23 April - 5 May 1982
In the TACOM Firing of Whistleblower
By Anti-Regulation Army Officer
(In TTS Violation Context)
With Multiple Confessions
of TACOM Misconduct/Crime
(Which TACOM Feared/Refused
to Provide for the MESC Hearing
But Re Which It Had 'Fixed'
With The Notoriously Corrupt MSPB
Which Will Be Presented to EEOC Once Review Begins
in the EEOC Forum

As Done For Others

Note that Pursuant to TACOM's Standard Witness Tampering Policy and Practice, TACOM Witnesses Had Been Coached To All Take the TACOM Party Line— Studies Were Done Showing All is Well!—But Cross-Examination Exposes The "Studies" As Not Done Pursuant to the Army's Own AR 1-8 Criteria
TACOM Witnesses Holding
Themselves Out As Supposed
Experts Were Blatantly Disregarding
Tobacco's Toxic Chemicals
Tobacco's Record
Tobacco's Effects
Pertinent Precedents
Solution Data

Note that TACOM witnesses focused on trying to refute the Pletten-acquired USACARA Report, enraged at Pletten's having won it, against their "personal habits," so fixated on proving anew that TACOM's way was right, Pletten's (USACARA-verified as per medical fact) was wrong
Note that TACOM claimed "removal" (a disciplinary action) and, contradictorily, "Medical Disqualification" of the Whistleblower, with respect to Tobacco Smoke. Look for evidence that TACOM presented evidence for either allegation:
  • evidence of rule violations, malperformance, misconduct, repeated prior and progressive discipline (reprimands, suspensions); and

  • evidence of a qualification requirement in the Job Description or established by the requirements-setting agency, OPM, and validation (a showing that tobacco smoke is a BFOQ, i.e., necessary, indeed a 'qualification' requirement, to properly do personnel work).

Look for such evidence!
You'' find none!
Having and citing no evidence for the accusation, and using non-existent or invalid personnel qualification requirements, are examples of classic discrimination.

Background on Tobacco
Rush (1798) Fowler (1833) Alcott (1836) Lane (1845)
Burdell (1848) Shew (1849) Lizars (1859) Trask (1860)
Mussey (1862) Parton (1868) Depierris (1876) Chase (1878)
Jackson (1879) Witter (1881) Hinds (1882) Lander (1882)
Livermore (1882) Carpenter (1882) Wight (1889) Tolstoy (1890)
Slocum (1909) Ford (1914) Fink (1915) Kellogg (1922)

Background on Military Officers
"'You say his military career is a result of his [mental] disturbance?' 'Most military careeers are,'" says Herman Wouk, The Caine Mutiny: A Novel of World War II (Garden City: Doubleday & Co, Inc., 1951), chapter 35, p 416. Examples include officers as "harsh, ill-tempered, nasty, oppressive, and often showed bad judgment," p 409. "They're as cunning as acrobats at treading that fine line between being a bastard and being a lunatic," p 269.
The material on "the deposed captain [Queeg] was contrived from a study of psychoneurotic case histories. . . . The author [Wouk] served under two captains of the regular Navy in three years aboard destroyer-minesweepers. . . ."
  • Staff Sgt. Kathleen T. Rhem, USA, American Forces Press Service, "Reducing Stigma of Mental Illnesses Could Reduce Suicides" (May 2000) ("The command has a valid need to know if a service member is dangerous to himself or others or to unit readiness or security, but these are extreme circumstances")
  • "Screening for Psychological Illness in Military Personnel," by Roberto J. Rona, FFPH; Kenneth C. Hyams, MD; and Simon Wessely, MD, in Journal of Am Medical Assn, vol. 293, pp 1257-1260 (2005)
  • National Veterans Foundation, "Facts about Veterans" (2005).
  • Martha Stout, Ph.D., The Sociopath Next Door (2005)
  • Robert D. Hare, Ph.D., Without Conscience: The Disturbing World of the Psychopaths Among Us (1999)
  • Paul Babiak, Ph.D., and Robert D. Hare, Ph.D., Snakes in Suits: When Psychopaths Go to Work (2006)
  • Alfred Lehmberg, "Conspiracy's Sociopathy" (c. 2010)
    Note that "the use of cigarettes . . . produces what might be termed [psychopathy aka abulia aka anomie] . . . a condition in which lying, thieving, and murder become as natural as eating and drinking . . . ."—Bernarr MacFadden, The Truth about Tobacco (New York: Physical Culture Corp, 1924), pp 87 and 77, respectively, describing the psychopath (“predator”) concept, as per smoker deviance/licentiousness.
    Note also the use of jargon (e.g., "Ringaman test") attempting to obfuscate, confuse, distract, divert attention off the violations of AR 1-8, etc. This violates advice even for dealing with children, see Robert D. Ramsey, Ed. D., 501 Ways to Boost Your Child's Success in School, (Contemporary Books, 2000), § 175, p 80, “Insist on plain talk . . . . Only insecure professionals hide begin jargon.”
    3 Averhart* 2 Benacquista* 5 Bertram 7 Braun
    9 Dollberg 14 Dubin 16 Holt* 10 Hoover*
    1 Kator 4 Lang* 6 O'Connor* 8 Peters
    12 Pletten 11 Shirock* 15 Schwartz 13 Stallings*
    *Smokers / Persons With Typical Symptoms of
    Tobacco Addiction, Mental Disorder, Brain Damage

    1 Kator FR 4/23 11:47 am 2 Benacquista* FR 4/23 12:48 pm
    3 Averhart* FR 4/23 2:44 pm 4 Lang* MO 4/26/ 8:20 am
    5 Bertram MO 4/26 9:45 am 6 O'Connor* MO 4/26 11:30
    7 Braun MO 4/26 11:55 am 8 Peters MO 4/26 2:00 pm
    9 Dollberg MO 4/26 3:20 pm 10 Hoover* WE 4/28 9:00 am
    11 Shirock* WE 4/28 12:15 pm 12 Pletten WE 5/19 1:10 pm
    13 Stallings* WE 5/19 3:45 pm 14 Dubin TH 5/20 10:30 am
    15 Schwartz FR 5/20 4:45 pm 16 Holt* FR 5/20 5:45 pm

    Testimony would foreseeably, and did, show multiple reversible errors TACOM had made in punishing Pletten for blowing the whistle on its unlawful use of ventilation data to contradict the massive medical evidence, the rule of law, and the AR 1-8 criteria. It would foreseeably show TACOM deciding to terminate him (without 5 USC § 7513.(b) advance notice) simultaneously with the 15 Feb 1980 claim of pretended compliance with the USACARA Report Pletten had won overruling TACOM.

    Local EEOC official Henry Perez, Jr., had been processing Pletten's class action on behalf of endangered co-workers, and so observed the firing in mid-case!

    Numerous violations were found, which include:

    • ex parte communications [Benacquista-Decker, OPM-Averhart, Averhart-Hoover, Hoover-Stallings, Braun-AMC, Holt-AMC, Stallings-Bacon-OPM via ex parte correspondence TACOM did not provide Pletten, in violation of principles cited in case law such as Sullivan v Navy, 720 F2d 1266 (CA Fed, 1983)]
    • lack of notice of specifics
    • decision made prior to earlier TACOM claims [Supervisor Averhart's confession]
    • contradictions among witnesses
    • refusal to acknowledge TACOM's own rules
    • disregard of Michigan and federal law
    • violation of agency and federal rules
    • disregard of the job description
    • disregard of actual job requirements of record
    • disregard of Pletten's good record of awards
    • disregard of the USACARA Report overruling
      TACOM's violating AR 1-8 [Gen. Stallings'
      confession; Dollberg's confession; Hygienist
      Braun's recommendations]
    • Non-consideration of Pletten's position
    • Extortion to force Pletten to alter anticipated testimony
    • Retroactivity in decision-making process
    • Regularly non-complying ventilation system
    • Disregarding preclusive MESC decisions July 1981-June 1982 in Pletten's favor
    • Refusing to obey federal regulation 5 CFR § 831.1206 on the mandatory duty to retain on the rolls until OPM Associate Director for Compensation decision--a decision which OPM continues to refuse to issue, the TACOM position is so far out of line, that OPM refuses to dignify it with a response
    • Disregarding the interim Oct 1981 OPM decision in Pletten's favor
    • Refusing to follow precedent and Federal Personnel Manual guidance (Supp. 752-1, § S1-6c(4)(d) on returning employees (here, Pletten) to duty on receipt of said interim decision

    1. Deposition of Jeremiah H. Kator,
    Whistleblower's Supervisor

    (Smoker; Supporter of the Army No-Smoking Rule,
    the USACARA Report, and Whistleblower)
    1Southfield, Michigan
    2Friday, April 23, 1982
    311:47 a.m.
    P R O C E E D I N G S

    5    MR. COHEN: Mr. Kator, my name is Steven
    6      Cohen and I am the attorney for Mr. Pletten in this
    7      action before the Merit Systems Protection Board.

    8      Pursuant to an agreement between the Agency
    9      and myself on behalf of Mr. Pletten we have agreed to take
    10      these depositions in lieu of making you go to trial in
    11      Chicago. It seems that they now schedule things
    12      only in the home base of the MSPB and, as such, we are
    13      holding the depositions here.

    14      The testimony you give here, even with
    15      objections, even if counsel and I should object, will be
    16      the only testimony necessary for you to give and you will
    17      not be called again to trial. Do you understand that?

    18      THE WITNESS: Yes.

    19      MR. COHEN: If I ask you a question you
    20      don't understand or if my opponent should ask you a ques-
    21      tion you don't understand, ask both of us to clarify this.

    22      I believe that is a concise statement of
    23      our agreement, Ms. Bacon.

    Ed. Note: Coerced in view of TACOM
  • refusing to notify Pletten of his appeal rights, and
  • having refused him access to the Equal Employment Opportunity Commission review forum, in violation of law.
  • 24      MS. BACON: Yes.

    25      MR. COHEN: I believe it is your witness

    -Kator -3-

    1 A    first.

    2          MS. BACON: Yes, it is.
    3     Let the record show that my name is Emily
    4     Sevald Bacon and I am representing the Agency in this
    5          matter.

    6          The Agency calls Jeremiah H. Kator as
    7          its first witness.

    J E R E M I A H     H.     K A T O R
    being first duly sworn, was examined and testified on
    his oath as follows:

    12    BY MS. BACON:

    13 Q      Mr. Kator, what is your present position?

    14 A      I am a Position Classification Specialist with the Army
    15      Corps of Engineers in Washington, D.C.

    16 Q     What was your position prior to your taking your present
    17      one?

    18      I was Chief of Position and Pay Management Branch in the
    19      Personnel Office at the Tank Automotive Command in Warren,
    20      Michigan.

    21 Q     Can you remember the approximate dates that you occupied
    22      that position at TACOM?

    23 A      I arrived at TARCOM in February, 1978, and my transfer
    24      was effective in June of 1980 from TARCOM to Washington.

    25 Q     Were you in the position of Chief of Position and Pay

    -Kator -4-

    (pp 5-10)

    1work area?
    2AYes, he did.
    3QI would ask you if you could identify this document?
    4AYes, I recall this document.
    5QWhat is that document, please?
    6AIt is the report of the hygienist [Edwin Braun] subsequent to his
    7[alleged mid-1979] survey of the area.
    8MS. BACON: I would move for submission
    9of this document.
    10MR. COHEN: Let me ask Mr. Kator some
    12MS. BACON: Yes.
    14BY MR. COHEN:
    15QMr. Kator, this was sent to you; is that correct?
    16AYes, it was.
    17QAnd you have no knowledge with particularity of the
    18contents of it other than that you received it?
    19AExcuse me, I don't understand the question.
    20QLet me understand, did you compose the work that made
    21Qup the contents of this disposition form or are you just
    22Qthe recipient of it?
    23AI am the recipient of this.
    24QSo you don't have any personal knowledge as to the
    25contents of it other than what is represented to you?

    -Kator -11-

    (pp 12-15)

    3BY MS. BACON (Continuing):
    4QDid you instruct or make it known to your employees of
    5Mr. Pletten's sensitivity to cigarette smoke and that he
    6had objections to same?
    7AYes, I did.
    8QDid you tell your employees not to smoke in Mr. Pletten's
    10AI don't recall having specifically said it in those words
    11but everyone in the area was aware of Mr. Pletten's
    12condition and aware of my feelings that they should not
    13smoke in his presence.
    14QDid you allow smoking when you had branch meetings, for
    16ANo, I did not.
    17QDid you offer Mr. Pletten anything other than this office
    18that you offered him based on Mr. Braun's air content
    20AYes. There was another area within our branch
    21responsibility in which there were, as I recall, either
    22three or four desks and people working in our branch. I
    23offered Mr. Pletten space in that room. As a matter of
    24fact, the most distant space adjacent to some windows,
    25assuring that none of the people in that room would be

    -Kator -16-

    1smokers. He declined to accept that offer.
    2QWhy did he decline to accept that offer?
    MR. COHEN: Objection. It calls for a
    conclusion as to Mr. Pletten's state of mind.
    5Q(By Ms. Bacon) What did Mr. Pletten state to you of the
    reasons why he --
    7QMR. COHEN: Objection, leading. No
    9MS. BACON: Objection noted.
    (By Ms. Bacon) Go ahead.
    11AUpon offering him that second move to the room I just
    identified Mr. Pletten declined, indicating that he felt
    I was being discriminatory and singling him out to be
    moved to a remote area simply because of his physical
    aversion to smoking.
    16QDid Mr. Pletten ever indicate to you what was amenable
    to him?
    18AWhat was amenable to him? I --
    MR. COHEN: Objection as to relevance and
    MS. BACON: Noted.
    THE WITNESS: Mr. Pletten had requested [as per AR 1-8]
    23that smoking be banned at various times and in various
    24dimensions throughout the branch, throughout the personnel
    25office, throughout the building, and throughout the

    -Kator -17-

    1Command. I do not recall in relation to that specific
    2instance what the relief he sought was or may have been.
    3QWere you present when Mr. Pletten was originally placed
    4on [retroactive, involuntary] sick leave status [without 5 USC § 7513.(b) notice]?
    5AWas I present?
    No. During that period of time -- and I
    7don't know that precise time -- I was in Washington, D. C.
    8on a temporary assignment; from sometime in the month of
    9January through the end of the month of May.
    I know that the occasion that you cite
    11was during that period of time.
    12QSo other than your attempting to work out a place for
    13him to work that would be amenable to him did you ever
    14then have any other dealings with Mr. Pletten?
    15AWould you please clarify that? Obviously, I had many
    16dealings with Mr. Pletten.
    17QYes, sir.
    Did you ever have any dealings with him
    19concerning trying to accommodate him in his objections
    20to smoking?
    21QDid I make any other efforts?
    22QI don't recall any specific efforts. I
    23was certainly aware of his condition and was making every
    24effort to accommodate him.

    Ed. Note: The actual truth was, Kator had been told to stop his pro-AR 1-8 position.
    Moving a nonsmoker around, as distinct from compliance for the workforce at large, was rejected by USACARA as not complying with the AR 1-8 criteria.
    Note the rehearsed corrupt questioning style, diverting attention off the rules, onto the whistleblower!
    Note diversions onto alleged 'sensitivity' and 'accommodation,' not on the rules' intent and criteria of protecting the entire work force from smoking.
    'Accommodation' was never an issue, but rather, getting the rules enforced.
    The 'accommodation' issue was invented long after Kator had left. The fabrication was an after-the-fact development via ex parte arrangements between TACOM and MSPB, hence Kator's unawareness.
    He was merely coached to use the term.
    MS. BACON: I have no further questions.

    -Kator -18-

    2BY MR. COHEN:
    3QMr. Kator, I am going to ask you to go back over some
    You are now a Position Classification
    7AThat's correct.
    8QAnd that is with the Army Corps of Engineers?
    9AThat's correct.
    10QNow, you testified earlier that that is what Mr. Pletten
    12AThat's correct.
    13QIs it the same job?
    14ANo, it is not.
    15QWell, is it a higher classification that you are in now?
    17QWhat level of classification are you at?
    18QA GS-14.
    19QHow long have you been with the government?
    20AMy total service, including military time, is approxi-
    21mately 18 1/2 years.
    22QHow much military time, just so we will know?
    23ASeventeen months.
    24QWith regard to your position at TACOM, you were only there
    25for a period of a little under two years; is that correct?

    -Kator -19-

    1AI believe it was a little over two years.
    2QA little over. I am sorry.
    3What did you do in your position as a Classification --
    4I'm sorry, let's go back.
    What was your actual position at TACOM?
    6ASupervisory Position Classification Specialist Branch
    7Chief in the Personnel Office.
    8AWhat does that mean? What did you do? Who did you
    10AThe Position Classification Specialists and clerical
    11support personnel in that branch.
    12AAbout how many people were in the branch?
    13AIt varied between 7 to perhaps 12 to 13 over the period
    14of time.
    15ACould you clasify that as a medium-level supervisor then,
    16your position?
    17AI would consider that a first-line or first-level
    19AAnd your responsibility was to each of those individuals,
    20is that correct? And to the Command, of course; is that
    23QI'm sorry, Command first.
    What are the things that you had to do as
    25a supervisor? Were you given courses instructing you

    -Kator -20-
    1what to do as a supervisor?
    2AI have had such courses, yes. I was not given any
    3specifically while in this assignment.
    4QI presume those included management courses with regard
    5to occupational safety and health?
    6AI don't recall any specific block of time on any of those
    7courses that related to OSHA, no.
    8QDid you receive any training from the government as to
    9handicapped employees?
    10AYes, I did.
    11QWhat kind of course was that?
    12AWell, I attended a 2-week course in San Antonio that was
    13provided by the Drug and Alcohol Abuse portion of the
    14federal government or the people responsible for that
    15program, at which time we talked of various handicaps,
    16including drug and alcohol abuse.
    I recall having specifically heard people
    18speak on the subject of the treatment of handicapped

    Ed. Note: 29 U.S.C. 706(7)(B) forbids hiring drug abusers such as smokers when they "constitute a direct threat to property or the safety of others."
    The civil service hiring form, Standard Form 78, Certificate of Medical Examination, precludes hiring persons such as smokers with "medical findings which . . . would make him a hazard to himself or others."
    This is standard hiring practice, avoiding negligent hiring.
    The Army's 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."
    20QDid they include smoking in any of the discussions of
    21drug and alcohol abuse?
    If you can recall.
    23AI don't recall.
    24QDid you ever have any specific guidance with regard to
    25regulations on smoking within the Command?

    -Kator -21-
    1AWould you repeat that?
    2QDid you have any specific guidance from higher Command
    3authority with regard to regulations concerning smoking?
    4AI was aware of the guidance provided by higher Command
    5regarding smoking.
    6QIn what fashion were you aware?
    7AMr. Pletten made me aware of all the regulations.
    8ADid your superiors at any time make you aware?
    9AI don't recall their ever having made me aware, other
    10than referring to those documents.
    11ADid they ever send around any guidelines to you prior to
    12the Pletten incident -- where you first started dealing
    13with Mr. Pletten -- that told you about regulations?
    14AI don't recall any, no.
    15AAfter Mr. Pletten first became known to you as to his
    16condition who, if anybody, of the Command group did you
    17consult with?
    18AWould you define Command group?
    19QWell, let's phrase it this way.
    Did you speak to anybody within the Tank
    21Command above your level of supervision?
    22AYes, indeed.
    23AWho did you speak with?
    24AMr. Hoover, who at that time was the Deputy Personnel
    25Officer; also, Mr. Grimmett, who was the Personnel Office

    -Kator -22-

    (pp 23-29)

    MR. COHEN: He can refresh his memory
    2from the documents if he would like. They are in the
    THE WITNESS: If the document is there.
    5I don't know that the document is there.
    MS. BACON: The document is there.
    THE WITNESS: Okay, yes. The subject of
    8the 25 feet was the major issue at that point in time.
    Mr. Pletten and I and others in the area
    10were trying to see if in fact 25 feet was a prohibitive
    11distance within the confines of our office. We could not
    12find any area where anyone would not be within 25 feet
    13of smokers. And of course that also included areas
    14outside of our branch.
    15Q(By Mr. Cohen) All right.
    Did you recommend to Mr. Pletten that he
    17write a note to the Civilian Personnel Office regarding
    18a ban on smoking?
    19QAs I recall, I did.
    20QAnd did you have a discussion with Mr. Pletten in that
    22QI'm sure I did. I don't recall the content of it.
    23QDid you expect that that would resolve the matter?
    I mean, what was your intention of having
    25him write such a note?

    -Kator -30-

    (pp 31-35)

    1discuss the matter?
    3QWhat were you saying -- well, I don't want to pry into
    4your personal business.
    Were you seeing Dr. Holt personally for
    6your condition?
    8QAnd you didn't see anybody else at the health service?
    9AYes, I did.
    10QOh, you did. Besides him?
    12QAll right. Is Dr. Holt the only medical officer at that
    14AIs he the only medical officer?
    15QIs he the only doctor there?
    16AAs far as I know. He was at that time. I don't recall
    17of another one.
    18QWhen you were going through all this -- and I know as a
    19supervisor regarding one thing, which is Position
    20Classification, there are a hundred or so regulations
    21that you are concerned with in a passing nature -- did
    22you familiarize yourself with AR 1-8, Army Regulation 1-8?
    23AI don't know that number regulation. I might know its
    24content but not by that number.
    25AWell, I am talking about the smoking regulation for the

    -Kator -36-
    2QAm I familiar with its contents now or was I at that
    4QWere you at that time?
    5QMr. Pletten provided me with copies of the various
    6regulations regarding the higher echelon requirements for
    7smoking in nonsmoking areas, yes.
    8QWere you familiar with it before Mr. Pletten provided it
    9to you?
    10QI don't recall that I was. No, I was not.
    11QOkay. And the Command had never given you any training
    12in that regard?
    13QNo, they had not.

    Ed. Note: No training was provided anyone at TACOM on the matter, as per the rampant insubordination against AR 1-8. Col. Benacquista explicitly admitted not agreeing with AR 1-8, TR at 25.

    14QOnce you were aware of it did you also inquire as to the
    15OSHA requirements? That is the Office of Safety and
    16Health Administration.
    17QDid I personally inquire? No.
    18QYou did not?
    20QDid any of the people like Mr. Hoover or Mr. Grimmett or
    21Colonel Phillips direct you to inquire?
    23QDid they give you any guidance at all as to how to deal
    24with Mr. Pletten?
    25QI recall many discussions that could have constituted

    -Kator -37-
    1advice, yes.
    2QWhat were the contents of those discussions, if you
    4AI don't recall specifically.
    5QDid you ever finally come to any conclusions with regard
    6to smoking in your general area in your branch; any
    7directives for the members of the branch in general?
    8AI don't recall that I put anything in writing to the
    9members of the branch, no.
    10AI ask you this because I recall you discussing with
    11 Messrs. Hoover, Grimmett, and Phillips the issue of
    12 Mr. Pletten personally.
    You testified earlier that you discussed
    14 him personally as well as things in general.
    And I note by the disposition forms that
    16 you decided to take some action with regard to Mr. Plett
    Did you also decide to take some action
    18 with regard to everybody else?
    20QWhy not?
    21ANo one else seemed to have the problem.
    22QYou didn't ask everybody else if they had a problem, did
    23 you?
    24AI said they seemed not to have a problem. No one made
    25 me aware of a problem.

    -Kator -38-

    1But you didn't ask them either?
    2AI don't recall if I did or did not.
    3ANow, when you advised people of Mr. Pletten's problem
    4generally, -- you said earlier that they were not to smoke
    5in his presence -- did you tell them specifically what
    6"in his presence" meant?
    7ANo, I did not.
    8AWell, you had a directive that at least on its face says
    925 feet, which you were not sure one way or another if
    10you could implement. Did you attempt to have people
    11implement the 25-foot limitation?
    12AYes, in the sense that they were aware of it. I didn't
    13provide them a tape measure or go into detail as to how
    14far 25 feet may be.
    16AOr if smokers were walking in his direction that they
    17needed to do something to correct it.
    But everyone in the branch was aware of
    19the content of the note that alluded to the 25-foot
    20separation requirement.
    21AHow were they aware of Mr. Pletten's personal physical
    23AThey were aware of the note. That was all I could make
    24them aware of.
    25AWhat note is that?

    -Kator -39-

    1AThe note that said that Mr. Pletten was unable to work
    2within 25 feet of people who were smoking.
    3QIsn't that a doctor's note written and directed to you?
    4ADirected to me?
    5QWell, Mr. Pletten provided it to you, didn't he?
    6AHe did. The doctor did not provide it to me.
    7QBut that is a personal matter regarding Mr. Pletten, is
    8it not? It is a doctor's note concerning Mr. Pletten's
    10AYes, it is.
    11AAnd Mr. Pletten allowed you to be privy to that medical
    13AHe did.
    14AAnd you made other people aware of Mr. Pletten's medical
    15condition as defined by his doctor?
    16AI did.
    17ASpecifically regarding the 25 feet?
    18AI did.
    19ADid you direct them to attempt to give 25 feet distance
    20to Mr. Pletten?
    21AI did not so direct.
    22AYou said, "Don't smoke in his presence." What did you
    23mean by that?
    24AI meant don't smoke in his presence, when they are
    25immediately in Mr. Pletten's presence.

    -Kator -40-

    (pp 41-43)

    1whether that was the word processing room or where it was.
    2QOkay, so there are two moves now.
    Now, Mr. Braun had done a study of the area
    4where he was originally sitting next to the window; is
    5that correct?
    7QDid you alert Mr. Braun that he had been moved another
    10QDid you ask for a follow-up with regard to his recommenda-
    12ADid I ask Mr. Braun for a follow-up?
    15QWeren't you concerned that the move would cause
    16Mr. Pletten problems?
    17AThe move into the semiprivate room?
    19AThat was to alleviate his problem.
    20QThat was the first one. How about the second move?
    21AI am confused regarding which is number one and which is
    22number two.
    23QWell, you tell me then. You tell me which we will
    24classify as one and --
    25QYou just reminded me of a move that I had even forgotten

    -Kator -44-

    1about, so I can't remember the details.
    2QWell, all right, Let me ask you this.
    Did the determination by Mr. Braun indicate
    4from the face of the record, that he was to be moved
    5closer to the three rows of ceiling air supply?
    7QSubsequent to that he was moved, is that correct?
    8AThat is correct, to my knowledge.
    9QAnd he was moved to a semiprivate office?
    10AThat's correct.
    11QAnd again after that he was moved to another office, as
    12we have just remembered?
    13ANo, not after that. That was prior to as I recall.
    14QWould that be prior to Mr. Braun's disposition form?
    15AHaving forgotten that move totally and you had to remind
    16me, I don't recall which came first.
    17QWas there a part of the office that was more susceptible
    18to -- was there a part of the office that was less
    19circulatory, let's say, where the air was a little
    21AGee, I really am unaware of that. I don't know.
    22Mr. Braun I don't think spoke to that. Excepting that in
    23his studies he talked of the window area as being that
    24where the smoke was being drawn [out].
    25QIs building 230 air conditioned?

    -Kator -45-
    1Excuse me?
    2QIs building 230 air conditioned or was it at the time you
    3were there?
    4AIf it was it was not working because it was awfully warm.
    5QI agree with you. I have been in building 230 and I agree
    6with you that if it is air conditioned it doesn't work
    7very well.
    Were there fans in the branch?
    10QWere they used frequently?
    11AI don't know what frequently means.
    12QLike when it was hot.
    13AI didn't like the fans because they would have a tendency
    14to blow the papers on my desk. I didn't have a fan
    15directly in my office.
    16QWhen the fans were in use did it occur to you or does it
    17occur to you now that the air pattern of the office may
    18have changed from what Mr. Braun saw?
    19AI don't know what Mr. Braun saw. I don't recall him
    20having addressed the subject of the fans. I know there
    21were fans in the room.
    22QAnd the fans were there to circulate air I presume?
    23AI would assume so.
    24QBecause the circulation was bad in the office?
    25AI think it would be more related to the heat rather than

    -Kator -46-

    (pp 47-48)

    1       directive to me to solve the problem.

    2 Q      In your discussions with Mr. Pletten about compliance in
    3      making things better for him did you have any troubles
    4      with Mr. Pletten? Was he abusive at any time to you?

    5 A     I don't recall any instance where he was abusive to me,
    6      no.

    7 Q      How would you classify Mr. Pletten's actions; those of
    8      concern or what?

    9 A     His actions with regard to what?

    10 Q      His own behalf. His dealings with you.

    11      How did he present himself?

    12     Let's ask it this way. Was he a good
    13       employee?

    14     Technically, yes. Absolutely.

    15 Q     Nontechnically, generally, was he a good employee?

    16 A     Well, that covers a wide span. I would say that
    17       Mr. Pletten was very capable and very conscientious. I
    18       had no difficulties with his work product.

    19 Q     That implies you had difficulties with other areas.
    20       Did you have any problems with Mr. Pletten?
    21       We are here talking about a problem with Mr. Pletten.

    22       Obviously there was this problem if you wish to define it
    23       as a problem.

    24 Q     I don't. But let's assume that you do.
    25       Aside from the smoking incident and

    -Kator -49-
    1circumstances were there any other problems that you had
    2with Mr. Pletten?
    4QSo other than this problem about where to put him with
    5regard to smoke, then you could say generally you had
    6absolutely no problem with Mr. Pletten? Other than this
    7smoking circumstance?
    MS. BACON: Don't put words in the
    9witness' mouth.
    MR. COHEN: I am on cross-examination. I
    11can lead him.
    12ATHE WITNESS: Well, you say absolutely no
    13problems. I don't understand.
    14Q(By Mr. Cohen) Well, you clarify it.
    15QI don't remember any other problems but I am not here to
    16say that I had absolutely no other problems either. I
    17just don't recall any.
    18QWould you recommend Mr. Pletten to somebody else for a
    20AI would recommend Mr. Pletten for a position as a
    21classification specialist because of his technical
    22capability. Yes, indeed.
    23QIs there any reason you wouldn't recommend him?
    25QDid you give an in-grade increase [for quality work] to him during the time

    -Kator -50-
    1Aperiod that this occurred?
    2ADid I give him one?
    4AIt's not up to me as a supervisor to give him one.
    5QDid you recommend that he get one?
    6AThose are an automatic and you would have to take the
    7initiative to keep him from getting one and I did not do
    8that. So, obviously, he must have received one.

    Ed. Note: Kator misremembers. In fact, the decision is up to the supervisor; increases for quality work are not automatic. The supervisor does more than “recommend.” He decides.
    Federal laws, e.g., 5 USC § 4304, and federal regulations, e.g., 5 CFR § 531.404(a), cover the subject and elaborate pertinent principles. They “require a rating of record of at least Level 3 (Fully Successful or equivalent) as the basis for the acceptable level of competence determination.”
    TACOM's regulations on performance standards (TACOM-R 600-5.16) and in-grade pay increases (TACOM-R 600-5.22) set requirements. Supervisors must affirmatively (a) certify employee work quality as above mere “satisfactory,” (b) warrants a pay increase, and (c) is of “acceptable level of competence” for same.
    See example step-rates chart.
    See also federal regulation Federal Personnel Manual Supplement 831-1, Subchapter 10, Part 2.(f) for the meaning of such a pay increase.

    9QAnd you would have [affirmatively] signed an in-grade [pay increase]?
    10AI would have signed it, yes.
    11QDo you think during the time period you were dealing with
    12Mr. Pletten that he appeared at any time to you to be
    13disabled from working [the TACOM story!]?
    14ADid he appear to be?

    Ed. Note: Wherefore, pursuant to Pletten's clear, unrestricted ability to work, MESC awarded Pletten unemployment compensation, against all TACOM's several appeals.

    17QDid he [Pletten] inform you [Kator] that he was ill, other than the
    18incidents with smoking and a request to be kept away?
    19ARestate that.
    20QLet me rephrase the question.
    Did he have an asthma attack [episode] while on the
    23ANot to my knowledge.
    24QDid anybody ever have to call medical authorities to
    25come to his aid while he was there?

    -Kator -51-
    1I don't recall that having happened, no.
    2If that had happened you would have been made aware of
    3it as chief, wouldn't you?
    4If I had been there, yes.
    5When you say you implemented the recommendation by
    6Mr. Braun by moving him, if you had moved the office
    7subsequent to removing Mr. Pletten---well, let me ask
    8you this way.
    Did you move the office over to the other
    10side subsequent to Mr. Braun's recommendation?
    11Did I move the office?
    12Was the office moved?
    I am trying to figure out what went first
    14and I agree with you that two moves are hazy. I am trying
    15to figure out what went first.
    16AOkay. I can tell you to my best recollection the
    17sequence of moves.
    When I came to TARCOM the branch [in Bldg. 230] was
    19situated almost in the center of that large room. And
    20subsequent to that we were granted space across the hall
    21so our function, our branch, was moved up to the west end
    22of that room near the personnel officers' space. So
    23everyone in the branch moved up to that end. [Move #1].
    24ANow subsequent to that this discussion came
    25up regarding the 25 feet [May 1979] and the study by Mr. Braun, at

    -Kator -52-
    1which time Mr. Pletten was moved into the semiprivate
    2office. That did come subsequent to the movement of the
    3entire branch.
    4QAnd you didn't direct any studies and you don't know of
    5any other studies that were done as to the area?
    6AI don't know of any others, that's right.
    7QDid anybody ask you for a smoke-free environment for
    8Mr. Pletten?
    9ADid anyone other than Mr. Pletten?
    10QDid Mr. Pletten ask you for a smoke-free environment?
    11QI recall that term. I don't know the origin of it but
    12I know that was a point of discussion, that the environ-
    13ment should be smoke free.
    14QDid Mr. Pletten forward that to you?
    15AI don't remember how it came about.
    16QIs it possible to make that area smoke free?
    17AIs it possible to make any area smoke free?
    18QWell, let me ask you.
    Could you have ordered, in your authority
    20as supervisor, that everybody stop smoking, including
    22ACould I have ordered the employees that worked for me?
    24AYes, I had that authority in my opinion.
    25QDid you talk about exercising that authority with anybody

    -Kator -53-
    1 A    Yes.

    2 Q    With who?

    3 A    With Mr. Pletten, with Mr. Hoover, and, I don't recall,
    4          but I think Mr. Grimmett as well.

    5 Q    Did the term smoke free originate with Dr. Holt to your
    6       recollection? If that would help you refresh your memory.

    7 A    As I recall it may well have, yes.

    8 Q      In other words it may not have been Mr. Pletten, it may
    9           have been Dr. Holt?

    10 A    May have been.

    11             MR. COHEN: We can ask Dr. Holt.

    12            MS. BACON: Yes.

    13            MR. COHEN: I don't have any further
    14             questions.

    15             Your witness.

    16             MS. BACON: I don't have any further
    17             questions for you either, Mr. Kator.

    18             I realize you are pressed for time and I
    19             would not wish to hold you any further.

    20             MR. COHEN: Neither would I and I would like
    21             to thank you.
    22                                           - - -                         (12:40 p.m.)



                                                    [Kator deposition concluded]

    -Kator -54-
    [Click here for .pdf Full Text.]

    2. Deposition of Col. John J. Benacquista,
    TACOM Chief-of-Staff

    (Smoker; Exortion to Get Pletten to Cease
    and Desist Whistleblowing on TACOM Violations,
    MI Symptoms Noted As Evident)
    1Southfield, Michigan
    2Friday, April 23, 1982
    312:48 p.m.

    P R O C E E D I N G S
    J O H N     J.     B EN A C Q U I S T A
    being first duly sworn, was examined and testified on
    her oath as follows:

    9    BY MS. BACON:

    10 Q    Colonel Benacquista, what is your position at the
    11      present time?

    12 A    At the present time I am Deputy Commander of the Army
    13      Logistics Center at Fort Lee, Virginia.

    14 Q    What was your position prior to the one you presently hold?

    15 A    Prior to that I was at the Tank-Automotive Command;
    16      first as Chief of Staff, from about December of 1979
    17      until October of 1980, and then Acting Deputy Commander
    18      for Readiness, from October of 1980 until April of 1981.
    19      Then I was on a special assignment for the Commanding
    20      General for about two months and then I left Detroit in
    21      June of 1981.

    22 Q What were your responsibilities as Chief of Staff?

    23 A    The Chief of Staff is responsible to the Commanding
    24      General for the proper operation of his staff; its
    25      coordination; its activity. One of the duties was the

    -Benacquista -3-

    1handling of grievances and EEO complaints and acting for
    2the Command in those matters.
    3QAre you acquainted with the appellant in this case,
    4Mr. Pletten?
    6QHow did you become acquainted with Mr. Pletten?
    7AThrough matters of grievances which had started before I
    8arrived as Chief of Staff. I would say that within the
    9first 30 to 60 days, which would have been February or
    10January of 1980, was my first association with these
    12QDid you have an occasion to meet with Mr. Pletten
    14AYes. I did.
    15QDo you remember what the subject matter of the grievances
    16was or the discussions that you had with him?
    17AThere were a variety. Generally they all centered around
    18the request that smoking be banned in the buildings of
    19the Tank Automotive Command.

    Ed. Note: This is rehearsed distortion, to cover up his extortion. Actual underlying subject: seeking compliance with the USACARA Report as per AR 1-8.

