8 Lab Arb (BNA) 782 ([NY, 5 Nov] 1947) [two weeks]

    Curtiss-Wright Corp, Airplane Div v Int'l Union, United Automobile, Aircraft and Agricultural Implement Workers of American, 9 Lab Arb (BNA) 77 ([Ohio, 29 Nov] 1947) [one week]

    Gold-Tex Fabrics Corp, Mill Div v Textile Workers Union of America, Local 925, 32 Lab Arb (BNA) 103 ([SC, 24 Jan] 1959) [one month]

    Haskell Mfg Co, Inc v Int'l Union of Electrical, Radio and Machine Workers, 64-2 Lab Arb Awards (CCH) § 8647 ([Penn, 13 May] 1964) [thirty days]

    Columbus Show Case Co v Sheetmetal Workers Int'l Ass'n, 65-1 Lab Arb Awards (CCH) § 8347; 44 Lab Arb (BNA) 507 ([Ohio, 7 April] 1965) [two months]

    Welby Division of Elgin Nat'l Watch Co v United Packinghouse, Food and Allied Workers, 66-1 Lab Arb Awards (CCH) § 8105 ([Ill, 30 Dec] 1965) [30 days]

    The Columbus Showcase Co v Sheet Metal Workers Int'l Ass'n, 67-2 Lab Arb Awards (CCH) § 8577 ([Ohio, 23 Aug] 1967) [five weeks]

    The Pantasote Co v United Rubber, Cork, Linoleum and Plastic Workers of America, 68-1 Lab Arb Awards (CCH) § 8136 ([W Va, 4 Dec] 1967) [two months]


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    Olin Mathieson Chemical Corp, Indiana Army Ammunition Plant v Int'l Chemical Workers Union, 68-2 Lab Arb Awards (CCH) § 8630; 51 Lab Arb (BNA) 97 ([Indiana, 3 July] 1968) [eleven months]

    The Bunting Co, Inc v Upholsterers' Int'l Union of North America, 73-2 Lab Arb Awards (CCH) 8503 ([21 Sep] 1973) [ninety days]

    American Synthetic Rubber Corp v United Cork, Rubber, Linoleum and Plastic Workers of America, 67 Lab Arb (BNA) 603 ([Ky, 5 Oct] 1976) [ten days]

    U.S. Industrial Chemicals Co v Int'l Union of Operating Engineers, 77-1 Lab Arb Awards (CCH) § 8084 ([Tuscola, 15 Jan] 1977) [4.5 months]

    Converters Ink v Chicago Ink Workers, 68 Lab Arb (BNA) 593 ([Ill, 17 March] 1977) ([six months, and saying "There are myriad 'no-smoking' disciplinary cases reported in the arbitration literature . . . One other dimension is lent to the case, however, entirely by the Company's able argument. That is the suggestion that the Grievant, being an habitual smoker [addict] quite possibly committed an involuntary act, and therefore indicated that he is intrinsically unsuitable for employment . . . The Union took up . . . this argument, and suggested that if it is valid, then the Company should not hire smokers in the first place or should discharge all smokers on the theory that they might create a hazard.")

    Olympic Stain, Inc (Division of Comerco, Inc) v General Drivers and Dockhands, 77-2 Lab Arb Awards (CCH) § 8383 ([Ky, 15 Aug] 1977) [six months]

    Bollin v Kingston, 89 App Div 2d 658; 453 NYS2d 113 ([8 July] 1982) [rule upheld, school bus driver suspended for reasons including smoking]

    Southwest Forest Industries, Inc v United Paperworkers Int'l Union, 84-2 Lab Arb Wards (CCH) § 8432 ([Missouri, 3 Aug] 1984) [four months]

    North Dakota Mill and Elevator Ass'n v American Federation of Grain Millers, 85-2 Lab Arb Awards (CCH) § 8566 ([ND, 1 Sep] 1985) [9 months]


    -109a-

    APPENDIX II

    DISCHARGES OF SMOKERS UPHELD

    Columbian Rope Co. and United Farm Equipment and Metal Workers, 7 Lab Arb (BNA) 450 (1947)

    Standard Oil Co. and Central States Petroleum Union, 19 Lab Arb (BNA) 795 (1952)

    Cit-Con Oil Corp. and Oil, Chem. & Allied Workers Int'l. Union, 30 Lab Arb (BNA) 252 (1958)

    U.S. Industrial Chem. Co. and Int'l. Union of Operating Engineers, 64-2 Lab Arb Awards (CCH) § 8481 (1964)

    Caraco Ship Supply and Amalgamated Meat Cutters and Butcher Workmen of No. Am., 64-3 Lab Arb Awards (CCH) § 8961 (1964)

    U.S. Powder Co., Division of Commercial Solvents Corp and Int'l. Union of Dist. 50, United Mine Workers of Am., 67-2 Lab Arb Awards (CCH) § 8454 (1967)