    20QHow were his grievances resolved to the best of your
    22AI don't know that they were resolved at all or not
    23totally. We would go through the normal grievance
    24procedure at the Command and if that was unsatisfactory
    25the case would be referred to the U.S. Army Civilian

    -Benacquista -4-

    1Appellant Review Activity -- I think that was the title
    2of it -- for an independent evaluation and then it would
    3come back to us with recommendations for us to either
    4accept or reject.
    5QWhen USACARA would come back with recommendations and, if
    6you accepted them, what happened to the grievance then?
    7AIt is my understanding that if we accepted those recom-
    8mendations then that particular grievance was closed. It
    9was a completed action.
    10QDid you accept the recommendations that USACARA made for
    11the most part?
    12ATo my knowledge we accepted all of the recommendations.
    13I don't recall exactly how many I was involved in but I
    14don't recall having rejected any.
    15QDid you deal with Mr. Pletten only concerning his
    17AWell, no. The grievances were one matter. There were other
    18matters that were involved regarding questions and things
    19that were happening that were not directly related to a
    20grievance. But they were all indirectly related to
    22QAfter Mr. Pletten was placed on sick leave in March of
    231980 [per extortion] did you have any contact with him either in person
    24or in writing?
    25AIn writing a number of times, responding to certain paper

    -Benacquista -5-

    (pp 6-11)

    1what we would get after that was some statement that
    2described that kind of an environment where he could be
    3allowed to come back to work.
    4QTo your knowledge did Mr. Pletten bring in a doctor's
    5note indicating that he could work in something other
    6than a smoke-free work environment?
    8MS. BACON: I have no further questions
    9at this time.
    10MR. COHEN: Thank you.
    Colonel, it has been a long time since
    12we've met and I am glad to see you.
    I have a number of questions about this
    14smoke-free term.
    16BY MR. COHEN:
    17QWho coined the phrase "smoke-free environment" to your
    19ATo my knowledge it came either from Mr. Pletten or from
    20his doctor.
    21QYou are not sure which though?
    23QIs it possible that it came from Dr. Holt?
    24I don't know. I know it came up a number of times in
    25the grievances.

    -Benacquista -12-

    1 Q Did you read any of the letters from Mr. Pletten's
    2     doctors?

    3 A Some I guess. I don't know if I saw—yes, I saw some
    4     letters that were signed by doctors and some that were
    5     signed by somebody else in the doctor's office without
    6     the doctor's signature.

    7 Q Did you ever see a doctor's letter that stated that
    8     Mr. Pletten could only work in a smoke-free environment?

    9 A I couldn't say here that those specific words were used,
    10     only smoke free.

    11 Q Is it possible that semantically the letters—I mean,
    12     you don't recall the letters and I don't expect you to
    13     after these numbers of months and years as passed. But
    14     did you ever ask the doctors? As Chief of Staff did you
    15     ever call the doctors and say, "Can the guy work without
    16     it being smoke free" [Ed. Note: as he had so well 1969-1980]?

    17 A No.

    18 Q Why not?

    19 Q I did not.

    20 Q Did any of your staff?

    21 A That was a matter really between Mr. Pletten and his
    22     doctors. Not me.

    23 Q But you [layman Benacquista] had made a determination that the doctors had
    24     required a smoke-free environment; is that true?

    25 A I had made that determination. I think that if you go

    -Benacquista -13-

    Ed. Note: Benacquista here admits his overruling the medical input, though knowing very well "what the doctor was saying," Dep p 24, as Evelyn Bertram said, T 18.
    Benacquista did the overruling to extort from Pletten an assertion contrary to fact, Dep p 62.
    It was notorious that smoking is not a job requirement!
    Note also Benacquista's confession of having suspended Pletten, at p 47.
    At that point, TACOM attorney Bacon interrupted to stop Benacquista repeatedly confessing to the unlawful activity, there, of the illegal suspension without 30 days notice as mandated by law, 5 USC § 7513.(b).

    (pp 14-23)

    I looked at closely—and I haven't looked at them for a
    2     year—but if you looked at them closely it's quite
    3     obvious in there that what the doctor was saying was
    4     that the environment in his present work space was not
    5     reasonably free of contaminants.

    Ed. Note: See Dep. p 62 for extortion context.

    Q 6 So you did see some of the doctors' statements?

    A 7 Yes.

    8 Q What?

    9 A Those letters which were provided. And the ones I saw
    10     were generally provided as enclosures to a grievance.

    11 Q Did you seek guidance from Dr. Holt?

    12 A We did.

    13 Q So the difference between Army Regulation 1-8 and that
    14     type of environment and a smoke-free environment?

    15 A Yes, I think so. I believe that the terminology
    16     "reasonably free of contaminants" is a direct lift out
    17     of AR 1-8.

    18 Q And did you seek guidance from higher headquarters with
    19     regard to this issue?

    A 20 I did not. Not specifically, no.

    21 Q You mentioned that you discussed it with [Major] General [Oscar] Decker.
    22     What was the nature of your contacts and
    23     discussions with him?

    24 A When you said higher authority I thought you meant
    25     higher than the Command.

    -Benacquista -24-

    1 Q No, that's true. No, I did, and you answered it
    2     correctly I am sure.

    3 Q The question is what was your relationship
    4     with General Decker as to this issue?

    5 A This was discussed on a regular basis several times in
    6     what was called Command group meetings; generally every
    7     evening somewhere between 5:00 and 7:00 at night where
    8     we would discuss the day's actions. And those would be
    9     discussed at that time.

    10 Q And did he follow along with this as it was going on?

    11 A Yes.

    All done ex parte, no notice provided to Pletten, denying him the right to reply.

    12 Q Did he have you issue a directive for the entire Command
    13     with regard to smoking?

    14 A I don't believe so.

    15 Q Did you ever issue a directive to the Command?

    16 A A directive signed by me?

    17 Q Or by anybody from the Command group?

    18 Not to my knowledge, no.

    19 Why not?

    20 I didn't think it was necessary.
    21     It doesn't make sense to have a Command
    22     getting involved in the personal habits of its employees,
    23     you know, as a Command policy letter [matter].

    Ed. Note: This dissent, insubordination against the rule of law, deprives the employer, the U.S. government, the taxpayers, of "honest services," both his and victim's.
    By law, 18 USC §§ 1341, 1343, and 1346, mail fraud defrauding employer of "honest services" is illegal. The term “‘honest services’ can include ‘honest and impartial government.’”—U.S. v Brumley, 116 F3d 728, 731 (CA 5, 1997) cert den 522 US 1028; 118 S Ct 625; 139 L Ed 2d 606 (1997).
    “A [retaliator against whistleblowers] defendant may be prosecuted for deprivation of honest services [even] if he [the retaliator] has [not a single illegal intent but] a dual intent, i.e., if he is found to have intended both a lawful [as retaliators allege] and an unlawful purpose to some degree.”—U.S. v Woodward, 149 F3d 46, 71 (CA 1, 1998) cert den 525 US 1138; 119 S Ct 1026; 143 L Ed 2d 37 (1999).
    The Dept of Justice prosecutes others (e.g., civil servants, as in U.S. v James J. Smith, for such crimes, but as per DOJ policy and practice, it does not prosecute when the crime occurs by supervisors against whistleblowers.

    24 Q Doesn't AR 1-8 require that you look at your Command with
    25     regard to compliance with that regulation?

    -Benacquista -25-

    (pp 26-31)

    1sometimes when the United States Army will protect either
    2investments in material or items of concern to them, like
    3computers, to ban smoking so as to keep them viable; is
    4that correct?
    5In my personal opinion that's a pretty flaky argument.
    6You don't put computers out in the rain.
    I can see what you are getting at because
    8Mr. Pletten has used it [per Shimp court precedent] a number of times in our
    9discussions. I really don't think that [precedent leading to AR 1-8] is relevant. I
    10really don't.
    11You see, the problem here, Colonel, is that we're before
    12a board and they determine what is relevant. You may be
    13right, but I would like an answer to the question.
    14Why don't you restate the question and I will try to
    15answer it as directly as I can.
    16Okay. Let me restate it.
    The United States Army then takes actions
    18to ban smoking where it is a hazard to certain pieces of
    19material and certain sensitive machinery?
    20And people, yes.
    21And people?
    22In those environments. They don't allow smoking around
    23places where there are gasoline fumes, obviously.
    24If it bothered Mr. Pletten why was it inappropriate [to disallow smoking]? Did
    25they ever make a survey of the Command of any type to

    -Benacquista -32-

    (pp 33-46)

    1 be a medical man and therefore would not be qualified—

    2 MR. COHEN: Col. Benacquista is being
    3     deposed and put on the record for the purposes of being
    4     the Chief of Staff who makes decisions with regard to
    5     action taken on personnel matters when they come to him
    6     at a grievance chain level.

    7 MS. BACON: That's correct.

    8 MR. COHEN: The question of medical is
    9     not at all involved it seems here, but interpreting the
    10     written words of doctors who have never been spoken to
    11     by anybody, which we will get to ourselves, Counselor,
    12     when we depose these people.

    13     But, I am asking him if he has a common
    14     sense—he is an intelligent man and he has gotten to
    15     a high rank in the Army, which you don't get to by
    16     accident. I would think he would be able to tell me if
    17     the two letters seem at odds.

    18 Q (By Mr. Cohen) Colonel?

    19 A First of all, I looked at them and there is better than
    20     60 days difference between the two. The two letters I
    21     would have seen with the matter in between of a lot of
    22     grievances.

    23     And as I recall, the sequence leading up to,
    24     I guess, the time when the suspension came about—

    25 MS. BACON: I would—

    Ed. Note: Interrupting, obstructing justice, to stop his confession of the illegal suspension without 30 days notice as mandated by law, 5 USC § 7513.(b).
    Note elsewhere the meaning of this confession of TACOM having suspended Pletten, after the two years of TACOM having denied it! obstructing Pletten's appeals.
    Benacquista would also admit overruling the doctors, Dep p. 13, contrary to "what the doctor was saying," Dep p 24. Benacquista did the overruling to extort from Pletten an assertion contrary to fact, Dep p 62.

    - Benacquista -47-

    (pp 48-61)

    1 Q You said something to the effect that you
    2     wouldn't direct a person to go back to work where he
    3     thought there was a hazard, where that would be unsafe
    4     for him.

    Q 5 Can you repeat what you said in that nature?

    6 A If we are going to get into that I would like to go back
    7     and hear what the whole line of questioning was.

    8 Q Well, I'm not sure we can do that.
    9     Well, let's go back—no, let's not. It's
    10     quite a ways back.

    11 Q We were talking previously about why you
    12     didn't just order him back to work. Why wouldn't you say,
    13     "Look, we've done all this work and you should go back
    14     to work"?

    15 Q     Why wouldn't you do that?

    16 A His contention was that that was a hazard and that he
    17     required a smoke-free environment.

    18 A     We had acknowledged and transmitted a
    19     number of times that the environment in the building was
    20     considered reasonably free of contaminants, you know.

    21     Why would I want to go around and tell
    22     somebody, "You have got to go back in there"? That is
    23     a personal judgment on his own part. The job was available.
    24     All he [Pletten] had to do [to keep job] was to say, "I agree that this [TACOM] is
    25     reasonably free of contaminants."

    Ed. Note: This was extortion as defined by Michigan law MCL § 750.213, MSA § 28.410, e.g., to pressure altered anticipated testimony, People v Atcher, 65 Mich App 734; 238 NW2d 389 (1975).
    To effect the extortion, Benacquista altered, overruled, the doctors' statements, Tr. at 13. Benacquista admits at p 25 that he opposed AR 1-8; and at p 24 that he knew what the doctor was really "saying." Benacquista's purpose in thus imposing the suspension, admitted at p 47, was to pressure Pletten, as per his work ethic and pay being embezzled, into withdrawing his request for compliance with the AR 1-8 criteria, and the USACARA Report.
    The extortion was in the context of Pletten having obtained in essence "class action" relief for fellow employees. Note the USACARA Report, p 11, favorable words inter alia, "An equitable balance . . . cannot be accomplished by relocating one nonsmoker. . . . The other nonsmokers also have rights . . . No evidence was offered to indicate that the Command had considered the rights of all nonsmokers."
    Considering others' rights applied the concept of Donahue v Stockton Gas & Elec, 6 Cal App 276; 92 P 196 (26 Aug 1907). This is a case of air pollution causing varying effects on individual victims, and though only one person complained, the pollution was banned as a public nuisance due to impacting a number of people, and specifying that additional successive cases could be brought as well. This concept is cited with approval in the pro-worker safety professional article by Alfred W. Blumrosen, et al., "Injunctions Against Occupational Hazards: The Right to Work Under Safe Conditions," 64 Calif Law Rev (#3) 702-731 at 714 n 54 (May 1976).
    Benacquista oppposed this concept, and Pletten was blowing the whistle on the disregard. Benacquista, by demanding that Pletten say the opposite of scientific fact, was demanding "junk science." Note a long line of anti-"junk science" case law:
  • U.S. v Amaral, 488 F2d 1148 (CA 3, 1973)
  • Richardson v Richardson v Richardson-Merrill, Inc, 273 US App DC 32; 857 F2d 823 (1988)
  • Christophersen v Allied-Signal Corp, 939 F2d 1106 (CA 5, 1991)
  • Brock v Merrell J. Dow Pharmaceuticals, Inc, 874 F2d 307 (CA 5, 1989)
  • Daubert v Merrell Dow Pharmaceuticals, Inc, 509 US 579; 113 S Ct 2786; 125 L Ed 2d 469 (28 June 1993).
    Additionally, people cannot lawfully "consent" to self-harm or harm to others. References:

    People v Gray, 224 Cal App 2d 76; 36 Cal Rptr 263 (1964) (rejecting consent when "great bodily harm" results)

    People v Samuels, 250 Cal App 2d 501; 58 Cal Rptr 439 (1967) cert den 390 US 1024; 88 S Ct 1404; 20 L Ed 2d 281 (rejecting consent by child, insane person, and when great bodily injury results)

    Taylor v State, 214 Md 156; 133 A2d 414; 65 ALR2d 740 (1957) (rejecting consent in cases of breach of public peace)

    Commonwealth v Collberg, 119 Mass 350; 1876 Mass LEXIS 30 (4 Jan 1876) (consent is void because it is against the law)

    Commonwealth v Farrell, 322 Mass 606; 78 NE2d 697 (12 April 1948) (sadistic burning-by-cigarette case, citing King v Donovan, 2 KB 498; 30 Cox CC 187 (CCA) (1934) rejecting consent where bodily harm is likely to result; "bodily harm" means any hurt or injury calculated to interfere with health or comfort, more than merely transient and trifling, but not requiring permanent effect)

    Wright v Starr, 42 Nev 441; 179 P 877; 6 ALR 981 (1919) (rejecting consent in cases of breach of public peace)

    State v Fransua, 85 NM 173; 510 P2d 106; 58 ALR3d 656 (NM App, 1973) (rejecting consent in cases of breach of public peace, whether or not individuals have so little regard for their own safety as to invite injury, as the public has a stronger and overriding interest in banning such acts)

    People ex rel Burke v Steinberg, 190 Misc 413; 73 NYS2d 475 (1947) (rejecting consent in cases of breach of public peace, or involving anything of the character of illegality, or injurious to the public also, and rejecting consent obtained by fraud, stupefaction, ignorance or incapacity of the harmed person, re consenting to injection of "vaccine" that was in fact nothing but water!)

    People v Lenti, 44 Misc 2d 118; 253 NYS2d 9 (1964) (rejecting consent to harm resulting in several weeks of hospitalization)

    State v Roby, 83 Vt 121; 74 A 638 (1909) (rejecting consent in cases of breach of public peace and dignity)

    Wiley v Carpenter, 64 Vt 212; 23 A 630 (1892) (rejecting consent in cases of breach of public peace and dignity)

    Banovitch v Commonwealth, 196 Va 210; 83 SE2d 369 (1954) (rejecting consent to harm during course of incompetent cancer treatment, consent invalid in cases of fraud, recklessness, breach of public peace and dignity)

    Van Vactor v State, 113 Ind 276; 15 NE 341; 1888 Ind LEXIS 34 (9 Feb 1888) (issue of a genuine alternative)

    State v Beck, 19 SCL 363 (1833) (issue of a genuine alternative)

    State v Lankford, 29 Del 594; 102 A 63 (1917) (rejecting consent obtained by not providing full advance disclosure, rejecting consent to cruel treatment, or infection by a loathsome disease)

    Commonwealth v Nickerson, 87 Mass 518; 1862 Mass LEXIS 422 (Nov 1862) (rejecting consent by a minor, age 9)

    Guarro v United States, 99 App DC 97; 237 F2d 578 (1956) (rejecting consent obtained by fraud)

    People v Kevorkian, 447 Mich 436; 527 NW2d 714 (1994)

    See also analysis 27 July 1983, in criminal personality and behavior context, pp 73-74,   p 104,   p 106,   p 219,   p 228,   p 231,   p 247,   p 249,   p 253,   p 333, and pp 397-398.
  • - Benacquista -62-

    (pp 63-71)

    1the people selected to do those studies?
    3QAnd specific locations of where the studies were done was
    4not discussed with you?
    5AI recall having given guidance that I wanted them taken
    6at a variety of places throughout the Command. So they
    7were taken at more than one location but I did not specify
    8exactly where they would be.
    9QWho makes the determination of what reasonably free of
    10contaminants means?
    I don't mean to be facetious by asking it
    12after all this.
    13AWhen the air content surveys were done by the
    14environmental hygienist or whatever, Mr. Braun. I don't
    15know. He is the technician and he is the one who made
    16the determination to refer to the [rjected by USACARA] standards and wrote
    17those up as a report [pretending compliance].
    18QIn other words, you have no independent knowledge of
    19what "reasonably smoke free" is?
    20AI wouldn't attempt to define it, no.
    21QAnd you relied presumably upon the directives of your
    22subordinates in whether your Agency complied with
    23"reasonably smoke free"?
    24AYes. Reasonably free of contaminants.
    25QI'm sorry. Now I am doing it.

    -Benacquista -72-
    1I don't want to do it either but it seems to evoke all
    2kinds of different meanings.
    3QWas a ban on smoking in the Command unreasonable?
    4In your estimation was it unreasonable?
    5QI don't know if it was unreasonable or not. I think it
    6was unnecessary.
    7QWhy do you think that?
    8QWhen the [faked] surveys show that the air outside is not
    9significantly different than on the inside, banning
    10smoking just doesn't seem to make any sense. If you
    11want to get the air on the inside cleaner than the
    12outside we would have to fiter all incoming air to make
    13a specialized environment within the building. That is
    14not reasonable.

    Ed. Note: USACARA, p 14, had rejected this narrow-minded rigid 'only one solution' view, had cited the genuine alternatives as “less smoking or more ventilation.” The USACARA data are "stimuli," but TACOM management smokers were notoriously unresponsive, hence, insubordinate.
    Industrial Hygienist Braun had recommended an air conditioning solution (T. 34), but his recommendations were ignored! treated as never having occurred.
    TACOM Personnel Office and Legal Office had ex parte pre-arranged with MSPB to disregard such data.
    15QWell, the question that follows from that is that there are
    16certain parts of the Command that are restricted from
    17smoking; correct?
    19QConference rooms and other places would conceivably have
    20less of a smoke content than places where smoking is
    21permitted; is that true?
    22QYes. I would say yes, certain times.

    Ed. Note: TACAM witness Col. Benacquista is alluding to the notorious fact that the TACOM ventilation system was not working; thus, that the "check-boarding" (limited action) TACOM was insisting on, was not working, was not protecting the work-force as a whole.
    "Checker-boarding" is notoriously ineffective, see
  • Dept of Health, Educ and Welfare, Social Security Admin v AFGE Local 1923, 82-1 Lab Arb Awards (CCH) § 8206 (DC, 22 Jan 1982)
  • Opinions of Attorney General 1987-1988, No. 6460, pp 167-171; 1987 Michigan Register 366 (25 Aug 1987) (placing nonsmokers "checkerboard style" does not achieve law compliance.
    Thus, "checker-boarding" had years before been ruled unconstitutional, in Alford v City of Newport News, 220 Va 584; 260 SE2d 241 (21 Nov 1979). Partial bans are unconstitutional as not in fact protective.
    TACOM Personnel Office and Legal Office had ex parte pre-arranged with MSPB to ignore TACOMer admissions, "confessions against interest," of its ventilation system inadequacies.
    23QCertain times? I mean, why else would you ban smoking in
    24a room if not to keep it smoke free by comparison to other
    -Benacquista -73-

    (pp 74-78)

    1 A     If I used that word [suspension, p 47] it was just a mixup of words because
    2          it has been thrown around back and forth. It was nothing
    3          other than error.
    4          Sick leave, paid or nonpaid. And annual
    5          leave was involved.

    6                MR. COHEN: I have nothing further.

    7                MS. BACON: I have nothing further either.

    8                MR. COHEN: Colonel, thank you.

                              [Benacquista deposition concluded]

    9                                     * * * *                               2:31 p.m.

    -Benacquista -79-
    [Click here for .pdf Full Text.]

    3. Deposition of Carma J. Averhart, TACOM Co-worker
    (Smoker; Offered Promotion to
    Aid and Abet Pletten's Firing;
    MI Symptoms Noted As Evident)
    1Southfield, Michigan
    2Friday, April 23, 1982
    32:44 p.m.

    P R O C E E D I N G S
    C A R M A     J.     A V E R H A R T
    being first duly sworn, was examined and testified on
    her oath as follows:

    9    BY MS. BACON:

    10 Q    Ms. Averhart, what is your position?

    11 A    I am presently Chief of Position and Pay Management
    12        Branch.

    13 Q    How long have you held that position?

    14 A    For almost two years. Since July of 1980.

    15 Q    What was your position prior to the present one you hold?

    16 A    Before that I was a Position Classification Specialist
    17         in the same branch.

    18 Q    When did you first take that job?

    19 A    I believe it was 1976. I came here in 1975. I had
    20        another job in personnel for about nine months.

    21 Q    Are you familiar with the appellant in this case,
    22        Mr. Pletten?

    23 A    Yes.

    24 Q   How did you make Mr. Pletten's acquaintance?

    25 A    Well, we both worked in civilian personnel when I first

    -Averhart -3-

    1came here, in different branches. Eventually we ended
    2up in the same branch.
    3QIn your position as Chief of the Position and Pay
    4Management Office was he one of your employees then?
    6QAre you familiar with his sensitivity and objection to
    7tobacco smoke?
    9QHow did you first become aware of his objections to
    10tobacco smoke?
    11AWell, I believe it was about 1979. Mr. Kator was the
    12Chief at that time and he notified the people in the
    13branch that Leroy was sensitive to tabocco smoke and
    14that we should not smoke in his presence.
    15QYou said you had worked there since 1976. Prior to
    16Mr. Kator informing you of his sensitivity -- prior to
    17that 1979 time -- had he ever indicated to you his
    18sensitivity to it?
    19ANot that I can remember.
    20QWas Mr. Kator's direction followed to the best of your
    22AAs far as I know, yes.
    23QThe case file at Tab 7 reflects that a letter was sent
    24dated 27 November 1981 — proposing Mr. Pletten's
    25separation for medical disqualification.

    -Averhart -4-

    1QDo you recall sending Mr. Pletten that
    4QCan you give us some background of the events which led
    5up to the drafting and signing of that letter?
    6AWell, we had been notified by Office of Personnel
    7Management that our application for Mr. Pletten's
    8disability retirement had been disapproved.
    9So, therefore, this letter was sent out.
    10QWhat prompted your filing a disability retirement
    11application on his behalf?
    12AWell, Mr. Pletten had been on extended sick leave and
    13there didn't seem to be any likelihood that he would be
    14returning to work.

    Ed. Note: Involuntary leave, as per Col. Benacqusita (Tr. at 13) extortion to force Pletten to retract his request for compliance with AR 1-8 (Tr. at 62).
    USACARA had rejected TACOM's non-compliance with the AR 1-8 criteria. Benacquista wanted to force Pletten to not seek implementation.
    Note fixation on the whistleblower, not on the rules' intent of protecting the entire work force from smoking.
    Note the rehearsed perjury, pretending legitimate 'sick leave.'
    As per the Bevan precedent, Pletten repeatedly returned to duty, but was turned away.

    Before we can separate him we have to try
    16everything possible and application for disability
    17retirement is one of the things that we do have to try.
    18QAfter Mr. Pletten had been put on sick leave did he on
    19any occasion try to return back to duty?
    21QI ask if you can identify this document?
    22AYes, I prepared that.
    MS. BACON: Okay. I move for the
    17submission of this memorandum to the record, dated
    17March 20, 1980, as Agency Exhibit 8.

    -Averhart -5-

    (Agency Exhibit 8 marked for
    MS. BACON: Off the record, please.
    (Off the record.)
    (Back on the record.)
    6MR. COHEN: No objection.
    7Q(By Ms. Bacon) Did Mr. Pletten on any other occasion
    8attempt to return to work?
    9AYes, he did.
    10QI ask if you can identify this document?
    11AYes, I prepared this also.
    MS. BACON: I would move for the
    13submission of a memorandum for the record, dated
    1429 January 1981, as Agency Exhibit 9.
    (Agency Exhibit 9 marked for
    MR. COHEN: I will object to the admission
    18of the document to the extent that it states as to
    17what Mrs. Jones informed her as being hearsay.
    21MS. BACON: Objection noted.
    21Q(By Ms. Bacon) Did you contact the dispensary after you
    21told Mr. Pletten to report there to be cleared for duty?
    23AYes, I did. And I was advised that he had —
    MR. COHEN: Objection.
    MS. BACON: All right. The memorandum can

    -Averhart -6-
    1speak for itself.
    2Q(By Ms. Bacon) At Tab 7 again, your November 27th
    3letter, you indicate that an Agency filed disability
    4retirement application was disapproved by the Office of
    5Personnel Management. Were you involved in the filing
    6of that disability retirement application?
    7QWell, yes. I initiated it. I didn't do the actual
    8processing but I requested that such an application be
    10QWhat did you base that decision on?
    11AA combination of things. Mr. Pletten's physician had
    12indicated that he had to have a completely smoke-free
    13work environment. We had attempted to find such an
    14environment and we could not find one in our Command and
    15there did not appear to be any likelihood that he would
    16return to work unless such were provided.
    So I had a job to get done and I needed
    18someone to do it.
    19QYou say that you attempted to find if there was someplace
    20on the installation that had the kind of environment that
    21his doctors advised he had to have; am I correct?
    23QCan you identify this document? In fact, these two
    25QYes. I prepared these for Mr. Hoover's signature.

    -Averhart -7-

    (pp 8-16)

    1(Off the record.)
    2(Back on the record.)

    3 Q (By Ms. Bacon) Tab 8 of the Agency's response. I ask you
    4    if you can identify that document?

    5 A Yes. This was the notification we received from the
    6    Office of Personnel Management.

    7 Q To the best of your recollection, when did you receive that?

    8 A I believe it was in October [1981].

    Ed. Note: An ex parte communication NOT provided Pletten PREVIOUSLY, or even then, thus confirming preventing opportunity to reply PRIOR to the removal decision, a fact to be presented to EEOC once EEOC review occurs as allowed by TACOM for others.

    9 Q What action did you take upon being notified that the
    10    OPM action or that OPM in fact had disapproved the
    11    Agency-filed disability application?

    12 A I discussed it with [anti-USACARA] Mr. Hoover and decided to remove
    13    Mr. Pletten for a medical disability.

    Ed. Note: An ex parte communication NOT provided Pletten PREVIOUSLY, or even then, thus confirming preventing opportunity to reply PRIOR to the removal decision, a fact to be presented to EEOC once EEOC review occurs as allowed by TACOM for others.
    Note that the removal decision was made PRIOR to notice to Pletten, establishing violation of the 5 USC 7513.(b) 30 days ADVANCE notice requirement for charges, so as to allow the employee opportunity to reply PRIOR to decision being made.
    Note further that REMOVAL is for employee misconduct, of which none was charged against Pletten.
    Both were smokers, biased, thus unconcerned with the violations, doubly so, having secured advance MSPB approval for all violations.
    Note that OPM continued opposing TACOM's bizarre and hostile reaction to OPM's support of Pletten's position, affirming ability to work at award-winning quality level, better than colleagues.
    See examples of continuing Briefs by Pletten applying for OPM action in support of directing Pletten's reinstatement [pursuant to FPM Supp 752-1, §S1-6c(4)(d)], and documenting the record with Pletten's position, to be provided EEOC once review of the removal would begin:
  • 21 Mar 1983
  • 29 Mar 1983
  • 10 May 1985
  • 10 Oct 1983
  • 25 Nov 1983
  • 2 Jan 1985
  • 14 Q I ask if you can identify this document?

    15 A Yes, I prepared that.

    16   MS. BACON: I move for the submission as Agency
    17    Exhibit 17, a DF entitled "Request for Separation Due to
    18    Medical Disqualification," signed by Carma J. Averhart.

    19    MR. COHEN: No objection.

    20    (Agency Exhibit No. 17 marked
    21    for identification.)

    Ed. Note: An ex parte communication NOT provided Pletten PREVIOUSLY, or even then, thus confirming preventing opportunity to reply PRIOR to the removal decision, a fact to be presented to EEOC once EEOC review occurs as allowed by TACOM for others.

    22 Q (By Ms. Bacon) I think you have already testified to
    23    this before but I would like to go through it again.
    24    Why did you go through the disability
    25    retirement application?

    -Averhart -17-

    (pp 18-24)

    1QAll the physicians' statements or just one of them?
    2AI don't know about all the statements. I've seen at
    3least two that said he required a totally smoke-free
    4work environment.
    5QDo you have a file that indicates what you considered?
    6ADo I have a file of what?
    7QDo you have a file that you used in considering
    8Mr. Pletten's case, that you kept?
    9AYes, I have materials that Mr. Pletten supplied me from
    10his --
    11QDo you have a case file called Leroy Pletten?
    12ANo, I don't have a case file called Leroy Pletten. I
    13have information related to Mr. Pletten's case.
    14QWhere would that be kept?
    15AIn my office.
    16QDo you have that with you?
    18QDo those documents differ from the ones before us?
    20QNot at all?
    21AI have some notes to myself that we don't have here but
    22I don't know what kinds of information you're looking for.

    Ed. Note: Looking for (1) materials not provided, denying the right to know evidence being used, obstructing defense; and (2) ex parte contacts evidence.

    MR. COHEN: Can we go off the record for
    a minute?
    (Off the record.)

    -Averhart -25-

    (pp 26-29)

    1taking these actions to separate Mr. Pletten? You only
    2wanted your job done?
    3AMr. Pletten was already not there. Mr. Pletten has not
    4physically been there since I have been the supervisor.
    5QBut he hasn't been separated from the Federal Service yet,
    6has he?
    7ABut I am saying that he was not physically there to do
    8the job.
    9QDid you ask for a manpower increase in your bailiwick
    10there as Chief of the Branch?
    11ALet me explain something to you. We had five people
    12there to do the job. Mr. Pletten represented 1/5 of my
    13work force.
    14QI understand.
    15AAnd when he left --
    16QSo you were understaffed?
    17ASo I was grossly understaffed.
    18QDid you make a request from your superior for an additional
    19person, notwithstanding Mr. Pletten's status?
    20AI always request additional people, continually.
    22ABecause I need them to get the job done.

    Ed. Note: We see here that Col. Benacquista's extortion, Tr. at 62 (trying to extort from Pletten a withdrawal of his request for compliance with AR 1-8 criteria, and the USACARA Report), took priority over mission accomplishment.

    23QYou always need people? I mean, when you say "continually"
    24I --
    25AAt that time we were more critically understaffed than at

    -Averhart -30-

    1any other time since I have been there, okay? So I
    2am continually asking for more people.
    3AWhen Mr. Pletten left [per said extortion] it was a significant
    5QMr. Pletten had been gone for a long period of time by
    6this time, hadn't he?
    8QLet me understand. If Mr. Pletten were to be severed
    9from the Service and you were to be successful in this
    10action against him, would that promote your getting
    11another person into that position?
    12AIf Mr. Pletten was not in a space, right. Then I could
    13hire someone else to take his place.
    14QAm I to understand -- and maybe I am getting this wrong.
    15Am I to understand that the main thrust and reason this
    16is being done is to free up a space so you could hire
    18ANo. That is not the main thrust.
    19QWhy isn't it? It seems like it.
    20AThe main thrust for me is to get my job done.
    Mr. Pletten did not appear to be returning
    22to work and I don't understand the rationale for having
    23someone on the rolls who does not appear to be ever be
    24coming back.

    Ed. Note: As per his refusal to withdraw his rule compliance request, nor agree to alter anticipated testimony.
    See background on the forced leave, as per Col. Benacqusita (Tr. at 13) extortion to force Pletten to retract his request for compliance with AR 1-8 (Tr. at 62).
    The extortion had priority over mission accomplishment, whistleblowing is that much hated in the civil service.

    25QWell, what does being on the rolls cost the government?

    -Averhart -31-
    1AI don't know.
    2QDoes it cost them anything to your knowledge?
    3AI don't know what it cost the government.
    4QWere they paying Mr. Pletten?
    5AMr. Pletten was in a sick leave status so he was entitled
    6to use all of his sick leave.

    Ed. Note: Actually, Pletten's leave was being embezzled as per Col. Benacquista's extortion [Tr. at 62] so pervasive herein.
    7QAnd did you check to see if he had used all of his sick
    8leave? [Ed. Note: meaning, 'Was it all embezzled?']
    10QHad he?
    11AHe finally used it all by -- I am not sure of the date --
    12December of 1980 or somewhere around there.
    13QDecember of 1980 and here we are in 1982; are we not?
    14AYes, we are.
    15QOkay. And it was an extended period of time between the
    16time he no longer had sick leave until the time you
    17started the administrative actions, wasn't it?
    18AI don't know which administrative action you mean.
    19QWell, let's talk about the application for disability
    20retirement. When was that made?
    21AI can't remember all the dates.
    22QWell, let's see.
    23AApril of 1981.
    24QApril of 1981. It's almost a year ago, isn't it?

    -Averhart -32-

    1QSo it has been a year ago that you applied for the
    2disability retirement for Mr. Pletten. I mean. I don't
    3understand why it took that long a period of time.
    Do you understand the thrust of my question
    5Ms. Averhart?
    6AI guess not.
    7QAll right. You knew for a year that he was not getting
    8sick leave -- excuse me. You knew since December of
    91980 until April of 1981 that he was not getting any sick
    10leave, correct?
    12QWas he receiving any other remuneration from the Federal
    13Government at that point?
    14AI don't know.
    15QDid you check?
    16AI don't know what other remuneration he might be entitled
    17to. He was out of sick leave and he was out of his
    18annual leave. And those are the only two things that I
    19would really be able to find out about.

    Ed. Note: The idea of stopping the extortion, and restoring his pay status did not even occur to this hardened criminal.

    20QDid the Pay Office tell you that he was receiving anything?
    Did you ask Mr. Hoover? I'm sorry, let me
    22ask it this way. Did you ask Ed Hoover if he was getting
    23any moneys at all from the government?
    24AI don't know what other moneys you are talking about. I
    25think he is entitled to sick leave and annual leave. And

    -Averhart -33-
    1he used those.
    2QAnd you testified that he had used all those.
    3AThat's right.
    4QDoes that get replenished?
    5ANo, it does not.
    6QAll right. Then he had used up all his entitlements?
    7AThe ones that I was aware of, yes.
    8QDid you ask if there was anything else he was getting?
    10QNo, you didn't. Can we presume that Mr. Pletten was
    11receiving not dime one from the Federal Government, from
    12what you just testified?
    13AI don't know what Mr. Pletten was receiving.
    14QBut based on your investigation you didn't think he was
    15getting anything?
    16AI wasn't investigating to see what kind of money
    17Mr. Pletten was getting.
    18QYou obviously went to the point where you knew whether
    19he had annual leave or sick leave.
    20AThat's right, because I am responsible for managing that
    21for the employees in my branch. And if an employee is
    22on extensive leave I should know about that. I should
    23know how their leave balances are.
    24QAnd all this being the case, if he wasn't costing the
    25Government anything by just being on the rolls, would

    -Averhart -34-

    1his being on the rolls have been the sole preventative
    2for your getting another person into his position?
    4QCould you have gotten an additional person in your branch
    5even with Mr. Pletten on the rolls?
    7QPossibly. You seem hesitant.
    Why would it be possible as opposed to
    10AWell, I just can't remember all the details about when
    11things happened.
    Yes, I could have gotten someone. I could
    13have justified it by Mr. Pletten's not being there, okay?
    14QAll right. Did you attempt to do so?
    16QDo you have documents to support that?
    17AProbably not.
    18QDid you write something to somebody saying. "I've got this
    19guy who is out forever [re extortion] and I need somebody"?
    21QWhy not?
    22AI just didn't.
    23QYou just didn't. Did you discuss it with Mr. Hoover?
    24AYes. I discuss my staffing problems with Mr. Hoover.
    25QAnd what did Mr. Hoover say?

    -Averhart -35-

    (pp 36-38)

    1letters for Mr. Pletten?
    3QWhy not?
    4ABecause I rely on the Command medical officer to make
    5that kind of determination.
    6QAnd to make that kind of contact?
    7Well, whoever. I don't make the contact with
    8Mr. Pletten's physicians.
    9QDoes anybody? Do you know?
    10AI have no idea.
    11QI mean, in your position, aside from dealing with
    12management problems concerning Leroy Pletten, what is
    13it that your branch does?
    14AWe are responsible for making sure that employees'
    15positions are accurately classified and that organiza-
    16tions are properly structured.
    17QIn order to do that don't you sometimes have to go do
    18the legwork yourself?
    19AWe go out and visit the organizations, yes.
    20QTo make sure what they are telling you is accurate; is
    21that correct?
    23QIf there is a conflict in statements from somebody in
    24one of the organizations, you resolve the conflict?
    25AWe try to get enough information, yes.

    -Averhart -39-

    (pp 40-41)

    1AOf smoke?
    2QCigarette smoke and the contents of cigarette smoke?
    3AThe only definition I am aware of is what I would
    4consider an ordinary definition of cigarette smoke.
    5QAll right?
    6AWhen you smoke a cigarette it produces smoke.
    7But you didn't go into the details of any toxic nature
    8of the smoke?
    9ANo. [Ed. Note: Blatantly disregarding the rules and criteria.]
    10QDid you seek guidance from the medical staff with regard
    11to cigarette smoking?
    12AI don't know what kind of guidance you mean.
    13QDid you ask them for information about cigarette smoking
    14and its effect on employees?
    16QDid you take a poll or a survey of your employees to
    17determine if cigarette smoking bothered them [as per AR 1-8 criteria]?
    19QDo you yourself smoke?
    21QOccasionally. How long have you smoked for?
    22MS. BACON: Objection for the record as
    23irrelevant. Go ahead.

    Ed. Note: Actually, it is very relevant, as per impropriety of hiring smokers, as per
  • their disproportionate misconduct record,
  • federal law 29 USC § 706(7)(b), and
  • the Standard Form 78 specification.
  • 24THE WITNESS: Oh, I don't know. Off and
    25on for a couple of years; three years, four years. I

    -Averhart -42-

    1don't know. I smoke very seldom.
    2QIf it bothers somebody I take it you put it out?
    3ANormally I would ask someone before I smoked if it would
    4bother them.
    5QAnd if it did bother them what would you do?
    6AI wouldn't smoke.

    Ed. Note: Raises issue of such reaction being done for all, as per AR 1-8 criteria.

    7QDid you have the power in your branch, the authority as
    8the Chief, to ban smoking in the branch?
    9AThat would normally not be a branch level decision.
    10QI had testimony from Mr. Kator, your predecessor, who
    11indicates [Tr. at 53] that he had such power. Do you still agree
    12with that?
    13AHe could have had such power. But at the time I became
    14Chief, Leroy's cases had started and, at that time, I
    15would not have made a branch level decision like that.
    16QDo you have the power now to ban smoking now that
    17Mr. Pletten is removed?
    18AI really don't know. I haven't thought about it in terms
    19of a power.

    Ed. Note: As per adherence to Col. Benacquista's extortion. This shows that the USACARA Report data was not even being considered; and the ultra-depravity and corruption of MSPB officials, habitual criminals, re their criminally false pretense that my position WAS considered!

    20QDo you have any objections to banning smoking in the
    22AI don't have any reason to ban smoking in the branch
    23right now.
    24QPresuming Mr. Pletten were reinstated, would you have any
    25problems banning smoking in the branch?

    -Averhart -43-

    (pp 44-47)

    1AI told him to get a doctor's statement.
    2QNow that you had a clearer understanding that there was
    3other information why didn't you seek it?
    4AIt didn't sound to me as if there was other information.
    5Leroy was saying the same thing he's been saying all
    7QWell, Leroy said that he had a doctor's clearance in
    8order to return to duty.
    9ANo. Leroy said he didn't need a doctor's statement
    10since he wasn't sick.

    Ed. Note: Repeating the medical fact overruled by Col. Benacquista's extortion.

    11QYour testimony here in Agency No. 9 says at paragraph 2,
    12sentence 2:
    "He stated that he had a doctor's certif-
    14icate from 20 January, and that it cleared him for duty."
    15AI'm sorry, you're right. And I told him to take his
    16certificate to the dispensary.

    Ed. Note: Which he did, to no avail, as per Col. Benacquista's extortion.

    17QAssuming that he did not, did you inquire further from
    18his doctors?
    20ADidn't you have a conflict as to what the circumstances
    21were with regard to his condition?
    22ANo. It was my understanding that if Mr. Pletten was able
    23to return to work he knew the procedures. He knew that
    24he had to get a doctor's statement and that he had to be
    25cleared by the dispensary.

    Ed. Note: The real truth is, Col. Benacquista's extortion. TACOM Reg. 600-5.14 provides for employee self-clearances, and for 'excused absence' in hazard situations.

    -Averhart -48-

    (p 49)

    1do it.
    2QYou told me previously [p 5] what you had to do, and that is
    3overturn every last shread. Before we separate we have
    4to try "everything possible." And you have obviously
    5not done everything possible; isn't that correct?
    6AWell, I suppose it would depend on how you interpret
    7everything possible. I told Leroy specifically what he
    8had to do [withdraw request for AR 1-8 compliance] and he did not do it.
    9QI ask you to look at Tab 2-D, plus a couple, at a
    10notation from Bruce Dubin, D.O. It is typed out at
    11the bottom. Are you familiar with that?
    12AI don't know if I've seen that or not.
    13QYou've never seen it?
    14AI don't recall seeing this.
    15QNow that you've seen it, doesn't it do something to
    16your opinion as to whether he needed a reasonably free
    17area or an absolutely smoke-free area?
    18AIt doesn't do anything to me because I had to rely on
    19the Command medical officer to say whether or not that
    20cleared him to return to duty.
    21QBut, Ms. Averhard, knowing now that that exist, wouldn't
    22it put some doubt in your mind as to whether he needed a
    23reasonably free or an absolutely smoke-free area?
    24AI don't know what he needs. His doctor says that he
    25needs a smoke-free environment.

    Ed. Note: Doctors had not said so. Col. Benacqusita had (Tr. at 13), to force Pletten to retract his request for compliance with AR 1-8 (Tr. at 62).
    Note fixation on the whistleblower, not on the rules' intent of protecting the entire work force from smoking.
    Note rehearsed perjury, pretending doctors had said, what Col. Benacquista alleged.

    -Averhart -50-
    1QDoesn't it say, "an environment reasonably free of
    3AI don't know what his doctor means by reasonably free.
    4QI understand that. But wouldn't that lead you to ques-
    5tion him as to what he meant by that?
    6AI would not question his doctor. I would ask him [Pletten] as I
    7asked him then to take that statement to the dispensary.
    8QWhich obviously got there because it is in the record
    9as supplied by the Agency.
    In this circumstance would you -- you are
    11a pretty thorough woman in the business you do -- wouldn't
    12you contact the medical officer for the facility and ask?
    13AI don't assembly the package. They go to Disability
    14Retirement but I don't know everything that goes into
    15it or who is contacted.
    16Did you ask them if he was disabled?
    17QDid I ask who if he was disabled?
    18QThe medical officer. Did you ask him, "Do you think I
    19should apply for his disability?"
    20QNo, I didn't ask him, "Do you think I should apply for
    21his disability".
    22QWhy not?
    23QI didn't see that it was required.
    24Nothing is required necessarily but isn't it logical to
    25find out whether you have a chance before you do something?

    -Averhart -51-

    (pp 52-54)

    1AThe Management-Employee Relations Branch.
    2QI guess there are so many layers of command that I am
    3forever confused by that.
    Why didn't you draft it?
    5ABecause we rely on the Management-Employee Relations Branch
    6to provide technical advice on these kinds of actions.
    7QThe statement that "your personal physicians have
    8indicated that your condition requires an absolutely
    9smoke-free work environment, free of any smoke particu-
    10lates," you signed that statement, did you not?
    12QIn view of the evidence I have just shown you, are you
    13sure that that's true?
    14AI don't know. I don't know what that means, what
    15reasonable means. Based on my knowledge at the time of
    16this letter that was my understanding.
    17QBut now there is at least a question, is there not?
    18AI don't have a question because I don't know what it
    20QThe document I have shown you -- it's also in the record
    21from Dr. Dubin — does not require absolutely smoke free.
    22It says "reasonably free of contaminants," does it not?
    24QWould you feel more comfortable with this statement if
    25you have further information? This statement you have

    -Averhart -55-
    2AI'm not really that much into clarifying what Dr. Dubin
    3said. As I told you before, I would rely on our Command
    4medical officer to handle that portion of it.
    5QI understand. But as an individual decision maker you
    6are the one who is putting your name to the end of this
    7man's career. Do you understand that?
    9QAre you standing behind this statement you made on
    10November 27, 1981, when you signed that document?
    11AAt the time I signed that document that was the best
    12information I had.
    13QWhat about now?
    14AI don't have anything that contradicts it because I
    15don't know what Dr. Dubin means by reasonable.
    16QAnd do you know if the medical staff contacted Dr. Dubin?
    17AI don't know.
    18QWhen was it established the working conditions at TARCOM
    19-- excuse me, TACOM. T-A-C-O-M -- met OSHA requirements?
    20AI was advised of it by either the industrial hygienist
    21or the safety officer. I am not sure.
    22QWhen were those studies taken?
    23AI don't remember.
    24QSo you don't have any independent knowledge of what they
    25have established?

    -Averhart -56-

    1AI have the information that they provided me. I did not
    2conduct the studies myself, if that's what you mean.
    3QDid you read the studies?
    4AI read their report that said that we met the require-
    6QHow frequently were those reports done?
    7AI don't know.
    8QWas there one report or two reports?
    9AI don't know.
    10QYou don't know?
    11AI don't know.
    12QWhat are the OSHA requirements?
    13AI don't know.
    14QYou've told me that you have looked at the Department
    15of Army Requirements?
    16AI've looked at the Department of Army Regulation [1-8] that
    17you mentioned.
    18QYes. Did you ask for guidance as to what the requirements
    19are in interpreting that regulation?
    20AThe regulation is relatively straightforward, if I
    22QSo you've stated [in letter] that it was established that you had
    23complied with OSHA requirements even though you don't
    24know what those requirements are?

    Ed. Note: Again testing to expose the rehearsed perjury. TACOM's attorney can be expected to become concerned!

    MS. BACON: I object. She just stated

    -Averhart -57-

    (pp 58-59)

    1office applied."
    Do you have it?
    "You are requested to provide an updated
    5physician's statement concerning your current medical
    All right?
    9QNow, in your letter of proposed removal you stated that
    10you had requested revised medical information, not
    11updated medical information.
    Isn't there a difference between the two?
    13AI didn't draft this letter.
    14QI know. Did you see the letter before you drafted the
    15proposal to remove?
    16AI really can't remember. [Ed. Note: A typical smoker symptom.]
    17QI mean, you didn't draft the proposal to remove, did you?
    18ANo. I said that already.
    19QAll right. And that was by somebody in the Personnel
    21AManagement-Employee Relations Branch.
    22QMrs. Bertram?
    24QMrs. Bertram probably did it. Do you agree that there
    25is a difference between revised medical information in

    -Averhart -60-

    1the November 27 removal and updated information?
    2AThey are different words, yes.
    3QMr. Pletten had already provided a revised physician
    4statement of January 20, 1981, had he not? The one that
    5I have shown you from Dr. Dubin.
    7QThis isn't at all referenced is it?
    8AAre you talking about a letter from January?
    10ARight. It's not referenced in this [my] letter from November.
    11QAnd you say in the next line,
    "Inasmuch as nothing was received from
    13you by the due date of 10 November there is no basis for
    14returning you to duty at this installation."
    Is that correct? That is in the letter,
    16isn't it?
    17AWhere were you? I'm sorry.
    18QParagraph 3, sentence 2.
    "Inasmuch as nothing was received from
    20you . . ."
    22QSo the reference to that January 20 letter may have
    23changed the whole complexion of this letter, might it not
    25AWell, when I read this it says that they were asking for

    -Averhart -61-

    (pp 62-69)

    1exactly remember what it was but the record will have
    2to speak for itself as to what his testimony was.
    3Q(By Mr. Cohen) Well, if I were to tell you that
    4Col. Benacquista said that he had the authority to ban
    5smoking but has chosen not to and that [Tr. at 24-25] he didn't feel
    6it was necessary — I think those are almost his exact
    7words — then this statement would be incorrect; is that
    9AIt was my understanding that the Command could not provide
    10Mr. Pletten a smoke-free work environment.
    11QBy those words "smoke-free work environment," what did
    12you understand that to mean?
    13AFree of smoke.
    14QIs that just cigarette smoke or all smoke or what?
    15ASmoke free means free of all smoke to my understanding,
    16particularly tobacco smoke.
    17QDid you inquire as to whether the Command could ban
    18tobacco smoke?
    19AI was under the impression that the Command could not
    20provide the environment that Mr. Pletten's physician
    21said he required. [Ed. Note: As per Col. Benacquista's extortion.]
    22QWho fed you with that impression?
    24QHow did you arrive at that impression?
    25AIn [ex parte] discussions with Mr. Hoover.

    -Averhart -70-

    1Q So Mr. Hoover would more properly have drafted the
    2letter? He would be the one who had the personal
    3knowledge in this area; would he not?
    4A I don't know what his personal knowledge is. You asked
    5me where I got the information.
    6QHe asked you where you got the information?
    7A You asked me where I got the information.
    8QWere there other alternatives to separation from Federal
    9Service suggested?
    10A We had exhausted the other alternatives, which were to
    11provide Mr. Pletten with sufficient time to recover, if
    12that's what he was going to do or to have a change in
    13his condition or have him return to work and nothing had
    14happened along those lines.
    15QDid you seek a prognosis from his doctors?
    16A I asked him to provide a doctor's statement, yes.
    17You told me you weren't involved in the preliminary
    18stuff, only when it got down to your concern over your
    19own command and then you went to Mr. Hoover and said,
    20"I need more staffing."
    21QDid you seek to establish a hazard-free
    22environment for Mr. Pletten within your branch?
    23A It was my understanding that it was Mr. Pletten's condi-
    24tion that was the problem. Our environment did meet
    25the requirements for a safe working environment.

    Ed. Note: This is rehearsed perjury, as per adherence to Col Benacquista's extortion. Averhart had never heard of AR 1-8 criteria, USACARA Report, OSHA rules on TTS emissions, pure air rights, now is suddenly an expert on them! TACOM in fact met none of the requirements!

    -Averhart -71-

    (p 72)

    1 A Well, I don't believe the question was what can we
    2     create but that it is what can we work with that [already] exists
    3     here.

    Ed. Note: This verifies whistleblower Pletten's point all along, that the so-called "accommodation" process never began, was never even considered.
    Averhart's response pursuant to the TACOM party line (refusal to cease permitting smoking as per AR 1-8 criteria) derives from Benacquist'a extortion (Dep p 62) which nobody was allowed to overrule.
    Note also Averhart's tobacco addiction, mental disorder, and brain damage; so deranged as to be literally unable to comprehend that the whole idea of the common, federal, and state pure air rules, Army pure air regulations, etc., etc., etc., etc., ad infinitum, is to make, command, direct, force, compel, local Army commanders who otherwise deems themselves above the law, to change their local polluted atmospheres into non-polluted ones.
    In law, "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). Law is "designed to disrupt" nonconforming practice, U.S. v City of Los Angeles, 595 F2d 1386, 1391 (CA 9, 1979). A "practice" "not based upon any rule of law" must be reversed and rejected, Biafore v Baker, 119 Mich App 667; 326 NW2d 598 (1982); The T. J. Hooper, 60 F2d 737, 740 (CA 2, 1932). Due to Averhart'sbrain condition, she was unable to comprehend even simple concepts such as this.
    Once EEOC review begins, ANY EEOC adjudicator will INASTANTLY pick up on this, and observe that TACOM, having ordered Pletten off-post in a furious rage of anger that he had won the 25 Jan 1980 USACARA Report [see overview] telling TACOM to start disrupting its unlawful practice of cigarette smuggling and TTS emissions, had never begun compliance, had not even thought about it, and refused to speak with Pletten after having hysterically ordered him off-post.
    This fact is a fundamental reason Pletten wants EEOC forum review, not MSPB's. It is undisputed that MSPB policy and practice via its adjudicators and staff, is bribe-ridden, and brazenly disregards, spits on and refuses to acknowledge TACOM confessions against interest.
    Note the New York City Commission to Investigate Alleged Police Corruption, the Knapp Commission Report on Police Corruption (1972). [Context]. That Commission found that while not all police are corrupt, eg.g, bribed, those who are not, typically look the other way with respect to corrupt colleagues, so prosecutions are rare. The situation is worse at MSPB, a continuing criminal enterprise, as per its unanimous fixed policy and practice, such that no MSPB official takes action against colleagues' corruption, crimes, and racketeering.

    4 Q Well, how do you define reasonable accommodation?

    5 A I haven't really thought about defining reasonable
    6     accommodation.

    7 Q Do you know when that is used, when that term is used?

    8 A I've heard the term.

    9 Q Have you heard the term used in conjunction with
    10     disability and/or disabled persons, handicaps?

    11 A Yes.

    12 Q Did you consider Mr. Pletten handicapped?

    13 A I don't know. I don't really think of it in that sense.
    14      He had a condition that said he couldn't work in our
    15     office environment.

    16 Q Were you aware that Mr. Pletten had made claims that he
    17     was so handicapped?

    Ed. Note: a question testing for perjury, as Pletten had not made such claims. Instead of obeying the USACARA Report, TACOM immediately made its February 1980 decision to terminate Pletten, ordered him off-premises 17 March 1980 (mere weeks after the 15 Feb 1980 transittal of the 25 Jan 1980 USACARA Report) so ultra-fast he couldn't, even had he wanted to!!
    What Pletten had been doing, was seeking implementation of USACARA's Report, making clear his anticipated testimony of non-compliance, re which the extortion occurred, attempting to force change in, forestall, such anticipated testimony.
    Moreover, Pletten, an experienced personnel official, used the terminology of USACARA Report implementation. And as a 'Crime Prevention Officer, he used the terminology of pertinent criminal law precedents!!
    Neither involves using bizarre, unfamiliar 'handicapper' terminology. The status of being a non-smoker is not an abnormality! Thus that status does not seek, warrant, have any relevancy to, 'accommodation' terminology!

    18 A Yes.

    Ed. Note: Note, pursuant to the TACOM-coaching-of-witnesses, her promptly committing the tested-for perjury.
    She had been a fellow co-worker, never had been an official to whom to address such matters.
    Pletten been forced off-post 17 March 1980. This was before she claimed management status.

    19 Q And you still didn't think of it in those terms?

    20 A You asked me if I thought of him as handicapped.

    21 Q Yes.

    22 A And I said that when I think of him I don't think,
    23     "Mr. Pletten, handicapped." I knew him for many years
    24     before this condition became known.

    25 Q Even in view of his protestations that he is handicapped,

    Ed. Note: again testing for perjury, as per Pletten never having made such protestations.

    -Averhart -73-

    1 you still don't think he's handicapped?

    2 A I'm not saying I don't think he is handicapped. You
    3     asked me if I thought of him as handicapped.
    4     I think of him as Leroy Pletten.

    5 Q The statements within the record indicate that—and
    6     this is at Tab 14. I'm sorry, it's at Tab 13. It
    7     indicates in "Agency Response to Issues"—and this is
    8     the third paragraph from the bottom. It says:
    9     "The grievance to which Mr. Pletten refers
    10     relating to smoking, was resolved by a USACARA report
    11     dated 25 January 1980. The Agency though not agreeing
    12     with all the findings of fact accepted the recommendations
    13     in said report, thereby bringing the grievance to an end."

    14     First of all, did you read that report?

    15 A I could have, I don't know. I'm not sure which report
    16     this is.

    17 Q Look at Tab 3 because that report is contained in Tab 3.
    18     It is just a summary but a portion of it is in there.
    19     Had you ever seen that before?

    20 A Yes, I've seen it.

    21 Q And if you will note the recommendations. Have you seen
    22     those?

    23 A Yes. I've seen them.

    24 Q And you will note at "B" that it says that the Commander
    25     take further action necessary to provide Mr. Pletten

    -Averhart -74-

    1 with an immediate work area which is "reasonably free
    2     of contamination." Do you recognize that?

    3 A Yes.

    4 Q And in view of Dr. Dubin's letter of January 20, 1981,
    5     that seems to jog with that, does it not?

    6 A Well, they both used the word "reasonably."

    7 Q That's right. And they both used contamination, didn't
    8     they?

    9 A I don't remember about contamination.

    10 Q My question then I guess, if you are familiar with this
    11     and you have seen it before, is what didn't the Agency
    12     agree with in terms of the findings of fact by the
    13     report?

    14 A I don't know.

    15 Q Who would know?

    16 A Mrs. Bertram.

    17 Q Mrs. Bertram?

    18 A Yes.

    19 Q Well. I will get to her on Monday.

    20 Did Mr. Pletten leave anything behind him
    21     when he left?

    22 A I don't know.

    23 Q Personal papers or a calender pad or any property from
    24     his desk?

    25 A I don't know. If he did, he didn't let me know that he

    Ed. Note: since he had been forced off-post over two years before!!

    -Averhart -75-

    (pp 76-77)

    1 Q     Do people ever recover from this
    2      discomfort? I mean, do they ever change?

    3 A     I don't know. You'd have to ask them.

    4 Q    I mean, if somebody doesn't like cigarette smoke it's generally
    5         the case that they don't change that dislike; isn't that
    6        true?

    7 A     I don't know.

    8 Q    Can an environment be changed with regard to -- strike
    9        that.

    10                MR. COHEN: I have nothing further.

    11                MS. BACON: Shall we close the record
    12                                        then for today?

    13                MR. COHEN: Yes.                           [Deposition concluded]

    14                                     * * * *                               4:40 p.m.

    -Averhart -78-
    [Click here for .pdf Full Text.]

    4. Deposition of Robert J. Lang,
    TACOM Facility Engineer

    (His Methodology Had Been
    Overruled by USACARA's Report as
    Violating AR 1-8, But He Refused to Comply)
    1Southfield, Michigan
    2Monday, April 26, 1982
    3Approximately 8:20 a.m.

    P R O C E E D I N G S
    R O B E R T     J.     L A N G
    being first duly sworn, was examined and testified on his
    oath as follows:

    8    BY MS. BACON:
    9 Q      Would you state your name again for the record, please?

    10 A       Robert J. Lang, L-a-n-g.

    11 Q      What is your position at TARCOM?

    12 A     I am the TACOM Facility Engineer.

    13 Q    How long have you held that positionm approximately?

    14 A     Oh, roughly about 12 years [i.e., since about 1970].

    15 Q     Are you familiar with the appellant in this matter,
    16      Mr. Leroy Pletten.

    17 A     Yes, I am.

    18 Q     How did you first become acquainted with Mr. Pletten?

    19 A     Through personnel actions at the installation.

    20 Q     Were you ever asked to check ventilation in Mr. Pletten's
    21      working area.

    22 A     Yes, I was.

    23 Q     Why were you asked to check the ventilation?

    24 A     Because Leroy had indicated to the supervisor there was not
    25      sufficient ventilation and the area was unhealthy.

    -Lang -2-

    (pp 3-13)

    1an individual is irrelevant?
    2AThat is not my responsibility for that part of it. We
    3provide the ventilation; if there is a problem, then we look
    4into it.
    5QAs in this case with Mr. Pletten, you gave him an air con-
    7ARight, which was more than what was called for in the

    Ed. Note: The question tested for perjury, the rumored/alleged offer of an air conditioner. No air conditioner was provided, see Kator Tr. at 45-46, expressing shock at the notion.

    9QIs that your interpretation of AR 1-8, or is it indicative of
    10the position of others that you answered to in the Command?
    11Was that enunciated to you by Mr. Ortisi, for example?
    12AWell, you know, being a mechanical engineer and responsible
    13for ventilation, they came [ex parte] to me to see whether we met the
    14regulations and which I indicated we did. Now, what -- I
    15don't know what they understood about it other than the
    16statement I made that it does meet the regulations.
    17QI understand, but -- if this is 10 cubic feet, we presume on
    18its face that complies with the regulations regardless of
    19Section 2a. Was that the understanding of the regulations
    20that came to you on your own, or was it one that was for-
    21warded to you?
    22AWell, again, you know, back up again. We went -- the super-
    23visor complained about the conditions in the area per
    24Mr. Pletten and I went out to verify and found it met the

    -Lang -14-

    1QPlease get into specific requirements of this study. As I
    2understand it -- when was it undertaken, first of all?
    3I think it was in June, June 1979, or some time about that
    4time; the latter part of June.
    5QWhat portion of the air was circulated from outside?
    6At that time?
    8QActually about 25 percent of it had come from the outside.
    9In the disposition form you state, "During winter months,
    10with the dampers closed, we are still bringing in 8 to 10%
    11of fresh air." If the study was performed in June, how is
    12it you could testify to what the winter months contained?
    13ABecause we have taken studies on this before. This is not
    14the first study taken to check the system.
    15QWhen was the study prior to this?
    16AI don't recall, but it is checked from time to time.
    17Do you remember how frequently those were performed?
    18ANo, I don't because it is a matter of course.
    19QOn what regular basis are they done?
    20AFirst of all, it is done on a basis of complaint, and then
    21done on a regulatory basis probably once or twice during
    22winter months.
    23QHow many times during summer months?
    24AThe ventilation can be 100 percent and we do take 100 percent
    25outside air during the summertime if the temperature outside

    -Lang -15-

    1Awill not cause a problem with people inside. In other words,
    2as long as it is about 75 percent, we take 100 percent out-
    3side air.
    4QYou are Facilities Engineer?
    6QYou are in charge of all these people?
    8QDid you institute proceedings, a program for doing these
    10AThere is a regulation covering this.
    11QWhat do the regulations say?
    12AI can't quote all the regulations verbatim.
    13QHow long have you been in this business, sir?
    14AThirty years.
    15QYou cannot tell me how many times a year these studies are
    17AI told you twice a year.
    18QYou stated once or twice a year in the winter months [Tr. at 15] Can
    19you tell me more specifically how frequently you do this?
    20Is it once or twice a year during winter months?
    21AI can't say.
    22QHow many times do you direct it be done?
    23AThe Army requires it twice a year.
    24QHave you always done it twice a year?
    25ATo the best of my knowledge, yes.

    -Lang -16-

    (pp 17-18)

    1percent of the air, which would lead one to presume it is
    2an infinitesimal amount of air that does not get recirculated
    3and now you are telling us you don't know how much air was
    5AAt that particular time, 90 percent was the maximum amount.
    6We certainly would not be pulling in 90 percent of air in
    7the winter months.
    8QHow much would you be pulling in?
    9AAs I said, eight to 10 percent.
    10QEight or 10 percent?
    11AWe are talking about winter. Again, that is a general
    13QHow much was it?
    14AAt what time?
    15QThe winter previous to this DF.
    16AAt that particular -- it varies from day to day.
    17QHow many times do you take studies? You said only once or
    18twice a year.
    19AI know from experience it varies from day to day. It has to
    20do with air pressure and --
    21QWell, how long a period of time are we talking about? You
    22said you looked at another study. Which was it, eight or
    2310 percent?
    24AI am not certain because each ventilator is a little

    -Lang -19-

    (pp 20-27)

    1obviously relies heavily on your construction of this.
    2AI was involved myself, he and I.
    3QWhat studies did you so personally?
    4AI checked the dampers and had Mr. Novak's people take the
    5readings and check them to verify them.
    6QHow many areas of the building did you check with these tests?
    7AAll of the Personnel area.
    8QHow many other areas did you check?
    11ANone at that time I did not, no.
    12QHow many in your normal schedule of testing?
    13AThey check the entire building when they check our outside
    14air, 250,000 square feet.
    15QHow many specific tests did you make in how many areas?
    16AWe checked all the fan rooms.
    17QHow many fan rooms are there?
    18AI think there is four.
    19QLet me understand that because I am not real familiar with
    20the tests. Does that mean some guy takes the instrument to
    21one position in four different places, stands in four
    22different places in a building of 250,000 square feet?
    24QThat constitutes compliance with the entire building?
    25AWe are talking about air from the outside is what we are

    -Lang -28-

    1Atalking about. I don't go around and check every defuser.
    2QWhy not?
    3AThere is not a need to do it. With a closed system, it does
    4not vary. The only thing we may do is run partitions up to
    5the ceiling and close off an area. Then we check that.
    6QYou said you check four areas?
    7AI am talking about fan rooms themselves, not working areas.
    8QThese studies are not done in the working area at all?
    9AThis one was.
    10QWhy this one and not others?
    11ABecause we got complaints.
    12QWhat were the standard studies, their results, outside
    13Mr. Pletten's area? You did normal studies?
    14AYes, fan room.
    15QWhat was the result?
    16AThey met the standard.
    17QDid Mr. Pletten's test for the Personnel Office meet AR
    18requirements, or the test overall in the fan room meet AR
    19standards, or both?
    20AReally both.
    21QWhat were the quantifications of both tests? What were the
    23AWe determined how much fresh air came in in Leroy's area; we
    24showed how much came out of each defuser and using a formula
    25we calculated that to see how much CFM was being pushed in

    -Lang -29-
    1Athat room.
    2QIf there was an obstruction in the duct --
    3AThere was none.
    4QLet's assume hypothetically there was one. Would that limit
    5the amount of CFM?
    6AYes, it would.
    7QHow do you know there was no obstruction?
    8ABecause we found the violation site came up to what it should
    10QThese studies are written up every year?
    11AI don't take those kinds of studies every year.
    12QYou stated you do air studies every year.
    13AYes, in the fan rooms.
    14QAre those quantifications written? Are there fan-room study
    16ANo, there is not.
    17QNothing written?
    18ANo, there is no need. A man checks it as part of the
    19maintenance procedure.
    20QIf there are no written studies and no written numbers other
    21than your word that it is between eight and 10 percent, isn't
    22that all approximation, Mr. Lang?
    23ANo, because we did take a reading at that time.
    24QWhy didn't you write them down?
    25AThey are written down.
    -Lang -30-

    1QNo. These are your percentages of the numbers. I don't have
    2the actual study in front of me.
    3AI was not asked for that.
    4QYou knew there was a problem.
    5AWe checked it and verified it was all right, according to

    Ed. Note: "Verifed" by disregarding the AR 1-8 criteria. USACARA rejected this approach.
    You see how TACOM's case is based on re-presenting its same old failing case and studies to MSPB, as had been rejected by USACARA.
    By corrupt means, ex parte, TACOM had advance assurance MSPB officials would aid and abet the defiance of the rule of law, including Col. Benacquista's extortion.

    7QMr. Lang, from a layman's standpoint, wouldn't you agree this
    8is basically approximation?
    9AThis may be. I don't know. Do you have a copy of these? I
    10don't know if it is this study.
    11QYou based your DF on that? Weren't they approximations?
    12ANo, they were on actual tests.
    13QWhat were the results of the tests?
    14AThis is the result of those tests.
    15QBut these are not specific, sir. Would you agree your DF
    16is not specific?
    17AIt is specific. It tells you the information that was
    19QIf you take your statement in Paragraph 2 at face value that,
    20"We are still bringing in eight to 10 percent of fresh air,"
    21and you presume eight is the minimum and 10 percent is the
    22maximum, with the dampers closed, admittedly, isn't it
    23possible that one could presume that you are not in
    24compliance with AR 1-8?
    25ANot at all.

    Ed. Note: USACARA had not only "presumed" but found that this approach was not in compliance. Note the continued defiance of the AR 1-8 criteria.

    -Lang -31-

    (pp 32-33)

    1QDid you ever do a study at normal?
    3QWhat were the results of the study?
    4AThat this far exceeded this.
    5QHow far?
    6AThe minimum is 10 percent outside air setting and you can run
    7that up to 100 percent outside air, which, in effect, is the
    810 percent of fresh air.
    9QWhat is normal in the winter months at TACOM?
    10ATen percent outside fresh air. That is where all the damper
    11settings are set.
    12QBut you don't have any numbers for that, do you?
    13AWhat numbers would you like?
    14QSpecific numbers from reading those instruments you told me
    15you operate.
    16AWith me, no.

    Ed. Note: You can see why USACARA rejected TACOM's approach. The rgulation, AR 1-8, mandates to "remove smoke." Whatever the percentage of fresh air being brought in, at whatever rate, it wasn't "removing smoke."

    17QYou testified before that they don't exist. Now you are
    18testifying that you don't have them with you. Do these
    19numbers exist, or don't they?
    20QNot that I know of. I have no idea. I would have to check.
    21They don't keep records like that.
    22QYou are the boss, Mr. Lang, you are the boss. You direct if
    23such studies are kept.
    25QDo you direct your people to keep the numbers?

    -Lang -34-
    1ANo, just to do the checking.
    2QSo the numbers don't exist?
    3AAgain, I don't know if the man keeps it. He is not required
    5QDo you have separate standards for smoke as opposed to other
    7AAs far as ventilation is concerned?
    10QDefine the contents of smoke for me, sir.
    11AI don't know. I am not qualified.
    12QYou told me you're qualified to take air studies.
    14QYou are saying you are only qualified to take air flow
    15studies, or air content studies?
    16AI don't take air content studies. That is not my responsi-
    18QYou indicated your people did and that is including the
    19boiler plant?
    21QDo they take air content studies?
    23QNow, part of your job is taking air content studies. Do you
    24take air content studies for the rest of the Command?
    -Lang -35-

    (pp 36-38)

    1Aone to 10?
    2AThat is the Ringaman test.
    3QWhat does that show?
    4AQuantity of smoke in the air coming out of the boiler plant.
    5QThat sounds like an air content study.
    6ANo, air content is what is in that smoke. All the Ringaman
    7test shows is the density of the smoke, that is all. It does
    8not show what is in the smoke, what its contents are.
    9QDid you do a Ringaman test in this area for Mr. Pletten?
    10AThat Ringaman test is not applicable to that.
    11QWhy not?
    12ABecause the Ringaman test is a smoke test from a boiler plant
    13Ringaman would be zero in that area.
    14QWithout even testing you are sure of that?
    15AYes, unless there is a fire over there [Ed. Note: "Fire," smoking inherently has it!].
    16QI noted at the bottom of your disposition form comments
    17about areas where smoking had been banned ? Paragraph 5: "One
    18of the reasons no smoking signs were posted in areas such as
    19conference rooms, auditorium and cafeterias, is that the
    20requirement could not normally be satisfied." Could it be
    21possible to do a Ringaman test in a wholly contained area to
    22determine smoke?
    23AI would not even want to go in the room to take the test.
    25AIt would have to be so dense to apply a Ringaman to it.

    -Lang -39-

    (p 40)

    1QYou still smoke?
    3QDid you quit?
    5QHow many years now?
    6AAbout five years. [Ed. Note, 1977, AR 1-8 time, protecting self, not others].
    7QWhy did you quit?
    8ABecause it became a nuisance.
    9QHow so?
    10AFumbling for cigarettes and I just felt I could give it up,
    11and I gave it up.
    12QDo you have any complaints from other people with regard to
    13cigarette smoke?
    15QIf somebody asked you to stop smoking, you would stop smoking,
    16for the purposes of a meeting?
    17AIn a conference room I would not smoke.
    MR. COHEN: Let's take a little break.
    (Recess taken.)
    20Q(By Mr. Cohen) Let me ask you a few questions more.
    As Facilities Engineer, do you instruct your
    22people as to personal habits on the job?
    MS. BACON: I would object as being irrelevant.

    Ed. Note: It is very relevant; employers do regulate personal habits, e.g., dress code, grooming, no drugs on premises, no on-job drinking, sexual-harassment-avoidance matters, etc.
    Col. Benacquista identified smoking in "personal habit" terms, Tr. at 25.
    TACOM was regulating other aspects of "personal habits," except this one! in blatant violation of the AR 1-8 criteria!

    24Q(By Mr. Cohen) Do you instruct your people as to personal
    25habits on the job?

    -Lang -41-
    1ANo, not personally.
    2QIf somebody came in dirty, for example, horribly dirty on a
    3continual basis, would you caution them?
    4AThat would be because of job conditions, we would say you are
    5not very presentable. I have never done that, or had a need
    7QDo you have any rules with regard to smoking within your
    8section as Facilities Engineer?
    Ed. Note: Establishing the accuracy of the USACARA Report finding of general non-compliance, disregard of employee rights, throughout TACOM, including not informing workers of the AR 1-8 criteria.

    10QYou don't regulate smoking at all?
    11AOnly in areas where it is prohibited. We put signs up, no
    12smoking, since I have the responsibility to provide those
    13for the Command.
    14QYou provide the no smoking signs?
    16QBut you have not sent out any memo to your employees regarding
    17no smoking?
    18AOther than coming through the normal government chain.
    19QIf higher command sent you one, you would send it out?
    21QBut you don't initiate them?
    22ANo, I don't.
    23QDo you have any knowledge or experience with regard to
    24hazard from fire retardant, or other materials of that sort?
    25AYes, as part of my job, yes, I do.

    -Lang -42-

    (pp 43-44)

    1would not necessarily meet OSHA regulations?
    2AI could not make that determination.
    3QMr. Lang, I am going to close the record as to my cross-
    4examination. I would ask, on behalf of Mr. Pletten and, I
    5believe, on behalf of the Command, to clarify a lot of
    6these. If there are any documents that reflect specific
    7findings that support your disposition form of July 24 to
    8the Legal Office, can you get them together so we can see
    9them because lots of the problems we are having -- at least
    10we have been having -- I am sure Mrs. Bacon would not
    11necessarily feel the same -- is lots of it is approximation.
    One last question. Over the period of 30
    13years, then, you have only done 60 air flow studies at the
    15AI don't recall.
    16QYou testified you did at least two a year, so over 30 years
    17you have done these studies 60 times.
    18AThere is areas we take studies in that does not involve the
    19whole Command, a DP areas.
    20QThat is what?
    21AData Processing.
    22QComputers again. Lots of testing?
    23AAs far as humidity, yes.
    24QIf there is a hazard to the computer, they take care of it?
    25AWell, you said hazard. If they don't function, obviously you

    -Lang -45-

    (p 46)

    1 Q   Mr. Kator?

    2 A   I am not sure. It could have been.

    3        MR. COHEN: I have nothing further.

    4      ([Lang deposition concluded] 9:35 a.m.)