    Ward Furniture Manufacturing Co and United Furniture Workers of Am., 68-2 Lab Arb Awards (CCH) § 8702 (1968)

    Royce Chem. Co. and Oil, Chem. and Atomic Workers Int'l. Union, 70-1 Lab Arb Awards (CCH) § 8138 (1969)

    U.S. Plywood-Champion Papers, Inc, Del-Mar Industries Div. and Int'l. Woodworkers of Am., 70-1 Lab Arb Awards (CCH) § 8340 (1970)


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    A. E. Staley Manufacturing Co and Int'l. Un., Allied Industrial Workers of Am., 71-1 Lab Arb Awards (CCH) § 8203 (1971)

    Hercules Inc and Int'l. Chemical Workers, 74-2 Lab Arb Awards (CCH) § 8487 (1974)

    Illinois Fruit & Produce Corp and Int'l. Bro. of Teamsters, Chauffeurs, Warehousemen and Helpers of Am., 66 Lab Arb (BNA) 498 (1976)

    Wisconsin Steel Coal Mines of Int'l. Harvester Co and Progressive Mine Workers of Am., 76-2 Lab Arb Awards (CCH) § 8348 (1976)

    Gladieux Food Svc. and Int'l. Ass'n of Machinists and Aerospace Workers, 70 Lab Arb (BNA) 544 (1978)

    Bostik West, Division of USM Corp. and Oil, Chemical and Atomic Workers Int'l., 78-2 Lab Arb Awards (CCH) § 8545; 71 Lab Arb (BNA) 954 (1978)

    Consolidation Coal Co, R. R. Mine, Jones Run Portal and United Mine Workers, 82-2 Lab Arb Awards (CCH) § 8600 (1982)

    Olin Corp, McIntosh Plant and Int'l. Ass'n of Machinists, 83-2 Lab Arb Awards (CCH) § 8521; 81 Lab Arb (BNA) 644 (1983)

    Golden v Communication Tech. Corp, 36 E.P.D. 35,095 (ND Ga, 1985)

    Grusendorf v City of Oklahoma City, 816 F2d 539 (10th Cir. 1987)


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    APPENDIX JJ

    A.L.R.s on Tobacco

    5 ALR 1521, Workmen's Compensation: Compensation to Workmen Injured Through Smoking (1920)

    13 ALR 997, Liability of Master for Damage to Person or Property Due to Servant's Smoking (1921)

    20 ALR 926, Constitutionality of Anti-Cigarette Legislation (1922)

    33 ALR 1180, Smoking As Ground for Expulsion or Suspension of Pupil (1924)

    80 ALR 2d 681, Liability of Manufacturer or Seller of Tobacco Product for Injury Caused Thereby (1961).

    20 ALR 3d 893, Master's Liability for Injury to or Death of Person, or Damage to Property, Resulting from Fire Allegedly Caused by Servant's Smoking (1968)

    46 ALR3d 1342, Licenses, Validity, Construction, and Application of State Statutes Forbidding Possession, Transportation, or Sale of Unstamped or Unlicensed Cigarettes or Other Tobacco Products (1972)

    12 ALR 4th 629, Leaving or Refusing Employment Because of Allergic Reaction as Affecting Right to Unemployment Compensation (1982)

    14 ALR 4th 1234, Right to Unemployment Compensation As affected by Employee's Refusal to Work in Areas Where Smoking Is Permitted (1982)


    -112a-

    37 ALR 4th 480, Right of Employee to Injunction Preventing Employer From Exposing Employee to Tobacco Smoke in Workplace (1985)

    55 ALR 4th 1238, Civil Liability for Tobacco Sales to Minors (1987)

    63 ALR 4th 1021, Employer's Liability to Employee for Failure to Provide Work Environment Free from Tobacco Smoke (1988)

    65 ALR 4th 1205, Validity, Construction, and Application of Nonsmoking Regulations (1988)

    88 ALR Fed 833, Pre-Emptive Effect of OSHA, Sect. 19[b] Injunction (1988)


    -113a-

    APPENDIX JJ

    SUPREME COURT TOBACCO CITATIONS

    Lilienthal's Tobacco v. U.S., 97 US 237 (1878)

    Isaacs v. Jonas, 148 US 648 (1893)

    U.S. v. Isaacs, 148 US 654 (1893)

    Richmond & Alleghany Ry. Co v. Patterson Tobacco Co, 169 US 311 (1898)

    Gundling v. City of Chicago, 177 US 183 (9 April 1900)

    Austin v. Tennessee, 179 US 343 (1900)

    Cook v. Marshall County, 196 US 261 (1905)

    Hodge v. Muscatine County, 196 US 276 (1905)

    US v. American Tobacco Co, 221 US 106 (1911)

    Olson v. State, 245 US 676 (17 Oct 1917)