    -Lang -47-
    [Click here for .pdf Full Text.]

    5. Deposition of Evelyn Bertram,
    Employee Relations Specialist
    1Southfield, Michigan
    2Monday, April 26, 1982
    39:45 a.m.

    - - -
    E V E L Y N     D.     B E R T R A M
    being first duly sworn, was examined and testified on her
    oath as follows:

    9    BY MS. BACON:
    10 Q      Would you state your name for the record, please?

    11 A       Evelyn Bertram.

    12 Q      What is your position, Mrs. Bertram?

    13 A     Employee Relations Specialist.

    14 Q    How long have you worked at that particular position?

    15 A     Six or seven years [i.e., since 1975 or 1976].

    16 Q     What are the responsibilities of your position?

    17 A     Advice and assistance to supervisors and managers in the
    18      area of employee discipline, grievances, appeals; employee
    19      management relations problems.

    20 Q     Is your function as advisor or decision-maker?

    21 A     Oh, as advisor.

    22 Q     Which managers and supervisors do you advise?

    23 A     The R and D Center -- Research and development Center,
    24      Production Assurance Director, Personnel Training and Force
    25      Development Directorate.

    -Bertram -2-

    (pp 3-17)

    1ABecause decisions had been made along the way that were
    2leading to the final action of retain or separate.
    3AWait a minute. Let me understand something. Why were these
    4leading to this? Are you saying there was an inexorable
    5march to remove Mr. Pletten?
    7AWhy —
    8AI am saying this: Number one, he was placed on [extortionate] leave; he was
    9unable to return to duty, according to his own doctors'
    10statements in [about] our [unsafe] working environment. We considered separa-
    11tion [segregation] earlier, but that did not seem appropriate because there
    12was the possibility of disability retirement and, as you know
    13the Agency filed that information in his behalf. That was
    14disapproved by the Commission, so then we have to make some
    15other decisions, and the decision was to proceed with
    16separation due to medical disqualification.

    Ed. Note: Never any consideration or decision to
  • come into compliance with the AR 1-8 criteria,
  • obey the USACARA Report,
  • halt the Benacquista extortion (Tr. at 62),
  • halt the Benacquista overuling of the doctors (Tr. at 13),
  • abide by what the doctors actually said, or
  • honor any of Pletten's repeated returns-to-duty per Bevan precedent.
    The rehearsed testimony continues.
  • 17AWhy could you not keep him; sick leave without pay?
    18AWhat could that accomplish?
    19AWhat would it mean to sever a man's career without any
    20actual knowledge he could not come back?
    21AWithout actual knowledge he could not come back?
    22AThat is right. It was your presupposition he would never be
    23able to come back and you could not provide the proper type
    24of environment [smoker conduct]. Don't things change, Mrs. Bertram?
    25AYes. Well, of course they do. They are always changing.

    -Bertram -18-

    1But the facts at the time were, and still are today, that the
    2work environment is not such that he can work in that
    3location without hazard to himself, by medical certification.

    Ed. Note: Disciplinary rules provide for firing employees (here, smokers) causing a hazard to others, not a whistleblower reporting the hazardous conduct!
    Hiring criteria provide for not hiring hazard-causers in the first place.
    4QDidn't you add a new building at TACOM?
    6QHave you taken an air study there?
    7AYes, there were.
    8QWere or did?
    9AThey did.
    10QWhat are the results?
    11AThat they did not meet the requirements of Mr. Pletten's
    12physicians [as overruled by Col. Benacquista, Tr. at 62].
    13QWhat were the quantifications, the qualified studies? Where
    14are those studies? I have not seen them yet.
    15ADo you want to give me my folder back, please?
    17AWell, I am sure you have been through this. There is not one
    18in here for Building 229 or 231.
    19QMrs. Bertram, I am sure you would know, because you made all
    20the recommendations based on the information, or advised,
    21did you not, and know — by the way, I don't believe there is
    22one for the new building.
    23AI don't see one. I guess I don't have one.
    24QWhen did the new building open?
    25AJune and August last year.

    -Bertram -19-

    (pp 20-22)

    1argue with that just as I can't argue the best I could have
    2in my own office would be a smoke-free environment, but you
    3have not shown me yet, any part of the letter that says he
    4cannot, or should not work. Can you find language of that
    6AThey have said that he must have a smoke-free environment,
    7and then --
    8QWhere does he say that he must have a smoke-free environment
    9in order to work?
    10AThe one we have just read.
    11QYou are talking about March 5? It is not there.
    12AThe January one I just quoted.
    13QJanuary '81 from Dr. Solomon, or what?
    14AGoing back to March '80, March 17, 1980, Dr. Solomon said
    15this patient needed a smoke-free work environment to avoid
    16ambients tobacco smoke [Ed. Note: i.e., above-OSHA limits] at all costs.
    17QBut does it [doctor letter] say he [whistleblower Pletten] can't work?
    18QNo, it does not say he can't work, it says it [TTS] must be avoided
    19Aat all costs.

    Ed. Note: No doctors ever said Pletten cannot work! Col. Benacqusita had said it (Tr. at 13), however, to force Pletten to retract his request for compliance with AR 1-8 (Tr. at 62).
    Note fixation on the whistleblower, not on the rules' intent of protecting the entire work force from smoking.
    Note rehearsed perjury, pretending doctors had said, what Col. Benacquista had altered to.

    20QLet's go with this for a minute. Coal miners, for example,
    21are placed in deep, dark holes miles below the surface and I
    22would advise a coal miner, I would say, "If you want to have
    23a healthy lung, you should avoid coal mining," but by no
    24stretch of the imagination is it said they are forbidden from
    25working. Do you understand that?

    -Bertram -23-

    (pp 24-31)

    1ANo. As far as I know, it was disapproved [Ed. Note: due to his work ability].
    2QDid you concur in Mr. Pletten's attempt?
    3AI neither concurred or non-concurred. The medical evidence
    4he produced was sent to Worker's Compensation. I don't recall
    5being asked for witness statements or anything. I don't
    6think I was.
    7QIf the command filed additional writing requirement matters
    8without his permission, did the command assist him in prepara-
    9tion of the comp claim?
    10ALet me see. The Personnel Office compensation clerk assisted
    11him in processing his claim. One of the things that is a
    12required step in adjudicating that claim is the supervisor's
    13statement and witness statements. I don't recall being asked
    14to function as a witness statement and it was outside of the
    15realm of any other processing.

    Ed. Note: TACOM obstructed the claim, by denying there was a smoke hazard, while simultaneously firing the whistleblower due to the smoke hazard he'd reported. Others' such claims were not obstructed. It was ok for taxpayers to pay the bills, not to solve the situation

    16QAre there some problems with smoking-related injuries in the
    17command, to your knowledge?
    18ATo my knowledge, no.
    19QOther smoke-related complaints by other personnel?
    20ATo my knowledge, no, but I don't necessarily have that

    Ed. Note: The real truth is, complaints were so epidemic they were in the TACOM newspaper! TACOM sick leave rate was in the 80's, vs Army norm of 61.9 hours per year. Personnel Officer Archie D. Grimmett said in a paper reviewed by Bertram, that "at least several employees have filed [worker compensation] claims stemming from smoking-related conditions" (Memorandum for Colonel Phillips, 10 Oct 1979).—App. Exh. No. 1.

    22QBut you yourself had that problem [tobacco-caused injury] at one time?
    24QIf you know, did the Tank Command meet Army regulations at
    25the time you had your [TTS-caused] problem?

    -Bertram -32-
    1AI don't know.
    2QDid you ask for a study to be made?
    4QYou didn't ask for air studies?
    6QBut from your impression, it [TTS] was causing you some harm?
    7AIt was an immediate co-worker who was working quite closely
    8with me that was a chain cigar smoker, and it caused a
    9problem, yes. [Ed. Note: She filed a worker compensation claim.]
    10QDid you ask your supervisor to get the cigar smoker to stop
    13QWas that accomplished?
    14He smoked all the more. [Ed. Note: see reasons].
    15Q[Sarcastically.] Wonderful. What did your supervisor do?

    Ed. Note: Such incidents help explain the need for the AR 1-8 criteria, as per difficulty getting smokers to behave without a rule. Pletten was a witness in Bertram's compensation case. Wherefore comes his concern for protecting the workforce at large.

    17QDid you file a Complaint?
    18AAfter my infection was cleared up and about that same time,
    19the employee transferred, so the problem resolved itself.
    20QYou didn't go over your supervisor's head?
    22QIf he [the smoker] had not been transferred, would you have?
    23AI don't know. I'm glad I didn't have to make that decision.
    24QAre you familiar with Mrs. Averhart's proposed notice?

    -Bertram -33-

    (pp 34-60)

    1      there was this sudden interest and concentrated inquiry to
    2      determine the atmosphere and environment and its use, all the
    3      studies made to check on air movement, and so on, does that
    4      not seem unusual to you?

    5 A   I don't quite understand --

    6 Q   They had not been doing the study with regularity, there was
    7      a paucity of information. Mr. Pletten comes along and he
    8      complains and suddenly the information with which
    9      to fire him --

    10        MS. BACON: I object to the question being
    11      asked in that particular fashion.

    12 Q      (By Mr. Cohen): Mrs. Bertram doesn't. It seems like all of
    13      a sudden it is being manipulated to get rid of him.

    14   A   No. And I don't think your term "suddenly" is appropriate.
    15      This case has been dealt with over a three-year period. That
    16      certainly is not sudden.

    Actually, "suddenly" is correct. Pletten won the USACARA Report 25 Jan 1980; the TACOM "decision to terminate" him occurred immediately thereafter, in February 1980, essentially, on receipt of the Report by mail.
    TACOM refused to allow review of the termination. Review for others, normally occurs within weeks. Note that these depositions are over two years later, April-May 1982.

    17        MR. COHEN: I have nothing further.

    18        MS. BACON: I have nothing further.

    15      ([Bertram deposition concluded] 11:45 p.m..)


    -Bertram -61-
    [Click here for .pdf Full Text.]

    6. Deposition of William D. O'Connor,
    Deputy Civilian Personnel Officer

    (Smoker; Insubordinate Against the Army No-Smoking Rule,
    and the USACARA Report;
    MI Symptoms Noted As Evident)
    1Southfield, Michigan
    2Friday, April 28, 1982
    311:30 a.m.

    P R O C E E D I N G S
    W I L L I A M     D.     O ' C O N N O R
    having been first duly sworn, was examined and
    testified on his oath as follows:

    9    BY MS. BACON:
    10 Q      Mr. O'Connor, would you state your name for the
    11      record, please?

    12 A       William D. O'Connor.

    13 Q      What is your position?

    14 A     Deputy Civilian Personnel Officer at TACOM.

    15 Q    How long have you held that position?

    16 A     Since July of 1980.

    17 Q     What are your duties in that position?

    18 A     I am the alter ego of the Civilian Personnel Officer,
    19      and as a result perform many of the duties that he
    20      does in his absence. I have responsibilities for
    21      providing advice and guidance and direction to the
    22      staff of the Personnel Office and accomplishing the
    23      Personnel Office mission.

    24 Q     I refer you to tab eight of the Agency's response, and
    25      ask you if you can identify that [document].

    -O'Connor -3-

    (pp 4-15)

    1 Q     And if I suggest to you that the air flow does not
    2      meet those [AR 1-8] requirements and if it was later proved by
    3      me that they did not meet those requirements, then
    4      this letter [Tab 8] would be an error, would it not? At
    5      least the portions that refer to it?

    6 A   I would have to look at it. If, and I assume you are
    7      correct that there is an air flow requirement in OSHA
    8      and the Army environmental standard, it would appear
    9      that we have only done the one for the contaminants,
    10      the review for the contaminants, and did not [study the other factors] at this
    11      time.

    12      Whether Mrs. Bertram had such a study made,
    13      I do not know.

    14      MR. COHEN: Nothing further.

    15      ([O'Connor] Deposition concluded.)

    16                             * * * *

    -O'Connor -14-
    [Click here for .pdf Full Text.]

    7. Deposition of Edwin F. Braun,
    TACOM Industrial Hygienist

    (His Pro-Rules View Had Been
    Ignored by TACOM, But Was
    Supported by USACARA's Report)
    1Southfield, Michigan
    2Monday, April 26, 1982
    3Approximately 11:55 a.m.

    P R O C E E D I N G S
    E D W I N     F.     B R A U N
    being first duly sworn, was examined and testified on his
    oath as follows:

    Would you give your name for the record, please?
    Edwin F. Braun, B-r-a-u-n.
    What is your position at TACOM?
    Industrial Hygienist.
    What are your responsibilities?
    Well, I help to identify, evaluate and recommend corrective
    measures for hazards at TACOM and Detroit arsenal area.
    Health hazard?
    Yes, ma'am.
    What is your educational background?
    Master's degree in anaytical chemistry.
    Do you belong to any associations?
    American Industrial Hygiene Association.
    How long have you worked in the field of industrial hygiene?
    About 29 years.
    How long have you worked at TACOM?
    Five years.

    -Braun -2-
    In general, what are the kinds of things you are asked to
    test for?
    In general, any complaints that might arise in the environ-
    ment that could possibly be identified as a health hazard.
    Are you acquainted with the appellant in this case,
    Mr. Pletten?
    Yes, I am.
    Can you identify for me in the Agency's Response at Tab 4,
    can you identify this document dated June 1st, 1979?
    Yes, I can. That is my [Braun's] document that I wrote.
    Is that document the result of a study you conducted?
    Yes, I was requested to make a study of the work area and
    working conditions of Leroy Pletten.

    Ed. Note: It was a study of the type USACARA rejected as not complying with the AR 1-8 criteria. And note fixation on the whistleblower, not on the rules' intent of protecting the entire work force from smokers' conduct.
    What did your study indicate then?
    My study indicated that based on the [non-AR 1-8] criteria that I was
    using, there was adequate air movement per person in the
    Personnel area where Leroy worked.
    Did you make a recommendation in your [non- AR 1-8 complying] report?
    Yes, I made recommendation that due to the summer weather
    conditions, that Leroy was sitting adjacent to an open
    window and I recommended he be placed closer to the air flow
    To the best of your knowledge, was your recommendation
    complied with?
    Yes, it was. He was moved to another area. [Ed. Note: Move #2; see #1].

    -Braun -3-
    What instrument, or instruments did you use in making your
    I used a commonly-known instrument called velometer, which
    measures small amounts of air movement in environmental areas
    It is a hot-wire indicator; the air flow can detect a
    calibrated amount of air and cubic feet per minute.
    Is this test standard in your industry?
    Yes, it is an instrument that is calibrated periodically.
    Did you make any subsequent air studies on June 1st — since
    June 1st?
    Yes, I made several after that over a period over two years.
    In addition to air flow studies, velocity studies, have you
    made any contaminant studies in Mr. Pletten's work area?
    Yes. I attempted to identify some of the constituents that
    may be involved and carbon monoxide and nitrogen dioxide were
    two selected most likely to be in condensations that would
    be measureable.
    These particular contaminants are contained in what?
    Cigarette smoke. I was testing for possible adverse effects
    of cigarette smoke.

    Legal Limit
    carbon monoxide42,000 ppm100.0 ppm
    nitrogen dioxide250 ppm5.0 ppm

    I refer you again to Tab 4, the Agency Response to DF dated
    5 December 79 and ask if you can identify it?
    Yes. That is my letter written to Safety.
    Now, attached to that DF are certain test reports, is that

    Ed. Note: Reports of the type USACARA rejected as not complying with the AR 1-8 criteria.
    Note fixation on the whistleblower, not on the rules' intent of protecting the entire work force from smoking.
    Note the rehearsed perjury, pretending a single Hygienist could study cigarette effects--a vast multi-disciplinary field! and overrule (by his mere velometer and Draegenmeter findings), the centuries of medical data!

    -Braun -4-
    That is right.
    Did you make that particular test?
    Yes, ma'am, I made those tests.
    What instrument did you use on that test?
    A Draegenmeter. It is a squeeze-bulb detector for detecting
    small amounts used. The Kitawaga is made in Japan and
    measures calibrated amounts of air through a previously
    calibrated tube that detects these contaminants, or suspecti
    What standard were you using?
    I was using the OSHA standards that are mandatory for these
    contaminants, and also the American Conference of Industrial
    Hygiene Standards, which are current on an annual basis.
    These standards contain threshold limits for these contami-
    Yes. Both these standards contain threshold for nitrogen
    dioxide and carbon monoxide.

    Ed. Note: Ingredient
    OSHA Threshold
    carbon monoxide42,000 ppm100.0 ppm
    nitrogen dioxide250 ppm5.0 ppm
    What does this particular test indicate?
    It indicates essentially less than detectable amounts. My
    results were at the lower level of the tubes that I used
    indicating that there were concentrations in quantity at the
    lower limits of this equipment that may or may not have been
    present down to zero concentrations.
    You brought your files with you? The file reflects a
    November 21, 1980 memorandum for the record entitled,

    -Braun -5-

    Ventilation Flow Study. Can you identify that?
    Yes. That was a memorandum for the records that I wrote.
    Mr. Braun's name is signed at the bottom of that letter.
    That reflects the testing used at that time?
    Yes, ma'am.
    The record also reflects a memorandum dated 11 June 80.
    Did you prepare that memorandum?
    I did. That was not at the request of Mr. Pletten. It was
    May Sweeney. [Ed. Note: Another employee citing the TTS problem.]
    I direct you to the next DF dated 24 June 80 and ask you if
    you prepared that?
    Yes, I did. I signed it and it was, again, a letter that
    was sent to Mr. Kator, Leroy's supervisor in Personnel.
    What does that letter reflect?
    I don't memorize it that quickly, I have to read it. I
    identified it as being my letter. It indicates —
    MR. COHEN: We can let the letter stand on
    its face. It will be adopted by reference.
    (By Ms. Bacon) I also direct you to the same tab, DF
    dated October 2, 1980, and ask you if you prepared that?
    Yes, I did.
    MS. BACON: I have no further questions at
    this time.

    -Braun -6-

    [of Industrial Hygienist Edwin Braun]
    2BY MR. COHEN:
    Mr. Braun, I am going to ask you a series of questions. If
    you don't understand them, stop me so I don't waste either
    of our times because it is a confusing topic to me.
    Where did you get your Master's degree?
    Wayne State University.
    What year?
    Any subsequent courses, sir?
    Yes. I have taken a series of courses all over the country,
    ventilation courses.
    Any addition to your graduate degree in 1958? When did you
    get your undergraduate degree?
    Michigan State, East Lansing, Michigan.
    What year?
    Were you in the service during the gap, sir?
    No, prior to my going to college; the Navy.
    How did your study of air flow, ventilation flow, differ
    from the study performed by Mr. Lang?
    They may have been slightly different in contents, but in
    essential ingredients, they were identical.
    Are you familiar with the reading Mr. Lang received from his

    -Braun -7-

    Not completely. I understand that he was asked to comment
    on the ventilation system and he, essentially, got a few
    figures that were at variance to mine, which is understand-
    Why is it understandable?
    Well, I am not sure of the method that he used, but he may
    be taking general samples rather than individual working
    environment and I am not familiar where he took his referer
    Did you communicate between the two of you as to studies?
    Oh, yes. I am working with Facilities [Engineering Divison] at the time.
    Does he have specific training in air flow studies as well?
    Well, he is Facilities Engineer of the post. I am not
    familiar with all of his background, but I presume he does.
    You didn't talk shop then about ventilation studies,
    He has several people on his staff that provide input into
    his report and some of which are experts in the field of
    ventilation, so I have talked shop with him on several
    instances about ventilation studies, and essentially his
    results and my results should be essentially the same.
    A Master's degree of analytical chemistry does not exactly
    prompt one to go into air studies. How did you happen to
    go into this work?
    I have been in the field for 29 years and I started out by

    -Braun -8-

    doing lead analysis at Ford Motor Company, and lots of the
    criteria that exists in the area of toxic ingredients is
    involved with air studies, and I subsequently took several
    ventilation courses that qualified me to make such studies.
    Where did you take such studies, sir?
    North Carolina University, a ventilation course at East
    Lansing, Michigan, which is recognized as being one of the
    best courses in the country.
    When was this taken, sir?
    About 1964, the one in North Carolina, and the one in East
    Lansing, Michigan, was taken prior to that time and I am not
    sure what date.
    Before 1970 or after?
    Before 1970.
    Any updating courses since then?
    Yes. I have taken general industrial hygiene courses at the
    Army level in Aberdeen, Maryland, and they cover ventilation
    as one of the topics. It is a general industrial hygiene
    Have you taken any specific training with regard to cigarett
    smoking and the effects on the environment?
    No, but I have been involved in carbon monoxide exposures,
    which is one of the ingredients of cigarettes.
    Can you tell me all the ingredients of cigarettes?
    No, I cannot.

    -Braun -9-

    Can you tell me the major contents?
    By reference I would say nitrogen dioxide and carbon monoxide
    are the major contents.
    What are the other ones?
    I am not sure just what they are. There is many.
    Did you look at all of them before you --
    Oh, yes, and there is numerous possible contaminants that
    might come from cigarettes and I only have a limited amount
    of equipment available to me. I am not a specialist in
    cigarette smoking, I am general environmental control and I
    have a limited amount of sampling equipment to my disposal.
    That would be a more specialized study.
    If there is something toxic in the air as cigarette deriva-
    tives, you would not have been able to pick that up with your
    That is true. However, all the references that I have made,
    and we were in [ex parte] contact with our headquarters, indicating that
    the two major contents were carbon and nitrogen.
    Those are the two most likely to be in concentrations? You
    relied on Headquarters to evaluate the circumstances, not
    your own?
    You didn't do an independent study to find out what is
    involved in cigarette smoking?
    No, I did not.

    -Braun -10-

    Did you refer to the Surgeon General of the United States?
    Yes [ex parte], the Assistant Surgeon General, Dr. Kopechne.

    Ed. Note: Not true. Kopechne was in fact, an Army doctor, very hostile to AR 1-8 criteria as upheld by USACARA.

    Mr. Braun, I am referred by my client to a memorandum of
    February 20, 1980, that is written by you to Ms. Evelyn
    Bertram. Are you familiar with that?
    If my name is on it. I wrote several.
    Let me see if it is in the record before I start referring
    you to it.
    Let me show this to you. I am going to mark
    this proposed Appellant's 2, but I would like you to identify
    it. You[r] name appears on the back of that document, sir?
    Yes, sir.
    You wrote it in conjunction with Dr. Holt?
    Yes, sir.
    Now let me cite to you ~ first of all, I move for admission
    for proposed Appellant's 2 as Appellant's 2.
    MS. BACON: I have no objection.
    (By Mr. Cohen) Mr. Braun, I indicate for your knowledge at
    the top where there are slashes, that indicates who wrote it?
    Yes, it does.
    You just testified that Headquarters pointed out those two
    particular elements of cigarette smoke were the most apparent
    and most likely to be in concentration, yet in that statement,
    Paragraph 4, "Carbon monoxide and nitrogen dioxide gases were
    tested during this evaluation because these possible

    -Braun -11-

    contaminants have been identified as extremely minute
    quantities during the secondary evaluation of tobacco smoke
    by the American Lung Association." Isn't that at variance
    with what you just told me that they are most likely to be
    in concentration?
    It is secondary inhalation, not direct. I am still saying
    not direct, and carbons are still primary contaminants, but
    in minute quantities.
    They are most likely to be in concentration?
    Did they give you a list from the American Lung Association?
    Yes. I have read literature from Leroy Pletten, who provided
    literature from the American Lung Association concerning
    possible hazard material contained in cigarette smoke.
    In your testifying, you testified here in the record that on
    December 5, 1979, you did investigations of Building 230?
    At those times they did not have the new buildings up, is
    that correct?
    That is correct, sir.
    Have you subsequently done studies in those new buildings
    as to ventilation, carbon monoxide, nitrogen dioxide testing?
    No, I have not.
    Have you been directed to, or suggested to do some by

    -Braun -12-

    I have been requested to make air studies of 229 and I did
    some air studies, two air studies in Building 229 to date,
    but they are brand new buildings. They have been there about
    a year. I subsequently will.
    You will?
    Oh, yes, eventually.
    How often do you do these studies?
    I do them as requested, not on a periodic basis.
    You don't --
    Only when we suspect concentrations in excess of those level
    that are provided.
    How would you suspect such a thing especially if it is an
    odorless and colorless gas?
    On the basis of complaints after previous results that have

    Ed. Note: This reaction-only approach is not the affirmative pro-active approach specified by the Army Regulation AR 1-8, issued pursuant to DOD Instruction 6015.18, 32 CFR § 203.

    Do you get a regular update from Mr. Lang with regard to his
    test results on a bi-yearly basis?
    I am in these buildings periodically and he brings in
    contractors for adjusting the ventilation in these two
    buildings and I am apprised of what they are doing.
    Did he tell you about his flow studies?
    How often does he do them?
    As required.
    He does not do them on a regular schedule?
    No. If everything is working fine, he may not do them for

    -Braun -13-
    quite a while.
    Would it surprise you Mr. Lang testified he did them twice
    yearly because of regulations?
    Not at all.
    Mr. Braun, in your 5 December memo, Part 3, referring to your
    conclusion, if you didn't test other gases, other [than] carbon
    monoxide and nitrogen oxide, how can you make conclusions as
    to all possible hazardous gases?
    Based on the fact Headquarters informed me these are the two
    most likely to be in significant concentrations, and there
    had been relative concentration of other gas, that would be
    in the same area of toxicity, the same general area of
    toxicity and it would be most likely we would get, if there
    was a preponderance of cigarette smoke in the area, we would
    get high carbon monoxide first and results of concentration
    could also be high.
    It would be, Mr. Braun, results of specific carbon monoxide
    and nitrogen dioxide gases were shown, and it is presumed
    all possible hazardous gases are ruled out?
    I agree.
    If you had more sophisticated testing equipment, you could
    certainly have given a better review of those?
    Have you investigated for Command the effects of some types
    of gases even though not in large quantities as to toxicity?

    -Braun -14-

    Not directly, no.
    Why not?
    Because I rely on expertise in this area and I have many
    things to do besides just check for ventilation. I have
    noise, physical hazards as well as chemical hazards and if
    I investigated completely everything I came in contact with,
    I would be forever investigating and not doing any applicable

    Ed. Note: Solution: Comply with the AR 1-8 criteria, with the USACARA Report. Avoid need for duplicative non-complying studies.

    What time of day did you take your studies in Building 230
    and Building 200 as referenced in Data Sheet I?
    At the time it indicates.
    It doesn't indicate.
    It doesn't indicate?
    No, sir. 5 December 79 report says you performed them during
    the day, but I don't know what time of day.
    My office is located at the extreme opposite end of the
    reservation compared to this office, so most likely it would
    be mid-morning or mid-afternoon. I am not sure which.
    Mid-morning or mid-afternoon?
    Ten o'clock and 2:00, to 2:30.
    Is flex time in operation at TACOM?
    Yes, it is.
    Are most people gone at 2:30?
    Most people are there at 2:30.
    Concentrations. Now, it says you took your sample on the

    -Braun -15-
    first floor near A1150. Is that in the hallway?
    200 is a bullpen versus private office area and when I say
    near A1150, I mean directly outside as the most easily
    identifiable location, but it may or may not be a hallway.
    In other words, it may or may not?
    It is a bullpen area.
    Not a work area?
    It is adjacent; it is a bullpen area.
    Either the study was taken relatively close to people working
    or it was taken out in the hallway where they aren't working.
    Which would it have been?
    Most likely at the working stage and that was it.
    But you are not sure?
    I am not sure, not from the way I have identified it here.
    It has been a long time.
    It has been a long time.
    How many square feet are there in Building 230?
    An awful lot of square feet.
    If I were to suggest 250,000 square feet as testified by
    Mr. Lang this morning, would that be accurate?
    I really could not say offhand. There is three floors and
    I really have no idea of what -- it is a large building is
    what I would like to testify to.
    Real large?
    Real large, a very large one.

    -Braun -16-

    If that is the case, isn't taking one test in one location
    in it indicative of the nature of the overall -- various
    nature of the overall Command?
    [Building] 230 will vary -- it may not be indicative of the entire
    There may be parts that are worse and parts that are better?
    At least theoretically and scientifically, you would have
    more thorough results if you had taken a series of random
    tests, is that correct?
    Not necessarily because Building 230 has a series of heating
    and ventilating systems that is probably peculiar to that
    What do you mean by that, a series of heating and ventilating
    It has at least six different area heating and ventilating
    Six. At least six.
    Well, aren't some of them outmoded, sir?
    Yes, sir.
    Building 230 is a very hot place in the summertime?
    A very hot place in the summertime and a very cool place at
    certain instances in the wintertime.
    Air in the summertime tends to get stagnant and stagnant air

    -Braun -17-

    is hell sometimes?
    It is hell sometimes, you may use that.
    Air does not circulate very well in [Bldg] 230 in the summer?
    Depending on how the summer situation is set up, it may not.
    That is why they have some fans in Building 230?
    We have more fans in 230 than most places; that is exactly
    And that being the case, the conclusion -- that is, Mr. Lang
    came to me this morning and said we have capacity of 90
    percent circulation does not necessarily mean that is what
    is getting circulated?
    That perhaps is true.
    In your experience and your knowledge of that area, do they
    get maximum capacity in that building?
    Yes, but on very, very warm days we find we are heating up
    the building, not cooling it down. As during the time I was
    doing my tests, it so happens some of the hot air intakes
    were shut down in order to prevent the ambient air from
    becoming excessively hot.
    What about these dampers? Are they adjusted periodically?
    Dampers are adjusted periodically for winter and summer
    And are they basically kept at a constant though?
    Yes. In fact, during most of the time we were attempting to
    put these dampers on a computer readout, so they would have

    -Braun -18-

    passive and active modes to them, and it was an initial
    effort during the period that we were involved in an
    initial effort by me. The computer did not exactly program
    it properly.
    Would it be safe to say, then, that the building's air
    circulation system needed some regulation and work?
    Yes, it would be.
    And it was not always responsive to the needs of the working
    force because of its age?
    I would say not always responsive to the working force
    because of its existence and not necessarily its age. Some-
    times it didn't work; the possibility exists some of the fans
    were not in operation.
    The statement that maximum was achieved on a regular basis
    would be kind of questionable?
    Well, I would say it was working more than it was not working,
    so on a regular basis depends on how you want to interpret
    Will you accept 50 percent?
    Yes, I will accept 50 percent.
    About 75 percent --
    That is very, very questionable.
    Did you follow such general standards when you were
    ventilating air?
    I sure did.

    -Braun -19-

    And guidance from Headquarters?
    And Assistant Surgeon General?
    Yes, he made visits.
    Are you familiar with the new Surgeon General's studies done
    with regard to smoking?
    I read the reports in the newspaper.
    The conclusions were --
    That they possibly could be dilatory as to your health.
    Being in the same room with smokers could be bad stuff?

    Ed. Note: See the EPA letter, 12 Nov 1980, elaborating on the tobacco hazard.

    Has the Command made any type of request to you to change
    that or make certain studies as to those findings?
    Yes, sir.
    They have?
    We are constantly updating our ventilation system.
    At the time this was going on with Mr. Pletten and requests
    about the area he could work, are there any areas now more
    clean than before?
    Yes, there are.
    Have they been identified for the Command and Mr. Pletten?
    They have been identified for the Command, but I am not
    familiar with the fact they have been identified to
    Mr. Pletten.
    What are those, sir?

    -Braun -20-

    Two buildings, 229 and 231, and quite a few repair
    been made to the 230 area.
    Would you say that Buildings 229 and 231 are reasonably free
    of contamination?
    I would.
    And have regulations regarding cigarette smoke and smoking
    in those buildings been outlined?
    Yes, they have.
    Have they been updated, sir? Are they more restrictive?
    No, they have not been restricted. They are just the same
    as they were initially, that we are providing adequate air
    changes per person.
    Has Command, to your knowledge, asked you to make a better
    environment for Mr. Pletten as opposed to finding one?
    Not to my knowledge, simply because we don't have -- I don't
    have the necessary criteria to make a better environment for
    Mr. Pletten.
    What do you mean by that, sir?
    Most of my results were essentially negative in the areas
    that Mr. Pletten worked in, indicating that they were
    probably as good, or better, than most -- many other areas
    of the Command, so I considered him working in the Personnel
    Office to be a good area to start with.
    Isolating Mr. Pletten in the Personnel Office, and any
    similarly situated office in the new building, are those

    -Braun -21-

    better than the new building Personnel Offices in terms of
    Most of the large military buildings that we have at
    Detroit Arsenal are built for area bullpen-type operations
    rather than an isolated office area. I consider ventilation
    better in an open area than isolated areas.
    Did you review the Surgeon General's standards versus OSHA
    I am not completely familiar with the Surgeon General's
    standards. They were published in the paper, I understand,
    and I received the HEW -- Health, Education and Welfare --
    standards and I am familiar with those. The latest ones I
    am not familiar with.
    Let's assume for argument's sake, hypothetically there are
    four parts per million that are contaminants. Is that ball-
    park, generally, for the Command?
    No, it isn't ballpark and it isn't general. It could exist,
    How difficult is it to go from any amount per million to
    zero? What is involved? Is it possible to do that?
    You have to have a gas Chromataograph analysis to start with,
    which is about a $20,000.00 piece of equipment strictly in
    a specialized laboratory setup that we have at Aberdeen, and
    we need a, what we call a carbon strain type of absorption
    column. When you are going for that small amount, you have

    -Braun -22-
    to absorb through several tubes because you were not sure of
    your efficiency at those low concentrations, and you have a
    single tube backed up by another tube, sometimes three or
    four tubes, which takes longer. It is carbon strained to
    obscure these carbon concentrations.
    If you have any parts per million at Tank Command, would gas
    chromatography show you how to find what it is to eliminate
    them entirely?
    No, I would not have the necessary collecting equipment.
    They have the necessary analytical equipment to analyze them,
    but many of them involve cryogenic techniques to where we
    freeze out the small amounts. They use the cryogenic
    technique and it is a very expensive collecting media.

    Ed. Note: See the EPA letter, 12 Nov 1980, rebuttal method, to use a TSI model 3500 piezobalance.

    But aside from the collection of information, let's assume I
    am in this room and it is closed off and I wanted to get the
    air free of contaminants. What would I do?
    You would have to have a 99 and 99 hundredths percent filter
    that all the air would be absorbed through and then you would
    be 99 and 99 hundredths percent sure that all of the contami-
    nants were out of here.
    Are there some filters that are available?
    Are they expensive things?
    Very expensive, extremely expensive and difficult to operate.
    There are such things?

    -Braun -23-

    1AWe have them in clean rooms in our missile work.
    2QAnd they are being used in the government?
    3AThey are being used in the government, yes.
    4QI presume as precursors to that you would have banned
    5smoking in the area?
    7QBut you can make some areas of the Command theater cleaner?
    9QCommand requested a study through your office for such a ~
    10AMost of the criteria for a clean room are based on partial
    11count and they base their filter efficiency on the number of
    12particles, dust particles coming through. However, it has
    13very little, or nothing to do with any contaminants from
    14cigarette smoke.
    15QBut Command could establish such a room and have done so?
    17QWhere have they done so?
    18AAt 16 Mile Road; it was in the missile business. And we have
    19also done it in the -- some of it at TACOM.
    20QMay I suggest Data Processing?
    21AIt's a possibility. At Data Processing they have made an
    22attempt at providing more or less humidity control, which is
    23something entirely different rather than contaminant control.
    24QBut there are places where they have got it?

    -Braun -24-

    1QIf there was a ban on smoking, would you need such a clean
    2room environment to establish limitations of smoke contami-
    4AIn most of the information that I have been able to find,
    5most of the contamination comes from bringing in dirt from
    6the outside on your shoes.
    7QNow, you have read Army Regulation 1-8 regarding smoking?
    8AYes, sir.
    9QAre you familiar with it?
    10AYes, sir.
    11QWhat would it take to remove smoke or ban smoke any place in
    12the Tank Command, to eliminate smoke?
    13AThere are smoke eaters, and other things to do that. They
    14are basically electrostatic precipitator principle.
    15QDid you recommend they purchase that?
    16ANo, I did not.
    17QWhy not?
    18ABecause they had been known to give off ozone gas particular
    19when they are not maintained properly, which is very difficult
    20maintenance of these -- this equipment is very difficult.
    21QWho first told you about government regulations regarding
    23ASafety brought it up as a published document at TARCOM, but
    24I worked with a man down at Cape Canaveral, Florida, who is
    25Assistant Surgeon General to Dr. Martin Brewster (sic) and

    -Braun -25-

    Did Mr. Pletten give you any guidance with the Department of
    Defense regulations?
    Yes, he did.
    Was anything provided on the [subject] -- by the Tank Command to aid
    you in your investigations?
    Army Regulation 1-8 and DoD Regulation [6015.18], which was [aka 32
    CFR § 203] -- we have
    used that prior to Army regulations about it.
    Removal of the smoke, would it not be possible at this time?
    We don't have proper technology at this point to do it in a
    manner that would be economically feasible at this time.
    Even for small areas?
    Possibly for small areas we could with our 99.9 percent
    filter for small areas, and that would [be] economically possible.
    We more or less would like to do it all over or not at all.

    Ed. Note: This admissions confirms TACOM non-compliance with the AR 1-8 mandate that smoke be "removed" in order to be permitted. The AR 1-8 goal is protecting the entire work force from smoking.
    Since TACOM could not comply everywhere, its insubordinate management had decided to comply nowhere! to defy the pertinent laws and regulations! to defy the USACARA Report! to terminate Pletten for blowing the whistle! and have the unethical Legal Office defend all this personal misconduct at taxpayer expense!
    Even owing to the difficulties of one individual?
    Yes, sir, that is correct, sir.
    At this point technologically, the only effective way to get
    rid of [remove] cigarette smoke is to ban [cease to permit] it?
    I would say so, or dilution by having 10 air changes per
    hour per person.
    What does that mean?
    Ten cubic feet of air movement per person empllyed. Effect
    a normal dilution factor that has a -- it dilutes it,
    assuming that he is breathing less than one CFM per person.
    It dilutes it 10 times each time the air is recirculated.

    -Braun -26-

    (pp 27-30)

    1amounts of air movement in the area, which regulations
    2provide, as an alternate to non-smoking in the area.
    3QSo your interpretation of 1-8 is, if somebody screams and
    4yells about smoking, as long as you are giving them 10 cubic
    5feet, you don't care how much they yell?
    6AWithin reason with identifiable contaminants, yes.

    Ed. Note: This is contrary to the AR 1-8 criteria as per the USACARA Report.

    7QThat is the way Command instructed you to interpret it?
    8AThat is the way I, as an industrial hygienist, interpreted
    9this use of regulations as a guide.
    10QIf the Surgeon General has recently decided, or published an
    11opinion as to the synergistic relationship with cigarette
    12smoke as being a hazard to individuals, and so identified,
    13have you directed the Command to implement new regulations
    14with regard to smoking so as to avoid that harm?
    MS. BACON: I object to the question as
    16phrased. Are you making a hypothet, or do you report on the
    17Surgeon General for Mr. Braun?
    18(By Mr. Cohen) He said he had read over the Surgeon
    19General's report and was generally familiar with its content
    20AI would not be the visiting officer involved. We would refer
    21the problem over to the health and -- HEW Department as
    22more specific to their mission.

    Ed. Note: The AR 1-8 criteria were already styled as per the HEW rule, as analyzed. See the comparison chart. The issue is simply, enforce what is written, not pretend something new needs be issued.

    23Has it been done in that fashion, to your knowledge?
    24ATo my knowledge, it has been referred to Headquarters and
    25they look into it.

    -Braun -31-

    1QIf they came down with a ban on smoking, that would take
    2care of Mr. Pletten's problem?
    3ASure would.
    4QIt's still pending?
    5AIt's still pending.
    6QIf we got a decision from higher headquarters in the next
    7couple of weeks, we may not have had to come here at all?
    8AThat is correct.
    9QActions of Command may have been repetitious [premature] in view of what
    10may happen from higher command?
    11AThere is no information I have week from week what higher
    12command will make at any instance, so I could not know.
    13QWe have testimony (Averhart Tr. at 15) here that they try and do everything
    14before they fire a man because of medical disqualification.
    15Is that the case?
    17QObviously we don't know if they had to do that in this
    18action now in view of your statement what higher headquarters
    19is considering.
    20AIt is possible. They can always -- local arsenal can always
    21be overruled by Command, yes.
    22QWhat is the number one health hazard around the plant in
    23your opinion as Hygienist?
    25QWhat is number two?

    -Braun -32-
    1ANumber two, I am not sure.
    2QCould be any number of things?
    3ACould be any number of things.
    4QDid you investigate a complaint regarding drafts and air with
    5regard to Mary Ellen Duke?
    6AYes, I did.
    7QDid you investigate a complaint about smoke and air with
    8regard to Evelyn Bertram at one time?
    9AI can't remember.
    10QIf I were — I will tell you this: Mrs. Bertram testified [Tr. at 32]
    11she filed a Worker's Comp claim at one time because her
    12co-worker was smoking cigars and caused her conjunctivitis.
    13Were you involved in that investigation?
    14AI was not apprised of Evelyn Bertram's specific complaint.
    15QYou investigated?
    16AMust have been handled by local supervision.
    17QAnd you know of May Lonnie Sweeney?
    19QI will tell you for the record I represent the estate of
    20May Lonnie Sweeney. Mrs. Sweeney is deceased. She was a
    21mytro -- she had Lou Gehrig's disease. She has recently
    22passed on. What was the nature of the complaints at the
    23time for Mrs. Sweeney?
    24AI am really not -- I know I investigated some of the environ-
    25ment that May Sweeney worked in, but I am not totally

    -Braun -33-

    1familiar -- I have a letter here I wrote and signed on
    211 June 80 regarding a complaint of poor ventilation and
    3stagnant air. Building 230. Her location is one floor above
    4the Personnel Office where Leroy worked.
    5QWill they ever be able to make the building where
    6Mr. Pletten worked, into a top-notch air ventilation area
    7so it complies with the regulations? Is it physically
    8possible to get that building to work properly?
    9AInternally possible. Just add a few air conditioning coils;
    10it would all be over. There would be no need for any further
    11cases of this type if we had air conditioning in 230.
    12QHow much would that cost?
    13AToday's market? Far more than what it originally would have
    14cost. I don't know if that is an answer or not.
    15QIs it prohibitive economically?
    16AIt is not prohibitive economically.
    17QHas it been discussed by Command?
    18AOver and over and over again.
    19QAnd you keep on recommending it, I'm sure.
    20AI'm sure I do.

    Ed. Note: This testimony alone refutes TACOM's case that the only solution was to oust Pletten! However, the corrupt MSPB refused to even acknowledge this testimony!
    For issue of corruption/bribery, click here.

    21QWhen you stated in your 24 June memo that you visited
    22Room 207W and no health hazard existed at that location and
    23that this area would be satisfactory for Mr. Pletten to work
    24in, did you have knowledge of the medical information at that

    -Braun -34-

    1AYes, I had an air study; without identifying the data sheet
    2to determine that 207W had air cooling fans in the area and
    3they had sufficient air movement.
    4QThen you went on to say ventilation in all office areas in
    5Building 230 is identical?
    7QIs that the case?
    8AIt is designed to be identical, but does not always work
    10QA more proper statement would be designed to be identical
    11and anywhere, 70 to 90 percent of the time you comply with
    12the regulation, that statement from the health and regulatior
    13point of view, the building would not have been acceptable
    14for Mr. Pletten to work in?
    15AI am not in a position to determine exactly the building's
    16ability to accommodate Mr. Pletten at any one time because
    17they have as many as six or seven different environmental
    18conditions existing at one time, so I had to resurvey the
    19building each day.

    Ed. Note: The issue is not per se the building, but smoker conduct, spewing toxic chemicals above OSHA limits.

    20QInterestingly enough, I looked at your 2 October letter and
    21it indicates the computer room is the only section that is
    22a no-smoking area section from a fire prevention and
    23classified protection viewpoint only, and that is why you
    24didn't make studies there?

    -Braun -35-

    1QFirst of all, I think it would be interesting if you took
    2studies there and found it was the same as everywhere else.
    3The question is: Why did they ban smoking in those areas
    4and did you have anything to do with the ban?
    5AI had nothing to do with it and they banned smoking in the
    6area simply because of the fact it was an environmentally
    7controlled area as to the cooling effect and it was a
    8recirculation fan that existed in that small room. We looked
    9to maintain 50 percent humidity. If you allowed any outside
    10air to come in, we would enhance the dilution factors and
    11then it would not be environmentally controlled anymore, so
    12that is why we banned smoking in the Keypunch Room, which
    13was separate, and it was an administrative decision not made
    14from the Department of Health necessarily.
    15QHow long have you worked for the Command, 29 years?
    16ANo, no. Five years. Twenty-nine years in the business.
    17QNow -- all right. Mr. Braun, from your personal standpoint,
    18based on your expertise, would it then seem that Command has
    19made a decision [as in the Shimp case] to control smoking for the benefit of a
    20machine where they will not ban smoking for the benefit of an
    22AVery definitely.
    23QWhy would that be, why would they value a computer, if you
    24have any ideas, more than the health of one individual and
    25his ability to work?

    -Braun -36-

    1AIt has nothing to do with health; it is humidity control.
    2We are trying to control that area for 50 percent humidity,
    3we don't get rusting on the computer contacts, so we treat
    4the machine, in a sense, probably, a little better than our
    5humans. That is probably very true.
    6QYou find that puzzling?
    7AI do.
    8QIf it was your ship to run, sir, and I know it is not, would
    9you run it in that fashion?
    10ANo, sir, I would put my personnel in a higher priority than
    11machines. [Ed. Note: meaning, he'd follow Shimp precedent and AR 1-8.]
    MR. COHEN: I have no further questions.
    14BY MS. BACON:
    15QYou stated in your testimony during cross-examination that
    16you have appealed to higher headquarters. Who have you
    17appealed to?
    18ASurgeon General. We forwarded our material. I don't know
    19whether it is appealed. I don't think I used that word. We
    20forwarded our information to get some direction from the
    21Surgeon General.
    22QHow long ago did you do that?
    23AIt was right at the initial time that we were dealing with
    24this particular case.
    25QWould it be 1979?

    -Braun -37-
    2QAnd you have not received anything back from the Surgeon
    4AI have seen Dr. Kopechne. He made a visit to this reserva-
    5tion. It was a publicly-stated decision he was to come here
    6with an expert from TACOM Headquarters and was to investigate
    7the smoking problems at TACOM.
    8After they were here and investigated, did they issue any
    9directive to you to ban smoking?
    10ANone whatsoever. We received no further directives from
    MS. BACON: I have no further questions.
    MR. COHEN: Nothing further.
    Let me ask the last question.
    Then he did not give you any further directive
    16after he investigated here?
    THE WITNESS: I never got any further direc-
    18tions from him specifically.
    20BY MR. COHEN:
    21QHe didn't tell you to ban smoking?
    23QThe only thing you next heard he came out with this report
    24that talked about synergistic problems that said you may be
    25in danger if you sit in the same room?

    -Braun -38-

    This is TARCOM I am talking about.
    Have you asked guidance from the Surgeon General as to what
    to do?
    I presumably reach Dr. Kopechne, which is my normal line of
    communication. I don't refer things directly to the Surgeon
    General, he does.
    Are they evaluating the policy on smoking?
    I understand it is one of the prime concerns of the Army
    They will be issuing a decision some time in the future
    I don't know.
    MR. COHEN: No further questions.
    ([Braun deposition concluded] 1:00 p.m.)

    -Braun -39-
    [Click here for .pdf Full Text.]

    8. Deposition of Ernest Peters,
    a Safety Specialist

    (His Type-Methodology View Had Been
    Overruled by USACARA's Report)
    1Southfield, Michigan
    2Monday, April 26, 1982
    32:00 p.m.

    E A R N E S T        P E T E R S,    J R.
    being first duly sworn, was examined and testified on his
    oath as follows:

    8    BY MS. BACON:
    9 Q      State your name for the record, please.

    10 A       Earnest Peters, Jr.

    11 Q      What is your position, Mr. Peters?

    12 A     I am Safety Specialist.

    13 Q    How long have you held that position?

    14 A     Since July '79.

    15 Q    What are the duties involved in your position?

    16 A     In general, my duties would be to insure that the working
    17      environment for the employees at the Tank-Automotive Command
    18      meet all applicable requirements of safety and health.

    19 Q     What kind of training have you had, what is your background?

    20 A     For the Safety Specialist job, I was training for six months
    21      at the Field Safety Activity in Charlestown and -- which is
    22      the training center for safety specialists in the TARCOM
    23      community.

    24 Q     Not on-the-job training?

    25 A     Once I got on the job at TACOM, it consisted on going around

    -Peters -2-

    (pp 3-41)

    1      flammable and combustible storage and smoking therein.

    2 Q   But other than it, your office is almost unrelated to the
    3      physical ailments of people other than if you make a change
    4      in Safety, it may benefit the physical?

    5 A   Yes, I would say that. I don't like the question, but I
    6      would answer yes to it.

    7        MR. COHEN: No further questions.

    8        MS. BACON: Nothing further.

    9      ([Peters deposition concluded] 3:16 p.m.)


    -Peters -42-
    [Click here for .pdf Full Text.]

    9. Deposition of John Dollberg,
    a TACOM Safety Engineer
    (His Type Methodology Had Been
    Overruled by USACARA's Report)
    1Southfield, Michigan
    2Monday, April 26, 1982
    33:20 p.m.

    J O H N          D O L L B E R G
    having been first duly sworn, was examined and testified on
    his oath as follows:

    8    BY MS. BACON:

    9 Q    State your name for the record, please.

    10 A    John Dollberg.

    11 Q    What is your position?

    12 A    Safety Engineer at Army Tank-Automotive Command.

    13 Q    How long have you held that position?

    14 A    I have been at the Tank-Automotive Command since March of
    15      1977.

    16 Q    What are your responsibilities and duties in that position?

    17 A      As Safety Engineer we are responsible for safety and health
    18      of the work force at our location, and being an engineer,
    19      I also get involved in safety of equipment, the design of
    20      vehicles used by the Army, and construction materials,
    25      handling of equipment. I am involved as alternate radiation
    25      protection officer for the Command. There are several
    25      divisions we have in the field that contain radioactive
    25      material and there are certain training requirements for
    25      that.

    -Dollberg -3-

    (pp 4-8)

    Re TTS, the Department of Health, Education and Welfare (DHEW), Smoking and Health: Report of the Advisory Committee to the Surgeon General of the Public Health Service, PHS Pub 1103, Table 4, p 60 (1964), lists examples of cigarettes' deleterious emissions compared to the chemicals' "speed limits" (official term, "threshold limit value," TLV, set in the OSHA toxic chemical regulation 29 CFR § 1910.1000). See DHEW-cited TTS examples:

    TTS Chemical
    TTS Quantity
    "Speed Limit"/TLV
    acetaldehyde3,200 ppm200.0 ppm
    acrolein 150 ppm0.5 ppm
    ammonia300 ppm150.0 ppm
    carbon monoxide42,000 ppm100.0 ppm
    formaldehyde30 ppm5.0 ppm
    hydrogen cyanide1,600 ppm10.0 ppm
    hydrogen sulfide40 ppm 20.0 ppm
    methyl chloride1,200 ppm100.0 ppm
    nitrogen dioxide250 ppm5.0 ppm

    "I spent 10 years on the ASHRAE 62 'ventilation for indoor air' committee. The tobacco industry kept insisting that they could solve the problem with ventilation, but never produced the slightest evidence to support this assertion. (The reason why not is simple: all ventilation can do is to dilute pollutants . . . but since there is no threshold level [no safe level] for carcinogens, dilution will not do the trick!). Many 'experts in ventilation' are on the industry's payroll, often covertly. This is, indeed, a big and dangerous loophole."—Richard Daynard.

    Instead of testing for all violations, as per the USACARA Report Pletten had won, telling TACOM to cease and desist its approach, 'safety engineers' simply continued 'business as usual' (they did not even read the USACARA Report). They

    Wherefore such individuals were called to testify, and did in fact admit (albeit defensively as Pletten had made clear he wanted them imprisoned) that nothing had changed despite Pletten's win overruling their unlawful approach.

    1 discussed by you?

    2 A We dealt with the actual facts and acted on the standards
    3     we had to comply with.

    4 But you dealt with the standards and regulations as you
    5     understood you had to comply with them, correct?

    6 Correct.

    7 From my reading, and my argument to you just now, was it
    8     your responsibility to review Mr. Pletten's subjective
    9     problems? Do you think you had a responsibility to look into
    10     those?

    11 A Again I am not a medical expert. That is why we contacted
    12     Mr. Braun to have the industrial hygienist survey the areas.

    [Ed. Note: a NON-medical person!]

    13 Q It does not take a medical expert to ask a man if he is in
    14     discomfort or annoyed. I am not saying you breached your
    15     duty by any means, but I am saying it is your job to look at
    16     that part of the regulation as you understand it.

    17 To comply with the regulations for the Command.

    18 Q What about this part, did you investigate that and make any
    19     finding with regard to his discomfort?

    20 A That is what we were performing the survey for.

    21 Did you make any surveys with Mr. Pletten to see if he was
    22     discomforted?

    23 What do you mean?

    24 Did you talk to Mr. Pletten and say, "Are you discomforted
    25      around cigarette smoke?"

    -Dollberg -9-

    1 A No.

    2 Q Did you talk to Mr. Pletten and ask him if he was annoyed
    3     by cigarette smoke?

    4 A No.

    5 Q Before today, did you ever meet Mr. Pletten?

    6 A No.

    This further corroborates TACOM's disrespect / contempt for the rule of law, Army Regulation 1-8, and the USACARA Report.

    7 Q This gentleman here is Mr. Pletten, Mr. Dollberg.

    8 Q     Now, Mr. Shirock is your boss. Did
    9       Mr. Shirock ever suggest how you review this case in terms
    10     of regulations?

    11 A He sent me to sample for contaminants.

    12 Q He didn't send you to talk to Leroy Pletten?

    13 A At the time I was there, he was not in the office.

    14 Q You were not directed to talk to Leroy?

    15 A No.

    16 Q From—I don't mean to be argumentative, but from the stand-
    17     point that that portion, that general portion of the AR was
    18     overlooked, do you still feel you have complied, that the
    19     activities that you performed made full evaluation of
    20      ompliance with the regulations?

    21 A Yes, I believe we made full evaluations.

    22 Q As to the scientific facts, or including these human factors?

    23 A The scientific facts was my side.

    24 Q You didn't make any view into the human factor?

    25 A In terms of whether there were contaminants exceeding the

    -Dollberg -10-

    1     regulations, we did.

    Ed. Note: Falsified data to come under OSHA limits that honest analysts find exceed them.

    2 Q In terms of subjective analysis?

    3 A No, that is not really my responsibility.

    4 Q If it was to be found later -- let's go on. Have you any
    5     familiarity with the January 25, 1980 USACARA report
    6     involving Mr. Pletten?

    7 A No.

    8 Q You were never given that to read at all?

    9 A No.

    10 Q I am going to quote from Page 12, although it has been
    11     pointed out by my learned opponent, this is the writing of
    12     higher official, I would like to read to you from it. It
    13     says, "Thus it is clear that the rights of the smoker exist
    14     only insofar as discomfort or unreasonable annoyance is not
    15     caused to non-smokers." That was the interpretation of a
    16     hearing officer of USACARA on AR 1-8. In your work, do you
    17     get any guidance from Mr. Shirock, or any other person, as
    18     how you are to interpret that?

    19 A Again, he wanted us to sample for contaminants in the air.

    20 Q Were you the technician just going out there and getting
    21     samples and doing the scientific aspect of it?

    22 A Taking readings and determining if there was a problem and
    23     any conclusions based on the readings.

    24 Q Was Mr. Shirock going to look into the subjective aspect of
    25     it?

    -Dollberg -11-

    1 I can't say specifically what he was talking about with the
    2     Medical Department.

    3 Q We will have the opportunity to speak with him. Let's go on.
    4     The October 28 notation, who is
    5     Miss N. Heida?

    6 A Another member of our Safety Office, a safety specialist.
    7     She is an upper mobility, so she is coming up through the
    8     ranks, so I brought her along.

    9 Q You did Building 230, main building, and 219, which is
    10     where?

    11 A Another building on the installation.

    12 Q A smaller building than 230?

    13 A It is a more industrial building; it is smaller.

    14 Q You took a reading outside Building 219, but not 230. Why is
    15     that?

    16 A The buildings are fairly close, so reading outside one would
    17     be equivalent to reading outside the other one.

    18 Q How many places within Building 230 did you take a reading?

    19 A Two on this particular survey.

    20 Q How big is Building 230?

    21 A In terms of people, size, square footage?

    22 Q Square footage.

    23 A I don't know. I would be guessing, I don't know the exact
    24     number.

    25 Q If I were to suggest 250,000 square feet for all the floors?

    -Dollberg -12-

    1     It is a big building?

    2 A Yes, I would say that could be reasonable.

    3 Q Now, that being the case, would two areas be representative
    4     of the entire building, or only the areas you have outlined
    5     in your sketches?

    6 A Representative of that portion of the building that is on the
    7     same ventilating system.

    8 Q How many ventilating systems in Building 230?

    9 A To my knowledge, there is three.

    10 Q If I were to tell you Mr. Braun testified this morning there
    11     are, in fact, six, would that be a surprise to you?

    12 A I thought there were three.

    13 Q Would that have affected you if you had known there were six
    14     ventilating systems? Would you have taken six samples?

    15 A Not necessarily. We were just getting sampling in typical
    16     office areas inside the building.

    17 A What time of day were these taken?

    18 A 1350 hours.

    19 Q That would be almost 4:00?

    20 A Almost 2:00.

    21 Q I'm sorry. Military time is 10 minus two?

    22 A 1415 would be 2:15; 1430 would be 2:30 and 1630 would be
    23     4:30.

    24 Q Are those the times most people are there?

    25 A I believe so. It was early afternoon before people started

    -Dollberg -13-

    (pp 14-20)
    1 Building 230.

    2 A Inside two rooms.

    3 Q They were taken next to smokers?

    4 A We were taking representative samples, but I don't remember.

    5 Q How many people in a square—10-foot square area where you
    6     took the samples?

    7 A Again, I didn't record that.

    8 Q So it could have been there was one person in the area or 15
    9     or 20 people and if there were 10 or 20 people smoking, you
    10     would have more smoke to deal with than just one, isn't that
    11     logical to presume?

    12 A There may have been smoke in the air, if that is what you
    13     mean.

    Q 14 It may have registered, Mr. Dollberg, if you had taken it
    15     where there were few people?

    16 A I don't know. It depends on the test.

    17 I am going to take one last run at this. It is the last part
    18     of my questioning.

    19 Q You are responsible for Army regulations and
    20     OSHA regulations?

    21 A Yes.

    22 Q If you don't take into consideration the subjective human
    23     portion of AR 1-8, who orders compliance? Is that
    24     Mr. Shirock's responsibility?

    25 A It would be more his.

    -Dollberg -21-

    1 Q Are you familiar with the fact that several employees have
    2     filed claims stemming from smoking-related conditions?

    3 A I don't know what you mean by claim.

    4 Q You mentioned you were aware of other claims in the office.
    5     How many are you aware of?

    6 A I knew of one other.

    7 Q Who was that involving, please?

    8 A I don't know the individual's name, but it is in a different
    9     building than Building 230.

    10 MR. COHEN: All right. No further questions.

    11 MS. BACON: Nothing further.

    12 (3:55 p.m.)














    -Dollberg -22-

    (Conclusion of Dollberg Deposition;
    click here for .pdf Full Text)

    10. Deposition of Edward Hoover,
    TACOM Civilian Personnel Officer

    (Smoker; Major Opponent of the Army No-Smoking Rule,
    and the USACARA Report;
    MI Symptoms Noted As Evident)
    1Southfield, Michigan
    2Wednesday, April 28, 1982
    39:00 a.m.

    P R O C E E D I N G S
    E D W A R D     E.     H O O V E R
    having been first duly sworn, was examined and
    testified on his oath as follows:

    9    BY MS. BACON:

    10 Q    Mr. Hoover, would you state your name for the record,
    11    please.

    12 A    Edward E. Hoover.

    13 Q    What is your position?

    14 Q    Civilian Personnel Officer, TACOM.

    15 Q    How long have you held that position?

    16 A    Slightly over a year.

    17 Q    What was your position previous to the one you are
    18     presently holding?

    19 A    Deputy Civilian Personnel Officer.

    20 Q    How long did you hold that position?

    21 A    From June of 1978.

    22 Q    What are the duties and responsibilities involved in
    23    being a Civilian Personnel Officer?

    24 A    To carry out the civilian personnel management program
    25    of the Tank Automotive Command for the command, and

    -Hoover -3-

    (pp 4-12)

    1ANo. I don't have that authority. That is a medical
    2determination, and only an appropriate authorized
    3physician can make that determination. In our case,
    4it would have to be Dr. Holt.
    MS. BACON: I have no further questions at
    6this time.
    MR. COHEN: Could we go off the record,
    8for a minute.
    (Discussion off the record.)
    MR. COHEN: On the record.
    12ABY MR. COHEN:
    13QMr. Hoover, as you know, I represent Mr. Pletten. If
    14you have any questions about the questions that I
    15ask, if you don't understand stop me, and have them
    16clarified. I don't want you to give inprecise answers
    17to inprecise questions.
    19QYou indicated in direct testimony that Mr. Pletten had
    20rejected offers made by the command to mitigate or
    21comply with his specific circumstances. Is that true?
    22AYes, sir.
    23QAnd that was your attempt at reasonable accommodation,
    24is it not?
    25AIt was.

    -Hoover -13-

    1QIs reasonable accommodation required?
    2AIt is.
    3QUnder what statute, sir?
    4AI don't know the statute.
    5QYou don't know the statute?
    7QWhat regulation then?
    8AI don't know the name of the regulation or the number.
    9I am not an expert at regulation numbers. There is a
    10regulation governing health standards, Department of
    11Army regulation. I believe it is AR 8-1, which deals
    12with smoking specifically. I believe that is the
    14QBut the reasonable accommodation, does that come into
    15it? You are real close. It is 1-8.
    16AI don't know. I don't profess to be an expert in that
    17area. It is a regulation that is implemented by our
    18safety staff.
    19QBut you did decide Mr. Pletten's case with knowledge
    20of that regulation, did you not?
    21AI decided the action to take in compliance with the
    22regulations governing employees' attendance at work
    23and so on, which are CPR's. The decisions relative to
    24compliance with air quality standards, et cetera, are
    25things that are totally beyond my technical area and

    -Hoover -14-

    1Aare decided by the safety office. Dr. Holt, and so on,
    2not by me or my staff.
    3QBut you took those safety determinations into
    4consideration in what actions you took, did you not?
    5AI did.
    6QDid you review as the Civilian Personnel Officer other
    7actions for compliance with regulation?
    8ANo, I did not. That is not my function. I reviewed
    9the [falsified] data that they gave me, and I took the [insubordinate] advice that
    10they gave me, as did Ms. Averheart, for example. I
    11have no way of evaluating safety air quality content
    12standards. I don't know anything about those kinds of
    14QLet me understand. Is there no final check and balance
    15to all of these pieces of input to you?
    16AOh, sure.
    17QWho is that?
    18AIn the area of air quality studies, et cetera, the
    19safety office, Dr. Holt. They are the technical
    20experts. That is what they are paid for. That is
    21what they do. In terms of complaince with the
    22civilian personnel regs, relative to our application
    23for his disability retirement, our application for
    24his separation by physical disqualification, the
    25Management Employee Relations Branch provides that

    -Hoover -15-
    1technical expertise.
    2QBut ultimately there is no one person that looks over
    3everybodys' shoulder? For example, if Dr. Holt were
    4wrong, if he had made an error, who would follow up
    5to make sure he had not, or at least have a final
    6view of his work in conjunction with yours?

    Ed. Note: The error here alluded to, is his overruling Pletten's ability to work, pursuant to Col. Benacquista's extortion, as aided and abetted by Hoover.

    7AI think the individual who reviewed Dr. Holt's work
    8was the Office of Personnel Management. They had a
    9medical determination. What they said relative to Mr.
    10Pletten's disability or his physical condition, I
    11don't know because that is not my business. That is
    12between Mr. Pletten, his physician, and Dr. Holt,
    13and I am not privy to the details of that information
    14and I am not concerned with it because it is not my
    15business. I couldn't make a medical determination
    17QOwing to the fact that Dr. Holt ruled him unfit for
    18duty, and owing to the further fact that the disability
    19retirement from the Office of Personnel Management has
    20concluded that he is not disabled for purposes of
    21disability retirement, isn't that a conflict, and
    22wouldn't that point you to a circumstance which
    23required further investigation?
    24ANo. I don't consider it a conflict at all. Number
    25one, the Office of Personnel Management has

    -Hoover -16-

    1Mr. Pletten's [non-existent] disabling condition is not sufficient
    2to warrant a disability retirement. [!] Dr. Holt, to the
    3best of my knowledge, has never made a comprehensive
    4or complete medical determination on Mr. Pletten.
    What he has done is, he has taken the [non-existing]
    6restrictions in the medical evaluation provided by Mr.
    7Pletten's [overruled] physician and said [a legal opinion] that the organization,
    8TACOM, cannot comply with the standards established as
    9a result of that evaluation provided him. Consequently,
    10he [Pletten] is not fit for duty at TACOM because potentially
    11it [smokers' conduct] would be injurious to him to be at work.

    Ed. Note: Hoover knew Holt overruled the doctors, per Col. Benacquista's extortion.
    Smokers' conduct causing a hazard to people, is prohibited.
    Dr. Holt was practicing law without a license. He gave a legal opinion of lack of authority, contrary to actual fact, laws, regulations, TACOM's own Legal Office, and the 25 Jan 80 USACARA Report.
    Note how well Hoover's rehearsed testimony glosses over these facts.

    12QLet me understand this. You mean Dr. Holt never did
    13any independent investigation to your knowledge?
    14AI didn't say that. I said I don't know that he did
    15a comprehensive physical exam of Mr. Pletten. He has
    16had numerous contacts with several different physicians,
    17the names of which I cannot tell you. I know that we
    18have a substantial volume of material that has gone
    19back and forth between Dr. Holt and several physicians
    20that have established—-
    21QDid you personally review the letters from the doctors?
    22ANo. I did not personally review the letters from the
    23doctors. Normally the data provided from one physician
    24to another is not open to general review. Some of them
    25have been sent directly to our office by Mr. Pletten.

    Ed. Note: In actual fact, Hoover had been very active in personally reviewing the letters, in conjunction with Benacquista, as per the overruling process, and to develop the rehearsed testimony evident throughout TACOM's witnesses, as periodically outed via cross-examination.

    -Hoover -17-

    (pp 18-21)

    1testified that building 230 where Mr. Pletten was at
    2work did not comply between seventy and ninety percent
    3of the time with AR 1-8?
    MS. BACON: I will object to that question
    5as being perhaps not a completely accurate statement of
    6Mr. Braun's testimony. I would submit that Mr. Braun's
    7testimony will speak for itself.
    MR. COHEN: Noted.
    10QWould that surprise you, sir?
    11AInasmuch as the air quality content studies done
    12exceeded the requirements of the AR according to [hallucinated by] Mr.
    13Shirock [smoker] by a factor of two, I would be more than
    14slightly surprised if Mr. Braun's statements were
    15accurate, yes.
    16QBut Mr. Braun was one of the gentlemen that did the
    17testing, was he not?
    18AYes he is.
    19QHe is your industrial hygienist?
    20AHe is.
    21QHe is not related to the safety office, is he?
    22AHe is connected with the medical office.
    23QHe is connected with the medical office but not with the
    24safety office?

    -Hoover -22-

    (pp 23-25)

    2AIf Mr. Pletten is fit for duty, he should be returned
    3to duty.
    4QAnd if there is a doubt as to whether he is fit for
    5duty, that should be resolved?
    6AThat is correct.
    7QWho ordered Mr. Pletten to undergo a psychiatric
    8evaluation, a fitness for duty test?
    9ADr. Holt.

    Ed. Note: This is rehearsed perjury. The order was signed by Pletten's co-worker Carma Averhart, competitor for promotion.
    She was bribed, offered promotion in exchange for her aiding and abetting.
    By misidentifying, he diverts attention.

    10QDo you know why he did, if information like that has
    11come to you?
    12AOf course I do.
    14AI know it was recommended.
    15QBy whom?
    16AIn part, by me.
    17QWhy did you recommend a fitness for duty test for Mr.
    19ABecause I was concerned about his personal well being.
    20It had been brought to my attention by several people
    21that they were concerned about him.

    Ed. Note: This is rehearsed perjury. No such concern had been evidenced. Genuine concern would have meant, abide by the rules, laws, and USACARA Report.
    When employees are actually concerned for, a 'get well' card is sent. None was!
    Genuine concern would also have meant, action against Benacquista's extortion.

    22QWho were those people?
    23AOne was David Smith, the chief of the Alcohol and Drug
    24Abuse Office at TACOM, whose knowledge in this area I
    25feel is, although not professional, he certainly has

    Ed. Note: Smith was a smoker with typical symptoms. His job relied on having smokers, the population base from whence disproportionately arises alcoholics and drug abusers. Smith accordingly opposed the rules, laws, USACARA Report, and Pletten's effort to get them enforced.

    -Hoover -26-

    (pp 27-28)

    1smoke related management problem did not so recommend
    2that he be evaluated by a physician for his ability
    3to work in a smoke-free environment, or a smoke
    4encumbered environment?
    5AI did not direct he be given a psychiatric evaluation.
    6I recommend it be considered.

    Ed. Note: Accusing people in this way is typical of the mentally ill. Hoover was a smoker, a recognized mental disorder.
    As per People v Merkouris (Calif), "Is it not common knowledge that the belief that others are mentally ill rather than oneself is one of the commonest signs of mental illness?"—Karl A. Menninger, M.D., The Crime of Punishment (New York: Viking Press, 1968), p 99.
    Pletten, an exemplary personnel official, had displayed cognizance of the medical findings on smoker mental problems. Hoover was furious.
    Accusing Pletten was a symptom of Hoover's' mental disorder.

    7QDid you make a similar recommendation with regard to an
    8evaluation by a inhalation therapist or by a doctor
    9trained with regard to smoke related matters?
    10AI did not.
    11QDid you recommend he go to a doctor or be sent to a
    12doctor regarding his [non-disqualifying] asthmatic condition?
    13AI did not.
    14QWhy not?
    15ABecause he already had provided substantial data
    16regarding these conditions. They were, as I recall,
    17from specialists in the field, and I did not feel that
    18there was any rational reason for me to do so since
    19we had a number of evaluations.
    20QWere you aware of a conflict within the doctor's
    22AI guess you would have to be more specific.
    23QWhy don't you take the Agency's documents here, and I
    24will refer you to tab 2(d). Are you familiar with that,
    25Mr. Hoover? I refer you to Dr. Dubin's note of 1-20-81

    -Hoover -29-
    1which states in pertinent part:
    "To Whom It May Concern, that there is not
    and has not been any medical reason for
    denying Mr. Pletten's ability to work and
    for denying him an environment reasonably
    free of contamination." Signed, Bruce
    8AI can't honestly say that I was familiar with that.
    9Knowing now that Dr. Dubin says by this note that Mr.
    10Pletten can work and that he can work in a place
    11reasonably free of contamination, which is what the
    12regulation states, doesn't this present a conflict
    13with Dr. Holt's conclusion?
    14AIt doesn't present a conflict because the statement
    15here says that he needs an environment reasonably
    16free of contamination. From my standpoint, I have
    17difficulty dealing with that. The previous statement
    18said he needed a smoke-free environment.
    19QLet me interrupt you, Mr. Hoover. Show me within tab
    20two or any other tab within that document, and I
    21inform you that most of the doctor's letters are in
    22tab 2(d), where any doctor has insisted that Mr.
    23Pletten cannot work unless there is a smoke-free
    24environment. Show me one letter where that is said.
    25APerhaps we won't find the direct quotation, but on

    -Hoover -30-

    (pp 31-51)

    1with Mr. Pletten.
    2QAnd this was a gratuitious statement? It didn't come
    3in response to a request to meet?
    4AI don't recall a response for a request to meet.
    5QIs it possible there was such a request and that you
    6wrote the letter in response?
    7ATo the best of my knowledge, no.
    8QBut it is possible although you don't think it is the
    10AI said I don't think so. No.
    11QDid you contact any higher headquarters with regard to
    12smoking and regulations and regulatory requirements?
    13ADid I personally? No.
    14ADid you have discussions with anybody?
    15AI did.
    16AWho was that?
    17AI have had several [ex parte] calls from DARCOM Headquarters, the
    18names of which I can't recall, call regarding the
    19status or processing complaints. Specifically the one
    20I recall is when Leroy filed a grievance against the
    21Atlanta field office of the Deputy Chief of Staff for
    22the Personnel Department of the Army as a result of
    23his attendance at a training course where apparently
    24smoking was permitted in the classroom. I have had a
    25call or two on occasion relative to the status of

    -Hoover -52-

    (pp 53-57)

    1no smoking areas in our cafeteria. We offered him an
    2office where smoking was prohibited. He has
    3effectively demanded that smoking be banned from the
    4organization totally.
    Even if we did that [as we easily could, did, 1993!], we could not control
    6the environment to insure Mr. Pletten's [i.e., OSHA's and AR 1-8's] criteria.
    7QHow do you know that?
    8AHow do I know that? Because his job takes from him
    9organization to organization, location to location,
    10inside the Command Headquarter's Building, outside the
    11Command Headquarter's Building, to buildings on
    12different locations of the Command, to buildings at
    13physical facilities dislocated from TACOM, such as the
    14Lima Army Tank Plant, and every place in between.
    There is absolutely no way that I can
    16control or anyone can control that which Mr. Pletten
    17may be subjected to in any of those areas anymore
    18than they can control it for me if I have hay fever.