    People's Tobacco Co v. American Tobacco Co, 246 US 79 (1918)

    Nossaman v. State, 258 US 633; 42 S Ct 314; 66 L Ed 802 (1922)

    Beech-Nut Packing Co v. P. Lorillard Co, 273 US 629 (1927)

    Packer Corp v. State of Utah, 285 US 105 (1932)

    Musser v. Sheppard, 299 US 513 (1936)


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    Townsend v. Yeomans, 301 US 441 (1937)

    Currin v. Wallace, 306 US 1 (1939)

    Mulford v. Smith, 307 US 38 (1939)

    American Tobacco Co v. U.S., 328 US 781 (1946)

    Flickinger v. Commonwealth of Pennsylvania, 340 US 843 (1950)

    Dalehite v. U.S., 346 US 15 (1953)

    Cooper v. R. J. Reynolds Tobacco Co, 358 US 875 (1958)

    Campbell v. Hussey, 368 US 297 (1961)

    U. S. v. Republic of France, 369 US 804 (1962)

    Lartique v. R. J. Reynolds Tobacco Co, 375 US 865 (1963)

    American Tobacco Co v. Green, 377 US 943 (1964)

    Liggett & Myers Tobacco Co v. Pritchard, 382 US 987 (1966)

    Liggett & Myers Tobacco Co v. Pritchard, 386 US 1009 (1967)

    Tobacco Institute, Inc, National Association of Broadcasters, and American Broadcasting Co v. Federal Communications Commission, 396 US 842 (1969)

    Green v. American Tobacco Co, 397 US 911 (1970).


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    Capital Broadcasting Co v. Kleindienst, 405 US 1000 (1972)

    Albright v. R. J. Reynolds Tobacco Co, 416 US 951 (1974)

    Albright v. R. J. Reynolds Tobacco Co, 426 US 907 (1976)

    Gasper v. Louisiana Exposition & Stadium District, 439 US 1073 (1979)

    Federal Employees for Nonsmokers' Rights v. U.S., 444 US 926 (1979)

    Carson v. American Brands, Inc, 450 US 79 (1981)

    American Tobacco Co v. Patterson, 456 US 63 (1982)

    Diefenthal v. Civil Aeronautics Board, 459 US 1107 (1983)

    Brown & Williamson Tobacco Corp v. F. T. C., 465 US 1100 (1984)

    New Jersey v. T. L. O, 469 US 325 (1985)

    Chemehuevi Indian Tribe v. California State Board of Equalization, 474 US 9 (1985)

    R. J. Reynolds Tobacco Co v. Durham County, North Carolina, 479 US 130 (1986)

    Cipollone v. Liggett Group, Inc, 479 US 104 (1987)

    Liggett Group, Inc v. Cipollone, 484 US 976 (1987)

    Ed. Note: See the multiple prior pleadings, e.g., the 27 July 1983 Brief for Return to Duty in Opposition to Agency Application for Approval of Involuntary Disability, and pertinent EEOC analyses and decisions.
    With respect to the above Petition for Writ of Certiorari, the Solicitor General Reply Brief is online. Note its falsehoods and distortions, lying to the Supreme Court to obstruct justice.
    Note the obstruction of Pletten's whistleblowing on the Solicitor General falsehoods.
    The resultant Supreme Court decision is at 498 US 1053; 111 S Ct 768; 112 L Ed 2d 787; 59 USLW 3482 (14 January 1991).
    See also related
  • Petition No. 89-7594
  • Petition No. 92-5413.
  • The book by court decision analyst Joel Tiffany, Treatise on the Unconstitutionality of American Slavery (Cleveland, Ohio: J. Calyer, 1849), p 49, shows the U.S. Supreme Court as already then in 1849 recognized as the worst in the world as far as going outside the rule of law. Note the Supreme Court's permanent-policy purpose: to evade the actual words of the text of the U.S. Constitution (whatever words it happens to disagree with at any particular time), e.g., due process, the right to “due process of law,” e.g., notice of charges before finalized action can be taken against a person.
    We all know that a person cannot even be detained more than briefly at, say, the local mall, without charges being pressed, pursuant to the constitutional right of "due process" and "habeas corpus."
    In Tiffany's era, it was slaves being denied these constitutional rights; in World War II, it was West Coast Japanese; currently it is whistleblowers. The targets of judicial venom vary, but U.S. judicial system hostility to due process for disfavored groups remains permanent.
    U.S. judges impose their personal views in rulings, as distinct from applying the rule of law. U.S. judges have a record of inventing whatever story they wish, i.e., they fabricate non-existent events. Their purpose is to masquerade and conceal their imposing their personal views vs the rule of law.
    Truly Tiffany's analysis of the U.S. judicial system as the worst in the civilized world remains correct.
    Please read his p 49, and the Ed. Note references cited.