    Ed. Note: These assertions are typical of smoker symptoms, including addiction, delusions, paranoia, abulia, impaired reasoning, rigidity, acalculia, uniqueness, the bottom line of which combination is a negativist “know it all” attitude.
    Hoover knew the TACOM ventilation system was not working; that there was no compliance with the rules anywhere on post; that partial bans (“checker-boarding”) are ineffective.
    Partial bans had years before been ruled unconstitutional, in Alford v City of Newport News, 220 Va 584; 260 SE2d 241 (21 Nov 1979). Mere partial bans are unconstitutional as not in fact protective.
    Partial bans called “checker-boarding” are notoriously ineffective, see Dept of Health, Educ and Welfare, Social Security Admin v AFGE Local 1923, 82-1 Lab Arb Awards (CCH) § 8206 (DC, 22 Jan 1982); and Opinions of Attorney General 1987-1988, No. 6460, pp 167-171; 1987 Michigan Register 366 (25 Aug 1987). “Checkerboard style” smoking control does not achieve compliance.
    EEOC on 8 April 1983, Docket No. 03.81.0087; 83 FEOR 3046, described the situation in non-disordered words per the rules, e.g., AR 1-8. AR 1-8 does not treat me as unique [uniqueness is a smoker delusion]. AR 1-8 considers nonsmokers and their rights. It cites criteria for when smoking is not permitted. AR 1-8 institutionalizes the right to pure air. EEOC provided a good summary at p. 5, “The agency [e.g., Edward Hoover] presented no evidence that it considered the rights of the non-smokers or even recognised that its own regulations permitted smoking only to the extent that it did not cause discomfort or unreasonable annoyance to others.”
    Smoker Hoover does not even recognize the existence of other position classification specialists! He does not recognize my job description, nor that such assignments had—in reprisal for my winning the USACARA Report—been taken away from me two years before! He provides no specificity. No 5 USC § 7513 notice had made the Hooversque claims.
    Hoover is ignoring USACARA, p 14, which had rejected this narrow-minded rigid negativist view. USACARA had cited the genuine alternatives as “less smoking or more ventilation.” The USACARA data are “stimuli,” but TACOM management smokers such as Hoover were unresponsive, hence, insubordinate.
    Note Michigan case law, e.g., People v Matulonis, 115 Mich App 263; 320 NW2d 238 (1982), on a person unable “to appreciate the wrongfulness of his conduct,” and “to conform his conduct to the requirements of the law,” e.g., one with “absolutely no way” of complying with the rule of law.
    TACOM Industrial Hygienist Edwin Braun had recommended an air conditioning solution (T. 34), but his recommendations were ignored! treated as never having occurred.
    TACOM Personnel Office and Legal Office had ex parte pre-arranged with MSPB to disregard such data, and the various allegations including of alleged job location not made in a 5 USC § 7513 30-days advance notice.
    “An [individual] 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],” Nat'l Realty & C Co, Inc v Occ S & H R Commission, 160 U.S. App. D.C. 133, 141, 489 F2d 1257, 1265 (1973).
    The ex parte arrangments included MSPB going outside notice, contrary to precedents such as Horne v. MSPB, [221 US App DC 381] 684 F.2d 155 (CADC, 1982); and SEC v. Chenery, 332 U.S. 194 [67 S Ct 1575; 91 L Ed 1995] (1947), saying to reverse agency decisions whose “grounds are inadequate or improper.”
    When “ante-dated [invented retroactive assertions occur] to make them appear as if they were genuine,” as in In re Ryman, 394 Mich 167, 176; 232 NW2d 178 (1975), corrective action is warranted. Against antedating, the “'legal system [here, Pletten] is virtually defenseless,'” Matter of Grimes, 414 Mich 483, 494; 326 NW2d 380 (1982).
    19QDid you inform Mr. Pletten of those circumstances
    20and that you could not guarantee him the same
    21wonderful environment that you are offering him when
    22he went out and did his job? Did you tell him that?
    23AMr. Pletten was aware that we could provide him with
    24an office that had air conditioning that was a no
    25smoking office. He declined that offer, as I testified

    -Hoover -58-

    (pp 59-74)

    1     that report?

    2 A    No, I am not.

    3 Q     Are you aware of any parts of the Command that may
    4    have contact with higher command with regard to smoking?
    5     For example, Mr. Braun?

    6 A    I would presume if there is any contact of that nature,
    7     it would be out of the Safety Office.

    8 Q    You know he is in charge of air flow studies?

    9 A     Yes, Mr. Shirock [smoker] is in charge of environmental
    10    health and safety programs.

    11                MR. COHEN: Nothing further.

    12                MS. BACON: I have nothing further.

    13                           (Deposition concluded.)

    14                                     * * * *

    -Hoover -75-
    [Click here for .pdf Full Text.]

    11. Deposition of Robert Shirock,
    TACOM Safety Director

    (A smoker, his addiction and MI
    overrode his knowledge.
    His Methodology Had Been
    Overruled by USACARA's Report)
    1Southfield, Michigan
    2Wednesday, April 28, 1982
    312:15 p.m.

    P R O C E E D I N G S
    R O B E R T     F.     S H I R O C K
    being first duly sworn, was examined and testified on his
    oath as follows:

    9    BY MS. BACON:

    10 Q      What is your position, Mr. Shirock?

    11 A     Civil Service lists it as a Supervisory Safety
    12      Engineer. Organizationally in the Command, I am a
    13      Safety Director.

    14 Q    Do you have any responsibilities as far as the
    15       Occupational Safety and Health Act [29 USC § 651 - § 678] are concerned?

    16 A     Yes. Under the law, the Director of Safety or the
    17      Chief of Safety is responsible for safety and health.

    18 Q    Can you give me some background as far as your
    19      education and training is concerned?

    20 A     I have a Bachelor of Science in Chemistry. I have
    21      done graduate work at New York University in
    22      safety engineering. I have had industrial hygiene
    23      courses, and thirty-three years of experience as a
    24      Safety Engineer.

    25 Q     Are you acquainted with the Appellant in this case, Mr.

    -Shirock -3-

    (pp 3-41)

    1      cubic feet.

    2 A   the document does not say forty-eight hundred, but my
    3      reading of it does say forty-eight hundred feet.

    4 Q   You base that on what?

    5 A   On knowing the system and the way I read the document.

    6 Q   And your [ex parte] discussions with Mr. Lang, of course?

    7 A   Yes. We have talked about it.

    8 Q   Do you have such instruments that measure the
    9      efficiency?

    10 A   Mr. Lang has.

    11 Q   Does he use them?

    12 A   You would have to ask Mr. Lang that question.

    13 Q   I asked him. He said he uses whatever he had.

    14 A   I have no idea.

    15        MR. COHEN: Nothing further.

    16        MS. BACON: I have nothing further.

    17      ([Shirock] Deposition concluded. [3:16 p.m.])

    18                             * * * *

    -Shirock -42-
    [Click here for .pdf Full Text.]

    12. Deposition of Leroy J. Pletten,
    EEO Whistleblower

    (fired in reprisal against his whistleblowing;
    without notice of charges of wrongdoing;
    none has ever been identified.)
    1Southfield, Michigan
    2Wednesday, May 19, 1982
    31:10 p.m.
    (Appellant's Proposed Exhibits 6,
    (7 and 8 were marked for

    L E R O Y     J.     P L E T T E N,
    having been affirmed by the Notary Public, was
    examined and testified upon his oath as follows:
    MR. COHEN: Let the record reflect that
    this is the reconvening of a hearing pursuant to orders of
    the Merit System Protection Board taken pursuant to notice
    to both Counsel and Mr. Pletten and will be used for purposes
    of de bene esse testimony in lieu of trial.

    Would you state your name for the record?
    Leroy J. Pletten
    Mr. Pletten, you are the subject of this claim as a removal
    action. Are you familiar with the circumstances surrounding
    the removal?
    To a great extent, yes.
    Have you read the proposed notice of removal
    in this situation?
    Yes, I have.

    -Pletten -3-
    1QDo you understand them?
    2ANo, I don't.
    3QWhy is it that you don't understand them?
    4AThey're unclear and vague. And, you know, I've written
    5advance notices in other cases and these letters look like
    6sort of the start towards a possible letter. But really
    7there's nothing in there that is anything except conclusions
    8and no factual evidence, and it seems inconsistent and
    10QYou are familiar with the basis of the Government's claim
    11is that you're disqualified medically from returning to work?
    12QDo you understand that?
    13ANo, I do not understand that.
    14QWhat is it that you do understand as far as the medical
    15aspect of the claim?
    16AWell, that they assert that that's the case, but I don't
    17understand it because there's no medical qualification
    18factors to be disqualified from. [Ed. Note: verified repeatedly thereafter, see, e.g., OPM Correspondence.]
    19QI'm going to show you a document that I've written at the
    20top right-hand corner as Appellant's Proposed Number 6.
    21Can you identify this, please?
    22AYes. This Appellant's Number 6 is a document I received
    23from the Office of Personnel Management under the Freedom
    24of Information Act in response.
    25QWhen was that request filed under the Freedom of Information

    -Pletten -4-

    (pp 5-14)

    1the purpose of AR 1-8, is basically what I wanted to know.
    2What is the equitable balance? And the purpose of AR 1-8 is
    3that non-smokers, of course, have priority under the
    4regulation. That smokers are the ones seen as being
    5accommodated and not non-smokers. That smoking can be
    6accommodated only if numerous criteria are met. That smoking
    7is considered essentially to be something that is not part
    8of the mission. I wanted to know why he thought those
    9kinds of things. That's what I thought, you know, reading
    10the regulation, and that's what USARCARA sustained. But
    11there had been a case, the Shimp case, which in part
    12had caused the Department of Defense to have concern about
    13the problem of smoking. There have been lots of problems.
    14It's been known since the Korean War with the British Army
    15that smoking bothers army personnel.
    16QMr. Pletten, were you discomforted by the smoking?
    18QBut in view of the discomfort that you just testified that
    19you have, could you, nonetheless, continue to work?
    20AYes. Absolutely. [Ed. Note: See performance record].
    21QAre you able to work right now?
    22AYes, I am.
    23QLet's assume for argument's sake that the Tank Command were
    24not to ban smoking or not to even accommodate smoking to the
    25degree of [AR] 1-8. Let's assume that for argument's sake. Would

    -Pletten -15-

    1you still be able physically to work?
    2AYes, I would be, and I am.
    3QWhere do we seem to have the disagreement with the Army
    4then? If you can work under those circumstances, what
    5seems to be the problem here? Why can't we get together
    6on this?
    7AManagement has never agreed to even begin discussion with me
    8and management won't answer me when I write to them.
    9Management won't process my grievances. Management won't
    10process my EEO complaints. I make every effort. I go above
    11and beyond the call of duty in trying to discuss or even
    12deal in writing with management. Mr. Adler of the EEO Office
    13recognized it back in September, 1980 that management should
    14not [ostracize me] -- It was so obvious back then that they weren't
    15communicating with me. Management doesn't want to talk to me.
    16QOwing to that fact, where is the Tank Command, where is the
    17Agency getting the misapprehension that you can't work?
    18Dr. Holt has held the view for a long time that I am
    19perfectly able to work. There were certain events that
    20occurred -- You know, I would consider them pressure by
    21management -- to force Dr. Holt to change his mind on the
    22subject and --
    23QNotwithstanding, what about the letters from your doctors,
    24Dr. Dubin, for example, that are seemingly contradictory?
    25How do you explain those?

    -Pletten -16-

    (pp 17-24)

    1Aaction against employees who violate rules. So I'm always
    2disappointed when I see those rare situations when management
    3officials violate rules. It happens in situations on
    4occasion, and it's very sad when that occurs.
    5QDo you feel that you can return to work without any
    6hard feelings or anything like that?
    7AThere wouldn't be hard feelings on my part.
    8QYou're willing to go back, for example, today?
    9AYes. Definitely.
    MR. COHEN: Nothing further, Counsel.
    14QNow, Mr. Pletten, you stated at the beginning of your
    15direct testimony that you didn't understand the notice of
    16written proposal, which I think is found in the Agency packet
    17at Tab 7, which stated that basically your personal physicians
    18have indicated that your condition requires an absolutely
    19smoke-free work environment free of any smoke particulates.
    Now I also direct you to Tab 2 in the
    21same Agency response, which has various letters from doctors
    22relating to you also. I direct you especially to one written
    23by a Dr. Solomon dated March 17, 1980 and ask you if it is
    24your interpretation of that letter that you can work in
    25anything less than a smoke-free work environment?

    -Pletten -25-

    (pp 26-31)

    1APersonnel Office and I had had discussions on the precise
    2channeling of the grievance. So the USARCARA report is
    3essentially an exposition of the entirety of the regulation.
    4These are simply some of the conclusions that are based
    5upon all the facts that USARCARA had already found about
    6who makes the decision, whether the non-smoker makes the
    7decision as to whether there's an environment reasonably
    8free of contamination. USARCARA now, at the point of
    9paragraph three, the conclusion is taking for granted that
    10everybody now understands those things. So the conclusions
    11are based upon all the [criteria] information that preceded. Those
    12are the prerequisites for analyzing the conclusions. Now
    13management has emphasized that they don't agree with what
    14went before. What management is saying, as a synonym, is
    15they don't agree with the regulation and that's why
    16they take these conclusions clearly out of context.
    17Well, I direct you to paragraph three conclusion,
    18subparagraph (e) which states, and I'll read it for the
    "Consideration should be given to
    Mr. Pletten's health problem, and it
    may warrant more accommodation, e.g.,
    less smoking and more ventilation
    in assuring his work area is reasonably
    free of smoke contamination and other

    -Pletten -32-
    "toxic substances."
    2If management says, all right, we'll look at that and we'll
    3consider putting you in a room where there will be no smoking
    4where you'll have an outside air source and this will be a
    5way we will be able to accommodate your health problem, why
    6would you not consider that within the area of accommodation?
    7AManagement has refused to do exactly that.
    8QManagement offered you that. Several witnesses have testi-
    9fied [as rehearsed by her] that that is what was offered to you.
    10You're testifying. Management has refused to make any such
    11offer. That's why we are here [in this appeal]. Management -- Colonel
    12Benacquista has testified [Tr. at 25] he does not believe in regulating
    13smoking because it is personal behavior. That's why you [TACOM]
    14have several grievances and safety cases that there was
    15continued and repeated and often smoking in my room, because
    16management, while they would move me around, would refuse
    17and, in fact, did refuse to control smoking in those rooms.
    18QMr. Pletten, Mr. Kator testified, Mr. Hoover testified,
    19Mr. Lang testified that you were offered a room with outside
    20air ventilation with air conditioning in it that would be
    21set aside from the rest of the work force that no smoking
    22would be allowed in. And you just testified previously
    23that, yes, that was offered to you.
    24AWe're talking about the offers that were accepted. Those
    25offers were for no such thing. Those offers were for moving

    -Pletten -33-

    (pp 34-40)

    1Amy grievances, and ultimately because of the pattern of
    2reprisal and misconduct I just simply, well over a year ago,
    3gave up filing grievances. There's no point in filing
    4something that management has made clear that they don't
    5intend to process. So I simply stopped filing them.
    6QWhat is your basis that management has made clear that they
    7would not process them? What do you base that particular
    8statement on?
    9Emily --
    MR. COHEN: Counsel, if I may interject,
    11I believe that testimony has already been given by
    12Colonel Benacquista that, indeed, he has directed that
    13grievances no longer be processed because he was not going
    14to get involved in a continual paper war.
    15AMISS BACON: I believe Colonel Benacquista [who'd left the job Oct 1980]
    16testified that the grievances would be consolidated. At
    17no time did Colonel Benacquista claim that his [Pletten's] grievances
    18would not be processed.

    Ed. Note: Civil Service and Army rules mandate that case processing be completed in 90 days. Col. Benacquista had left the job in October 1980. This was now May 1982! clearly far outside the maximum allowed processing time.
    Bacon herself in May 1981, had contacted USACARA to have its investigation halted!
    The cases have still not been processed, June 2002.
    Bacon was doing a scam, making the pretense of Pletten's error in citing this non-processing, knowing it to neither occurring, nor intended to ever occur.
    This was by ex parte pre-arrangement with MSPB, its staff agreeing to 'overlook' the egregious reprisals. TACOM was infuriated Pletten had won his grievance, at USACARA's ruling in his favor, so vowed to never allow another USACARA investigation.
    MR. COHEN: Maybe with that clarification
    20Mr. Pletten can answer the question.
    21AWould you repeat the question, please?
    22AYes. Who -- Has anyone ever told you they would not
    23process your grievances and/or EEO complaints?
    24Management has made it clear by the process of the letter
    25writing that they sent to me that they aren't going to

    -Pletten -41-

    (pp 42-64)

    1Acivil service rules. And number two, of course, eliminate
    2the hazard, and that's the purpose of the EEO case. I want
    3the hazard eliminated. That doesn't mean I can't work.
    You know, at the UAW they have bushels of
    5grievances continually according to the newspapers dealing
    6with hazards. We do not close down auto factories and pretend
    7everybody is sick because people file grievances and want
    8hazards eliminated. Various witnesses have testified, and
    9I think Mr. Hoover might have, that he's seen cases of
    10complaints of safety hazards other than mine. Well, are
    11we getting rid of those people? Mrs. Bertram complained [Tr. at line 22].
    12Mr. Grimmett had a note here that several people were
    13complaining about the hazard under workers' compensation.
    14I forget the exhibit number. [Search.] It's Appellant's Exhibit Number
    151. Are we getting rid of all those people because they say
    16there's a hazard? Well, the reason that we're not getting
    17rid of those people is because they [fearing reprisal] aren't saying let's
    18get rid of the hazard. I'm asking [rule compliance]. And a co-worker of mine
    19just told me because, Leroy, you want the hazard eliminated
    20they're going to get rid of you. Mr. Kator has told me that,
    21I think, in May, 1979, if I want an environment —
    MR. COHEN: Brevity, Mr. Pletten.
    (At 2:45 P.M. the proceedings in
    this matter were recessed.)

    -Pletten -65-

    (pp 66-69)

    1hazard to him or her?
    2AColonel Benacquista answered that question before, and
    3relates to the fact that the doctors' statements haven't
    5been taken seriously. It is a terrible practice to order
    5people to work in hazards. That's why the rules forbid
    6hazards. It's perfectly legal to do that, but it would be
    7exposing the Command to the kind of liability that I think
    8Mrs. Bertram referred to. If there's a hazard to me, Leroy,
    9you can't work. That's not acceptable. If there's
    10endangerment — And endangerment and threats and hazards
    11are synonyms — and I don't understand why people can't, you
    12know, seem to get that. If there's a hazard, you don't
    13say the person cannot work.
    MISS BACON: Well, I have nothing further
    at this time.
    (Appellant's Proposed Exhibits Number
    was marked for identification.)
    19BY MR. COHEN:
    20QMr. Pletten, I'm going to ask you to look at a document
    21I've listed as Appellant's Number 9. Do you recognize that?
    22AYes, I do. This is a recent EEOC decision.
    23QAnd that was issued in the case called Leroy Pletten v
    24Department of Army?
    25AYes, it was.

    -Pletten -70-

    1AMr. Pletten, you've identified this as an Equal Employment
    2Opportunity's decision in this case?
    4QIs it the complete text to your knowledge?
    5AYou asked if this is the complete text. There was also a
    6transmittal letter.
    MR. COHEN: I move for admission of
    8Appellant's Number 9.
    MISS BACON: I would object to its admission
    10on the ground that it's totally irrelevant to this particular
    11proceeding. It's being taken care of in a separate
    12proceeding, and it's not the least bit relevant.

    Ed. Note: It was ultra-relevant. It showed, very apt in a removal case,
  • a now verified pattern of agency miscon-duct directed against Pletten, including obstruction of justice.
  • Pletten's effort to get review of Bacon's prior lying to MSPB
  • Pletten's seeking review of the removal via the EEOC forum, a fact preventing MSPB jurisdiction. (29 CFR 1613.403 forbids MSPB taking over a case when the employee sought EEOC review first.)
    The 23 Feb 1982 decision ordered case processing in 30 days. Contrary to Bacon's lying, it has never been processed! now over two decades later [June 2002].
    She feared EEOC integrity, so obstructed justice, having ex parte prearranged MSPB aiding and abetting Benacquista's extortion, so obstructed EEOC review-on-merits.
  • 13
    MR. COHEN: Counsel, you referred in your
    14cross-examination of Mr. Pletten to certain things. I will
    15intend to link it up by testimony referring to the document,
    16and subject to that I would ask for its admission.
    17Q(By Mr. Cohen) Mr. Pletten, I ask you to look at Page 2 of
    18the decision.
    19AI'm looking at it.
    20QAll right. I will quote to you:
    "The record indicates that as early as
    February, 1980 Appellant was denied
    EEO counseling and prevented from filing
    further complaints. As indicated in
    the Appendix, the Agency failed to

    -Pletten -71-

    (pp 72-73)

    1Anot dealt with by the Command?
    2AI would say that the word "some" is a very great under-
    4QNow, other testimony that Mrs. Bacon has solicited from you
    5concerns Dr. Solomon's letter of November, 1981. In that
    6letter did Dr. Solomon say that you could not return to work?
    7ANo, he did not.
    8QDid he say that you couldn't return to work absent a smoke-
    9free environment?
    10ANo, he didn't say that.
    11QWhat did he say in specifics?
    12AThere are two themes in this letter which seems to have
    13been evident from, oh, May, 1979 in that Mr. Pletten is
    14able to work and that there is a hazard, and that whatever
    15is normally done with hazards, do that. But don't make
    16that appear that he's unable to work. You know, the theme
    17is very clear-cut all the way through every letter.
    18QI direct you to the last sentence in the letter. It says:
    "Mr. Pletten should be returned to
    duty whenever Dr. Holt confirms
    that actual nature of the environment
    and its safety."

    Ed. Note: The reference to "that actual nature of the environment" refers to the crimes, falsifications by the corrupt MSPB, Ronald P. Wertheim, Ersa H. Poston, etc. They had committed felony mail fraud, invented events, supposed actions TACOM had allegedly taken on my behalf! Naturally, I and the doctors had accepted—wonderful corrective actions.
    Too bad they'd been bribed to make them up! But we accepted! Accept all corrective actions, reject none!
    When the attorney called Wertheim about his brazen lying, Wertheim had treated his lying on TACOM's behalf as a joke, said he was becoming a judge! Promoted for being corrupt!

    23Now, has Dr. Holt confirmed that the atmosphere is safe?
    24ANo. Dr. Holt, to my knowledge, has confirmed that the environ
    25ment is so unsafe as to, you know, render me unable to work for--

    -Pletten -74-

    1QFor argument's sake, if Dr. Holt had said that the place
    2is safe, then by reference to this letter you should return
    3to work; is that correct?
    4AOh, even back as far as March 17, 1980 all Dr. Holt would
    5have done had he thought it was safe is say it's safe and,
    6you know, there is no hazard in your office. But he agreed
    7that there was, in fact, a hazard that had caused a pattern
    8of incidents as far as I know.
    9QAssuming that there is a hazard, even in view of a hazard
    10would you work?
    11AOh, yes.
    12QAll right. Now why is that? What would possess a man to
    13work in view of a hazard?
    14AThere was a law review article that explained that. People
    15need to eat. People need money. People accept gross and
    16extreme violations of their rights. Black people have for
    17centuries. You know, coal miners do. You know, people
    18work in the grossest and unsafe conditions, but that's why
    19laws are passed and rules are passed to prevent those
    20hazards--recognizing, of course, that people work regardless
    21of how extreme the hazard is.
    22QWhat is your position then? Let's assume for argument's
    23sake that the Command would take you back. You would then
    24work regardless of the circumstances, if my understanding
    25is correct?

    -Pletten -75-
    1AOh, yes.
    2QAll right. But you would still try and eliminate the hazard?
    3AAR 385-10 says that it's our duty, as I recall it — I can't
    4give you the exact quote -- that we are to report hazards,
    5and I've been doing that. The legal office agreed in various
    6legal opinions over a long period of time that that's, indeed
    7an employee's duty.
    8QAnd the statements in Appellant's Number 3, I point you to
    9the underlined portion that says:
    "No information is available on the
    fumes to which Mr. Pletten may have
    been exposed."
    13That was written by Mr. Hoover and identified by him as such
    14in his deposition. Is it your position that they have never
    15really done accurate studies?
    16AUSARCARA agreed that there had been no studies done that
    17were any evidence of compliance. So it's not really my
    18position. I'm merely pointing out something that other
    19people recognize as accurate. There have been no [TACOM] studies
    20of significant items of tabacco smoke.
    21QMrs. Bacon has been pointedly asking you whether or not
    22you were offered another room, and the testimony that we've
    23had is that, indeed, you were told that you would be put
    24in another room. Now were you, in fact, put in a separate
    -Pletten -76-

    1AI was put in several separate rooms -- to use the word "put."
    2I follow orders. When they say go there, I go there.
    3QIn other words, there was never an offer and acceptance type
    4of thing. It was an order?
    5AI would say an order. That would be what I'm emphasizing.
    6QIn other words, you don't deny that you were put in such a
    7room, but you deny having a choice?
    8AI deny having a choice. That's why I complained.
    9QAnd some of the rooms, were they — When you mentioned earlier
    10the walls were floor to ceiling, were some of the rooms just
    11with partitions that allowed smoke over the top of the
    13ADefinitely. Yes. That was the case in August, or thereabouts
    141979 on.
    15QDid they try and make any arrangements or talk to you about
    16arrangements in the course of your duties to eliminate
    17cigarette smoke when you went to interview people?
    18AManagement has never agreed to do that.
    19QDid they give you any directives as to what to do in terms
    20of your encountering cigarette smokers in the course of
    21your employ?
    22ADefinitely not. No guidance was provided.

    Ed. Note: USACARA noted TACOM's committing widespread non-compliance with the AR 1-8 criteria.
    In essence, compliance for me, would have alerted numbers of employees, then by their passing the message, all of them, to AR 1-8 and the duty of compliance.
    Management knew others' complaints were widespread, wanted no compliance for anyone, hence retaliated against me, to obstruct it, head it off.

    23QYou've heard [rehearsed, false] testimony from Mr. Braun indicating that, in
    24fact, AR 1-8 is complied with in totality at the Tank
    25Command. Did you make them aware of that? Did you talk

    -Pletten -77-

    (pp 78-79)

    1A(Continuing) I would like to see some studies. You know,
    2USARCARA said to do studies, and I've looked at the Surgeon
    3General's report and I see lots of items that are major
    4contaminants in tobacco smoke. The Command are studying
    5things that -- I don't know why they're studing those except
    6like the 20 February 1980 statement says they're studying
    7what they hope to find very little of [Braun Tr. at 11-12]. They're studying
    8things that the TLV's are real lenient, and there are a lot
    9items in tobacco smoke where the TLV's are very strict. They
    10don't study those items.
    11QBut you don't have any information other than what you've
    12just been told about as to the status of the work environment?
    13AWell, the information I have is extremely perfunctory
    14and extremely fragmentary. It's hard to know what the
    15environment is there.
    MR. COHEN: Nothing further.
    20QI have a couple of things, Mr. Pletten.
    The Appellant's Exhibit 9, which is the
    22EEOC decision, I direct your attention to Page 4
    23of that decision.
    24MR. COHEN: Counsel, are you now withdrawing
    25your objection as to the admission?

    -Pletten -80-

    (pp 81-85)

    intriguing thing that the alleged studies are always when
    I'm never in the room.
    MR. COHEN: Mr. Pletten, please, direct
    your comments to the question asked.
    Did you receive any studies from the doctors,
    any copies of studies?
    THE WITNESS: I think I saw some alleged
    studies of maybe a year or so ago, but they were so vague and
    they were just some documents provided.
    MR. COHEN: To your doctor, that your
    doctor shared with you?
    THE WITNESS: Probably just shared, you
    know, saw, whatever. They have nothing to do with anything.
    MISS BACON: I'm done.
    MR. COHEN: So am I.
    (At 3:42 p.m. the deposition was
    [Pletten deposition concluded.]

    -Pletten -86-
    [Click here for .pdf Text.]

    13. Deposition of BG David W. Stallings,
    TACOM Deputy Commanding General

    (Signed Letters Firing Pletten, & Later Promising EEOC Review)
    1Southfield, Michigan
    2Wednesday, May 19, 1982
    33:45 P.M.

    D A V I D     W.     S T A L L I N G S,
    having been first duly sworn by the Notary Public,
    was examined and testified upon his oath as follows:

    General, state your name for the record?
    David W. Stallings.
    And what is your position?
    I'm the Deputy Commanding General of the U.S. Army Tank
    Automotive Command.
    How long have you held that position?
    One year.
    And what are some of the responsibilities involved with that
    I am responsible for the readiness portion of the Tank
    Command in that I supervise six different Directorates,
    approximately four thousand people with responsibility
    for the procurement and the stock for the United States
    Army Tank Automotive Command.
    Are you also involved in being the final authority in terms
    of separating employees?

    -Stallings -3-
    Yes, I am.
    Let me ask you if you can identify the letter at Tab 10 of
    the Agency's submission.
    And what is that letter?
    It is a letter that I signed, to Mr. Pletten, dated
    14 January [1982], which pretty well states, I guess, in substance
    that we had reviewed some data dated 11 December '81 and
    confirmed the material and replied to him it was mailed
    to you on 11 December [1980], and that I would allow an additional
    five working days for a reply relative to the material
    that we had asked for. There's some comments in here
    concerning Dr. Dubin's specifications of what the environment
    had to be for Mr. Pletten to work in. It goes on to state
    that the decision to effect the separation is proposed and
    becomes effective 22 January, and that he has a right to

    Ed. Note: The real truth is, the letter cited no qualification requirements involved, no conduct warranting removal. It refused to provide appeal rights, except to TACOM's preferred choice, MSPB, with whom it had made ex parte arrangements to uphold the removal. TACOM feared the honest EEOC system of review, refused to notify of rights to EEOC, and had closed off access to EEOC in February 1980.

    Could you explain the circumstances surrounding the signing
    of that letter [the one he had signed purportedly removing Pletten]?
    Yes. It was referred to me by his [smoker, so not impartial] Division Chief,
    Mr. Ed Hoover. Mr. Hoover and I had talked about it, and it
    was his [ex parte] recommendation that Mr. Pletten be separated because
    we could not meet the environmental requirements of what
    Dr. Dubin had stated had to be for him to work, which was
    basically an area where there was no smoking, and we were

    -Stallings -4-

    1     unable [Ed. Note: REFUSING] to meet that. So in counseling with Mr. Hoover,
    2     reviewing the case, it was decided that he should be
    3     released.

    All done ex parte, no notice provided to Pletten, denying him the right to reply.
    This is rehearsed testimony. Stallings has no clue of rules, nor the USACARA Report.
    Note perjury, denying TACOM authority to cease permitting smoking for failure to meet the requirements of Army Reg. 1-8; and as per the full authority to do so as per Army Reg. 600-20.2-1, cited by the 25 Jan 1980 USACARA Report.
    Stallings also lied in writing, promising me EEO review I'd requested! See Langley v Rodriguez, 122 Cal 580; 55 P 406 (1898), on "a promise made without any intention of performing it . . . one of the forms of actual fraud." Also, Bishop v E. A. Strout Realty, 182 F2d 503, 505 (CA 4, 1950), it is proper for victim [me] "to rely on what had been told him" by Stallings. "There is nothing in law or in reason which requires one [me] to deal as though dealing with a liar or scoundrel, or that denies the protection of the law to the trustful who have been victimized by fraud [though Stallings may] defend on the ground that his own word should not have been believed."

    (pp 5-6)

    1smoke-free environment or an environment reasonably free of
    2contamination or reasonably smoke-free and all those
    3different terms. Now, what was your understanding of what
    4Mr. Pletten needed or required? Let me get away from the
    5word "need."
    6AThat he had to have, according to the information that was
    7supplied to me in the packet that would remove Mr. Pletten
    8from service, that he had to have an environment that was
    9free of contaminants that are associated with smoking.
    10QNow this statement by Dr. Dubin that qualifies that, that
    11says reasonable free of smoke or contamination, that
    12qualifies it and makes it less stringent, does it not?
    13AI don't know.
    14QYou don't know. Okay.
    15AJust reading, you know, that may be yours. But I can't
    16read that and go back and decide based on all the informa-
    17tion that I've seen thus far that a statement like that
    18says that, hey, it's a new ball game. I don't get that out
    19of reading that.
    20QDid you call Dr. Dubin yourself?
    22QWhy not?
    23ANo reason to.
    24QNo reason to. I've had testimony here earlier, a couple of
    25weeks ago, that stated that you sometimes do an independent

    -Stallings -7-

    1Ainvestigation aside from the one that's provided you in a
    2packet by the Personnel Officer.
    3AI sometimes may do that.
    4QDid you do that in this case?

    Ed. Note: Disparate treatment.
    6QWhy didn't you?
    7AI felt very — not very. But I felt comfortable with the
    8information supplied by the Civilian Personnel Officer,
    9Mr. Hoover, and the information that was in the packet seem«
    10clear to me. I didn't see any reason for an additional
    11investigation over that.
    12QIf I were to tell you that Mr. Braun of your own staff has
    13testified that, indeed, much of the building — And I'm
    14characterizing his testimony now.
    MISS BACON: Yes, you are. Let the record
    16show that.
    MR. COHEN: I will characterize it as I
    18remember it.
    19Q(By Mr. Cohen) Mr. Braun testified there are times when
    20Building 230 does not comply with AR 1-8. Would that have
    21changed your recommendation with regard to Mr. Pletten?
    22AHe's never said that to me.

    Ed. Note: Fear of being 'whistleblower,' and being fired too.

    23QAssuming he did.
    24AI don't know it. If he — Say it again? If he were to
    25come in and say what now?

    -Stallings -8-

    17 Q AR 1-8 is what in your understanding.

    18 A I'm going to be really honest with you. I have not
    19         referred to
    that regulation.

    20 Q Did you refer to it prior to the dismissal of Mr. Pletten?

    21 A No.

    22 Q Have you ever read it?

    23 A No.


    (p 10)

    10 Mr. Pletten's argument is that -- Mr. Pletten
    11         said that he's ready to go back to work even if it's the
    12         worst environment in the world. He says that's always been
    13         his position. He does claim [and USACARA verified], however, that there's a
    14         hazard in the building and that the army has not had the
    15         building comply with the regulation, and --

    16 A That has not been reported to me.

    17 Q That has not. Okay. Well, if it hasn't been reported,
    18         there's no use belaboring it.

    -Stallings -11-

    (p 12)

    1 Q Did you review, for example, the 25 January 1980 report from
    2         USACARA regarding Mr. Pletten?

    3 A I don't recall right now. I don't know if I saw it. It
    4         doesn't ring a bell.

    -Stallings -13-

    (p 14)

    24 Did you consider banning smoking at the Tank Command?

    25 No, I haven't considered banning smoking.

    Ed. Note: Confirms perjury; on p 4, he said it can't be done!

    -Stallings -15-

    1 Do you have the authority to do that?

    2 I don't think so. I don't think I have the authority
    2         to just blanket throughout the Command say that you can't
    3         smoke in there. If there is a regulation that I can
    4         refer to --

    -Stallings -16-

    (pp 17-28)

    1 A     I can't answer the question. I don't know.

    2 Q     I'm concerned when you say you didn't speak to Mr. Pletten
    3          pursuant to the removal, let me get this straight. Was it
    4          because [smoker] Mr. Hoover had already offered him the opportunity
    5          to speak to him [re USACARA's Report] that you didn't speak to him?

    6 A     I have a great deal of confidence in Mr. Hoover. Part of
    7          that stems from the -- especially when it comes to
    8          personnel actions. Since he is the Civilian Personnel
    9          Officer with many years of experience in these matters,
    10          I rely on him very heavily in these matters. In this
    11          particular case I felt as though I was getting correct
    12          response from Mr. Hoover.

    Ex parte information of which Pletten was never notified, so denied opportunity to reply.
    The law requires vigilance for compliance: What foresight and vigilance consist of and require are described by the Supreme Court as follows:
    "The requirements of foresight and vigilance imposed on responsible corporate agents are beyond question demanding, and perhaps onerous, but they are no more stringent than the public has a right to expect of those who voluntarily assume positions of authority in . . . enterprises whose services and products affect . . . health and well-being . . . " United States v Park, 421 US 658, 672; 95 S Ct 1903; 44 L Ed 2d 489 (1975).
    This was in answer to a convicted official (Park) who argued all the way to the Supreme Court that the legal duty set, is too high!
    See cases of criminal prosecutions of generals: Application of Yamashita, 327 US 1; 66 S Ct 340-379; 90 L Ed 499 (1946), and Application of Honmo, 327 US 759; 66 S Ct 515-517; 90 L Ed 992 (1946) (cases holding generals liable for acts of subordinates, and imposing death penalty for those acts, even though the generals were unaware of the subordinates' misdeeds. The reason said the Supreme Court, for holding generals liable, is that laws presuppose that their violation is tobe prevented by generals! Generals are to control events and subordinates, and not be misled by them. Ignorance is, in law, negligence.).

    13 Q     You heard a lot about Mr. Pletten from the day you got there?

    14 A     Yes, I'd heard of him.

    15 Q     Did you think he was a crackpot or a freak incident with
    16          the Command or a source of joking, for example?

    17 A     No. I don't judge people in that manner. I can't afford
    18          to in my position. I didn't judge Mr. Pletten. I'd never
    19          met him, and I'd only heard that he'd registered many
    20          complaints over the period and I just let that stand. In
    21          my position I can't afford to judge people that way.

    22          And you would have been willing to meet with him?

    23 A     Oh, absolutely.

    The real truth is, Pletten's request to meet as per "Open Door" Policy had been, and remains, REFUSED.

    24                MR. COHEN: Nothing further.

    25                MS. BACON: I have nothing further.

    25                MR. COHEN: Colonel, thank you.

    [26]                          ([Stallings] Deposition concluded at

    9                                                                    4:30 P.M.)

    -Stallings -28-
    [Click here for .pdf Full Text.]

    14. Deposition of Dr. Bruce Dubin,
    a TACOM-Designated Doctor

    (TACOM had sent Pletten to him,
    he ruled for Pletten,
    TACOM defied his reports,
    had its non-examining doctor overrule
    this examining doctor.)
    1Southfield, Michigan
    2Thursday, May 20, 1982
    310:30 o'clock a.m.
    4                                                                   o o o
    D R.      B R U C E     D.     D U B I N,   D. O.,
    having been first duly sworn to testify to the truth,
    the whole truth and nothing but the truth, was examined
    and testified upon his oath as follows:

    10    BY MR. SIEGEL:

    11 Q      Doctor, could you state your name?

    12 A     Bruce Don Dubin.

    13 Q     And your occupation?

    14 A     Physician.

    15 Q     What are your business offices?

    16 A     1385 East 12 Mile Road, Madison Heights, and the Milford,
    17          Michigan address is at the Pontiac Osteopathic Hospital
    18          Health center.

    19 Q     Doctor, do you specialize in any particular branch of
    20         medicine?

    21 A     I'm a specialist in internal medicine with a sub-
    22         specialty in allergy, clinical immunology and obstruc-
    23         tive lung disease.

    24 Q     Doctor, are you familiar with Leroy Pletten?

    25 A     Yes, I am.

    -Dubin -3-

    Under what circumstances did you come to know
    Mr. Pletten?
    He's a patient of mine. [Initially referred by TACOM like Schwartz.]
    When did you first see Mr. Pletten?
    I don't have his chart in front of me. I would estimate
    approximately one and a half to two years ago.
    What did he come to you for?
    A case of reversible obstructive airway disease.
    Can you just explain to us what that means?
    Mr. Pletten is a gentleman who has what laymen would
    term asthma. By definition that means he has hyper-
    active airways, extra-sensitive lungs, and coming
    in contact with with the correct type of trigger would cause
    two types of reaction to occur: tightening of the
    bronchial tubes, creating wheezing and increased mucus
    Is it your medical opinion, after examing Mr. Pletten,
    that he should not work in a smoke-filled environment?
    Yes, it is.
    Let me put it another way: Is it your opinion that
    he should work in a smoke-free environment?
    Yes, it is.
    Is it your opinion, Doctor, that under ideal circum-
    stances, whatever these might be, that any person and
    every person should work in a smoke-free environment?

    -Dubin -4-

    (pp 5-7)

    Is that a letter that you issued relative to Mr.
    Yes, it is.
    MS. BACON: I'd move for its ad-
    mission into the record at this time as Agency Exhibit
    (Letter dated October 22, 1980,
    marked for identification as
    Agency Exhibit 22.
    (By Ms. Bacon): Doctor, in this letter you again state
    -- and I refer you to the third paragraph -- that
    "The repeated advice since January 7th, 1980, has been
    to provide a smoke-free environment to Mr. Pletten . . ."
    Your statement today has been that that is also your
    advice as of today, to provide him with such an environ-
    That's correct.
    Now, we've had several witnesses testifying to the
    fact that at one point Mr. Pletten was offered a room
    that would be [segregated] away from the general work force, which
    would have outside ventilation -- in fact, an air
    conditioner was offered to be put in this room, and witnesses
    have stated that Mr. Pletten called that a discrimina-
    tory matter of segregation. Now I note in one of

    -Dubin -8-
    the doctor reports that counsel just referred you
    to, this March 24th, 1980 letter of yours, you do refer
    to isolation and segregation as being, I guess, against
    your advice. Could you explain to me what you mean by

    Ed. Note: TACOM by way of its Legal Office and Ms. Bacon, viciously opposed enforcing the no-smoking rule's prerequisites, to protect the work force generally from smoking.
    Bacon regularly obsesses and fixates on the whistleblower, segregating him, lest he pass the message to other workers about the rule's prerequisites before smoking could be permitted, none of which prerequisites TACOM met. She keeps distracting attention off rules, onto Pletten.
    Well, an individual who is treated abnormally, isolated
    because of a medical impairment can receive detrimental
    psychologic handicaps because of that. I would consider
    taking an individual and separating him from the rest
    of the work force because of a physical impairment as
    having a potential to do great psychological harm to
    a disease that can already have a good deal of psycho-
    logical impairment with it.
    Well, is it your opinion that it would be improper for
    the agency, upon being presented with your notes to
    provide this man with a smoke-free environment,
    to try to provide him a room like this where smoking
    would not be allowed?

    Ed. Note: See the repeated Bacon fixation on the whistleblower, and segregating him, not on the rules' intent of protecting the entire work force from smoking.
    As long as it met with Mr. Pletten's satisfaction to
    the point where he didn't feel he was being segregated,
    that could potentially be okay. You know, you're painting
    a picture but I need to see reality. Are you
    talking about a four-by-two cubicle that is entirely
    closed off from the rest of the working staff, where
    he has no contact with his peers, or are you talking

    -Dubin -9-

    (pp 10-12)

    Were you aware that Mr. Pletten was being treated by
    other physicians relative to this problem?
    I was aware that he was seeing an Army physician, I
    guess, and this Dr. Holt, and I was also aware that
    he was seeing a Dr. Salomon, I believe.
    Did you ever have any interaction with Dr. Salomon at
    MS. BACON: Okay, I have no further
    MR. SIEGEL: I just have a couple.
    Doctor, this might seem somewhat redundant, but it's
    just a very short question. Is it your professional
    opinion, sir, that it is absolutely necessary, in terms
    of Mr. Pletten's asthma, that he be provided a segre-
    gated smoke-free area in which to work? That that is
    a precondition of his returning to work?
    It is my professional opinion that the only way Mr.
    Pletten can work [safely] is in a smoke-free environment.
    When you say "smoke-free," do you mean reasonably
    smoke-free or totally smoke-free?
    There is no such thing as "reasonably smoke-free."
    Either cigarette smoke is present or it is not.

    -Dubin -13-

    1      The only way Mr. Pletten can work is in a smoke-free
    2       environment.

    3 Q   All right, fine.
    4         One last question. In reference
    5         to your March 5th, 1981 letter that counsel just
    6         referred to, from you to Dr. Holt, in the last par-
    7         agraph of the letter you state as follows:

    8         If I can give you further
    9         infomration or can be of any further help
    10         to you, please do not hesitate to call on
    11         me. Please understand that the best way I
    12         can give you any recommendation regarding
    13         the ability of your area to achieve a
    14         smoke-free environment would be an on-site
    15         inspection. If you request this, I will be
    16         happy to assist you in any way possible.
    17                           "Sincerely yours."

    18         Did [TACOM's] Dr. Holt ever contact you re-
    19         garding an on-site inspection?
    20         No.
    21         Did you ever conduct an on-site inspection?
    22         No.

    23        MR. SIEGEL: I have no further
    24         questions.
    25         MS. BACON: I don't either.

          [Dubin Deposition concluded.]                 o       o        o


    -Dubin -14-
    [Click here for .pdf Text.]

    15. Deposition of Dr. David Schwartz,
    TACOM "Fitness for Duty" Doctor

    (TACOM had defied precedent
    [Standard Knapp Div v IAM,
    50 Lab Arb Rpts 833 (1968)]
    had ordered Pletten to see Schwartz,
    he ruled for Pletten,
    recommending Pletten be allowed back.
    TACOM defied his report,
    had its non-examining "Dr. Holt" overrule
    this examining specialist!)
    1Southfield, Michigan
    2Friday, May 21, 1982
    34:45 p.m.
    o o o

    5           MR. COHEN: Let the record reflect
    6            that this is the continued hearing in the matter of
    7            Leroy Pletten before the Merit System's Protection
    8            Board. This is the deposition de bene esse of Dr. David
    9            Schwartz.

    10          Counsel, as Dr. Schwartz was a
    11           treating physician pursuant to a notice from the United
    12           States Army for fitness for duty examination, I would
    13           ask that the Army stipulate as to his credentials.

    14            MS. BACON: The Army stipulates as
    15             to his credentials.

    D R.      D A V I D        S C H W A R T Z ,
    having been first duly sworn to testify to the truth,
    the whole truth and nothing but the truth, was examined
    and testified upon his oath as follows:

    21    BY MR. COHEN:

    22 Q      Doctor, state your name and business address for the
    23           record, please.

    24 A     David Schwartz. I'm a physician, M. D. My address is
    25          27600 Hoover Road Warren, Michigan 48093.

    -Schwartz -3-

    Dr. Schwartz, did you have occasion to see Leroy
    Pletten professionally?
    I did.
    What was the circumstances surrounding that visit?
    Mr. Pletten was in this office one time to see me, on
    one occasion: May 27th of 1980. He was referred to
    me by the Troubled Employees Program; one of the
    people who help run the program at the Tank Command
    in Warren. I saw him for a psychiatric examination
    on 5-27-80.

    TACOM had lied to its own examining doctor as to why it had sent the whistleblower to see him! The actual truth is that the referral to him was a 'fitness for duty' [FFD] examination. The FFD procedure has been found so regularly abusive of employee rights that it has since been abolished!

    Did you find him to be suffering from a psychological
    or psychiatric deficiencies or deficits?
    He had no serious psychiatric diagnosis or illness at
    the time that I saw him, and I stated such in a letter.
    MR. COHEN: All right.
    Could we go off the record for a
    (Discussion off the record.)
    MR. COHEN: We'll go back on the
    (By Mr. Cohen): Doctor, I am informed by Ms. Bacon,
    for the Tank Command, that that letter is indeed in the
    case file. If it is not, I have a copy of it in my
    office, and I'll enter it in the record.
    What was your understanding of

    -Schwartz -4-

    Mr. Pletten's problems with the Army at the time?
    Mr. Leroy Pletten had been seeing an allergy physician,
    Dr. Bruce Dubin, and had apparently been suffering
    from breathing difficulties. Mr. Pletten complained
    that he had had difficulty working in an environment in
    which there was smoke. Cigarette smoke is what he
    meant. Mr. Pletten was sent to me to evaluate him
    psychiatrically and report that to Dr. Holt, the
    physician in charge of the Tank Command, and I did

    Again, we see that TACOM had lied to Dr. Schwartz. What Pletten had reported was TACOM rule violations! -- as verified by the 25 January 1980 USACARA Report. He was seeking its implementation for himself, and via his EEO Class Action, for the workforce at large.
    Pletten was winning recognition for his excellent work; and had continued working until suddenly terminated for having won that Report.
    Pletten's "difficulty working" was -- TACOM was refusing to let him work at all, to extort from him altered testimony, as Col. Benacquista admitted (Dep. p 62).
    What with agency abuses, lying to their own doctors, common, you can see why the FFD procedure has been abolished!

    Is it normal for somebody to suspect a person's psy-
    chiatric standing because they don't like cigarette
    That wouldn't make sense; if that answers the question.
    I'm trying to answer your question in the way you asked
    it. No, it is not normal to make a case of someone
    who doesn't like smoke.
    All right. As a physician, you're trained generally
    in other matters aside from psychiatry?
    Do you have general knowledge of pulmonary function
    and lungs and the smoke involvement with patients in
    Cigarette smoke is injurious and harmful to the lungs
    of human beings.

    -Schwartz -5-

    Although not an expert in the pulmonary field -- we
    recognize that -- if Mr. Pletten were to be offered
    an environment in which there was cigarette smoke,
    would he be able to work, in your professional opinion?
    I would have to ask you something to clarify your ques-
    All right.
    Are you asking me would he be bothered in an environment
    in which there was smoking going on, whatever he was
    doing, including work? Is that what you're asking?
    Well, all right, I'll ask that.
    I think Mr. Pletten was sincere that he would be
    bothered. He indicated that he was bothered at all
    times when there was cigarette smoke in his vicinity.
    The "bothered" meant his nose would get stuffy, irrita-
    ble, he would sneeze and cough and sometimes have
    respiratory wheezing or tightness of breathing when
    he was exposed to smoke.
    Let's assume, for argument's sake, or hypothetically,
    that the Army cannot ban smoking in the command due to
    the rights or the question of the rights of others to
    smoke. Would he be medically disqualified from working,
    assuming the Army can't ban smoking?
    MS. BACON: I would object to that
    question as phrased. Dr. Schwartz has already stated

    -Schwartz -6-
    that he is not an expert in the area of pulmonary
    functions, and, indeed, has not ever stated that he
    examined Mr. Pletten regarding pulmonary functions.
    Mr. COHEN: I think Dr. Schwartz
    is a qualified physician and practitioner and has
    general knowledge of medicine and is licensed by the
    State and can treat in a general fashion as well as
    under his specific expertise.
    (By Mr. Cohen): You may answer the question.
    In the way you have phrased the question, the only way
    that I could answer yes would be if I were to examine
    him, were he to come immediately from a smoke environ-
    ment and have breathing difficulties, nasal or pulmonary.
    Otherwise I couldn't answer the question.
    If you ask me hypothetically to
    answer whether he would have physical problems and be
    able to work, it would appear to me from his history
    -- which is so much of what we go on in psychiatry
    generally -- that he would have a great deal of diffi-
    culty working in a smoke-filled environment.

    Again, we see that TACOM had lied to Dr. Schwartz -- had told him some ex parte wild story grossly contrary to Pletten's superb, exceptional, better-than-colleagues' work performance and attendance.
    What with agency abuses, lying to their own doctors, common, you can see why the FFD procedure has been abolished!
    TACOM was saying it got rid of Pletten over the “smoking” issue. But no qualification requirement for smoking is in his job description, showing by omission, violating standard civil rights Bona Fide Occupational Qualifications (BFOQ) concepts.
    An alleged requirement does not exist that is "not reasonably related to the duties of the position. McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973)," cited in Hill v Nettleton, 455 F Supp 514, 519 (1978). In that case, a Ph.D. was not a job requirement, notwithstanding the employer's false claim otherwise.
    Actual or alleged inability to meet non-requirements "can never prevent performance of the job," Montgomery Ward v Bureau of Labor, 16 FEP 80; 280 Or 163; 570 P2d 76 (1977).
    There is nothing in any job description or BFOQ even mentioning the presence of tobacco smoke in the air, much less as a job requirement, much less, as so essential that failure to meet it, overrides everything, including qualification waivers, his many performance awards, supervisory recognitions, pay increases, etc
    "Workmen are not employed to smoke," Maloney Tank Mfg Co v Mid-Continent Petroleum Corp, 49 F2d 146 (CA 10, 1931). There is "no necessity to fill the air with tobacco smoke in order to carry on defendant's business," Shimp v N J Bell Telephone Co, 145 NJ Super 516, 523; 368 A2d 408, 411 (1976).
    Even if TACOM were to claim that cigarette smoke is a BFOQ, and even if it were true (it is not), "the job requirements and qualifications had never been formally changed," Sabol v Snyder, 524 F2d 1009, 1011 (1975) . TACOM fears letting an honest investigator or EEOC AJ "examine the position descriptions," look for "legitimate job requirements," Coleman v Darden, 595 F2d 533 (CA 10) cert den 444 US 927 (1979); and Stalkfleet v U.S. Postal Service, 6 MSPB 536, 541 (1981).
    Tobacco smoke is not "in the requirements for any position," 5 USC § 2302(b)(6). No such requirement is published pursuant to law, a jurisdictional requirement by law, 5 USC § 552.(a)(1). This law is followed for others, not Pletten.
    Airborne tobacco smoke only arises from preferences in any case; preferences have no legal standing, Knotts v U.S., 128 Ct Cl 489; 121 F Supp 630 (1954), and Diaz v Pan Am Airways, Inc., 442 F2d 385 (CA 5, 1971) cert den 404 US 950 (1971).
    Any claim, if TACOM were to make it, that tobacco smoke is a BFOQ “suffers from a further inadequacy in that it failed to comply with 29 C.F.R. § 1607.5(b)(3), which requires that criteria used to predict job performance ‘must represent major or critical work behaviors as revealed by careful job analysis.’” Albemarle Paper Co v Moody, 422 US 405, 432 n 30; 95 S Ct 2362; 45 L Ed 280 (1975); U.S. v Chicago, 549 F2d 415, 431 (CA 7, 1970). At 432, “Job-relatedness can only be determined where the criteria for selection are clearly identified.”
    BFOQ’s must be applied across the board, not just to one person (Pletten, as TACOM had done, i.e., disparate treatment). BFOQ’s must be stated in advance, not fabricated retroactively, i.e., must be pre-listed in hiring and medical forms, tests, be actually required for the job, checked for in background investigations, etc. The process is described in case law, e.g., U.S. v City of Chicago, 549 F2d 415, 429-434 (CA 7, 1977). TACOM knows that there are minimal medical requirements for personnel work, due to the nature of the job, and those few are on the “Health Qualification Placement Form.” Pletten's were use of fingers, rapid mental and muscular coordination, near and far and color vision, hearing, clear speech, and mental and emotional stability. He meets them all. TACOM's own Dr. Francis Holt had certified so, and never certified otherwise. EEOC review would reveal such facts in minutes.
    In Michigan especially, smoking is not a BFOQ. Cigarettes are illegal in Michigan, illegal since 1909, pursuant to Michigan’s law MCL 750.27, MSA 28.216 (which bans cigarettes in Michigan). Far from cigarette smoke being a BFOQ, it is illegal.
    An EEOC AJ would see that suppressing smoker conduct, even if done "'brusquely,'" is legally valid, Diefenthal v C.A.B., 681 F2d 1039, 1042 (1982); Jacobs v Mich Mental Health Dept, 88 Mich App 503; 276 NW2d 627 (1979); Keyser Canning Co v Klots Throwing Co, 94 W Va 346; 118 SE 521 (1923).
    TACOM Regulation 190-4 bans drugs from being brought on-post (nicotine is a drug). There is no ‘requirement’, no ‘BFOQ,’ for what is banned!
    5 USC § 552.(a)(l)(C) - (D) makes the publication of a qualification requirement “jurisdictional,” Hotch v U.S., 212 F2d 280 (1954); Bowen v City of New York, 476 US 467 (1986). EEOC can take official notice that no federal employee has ever, but Pletten, been accused of having a ‘presence of tobacco smoke’ qualification requirement. Well, TACOM did not say it was a requirement, remember, there was no notice. TACOM just said he fails to meet the requirement! Well, what is it? TACOM denies him the right to reply until it provides notice identifying what it is referring to.
    Others have had actions taken against them canceled when there was no notice of a qualification requirement or other rule violation by them. Morton v Ruiz, 415 US 199, 231; 94 S Ct 1055, 1072; 39 L Ed 2d 270 (1974); Hotch v U.S., 212 F2d 280, 281 (CA 9, 1954); W. G. Cosby Transfer & Storage Corp v Dept of Army, 480 F2d 498, 503 (CA 4, 1973) (Army has a pattern of law violations); and Onweiler v U.S., 432 F Supp 1226, 1229 (D Idaho, 1977). The agency’s not obeying the law for Pletten, is part of the agency retaliation and disparate treatment. Others similarly situated are not so treated.
    Pletten repeatedly returns to duty as per Bevan v N Y St T R System, 74 Misc 2d 443;345 NYS 2d 921 (1973) (the case of an employee also falsely accused of not meeting a non-existent qualification requirement!).

    But on the issue of medical disqualification, without
    examining him, you can't form a conclusion?
    I cannot.
    MR. COHEN: Okay. Nothing further.

    -Schwartz -7-
    Doctor, just one question: When Mr. Pletten was re-
    ferred to you for a psychiatric evaluation, were you
    given any [ex parte] information by the Army at that time about
    Mr. Pletten?
    I will have to answer your question with Part A and
    Part B. I was given, in the broadest sense, informa-
    tion by the Army, and I'm holding what came in a
    yellow manila envelope. But I have a rule when I see
    people: In order to be fair, I never open the [ex parte] material
    until I have seen them [the accused] first. So the second part of
    the question is yes, I opened it after I made my notes
    and drew my conlusions.

    TACOM by way of its Legal Office and Ms. Bacon, routinely relied on ex parte communications, to obstruct justice. Here, the doctor had not given the answer it had wanted, paid for! And angrily, wanted to know what had happened. Why had its derogatory fabricated information of which Pletten was never notified, NOT been rubber-stamped, as done by MSPB?
    We see here a doctor with integrity, not allowing himself to be biased by ex parte communications, initially.
    But as alluded to at p 7, supra, some wild story had been told to Dr. Schwartz -- and while it did not affect his examination results, it did corrupt his testimony, ex parte data overriding the actual fact of Pletten's superb, exceptional, better-than-colleagues' work performance and attendance.
    What with agency abuses, ex parte communications, lying to doctors, common, you can see why the FFD procedure has been abolished!

    And you've said -- and somewhere in the record is your
    conclusion -- that he was psychiatrically fit for duty,
    and you said that to [TACOM's smoker] Dr. Holt?
    I found no psychiatric illness that needed treatment.
    I told Mr. Pletten that. That I thought it only fair
    to tell him. And I stated to him what I would out in
    the letter [to Dr. Holt], and I found no psychiatric disorder for which
    I would recommend psychatric treatment of for which
    I recommended another opinion psychiatrically.
    To your knowledge, did the Army accept your report?
    I have no idea what they did with the information.

    -Schwartz -8-

    1      I have had no feedback regarding him. I certainly
    2      would have appreciated hearing something, but I guess
    3      that's not in the cards.

    4        MS. BACON: Okay. I don't have
    5       anything further.

    6        MR. COHEN: That's it. Thank you,
    7        Doctor.

    8      [Schwartz Deposition concluded.]                 o       o        o


    -Schwartz -9-
    [Click here for .pdf Full Text.]

    16. Deposition of Francis J. Holt, M.D.,
    TACOM Physician

    (Smoker; MI Symptoms Noted As Evident)
    [Military Doctors and Torture:
    Here is an early example of an Army doctor
    misusing his medical position to approve, aid and abet,
    illegal management behavior including crimes]
    1Southfield, Michigan
    2Friday, May 21, 1982
    35:45 in the afternoon
    4o o o

    5 MR. COHEN: Let the record reflect
    6     that this is the continuation of testimony in the
    7     matter of Leroy J. Pletten before the Merit System's
    8      Protection Board

    Ed. Note: Without Pletten's voluntary informed consent, in view of TACOM's unlawful refusal to provide 5 USC § 7513.(b) pre-decision notice of charges, 29 CFR § 1613.403 notice of review rights, and having unlawfully closed access to the better, honest, 29 CFR § 1613 forum, the Equal Employment Opportunity Commission forum

    9 Dr. Holt, I'd like to thank you
    10     for coming.

    11 Dr. Holt appears today as a continua-
    12     tion of his deposition de bene esse pursuant to notice
    13     and pursuant to subpoena issued by Administrative Law
    14     Judge Reidy.


    16 having been first duly sworn to testify to the truth,
    17 the whole truth and nothing but the truth, was examined
    18 and testified upon his oath as follows:


    20 BY MR. COHEN:

    21 Q Dr. Holt, would you state your full name and your pro-
    22     fessional status?

    23 A Francis J. Holt. I'm the medical officer at the Tank
    24     Automotive Command in Warren.

    25 Q How long have you been there, sir?

    -Holt -3-

    1 A Eighteen years.

    2 Q Your training is from where?

    3 A I graduated from Wayne State University College of
    4     Medicine, M. D., in 1954.
    5    Do you want my post-graduate
    6     training?

    7 Q If I could.

    8 A I took a U. S. Naval internship at Newport, Rhode
    9     Island. I took residency in internal medicine the
    10     first year at the Veterans Research Hospital in Chicago
    11     and two years at the University Hospital in Ann Arbor.
    12     I took sub-specialty training in hematology at the
    13     Veterans Administration Hospital in Ann Arbor, and
    14     I was a Fellow in Cancer Chemotherapy at the Research
    15     Hospital in Ann Arbor for three years. Since that
    16     time, I've been with the Veterans Administration or
    17     with the Tank Automotive Command.

    18 Q Do you have a board-certified specialty?

    19 A No, I am not board-certified.

    20 Q In any specialty?

    21 A In any specialty, no.

    22 Q What training do you have in pulmonary functions,
    23     sir?

    24 A No normal training in pulmonary functions.

    Ed. Note: Due to Holt's
  • tobacco addiction,
  • craving for tobacco,
  • withdrawal symptoms,
  • delusional state,
  • tobacco intoxication,
  • mental disorder,
  • tobacco-caused hallucinations, and
  • tobacco-induced brain damage,
    Holt had overruled every board-certified doctor view contrary to his!! to aid and abet Benacquista's extortion.
    Note same symptoms in Edward Hoover.
  • 25 Q How did you come to know or be aware of the

    -Holt -4-

    (p 5)

    1QAnd he was taking medication?
    3QWhat did you do for him?
    4AWell, I examined him, you know. My job at the Tank
    5Automotive Command is to determine whether or not any
    6employee is fit for duty. If they have a medical
    7condition that would render them unfit for duty, if
    8it's a personal illness, I send them to their physician.
    9If it's a job-related injury or illness, we go ahead
    10and treat them.
    I took a history from Mr. Pletten.
    12I examined him, determined that he had an asthmatic
    13episode. This was [allegedly] a personal illness going back to
    14childhood. I took him off duty.
    Essentially I did a history and
    16physical examination on 21 December 79.

    Ed. Note: Holt
  • (1) Does nothing to deal with the issue of prevention of hazards
  • (2) Issues no advisories to management when employees
    report job caused conditions
  • (3) Reflects a “blame the employee” approach
  • (4) Is inconsistent with performance record
  • (5) Is inconsistent with health record
  • (6) Fails to acknowledge the meaning of never having had prior
    occasion to do such “history.”
  • 17QWas the [alleged] personal illness exacerbated by working con-
    19AIt was certainly exacerbated by exposure to cigarette
    20 smoke, according to Mr Pletten. I [across TACOM, in Bldg. 2] did not actually
    21see someone smoking in his [Bldg. 230] presence, but we know this
    22has happened.
    23QBased on his history as given?
    25QIs there a conclusion that you can draw that but for

    -Holt -6-

    (p 7)

    1QYou feel that that was causing his asthma?
    2ANo. I just feel that emotional factors could influence
    3his condition. It can with any asthmatic. Their
    4condition can be exacerbated by emotional upsets.
    5QThe question I have is but for the cigarette smoke, he
    6wouldn't have been emotionally upset. Isn't that
    8AYes, I granted that. Sure.

    Ed. Note: Now he admits this! years later, under cross-examination. Had never done so previously!
    Holt is a smoker. He fixates on "emotional" with respect to persons being poisoned by TTS, but cannot comprehend smokers' addiction, mental disorders, brain damage, despite these factd being documented since 1527.
    He is the immoral, abulic, person who provided the medical cover for Col. Benacquista's extortion.
    Holt displays typical smoker symptoms, e.g., addiction, craving, denial, aggression.
    When Pletten cited such basic medical facts about him, he threatened to sue Pletten! It's ok for Holt to denounce! but not for anyone to note HIS symptoms.

    9QA condition precedent to all that would have been his
    10having an asthmatic reaction to cigarette smoke?
    11AYes. That's right.
    12QThe initial phase, the first attack was engendered by
    13his work-related contact?
    14AYes, that's correct. That's my understanding.
    15QIf it got worse later, then it was kind of growing out
    16of the initial problem.
    17AOkay. I'll grant that.
    18QYou have no problem with that?
    19ANo, I have no problem with that.
    20QYou received a notation from Dr. Pollock, which is
    21in the record?
    22APardon me? Dr. Pollock?
    23QYes, a Dr. Sanford Pollock.
    24AI'm not familiar with that.
    25QYou're not?

    -Holt -8-

    (p 9)

    1 A Medically disqualified? We have people with asthma
    2     who work at TACOM for years. That wouldn't disqualify
    3     him from working.

    4 Q Why is the Army trying to disqualify him now, then?

    5 A Mr. Pletten requires a completely smoke-free work
    6     environment which the TACOM does not [refuses to] have.

    Ed. Note: This comment per the TACOM party line derives from
  • management's insubordination against AR 1-8 criteria as upheld by
    USACARA and twice verified by EEOC, 23 February 1982 and
    8 April 1983; and
  • Holt's own tobacco addiction, mental disorder, and brain damage.
    He was therefore literally mentally unable to comprehend that
  • laws and rules FORBID the hazard; and
  • that fitness for duty decisions can only relate to published BFOQ job
    requirements listed in the job description.
    There is no BFOQ for the presence of TTS, as OPM says. And it was not listed in the job description!
    Note especially that Holt's testimony occurred 21 May 1982, i.e., after his and TACOM's aberrant views, and insubordination against the agency's own regulation and compliance guidance, had already been observed and challenged by EEOC 23 February 1982. TACOM hatred of the Army rules was intense!!
  • 7 Q Who says?

    8 A Dr. Dubin and Dr. Salomon say that with letters we
    9     have on record.

    10 Q Are you familiar with Dr. Dubin's letter completely?

    11 A I'm familiar with his letters, yes.

    12 Q All of them?

    13 A Well, I've read them. At one time or another, I've
    14     read all of his letters.

    15 Q How about this one of 1-20-81?

    16 A Yes, I saw that note but Dr. Dubin—

    17 Q Why don't you read it for the record?

    18 A (Reading): "To Whom It May Concern:
    19     "There is not and has not
    20     been any medical reason for denying Mr.
    21     Pletten's ability to work and for denying
    22     him an environment reasonably free of con-
    23     tamination."

    [Ed Note: Quoting the Army's own pure-air
    regulation (AR 1-8) that TACOM was defying.

    24 Q Where does that say "completely smoke-free"?

    25 A It doesn't, but elsewhere Dr. Dubin has said "absolutely

    -Holt -10-

    (p 11)

    1No, there was no confusion, with the exception of
    2this brief note.
    3Now, let me give you a hypothetical construction of
    4these documents: First of all, let's start with the
    5first question. Is smoke in the air good for any
    6human being?
    7No, it's not good for anybody. No.
    8It is not good for you or me?
    10Or for Mrs. Bacon or the court reporter? right?
    11Right. I certainly agree.

    Ed. Note: See also Dep p 42 for more by Dr. Holt on the hazard to all.

    12So that if you were a doctor advising somebody that
    13they should avoid smoke at all costs, for example,
    14you would advise any human being of that.
    15If somebody had an illness that was aggravated by exposure
    16to tobacco smoke.
    17Even if they didn't. Even if they didn't have an
    18illness, wouldn't you advise any human being to avoid
    19smoke-filled rooms because it might harm them even-
    21Yes. Without making a complete change in their life-
    22style, sure. And if they had a job and they had to
    23work, I would say, you know, avoid smoke if you
    24possibly can.

    -Holt -12-

    (p 13)

    1AI relied on Dr. Dubin' s expertise as an allergist and
    2pulmonary function specialist.
    3QSo Dr. Dubin was the only person that you based your
    4decision to medically disqualify him on?
    5AAs well as Dr. Salomon's recommendation that he required
    6a smoke-free work environment and was extremely sen-
    7sitive to cigarette smoke.
    8QDid you contact Dr. Pollock?
    9ANo, I did not contact Dr. Pollock.
    10QWhy not?
    11ATo my knowledge, they were not his treating physicians.
    12He was not one of Mr. Pletten's treating physicians.
    13QWhere did the note come from?
    14AMr. Pletten presented that note to us at one time, back
    15in the summer or May of '79, saying he needed some
    16protection from people smoking here in his work en-
    18QAll right. Now --
    19AAnd I agree. He did need protection. And I suggested
    20could they perhaps isolate him, move him away from
    21the other workers. That's one of the suggestions I

    Ed. Note: Supervisor Jeremiah Kator denies receiving any guidance on the anti-smoking regulation, AR 1-8, until Pletten provided it. Tr. at 36. None is known to have been offered by Dr. Holt at that time.
    What Holt is referencing is much later, as per the reprisal pattern after Pletten won the USACARA Report telling TACOM to implement AR 1-8.

    23QWell, what about banning smoke.
    24AThat's not in my province, to ban smoke at the
    25Tank Automotive Command.

    Ed. Note: Holt IS willing to recommend continued violation of AR 1-8, but not compliance. No wonder he aids and abets Col. Benacquista's extortion.

    -Holt -14-

    (p 15)

    1that cigarette smoking will cause a health hazard to
    2you if you smoke, no matter what contents or amounts?
    3All I can say is I don't set the Army policy. I went [ex parte]
    4to the DARCOM surgeon about this. This was a DARCOM
    5installation. He [one person, insubordinately] says this is something you cannot
    6do. You cannot recommend no smoking.
    7You cannot recommend no smoking?
    8That's what I was told.
    9By whom?
    10By the [insubordinate] DARCOM surgeon.
    11Who is that?
    12Dr. Chloupek. He would be one of my superiors.
    13If he told you it was in your purview, you still wouldn't
    14ban smoking?
    15I definitely would not. No [defying Army policy], I would not.
    16Even though you stated in your testimony that you feel
    17it's safer for everybody if they're away from smoking
    19I certainly think it's safer for some people that they
    20be away from smoke, some individuals who have cardio-
    21pulmonary conditions; definitely. But I just can't
    22say I personally —
    23You're contradicting your earlier testimony. You're
    24modifying it now. Is that correct? You're saying
    25for some people not all people.

    Ed. Note: Holt was abulic, impulse control impaired, unresponsive to normal stimuli, unable to consistently recognize the hazard to all. With his brain damage, and mind wandering, confabulating, memory-impaired, on pages 12 and 42 he knew the hazard to all, by 16 not! already forgotten by, e.g., impaired impulse control, memory impairment, confabulation, etc.

    -Holt -16-

    (p 17)

    1QYou're testifying Doctor. Look through it. All
    2the letters from Dr. Dubin are there? right?
    AQThey should be.
    4QAll right.
    5AThe last communication I had from Dr. Dubin was " Okay,
    6this is a letter from Dr. Salomon dated March 12th,
    71981, and this is a letter from Dr. Dubin dated
    8March 5th, 1981, and that's the last communication I
    10QDo you know when the adverse action was taken against
    11Mr. Pletten to remove him?
    12ANo, I do not.
    13QI suggest you look and I will tell you my recollection.
    14It's in 1982, perhaps in the month of February of
    16AOh, okay.
    17QDo you always make recommendations as to a person's
    18medical qualification or disqualification without an
    19update for almost a year?
    20AI wasn't asked to make a determination in 1982 about
    21whether or not Mr. Pletten was disqualified. I
    22wasn't asked to make a recommendation.
    23QSo right now, as the medical officer, you don't know
    24whether Mr. Pletten is disqualified or not?
    25AWhether he is medically unable to tolerate a smoke-free [filled]

    -Holt -18-
    1work environment? I don't know that for a fact at
    2this time, no, because my last letter from Dr. Dubin
    3was March 5th, 1981.
    4QLet me understand this: The Army is spending a whole
    5lot of money trying to get rid of Mr. Pletten. You
    6understand that. The question is -
    MS. BACON: I will object to your
    8couchinq the adverse action in those terms.
    MR. COHEN: Noted.
    10Q(By Mr. Cohen): The question then becomes, nobody
    11really knows whether Mr. Pletten - First of all, he
    12hasn't been examined in a long time; isn't that
    14Unless his personal physician, Dr. Dubin or Dr.
    15Salomon, has examined him, I guess he has not.
    16Maybe they have examined him. Mr. Pletten has not
    17been [allowed] at work now for some time [despite his repeated RTDs].

    Ed. Note: Pletten periodically returned to duty pursuant to precedents such as Bevan v N Y St T R Sys, 74 Misc 2d 443; 345 NYS 2d 921 (1973), and was turned away. TACOM enforced Col. Benacquista's extortion order (Dep. p 62), embezzling Pletten's pay.

    18QSo you don't know -
    19I don't know for a fact when he was last examined.
    20QAnd you're basing all of your conclusions, as to
    21whether or not he is medically disqualified, on the
    22basis of a letter that was over a year old?
    23AI based my conclusions at the time on the letters I
    24got from Dr. Dubin and Dr. Salomon back in 1981.

    Ed. Note: Holt is lying. Holt was in fact ignoring, defying, flouting the letters! The letters affirmed Pletten's unrestricted ability to work. Holt was enforcing Col. Benacquista's extortion (Dep. p 62), embezzling Pletten's pay. Benacquista had overruled the doctors, Dep p 13. The extortion was permanent and continuing. Holt's "conclusions" had nothing to do with the letters, nothing to do with job requirements and employment, but all to do with his aiding and abetting Benacquista's extortion.

    25QDid the Command ask you to update that?

    -Holt -19-

    (p 20)

    1QIn my limited experience, this is not an unusual situa-
    3QDo you think it's right?
    4ADo I think it's right?
    6ADo I think there's a justice in it?
    8ANo, unfortunately I think there is a lack of justice
    9in a situation like that. Yes.
    10QI appreciate that.
    11ABut that's the way things go [Ed. Note: typical apathy-fatalism symptom].
    12QNot always. Not if I can help it Doctor.
    Let me ask you was any pressure
    14put on you by management with regard to Mr. Pletten's
    15case at all, just generally?

    Ed. Note: In truth, there had been repeated successful pressure to alter findings and Pletten's medical record.

    17QWas it a cause celebre in your office?
    18ANo, it was not. The medical department was not --
    19pressure was not put on us about Mr. Pletten.
    20QWere you told about the air standards within the
    21Command? Building 230 in particular?
    22AOur industrial hygienist, Mr. Braun, has done several
    23air content studies of the buildings involved, and he
    24told me that there is no health hazard; that we are
    25meeting Army regulations regarding ventilation and

    -Holt -21-

    (pp 22-24)

    1 Q All right. So if the Army regulation were a hundred
    2      percent enforced, those people with sensitivities might
    3     not be bothered. Is that correct?

    4 A They might not be. But apparently Mr. Pletten requires
    5     an environment we can't provide.

    Ed. Note: Note witness volunteering the TACOM party line, as per Col. Benacquista's extortion, Tr. at 62, and overruling the doctors, Tr. at 13.

    6 Q Wait a minute, now. The question is you haven't pro-
    7     vided the environment that the Army regulation requires
    8     a hundred percent of the time. Correct?

    9 A Okay. Okay. Yes.

    10 Q Have you made studies to comply with AR 1-8 on a
    11     hundred percent basis?

    12 A The post engineer—engineering facility is striving
    13     to do this all the time.

    14 Q So they may make it yet?

    15 A Sure. Sure. That's a theoretical possibility but
    16     mechanical failures happen all the time.

    Ed. Note: With poor quality air flow, thus "hazard to all," see p 42 lines 12-17 admission by TACOM's Dr. Holt. This confirms that Pletten was singled out with respect to the hazard, due to his whistleblowing on same. As Col. Benacquista admitted, the ouster was to force Pletten to deny the hazard! (See his deposition, p 62, lines 24-25; and admission p 13, lines 23-25, overruling Pletten's doctor).

    17 Q Excluding mechanical failures, I was asking—and I
    18     could let you read it, but Mr. Braun had testified
    19     that the building itself just cannot make any better
    20     than that accommodation. Now, that being the case,
    21     he also testified that if they change around the
    22     duct work and put in some air conditioning—as a
    23     matter of fact, he said specifically if they air-
    24     conditioned the building, he could meet the AR with-
    25     out any problem. Has he told you that also?

    -Holt -25-

    1QNo, he did not tell me that; that they could do that.
    2He did not, no.
    3QAssuming from your conclusion, based on Mr. Braun's
    4testimony that there represents no health hazard to
    5people in general, how many people have you treated
    6in your health clinic for sensitivity to cigarette
    8AI can think of one other employee who — not treated
    9but who complained.
    10QWho would that be?
    11AIt was a woman by the name of Slaughter.
    12QMrs. Slaughter?
    13AMrs. [Zebedah] Slaughter. Am I getting this right? Yes. I
    14believe she worked in the building next to the dis-
    15pensary area, which would be one of the old buildings,
    16Building 1. But she had had a history of pulmonary
    17tuberculosis and had chest —
    18QLet me refresh your memory. What about a lady named
    19Mary Ellen Dukes? Do you remember her?
    20AThe name is familiar but I'd have to see the employee
    21before I could put a name with the face.
    22QAre you familiar with her case file?
    23ANo, I am not.
    24QIf I were to tell you that you had treated her as a
    25result of a complaint because of bronchitis affected

    -Holt -26-

    (pp 27-30)

    2QEverybody who's testified here says that you're the
    3one who makes the determination upon which this
    4action is based.
    5AI make the determination about whether somebody is
    6fit for duty; in other words, are they fit to be working
    7that day. If they're not, they are sent off duty.
    8QIs Mr. Pletten fit for duty?
    9ANot to my knowledge.
    10QBut your knowledge or the conclusions that you made
    11are based on information of March 1931?
    13QSo you have absolutely no knowledge as to whether he's
    14fit today?
    15AI don't know what his condition is today, no.
    16QDid you know what his condition was on November 27
    17when the letter proposing removal was made?
    18ANo, I did not.
    19QMrs. Averhart didn't call you and say, "Hey, Doctor,
    20what's the story with Leroy?"
    22QGeneral Stallings didn't call you before he fired
    23the man and removed him from the service?
    24ANo, General Stallings did not call me. Mrs. Averhart
    25did not call me.

    -Holt -31-

    (p 32)

    1it on the record. You can just read it so you can
    2familiarize yourself with it.
    All right, Doctor, you've read it
    6QNow, who determines whether a person can smoke in
    7that? Is there a conditional right to smoke?
    8AYes, providing it doesn't cause discomfort or un-
    9reasonable annoyance to non-smokers. I presume that is
    10why they have non-smoking areas.
    11QAnd who determines whether a non-smoker is discomfor-
    12ted or annoyed?
    13AWell, the non-smoker himself would determine that
    14and would make a complaint.
    15QIf Mr. Pletten says he's annoyed or discomforted, the
    16person shouldn't smoke, right?
    18QAnd that's the way the Army kind of puts it down.
    20AUm-hum. Um-hum.
    21QSo if Mr. Pletten wanted to walk into an office, he
    22could call ahead and say, "Don't smoke. I'm coming
    24APresumably, yes.
    25QWould that be okay for you?

    -Holt -33-

    (pp 34-41)

    1 Mr. Hoover has told you — that several people have
    2     had smoking-related problems and they've expressed
    3     that there is a hazard to them, that they're discom-
    4     forted or annoyed or they have medical problems.
    5     You, Doctor, told me about a Mrs. Savage, I believe.

    6 A Slaughter.

    7 Q A Mrs. Slaughter. I misstated myself. Mrs. Slaughter
    8     said she had a problem with it. Mr. Pletten, every-
    9     body seems to think there's a hazard for him. Is
    10     that true?

    11 A Yes. Yes.

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

    14 A Yes. Yes.

    15 Q Have you been asked—

    16 A People smoking in their vicinity is hazardous to
    17     them.

    Ed. Note: See also Dep p 12 for more by Dr. Holt on the hazard to all.
    Surgeon General Report, 1964, p 60
    citing tobacco emissions as above safe limits

    18 Q Have you been asked for medical disqualification for
    19     any of those other people, including Mrs. Slaughter?

    19 A No.

    21 Q Why not, do you think?

    22 A Again, medical disqualification is not the right term.
    23     It's fitness for duty. I determine whether somebody
    24     is fit for duty. Mr. Pletten is not because he requires
    25     this completely smoke-free work environment.

    Ed. Note: This comment volunteering the TACOM party line derives from Holt's tobacco addiction, mental disorder, and brain damage; so deranged as to be literally unable to comprehend that laws and rules FORBID the hazard; and that fitness for duty decisions can only relate to published BFOQ job requirements listed in the job description, re which there is none for the presence of TTS, as OPM specifically says.
    But incredibly, the actual TACOM wording against Pletten was "medical disqualification." This was dispite TACOM's own Dr. Holt explicitly admitting "medical disqualification is not the right term." The ultra moral depravity, corruption, universal malice, obsessive hatred, killer mentality, held by MSPBers against whistleblowers, led them to uphold "medical disqualification" despite its being "not the right term." Such upholding destroys the point of cross-examination! to expose case weakness.
    Truly, MSPB officials want, intend, to deter whistleblowing on all subjects, want Americans to foreseeably be killed in significant numbers, by that deterrence obstructing safety, on all subjects, food for school children, deteriorated buildings, safety issues for shuttle astronauts, terrorism related matters, and on and on.

    -Holt -42-

    (pp 43-45)

    1AThey never specifically answered that question. They
    2just said he needed a smoke-free work environment.

    Ed. Note: Not so. Holt is untruthful. Col. Benacquista had confessed on 23 April to the real truth, Dep. p 24, “it's quite obvious . . . that what the doctor was saying was that the environment in his present work space was not reasonably free of contaminants.” Holt is fraudulently denying the “obvious.”
    Why lie? To distract attention off Col. Benacquista's confessed extortion reaction admitted at, e.g., Dep. p. 62.

    3QWas the question ever posed to them?
    4AYes, the question was posed to his doctors: Can he
    5work [!!!!!] in the [unlawful] environment as we have it outlined? That
    6was the question that was posed to them.
    7QDo you have a letter to that effect?
    MS. BACON: I would refer you to
    9Agency Exhibit 23 which was introduced during Dr.
    10Dubin's testimony yesterday.
    MR. COHEN: I was not present;
    12I'm sorry.
    13QBy Mr. Cohen): He didn't answer this question, did
    14he, Doctor? The question where you said, “We need to
    15know whether Mr. Pletten's medically [Benacquista] determined require-
    16ment for a smoke-free work environment [behavior] precludes him
    17from being able to work at this installation or whether
    18Mr. Pletten is able to [!!!!!] work in the [unlawful] work environment
    19as it is provided here”       he didn't directly answer, did
    21ANo, he did not answer that question [condone TACOM misconduct]; that's right.
    22QYou asked it, didn't you?
    23AYes, we did.
    24QProbably the most important question in your letter,
    25isn't it?

    Ed. Note: The question was, of course, fraud and malicious. TACOM knew
  • Pletten's long documented excellent performance record
  • its having overuled the doctor's prior writings, "what the doctor was saying," as Col. Benacquista had already, 23 April, confessed, Dep. p. 24 and 62, in extortion context.
    Holt on 21 May was continuing the extortion process, in which he had long been a principal and accessory, knowing the maliciousness of his fraudulent contact to solicit more input despite having overruled, flouted, spurned, the input already on hand, in brazen malpractice including by Holt himself.
    Doctors of integrity would not, could not, aid and abet, condone, TACOM in its violations of law and regulations.
  • -Holt -46-

    (pp 47-51)

    1his face?
    2ANo doubt.
    3QDo you think he was justified in being upset [filing review requests]?
    4AYes, but to that degree [winning!!!] and to have some paranoid
    5delusions [references to tobacco hazard], perhaps I would question that.
    6QAre you a psychiatrist, sir?
    7ANo, I'm not a psychiatrist.
    8QHow did you come to the conclusion that they [actions vs tobacco hazard] were
    9paranoid delusions?
    10AThey were delusions. We do have some exposure to
    11psychiatric training in medical school, and I'm supposed
    12to make occasional determinations whether somebody has
    13an emotional disorder.

    Ed. Note: Holt's claim is typical of smoker mental disorder symptoms, including addiction, delusions, paranoia, abulia, impaired reasoning, rigidity, acalculia, uniqueness, the bottom line of which combination is a negative attitude toward the facts of the tobacco smoke hazard.
    Holt knew the TACOM ventilation system was not working; that there was no compliance with the rules anywhere on post; that partial bans (“checker-boarding”) are ineffective.
    Partial bans had years before been ruled unconstitutional, in Alford v City of Newport News, 220 Va 584; 260 SE2d 241 (21 Nov 1979). Mere partial bans are unconstitutional as not in fact protective.
    Partial bans called “checker-boarding” are notoriously ineffective, see Dept of Health, Educ and Welfare, Social Sec Admin v AFGE Local 1923, 82-1 Lab Arb Awards (CCH) § 8206 (DC, 22 Jan 1982); and Opinions of Attorney General 1987-1988, No. 6460, pp 167-171; 1987 Michigan Register 366 (25 Aug 1987). “Checkerboard style” smoking control does not achieve compliance.
    EEOC on 8 April 1983, Docket No. 03.81.0087; 83 FEOR 3046, described the situation in non-disordered words per the rules, e.g., AR 1-8. AR 1-8 does not treat me as unique [uniqueness is a smoker delusion]. AR 1-8 considers nonsmokers and their rights. It cites criteria for when smoking is not permitted. AR 1-8 institutionalizes the right to pure air. EEOC provided a good summary at p. 5, “The agency [e.g., Francis Holt] presented no evidence that it considered the rights of the non-smokers or even recognised that its own regulations permitted smoking only to the extent that it did not cause discomfort or unreasonable annoyance to others.”
    Smoker Holt does not even recognize his own role in reprisal against my having won the USACARA Report. He provides no specificity. No 5 USC § 7513 notice had made the Holt claims. Such claims violate the precedent of Standard Knapp Div v IAM, 50 Lab Arb Rpts 833 (1968), not proper unless employee had bad record, whose behavior would endanger others or property, or for mental reasons can't perform his own job duties. Holt ignored these criteria. Note, e.g., Pletten's excellent work record of awards, which Holt never acknowledges.
    Holt ignored USACARA, p 14, which had rejected his rigid narrow-minded negativist view. USACARA had cited the genuine alternatives as “less smoking or more ventilation.” The USACARA data are "stimuli," but smokers such as Holt were unresponsive, hence, insubordinate.
    Holt's own staff, Industrial Hygienist Edwin Braun, had recommended an air conditioning solution (T. 34), but Holt ignored his own staff recommendations! treated them as never having occurred.
    Note the case of Nye v Parkway Bank & Trust Co, 114 Ill App 3d 272; 70 Ill Dec 40; 448 NE2d 918, 919 n 2 (1983), it is “highly irregular and inequitable to expect defendant to prepare a defense against accusations known to be untrue by the accuser.”
    As per People v Merkouris, 46 Cal.2d 540; 297 P2d 999 (25 May 1956) and 52 Cal 2d 672; 344 P2d 1 (16 Sep 1959), “Is it not common knowledge that the belief that others are mentally ill rather than oneself is one of the commonest signs of mental illness?” says Karl Menninger, M.D., The Crime of Punishment (New York: Viking Press, 1968), p 99.
    In this anti-whistleblower attack, Holt ignores that fact of Pletten's own expertise on the subject, as Pletten was author of TACOM's own Guide on Psychiatric Examinations!!! guidance binding Holt himself!
    Note also the issue of his malpractice, in terms of his failure to deal with the on-site dangerous smokers: "There are four items that need to be considered in negligence torts: legal duty, a breach of that duty, causal relationship between breach and injury, and damages. . . . The Treating Tobacco Use and Dependence (revised 2000) CPG, sponsored by the US Public Health Service, recommends effective and inexpensive treatments for nicotine addiction, the largest preventable cause of death in the US, and can be used as an example to focus on important considerations about the appropriateness of CPGs in the judicial system. Furthermore, the failure of many doctors and hospitals to deal with tobacco use and dependence raises the question of whether this failure could be considered malpractice, given the Public Health Service guideline’s straightforward recommendations, their efficacy in preventing serious disease and cost-effectiveness. . . . Although each case of medical malpractice depends on a multitude of factors unique to individual cases, a court could have sufficient basis to find that the failure to adequately treat the main cause of preventable disease and death in the US qualifies as a violation of the legal duty that doctors and hospitals owe to patients habituated to tobacco use and dependence," say Randy M Torrijos and Stanton A Glantz, in their article, "The US Public Health Service 'treating tobacco use and dependence clinical practice guidelines' as a legal standard of care," in 15 Tobacco Control (Issue # 6), pp 447-451 (December 2006).

    14QSo you referred him to a [specialist] psychiatrist?
    16QDr. David Schwartz?
    18QAnd we've taken his [specialist's] deposition this afternoon. He [Dr. Schwartz]
    19[again] found him [Pletten] to be absolutely free of psychological
    21AThat's my understanding.
    22QYou read his [June 1980] letter [notifying TACOM likewise]?
    24QYou [TACOM Dr. Holt] were satisfied?
    25AYes [deceptively; Holt had overruled Schwartz per Holt's delusions of grandeur].

    -Holt -52-

    (pp 53-59)

    1AI don't know whether he currently requires medication.
    2At the time, I assume he required medication.
    3QAnd he had been working for how many years before that?
    4AMr. Pletten started to work in TACOM in August of

    Ed. Note: This is four years off, Pletten began in August 1969. Dr. Holt had been the interviewing physician. His impaired memory symptom is typical among smokers.

    6QFor ten years, he worked at that Command and did not
    7have any reason -- or was not disabled, was he?
    8ANot to my knowledge. So all of his difficulties
    9started in December of '79, according to the medical
    10record. His medical record really began then.

    Ed. Note: See EEOC's 23 Feb 1982 analysis, p 2.

    11QBut did you ask, in your letters to Dr. Dubin and
    12Dr. Salomon, as to whether he could work in a smoke
    13environment with medication or without?
    14ANo, I don't believe that question was raised.

    Ed. Note: This "admission against interest" corroborates that TACOM did no investigation before the hasty summary ouster without notice. Failing to do notice violates federal law 5 USC § 7513. Failing to do investigation violates precedents including
  • the seven point criteria of Grief Bros Coop Corp, 42 Lab Arb (BNA) 555 (1964) and Combustion Engineering, Inc, 42 Lab Arb (BNA) 806 (1964)
  • the twelve point civil service criteria of Douglas v Vet. Admin., 5 MSPR 280, 305-306 (1981)
  • the five-point criteria of Yorkshire v MSPB, 746 F2d 1454, 1456 (CA Fed, 1984). See details.
  • 15QNow, if a person has to take medication, they're still
    16allowed to work at the command, aren't they?
    18QUnless, of course, it's something --
    19AIf they were a driver and were taking medication,
    20heavy tranquilizing medication, that would present
    21a problem.
    22QBut general medication, they can take?
    24QBut not like air traffic controllers or something
    25like that?

    -Holt -60-
    1A   Right.
    2QThat being the case, wouldn't it have been -- well,
    3strike that.
    Would it have been more appropriate
    5to ask, one, can he work without medication in this
    6environment or, two, can he work with medication? What
    7did you presume their answers were in those letters?
    8AI don't feel that's relevant because even if he re-
    9quired medication, to continue to expose him to
    10tobacco smoke is hazardous [to all]. He might have medica-
    11tion. He might be [is] able to suppress his symptoms [have excellent record], but
    12they're still exposing him to the tobacco smoke, which
    13in this case is a severe irritant and he's reacting
    14to it. You can suppress symptoms with all kinds of
    15medication, but the disease [hazard to all] continues to progress.
    16You just said that some people undertake jobs that
    17they know are potentially hazardous. You can't
    18legislate his life, can you. Doctor?
    19ANo, you can't. That's true.
    20QIf he wants to take the risk, don't you think he should
    21be able to?
    22AHis doctors indicated that he [same as everyone] requires a smoke-free
    23work environment. I have nothing more from them saying
    24that he can work in this environment [as they'd said it so often!]. I didn't know
    25that he wanted to take the risk.

    Ed. Note: Holt was again being deceptive. He was implementing Col. John J. Benacquista's extortion. The extortion (as defined by Michigan law MCL § 750.213, MSA § 28.410) was to pressure altered anticipated testimony, People v Atcher, 65 Mich App 734; 238 NW2d 389 (1975).
    To effect the extortion, Benacquista had altered, overruled, the doctors' statements, Tr. at 13. Benacquista admits at p 24 that he knew what the doctor was really "saying."
    Benacquista's purpose in imposing the ouster, p 47, was to pressure Pletten, as per his work ethic and pay being embezzled, into withdrawing his request for compliance with the AR 1-8 criteria, and the USACARA Report.
    Dr. Holt was aiding and abetting. Holt well knew that Pletten, if allowed to return to duty, would continue seeking compliance with pertinent laws and rules. That would enrage Benacquista, who did not agree with the rules (Dep p 25).

    -Holt -61-
    1AIf the Government puts up a circumstance where Mr.
    2Pletten works and later on in life he has a problem,
    3does the Government have a worker's compensation program
    4doesn't it, for job-related injuries?
    5AThat's right.
    6QAn occupational safety and health program. If that's
    7the case, then Mr. Pletten some day, God forbid, 50
    8years from now but working in that personnel office
    9for all those years then develops a real severe hacking
    10cough, then he could make a claim to the worker's
    11compensation people. Correct?
    12AThis condition predated his employment. We have that
    13on record, that his asthma goes back to childhood.

    Ed. Note: Holt contradicts EEOC, 23 Feb 1982, p 2.

    14But the aggravation of it didn't come up until 1979.
    15And I would not knowingly approve an employee for a
    16job where I know his condition would be aggravated
    17by the environment. That's what I would be doing. I
    18can't do that.

    Ed. Note: Holt lies! Holt approved exposing all employees to the hazard. He knew the hazard, Dep p 12.
    Holt ousted Pletten, in reprisal for Pletten's having blown the whistle on the violation of laws and rules.
    Holt had typical smoker mental disorder symptoms.

    19QBut he was in good shape up until '79 and then a
    20lot of people started having problems around that
    21time, too, with the cigarette smoke, most particularly
    22with regard to Building 230, isn't that correct?

    Ed. Note: Pletten's good performance was a matter of record. Seconds earlier, lines 12-13, Holt claims to “know” what is of record. Seconds later, he doesn't “know.”
    Other employees' TTS complaints were in the TACOM newspaper! and reviewed in his office! a subject of worker compensation cases! a matter of his personal knowledge, Dep p 26, of whom he'd testified moments before!

    23AI don't know that for a fact.
    24QWell, the other new buildings—you have new buildings
    25on the Command?
    -Holt -62-
    1ATwo new buildings.
    2QThe personnel office is where?
    3AIn [Building] 230.
    4QStill in the old building?
    5AStill in the old building.
    6QIs the old building a musty, dank place?
    7ANo, it's not.
    8QIs there less circulation in there than in the other
    9two buildings?
    10AIt's not a closed system like the other new buildings
    11are and it's not completely - parts of it are air-
    12conditioned, but the whole building is not.
    13QEven the new ones?
    14AThe new ones are air-conditioned, yes, completely.
    15QWell, let's see: We've gone over this ground a lot,
    16but lot me see if we can summarize it, Doctor--He
    17can work in the area with medication, for example?
    18ANot to my knowledge.
    19QNot to your knowledge as of March of '81?
    20AAs of the time, as of these last years, yes.
    21QOkay. But you figured [Dep p 61] before that with medication,
    22he could continue to work. He may be irritated -
    23AI did not say that.
    24QLet me ask you: He could continue to work? He
    25worked for a number of months in [years before] 1979 before this

    -Holt -63-
    1Awhole thing [his whistleblowing] started, didn't he, even though he may
    2have had congestion and problems [none of record, Dep p 5!!]?
    3ABut he was so sensitive to tobacco that he,
    4in spite of the medication -- it did not control his symptoms.

    Ed. Note: Holt is confabulating, making up events, ignoring Pletten's performance, attendance, and awards record.
    Holt has typical smoker brain damage symptoms.
    Holt displays purposeful ingenious criminality. The purpose is to aid and abet Col. Benacquista's extortion.
    Holt is unable “to appreciate the wrongfulness of his conduct,” and “to conform his conduct to the requirements of the law [truthfulness].”-People v Matulonis, 115 Mich App 263; 320 NW2d 238 (1982).

    5QWhat did the Command do? Did the Command try and tell
    6people not to smoke anywhere near him?
    7AI'm sure that's one of the things they did. They tried
    8to isolate [segregate] his desk away from any area where he would
    9be encountering smoke. They tried to erect barriers.
    10screens -

    Ed. Note: Holt is again confabulating, making up events. TACOM refused to do the "telling" that Holt is so "sure" of. TACOM's policy was defiance of the laws and rules, then segregation.
    Segregation is unconstititional, Brown v Board of Education, 347 US 483; 74 S Ct 686; 98 L Ed 873 (1954); and ineffective, Alford v City of Newport News, 220 Va 584; 260 SE2d 241 (1979) (checker-boarding of TTS emissions is unconstitutional as not in fact protective).

    10QBut they were not closed off to the ceiling or floor,
    12were they?
    13AThat's probably correct.
    14QIt doesn't make much sense, does it?
    15AIt was an attempt to accommodate him.

    Ed. Note: Holt is again confabulating, making up events, hallucinating.
    In the 1979 era to which Holt was referring, the "accommodation" lie had not yet been invented. The goal was getting compliance with the laws and rules. TACOM was refusing. So the USACARA Report occurred, directing enforcement of same, nothing to do with "accommodation."
    When “ante-dated [invented retroactive assertions occur] to make them appear as if they were genuine,” as in In re Ryman, 394 Mich 167, 176; 232 NW2d 178 (1975), this is fraud, and a criminal offense.

    16QIf the top or the bottom are open to snoke, which
    17usually rises or falls with heat. Then that wouldn't
    18make much sense, would it?
    19AThey tried to accommodate his handicap, yes.
    20QThey did in that fashion?
    22QDid they do anything else, to your knowledge?
    23ANot to my knowledge, no.
    24QDid you recommend anything else?
    25ANo. No, I did not recommend anything else.

    Ed. Note: True, Holt recommended nothing to bring TACOM into compliance with the pertinent laws and rules. He was a smoker, personally violating them! opposed to them being enforced!

    -Holt -64-

    (pp 65-70)

    1Aemployed or whether they get separated, but I'm saying
    2he's not fit for duty because the information I have
    3from his physician says he requires a smoke-free work

    Ed. Note: Holt's fraud, deception, is to divert attention
  • off Col. Benacquista's extortion (Dep p 62)
  • off the doctors' actual words (Dep p 24).
  • 5QDoctor, I don't want to minimize your role in this.
    6If Mr. Pletten gets dismissed, you, sir, were the man
    7who dismissed him, in effect, because you said he
    8isn't fit for duty. Now, I want to understand as to
    9the issue of an aggravation of his condition. Is
    10that a prerequisite? He must not be exacerbated in
    11any way by the environment as a precondition to his
    13ANo, I wouldn't put that precondition in. I would just
    14want a statement that he can tolerate the work environ-
    15ment as is.

    Ed. Note: Holt is insubordinate against the laws and rules. EEOC alluded to this 8 April 1983, p 6.
    Bear in mind
  • Col. Benacquista's extortion (Dep p 62)
  • the doctors' actual words (Dep p 24).
    Anticipated jury verdict: insanity within the meaning of law: unable “to appreciate the wrongfulness of his [their] conduct,” and “to conform his [their] conduct to the requirements of the law.”
  • 16QI think all the doctors have said he could tolerate
    17it. What do you mean by “tolerate”? Define your term
    18here. I want to be very precise about this.

    Ed. Note: Need for precision arises from the fact that Holt's deviation outside the rule of law, to establish a BFOQ not of record, flouts decades of precedents requiring advance written notice. Service v Dulles, 354 US 363; 77 S Ct 1152; 1 L Ed 2d 1403 (1957); Watson v Dept of Army, 142 Ct Cl 749; 162 F Supp 755 (1958); Piccone v U.S., 186 Ct Cl 752; 407 F2d 866, 871 (1969); California Human Dev Corp v Brock, 246 US App DC 65; 762 F2d 1044, 1049 (1985). See also U.S. v Nixon, 418 US 683, 695-96, 94 S Ct 3090, 3100-02; 41 L Ed 2d 1039 (24 July 1974), and Vitarelli v Seaton, 359 US 535, 539-40; 79 S Ct 968, 972; 3 L Ed 2d 1012 (1959).
    These precedents show that it is well settled that an agency cannot deviate outside the published rule of law, here, to invent an non-existent BFOQ, denied by the BFOQ agencies, e.g., OPM, OMB, etc.
    It is characteristic of the criminally insane that they are unable “to appreciate the wrongfulness of [their] conduct,” and “to conform [their] conduct to the requirements of the law,” says People v Matulonis, 115 Mich App 263; 320 NW2d 238 (1982).

    19AThat he can function and his condition won't get worse.
    20QCan you predict that any human being won't get hurt
    21or killed or get worse?
    22AWe have to make predictions in medicine. It's not
    23an exact science. We have to predict on the course of
    24an illness.

    Ed. Note: Holt's insanity, deeming whistleblowing on agency disobeying laws and rules, and seeking compliance, an “illness.”

    25QHow can you predict?

    -Holt -71-
    1AYou know somebody who's treated as being an asthmatic
    2and he has an asthmatic condition that is extremely
    3sensitive to cigarette smoke. It's a safe assumption
    4that if you continue to expose hin to cigarette smoke,
    5he will get worse.

    Ed. Note: Seems like a good reason to
  • enforce the laws and rules
  • obey the USACARA Report
  • not oust Pletten for whistleblowing!
  • 6QIsn't it true that some asthmatics become healthy
    7after a period of time?
    8ABecome healthy?
    9QI mean they lose their asthmatic tendency.
    10AChildren outgrow asthma, sure.
    11QAdults don't?
    12AI really don't know whether adults do or not. It's
    13my understanding that when an adult develops asthma,
    14this is a serious thing and it usually doesn't subside
    15spontaneously. There may be cases on record where it
    16has but --
    17QYou really don't know?
    18AI really don't know, that's right.
    19QSo if you really don't know, isn't it possible that
    20Mr. Pletten will get better?
    21AIt's a possibility.
    22ADid you ask his doctors what is his prognosis for
    23his asthma, which is the precursor to all of this?
    24QDid you ask Dr. Dubin that?
    25ANo, we did not. We asked him could he tolerate the

    -Holt -72-

    (p 73)

    1There was a ruling [30 July 1981] that, subject to appeal, noted
    2for Mrs. Bacon's purposes, that Mr. Pletten was ready
    3and able to work for purposes of the statute.

    Ed. Note: See text.

    MS. BACON: Objection. There has
    5been no ruling by the Michigan Employment Security
    6Council on Mr. Pletten based toward anything in that
    7statute dealing with ready, willing and able to work.
    MR. COHEN: I believe for the record
    9the Michigan Employment Security Commission made a de-
    10termination [30 July 1981] that Mr. Pletten is not disqualified for
    11unemployment benefits under the act.
    MS. BACON: That has been their
    13decision so far. They have made absolutely no ruling
    14on Mr. Pletten's being ready, willing and able to work.

    Ed. Note: TACOM a few days earlier (14 May 1982) had LOST its appeal against the MESC decision. TACOM soon lost its third appeal, 22 June 1982.

    MR. COHEN: I will make an offer of
    16proof and a request for the presiding official to take
    17official notice that pursuant to MCLA 424, that concerns
    18the Michigan employment security law, that in order
    19for a person to qualify to collect unemployment benefits
    20in this state, one has to be ready, willing and able to
    21work. Now, as to what other determination may arise
    22out of the litigation, Mrs. Bacon, that is for you to
    23inform the presiding official. But I hereby ask the
    24presiding official to take official notice, and I
    25will make a copy of that pertinent statute available

    -Holt -74-

    (pp 75-77)

    1Adetermination and I have to evaluate it. I have
    2to see the employee and see whether or not it's war-

    Ed. Note: Though “Dr.” Holt claims to “have to see the employee,” Holt did not! Worse, after the examining specialist rebuffed Holt's misconduct and supported Pletten's being allowed back to work, Holt overruled the specialist. Pletten deemed Holt's integrity as zero.
    Note that “Dr.” Holt had objected to normal cross-examination, disrespecting the routine constitutional right of the accused to attend and see the testimony! Holt hysterically demanded I not be allowed in the room! pursuant to his blatant malpractice guilty knowledge.
    When subpoenaed to the State of Michigan MESC hearing on Pletten's work ability, Holt wouldn't come!
    Holt was committing misconduct as in U.S. v Moore, 423 US 122, 142-143; 96 S Ct 335, 345; 46 L Ed 2d 333 (1975) (doing inadequate or no exams, ignoring input provided, taking no precautions re misuse of drugs (here, the drug nicotine by smokers), and not regulating dosage (emissions) by simply providing / okaying as much as patient (smokers) demanded).
    Holt was a non-examining doctor, whose views have, in law, little weight, pursuant to precedents such as Veal v Califano, 610 F2d 495, 497 (CA 8, 1979); Allen v Weinberger, 552 F2d 781, 786 (CA 7, 1977); and Landess v Weinberger, 490 F2d 1187, 1190 (CA 8, 1974).
    Holt was also violating the principle of treating doctor views' priority, especially with uncontradicted exams and what they were saying, of, e.g., Singletary v Secy, HEW, 623 F2d 217, 219 (CA 2, 1980); Eiden v Secy, HEW, 616 F2d 63, 64 (CA 2, 1980); Alvarado v Califano, 605 F2d 34, 35 (CA 2, 1979); and Bastien v Califano, 572 F2d 908, 912 (CA 2, 1978).

    4QHow many grievances did Mr. Pletten write, to your
    6ATo my knowledge? The last figure I heard was a
    7Ahundred and fifty.
    8QBut you didn't have any independent knowledge of
    11QDuring the time this was going on, when [co-worker] Mrs. Averhart
    12said he's writing all these grievances, did you know
    13how many he had written then?
    14ANo, I did not. But there were many.
    15QMore than ten?
    16AMore than ten. I think it was in the vicinity of
    17a hundred, so I had heard.
    18QYou didn't check?
    19ANo, I didn't.
    20QWhy didn't you? [Promotion-seeking] Mrs. Averhart was making some pretty
    21nasty statements saying essentially that -
    22AWhat she said was that a great deal of time was in-
    23volved in writing up grievances. We weren't concerned
    24with the number of grievances, but the fact that his
    25time on the job was concerned with writing up grievances.

    Ed. Note:
  • Pletten had already won his grievance, per USACARA Report 05-80-001-G 25 January 1980.
  • TACOM had already made the “decision to terminate” Pletten! and had already ordered him off-post! Logically no “time on the job” could be occurring for this alleged purpose!!
  • Moreover, Jeremiah Kator, not Averhart, was the supervisor. Kator was certifying Pletten's job performance as so good as to warrant a pay increase! Dep. pp 50-51.
  • Averhart was provided promotion (a common "bribe"), a reward for her helping management to retaliate against Pletten.
    “. . . a repeated and highly consistent aspect of the whistleblowing experience is the abuse by the employer of medical and psychiatric appointments as a mechanism for intimidating whistleblowers and avoiding the need to address the real issues.”
  • -Holt -78-

    (pp 79-109)

    1     it was transmitted.

    2 Q What did you do with it?

    3 A I think it was transmitted to General Decker but I'm
    4     not sure.

    5 Q Who would have transmitted it? Did you?

    6 A I don't recall.

    7 Q Are you familiar with a 24 March 1980 memorandum,
    8     the 24 March memorandum you read before? Or was that
    9     25 March?

    10 A I amended that because of the language. I guess I
    11     was advised not to—on 24 March, I made a statement
    12     that a smoke-free work environment as defined above
    13     cannot be provided at this installation. I then
    14     added a statement: Therefore he is not fit for duty
    15     pending further directives of the Department of the
    16     Army regarding smoking at this installation. I was
    17     advised that I could not make that statement, "pending
    18     further directives."

    19 Q Why?

    20 A That was not my province.

    21 Q Were there further directives coming from DA regarding
    22     the installation?

    23 A Yes, but I was advised that I could not—what?

    24 Q Yes or no?

    -Holt -109-

    1 A Were there?

    2 Q Yes.

    3 A Not to my knowledge.

    4 Q Then why did you put it in?

    5 A I was trying to be helpful. That's why I put it in.
    6     I was trying to be helpful.

    7 Q And who told you to take it out?

    8 A I believe it was Colonel Phillips, but I'm not abso-
    9     lutely certain about that.

    10 Q Let me read to you from a letter from R. W. Kaufmann.

    11 MR. COHEN: Can we go off the
    13     record for a second?

    13 (Discussion off the record.)

    14 Q (by Mr. Cohen:) Let me show you an exhibit I'm going
    15     to propose. It's Appellant Number 12. I want to
    16     try and catch up with the agency's numbers. They're
    17     all the way on 24 almost.

    18    Will you look at that, please?
    19     As long as I'm doing it, I might as well make this
    20     Appellant's 13.

    21 A Okay.

    22 Q Can you identify it for me, please? Tell me what
    23     it is.

    24. A It is a letter from R. W. Kaufmann, Lieutenant
    25     Colonel, Inspector General, Department of the Army,

    -Holt -110-

    (pp 111-112)

    It says further, "This effort
    may or may not affect practices and policies regarding
    smoking at TARCOM. In any event, any change in the
    present TARCOM policy on smoking will be predicated
    on direction from higher authority based on the current
    review of the smoking in Federal installations."
    8AThat's what it says.
    9QSo, in fact, there was further guidance that was going
    10to be forthcoming from DA.
    11AI didn't know that for a fact. I was just trying to
    12be helpful when I made that statement. I did not
    13know that.
    14QSort of omnicient, you were; right?
    15AThat's correct.
    16QThat being the case, did you get further direction
    17fron DA?
    18AI did not.
    19QStill not?
    21QThat's all the way from July of 1980 and they haven't
    22gotten anything to you?
    23ANot to my knowledge.
    24QNot to your knowledge, okay.
    So we've basically got a circumstance

    -Holt -113-

    1here which is Mr. Pletten. It's a question of whether
    2or not he is going to be harmed in the future. Is
    3that the bottom line of his [TACOM-alleged present] lack of fitness for duty?
    4AYes. Yes.
    5QAnd if his doctors say yes, he could work [now] but he may
    6[like others] have a problem 20 years from now --
    7AI would have to — if that were the case, I would
    8have to refer that to a consultant. I would not make
    9a final determination. I would refer that to somebody
    10up in the Army.
    11QDid he abuse sick leave when he was there?
    12AI have no knowledge.

    Ed. Note: Disregarding Pletten's record of job performance recognition including for never having used sick leave.

    [Ed. Note: Conclusion of Holt Deposition]

    -Holt -114-
    [Click here for .pdf Text.]

    U.S. Army TACOM
    Note Bldg 230 (Item 1), Pletten's Jobsite,
    at Southwest Corner of TACOM
    1 - Bldg 23014 - Bldg 826 - Bldg 3
    2 - Bldg 21915 - Bldg S-4027 - Bldg 1
    3 - Bldg. 200D16 - Bldg 728 - Bldg 2
    4 - Bldg 200C17 - Bldg 4 ANNEX29 - Bldg T-12
    5 - Bldg 200B
    30 - Bldg T-13
    6 - Bldg 200A18 - Bldg 2331 - Bldg T-14
    7 - Bldg 21219 - Bldg 632 - Bldg T-15
    8 - Bldg 20120 - Bldg T-5433 - Bldg T-16
    9 - Bldg 20321 - Bldg T-5534 - Bldg T-21 & T-22
    10 - Bldg 20522 - Bldg 535 - Bldg T-17
    11 - Bldg 21523 - Bldg 936 - Bldg T-20
    12 - Bldg 22724 - Bldg 1037 - Bldg T-19
    13 - Bldg 23325 - Bldg 438 - Bldg T-18

    (*With Line Number At
    Beginning of Each Line