Even when no psychiatric symptoms are evident, deciding officials are not allowed to engage in misconduct for personal reasons, Knotts v. U.S. [128 Ct Cl 489], 121 F.Supp. 630 (1954). Offutt provides insightful words such as “assuring alert self-restraint.” Misconduct such as refusing rule enforcement, refusing EEO counseling and case processing, opposing review on the merits including by MSPB, making false claims, etc., is not “alert self-restraint.”
|Page 195 of 229 pages.||Affiant's initials _________|
Muscare v. Quinn, 520 F.2d 1212 (7th Cir., 1975), provides insight. That employee was suspended with undue haste. At 1216, the Court quoted the appellant's comment in his brief that: “The present case hardly presents an emergency requiring the . . . Department to act without any prior process, where the . . . Department utilized the services of” the appellant “for a period of . . . months” before. The Court noted the precedents (something local [TACOM] and MSPB employees do not do) and found “a matter of considerable dispute in the decided cases.” However, because of the unseemly haste, “we find it unnecessary to resolve that controversy in this case . . . .”
Mr. [Henry] Perez [of EEOC] noted “the agency's decision to terminate me” as long ago as his 9 April 1980 letter. The civil service rules [e.g., 5 USC § 7513] on advance notice, specificity, right to reply, etc., had not been followed. Indeed, considering the existence of AR 1-8, it is evident that local employees acted on their own. They have provided false and deceptive data to MSPB; such misconduct by them in dealings with the agency above them in thus foreseeable.
In this case, the various cases about the harm by smokers and by smoking behavior do not show “considerable dispute.” The cases are consistent in finding that smoking is not a business necessity, hence, “undue hardship” [claim] is false as a matter if law. All cases presuppose that management can control smoking, i.e., “workmen are not employed to smoke.” See, for example, such cases as:
Compare Michigan guidance such as Swick v. Aetna Portland Cement Co ., 147 Mich. 454 at 467 [111 NW 110] (1907), “we cannot hold that the plaintiff assumed the risks . . . This question was passed in the case of Sipes v. Starch Co ., 137 Mich. 258 [100 NW 447; 16 Am. Neg. Rep. 401 (1904)], where it was said by Mr. Justice Montgomery, following the case of Narramore v. Railway Co ., 96 Fed. 298 (48 L. R. A. 68) [37 CCA 499, C.C.A. 6th, 1899], that, as the assumption of risk is the result of a contract of employment, and as the master could not legally contract to violate a statute, he is not in a position to assert, as against the servant, the doctrine of assumption of risk . . . .”
OSHA [29 USC § 651 - § 678] guidance on the subject is consistent. “An employer has a duty to prevent and suppress hazardous conduct by employees, and this duty is not qualified by such common law doctrines as assumption of risk, contributory negligence, or comparative negligence,'' Nat’l Rlty. & C. Co., Inc. v. OSHRC [160 US App DC 133, 142], 489 F.2d 1257 (1973), p. 1266, n. 36. Also, OSHA “is remedial and preventative in nature. . . . In view of the clear purpose of the statute to set new standards of industrial safety, we cannot accept the proposition that common law defenses such as assumption of the risk or contributory negligence will exculpate the employer who is charged with violator the Act,” REA Express, Inc. v. Brennan, 495 F.2d 822 at 825 (1974).
It is evident that local [TACOM] and MSPS offenders share with L & M Tobacco Co. a disregard for basic legal concepts. It is clear that local and MSPB offenders oppose the limitations, including that the government “could not legally contract to violate a statute” or rule, so they resort to deviance such as (a) reprisal for my quoting rules, and (b) extortion to halt such quoting. Freedom of expression cannot be waived even by “assumption of the risk” of reprisal.
Here, the duration of the endangerment (once a proper time orientation is considered) evidences the unseemly haste. Reprisal is clear––anger at my winning the favorable Report 25 Jan 80, anger at my noting [TACOM] Dr. [Francis J.] Holt's evident malpractice, normal smoker irritability, etc. Thus, mute local [TACOM] smokers hoped to repeal the rule enforcement process and the reasonable accommodation duty. The duration and the disregard of intervening events confirms malice, including malice to cause a situation financially worse than cited at 1215, note 3, showing judicial concern at a mere $1,400 situation.
|Palmer v. Keene Forestry Ass’n [80 NH 68], 112 A. 798 (1921)
Feeney v. Standard Oil Co. [58 Cal App 587], 209 P. 85 (1922)
Keyser Canning Co. v. Klots Throwing Co. [94 W Va 346], 118 S.E. 521 [31 ALR 283] (1923)
Maloney Tank Mfg. Co. v. Mid-Continent Petroleum Corporation, 49 F.2d 146 (1931)
Allen v. Posternock [107 Pa Super 332], 163 A. 336 (1932)
Triplett v. Western Public Service Co. [128 Neb 835], 260 N.W. 387 (1935)
Jones v. Eastern Greyhound Lines, Inc. [159 Misc 662], 288 N.Y.S. 527 (1936)
Vincennes Steel Corporation v. Gibson [194 Ark 58], 106 S.W.2d 173 (1937)
Petition of Republic of France, 171 F. Supp. 497 (1959)
Shimp v. New Jersey Bell Telephone Company [145 N J Super 516], 368 A.2d 408 (1976)
|Page 196 of 229 pages.||Affiant's initials _________|
“Disciplinary Intent” Assertions as Symptoms/Behaviors
Mr. [Martin] Baumgaertner [of Chicago MSPB] on 25 July 1980 alleged “not disciplinary in nature.” Ms. Bacon on 29 April 1930 alleged “no disciplinary intent.” Ms. Bacon made a like denial in her 18 September 1980 letter, “not . . . disciplinary purposes.”
In Psychology for Better Living [(New York: John Wiley, 5th ed., 1965)], Dr. [Lyle] Tussing at 361-2 indicates, “The vast majority of mental-hospital patients . . . are more like cattle, sitting around until someone tells them what to do next. Modern psychiatric treatment aims to help mentally sick patients find themselves again as living human beings.” At 357, words such as “fragmentary” and “seem feeble-minded” are used in a discussion on common symptoms of schizophrenics. Such data provides insight when people, trained in legal and personnel matters presumably, consider only a "fragmentary" aspect of the concept of “adverse action,” disconnected from the body of guidance on the subject. Words such as “like cattle, sitting around until someone tells them” more than the “fragmentary” aspect they cite, and then “tells them what to do next” with such data.
Data on stereotypy also comes to mind concerning such “fragmentary” assertions [as TACOM and MSPB made]. See [Profs. Ernest R.] Hilgard and [Richard C.] Atkinson, Introduction to Psychology [(Harcourt, Brace & World, Inc., 1967)], 4th edition, pp. 512-3. Stereotypy is “a tendency to blind, repetitive, fixated behavior. . . . Once adopted, it is very resistant to change, so much so that it has been called an 'abnormal fixation.' For example, if the rat that has come to jump regularly to the right is now punished every time he jumps, he may continue to jump to the right for as many as 200 trials. . . . The behavior is so stereotyped that the alternative does not exist for the rat (Maier, 1949).”
When an “alternative” or more than merely “fragmentary” aspects do “not exist” for people because of “blind, repetitive, fixated behavior” or other symptoms, it is foreseeable that such condition would continue until “someone tells them what to do next,” such as in the rehabilitative process. A marked prolongation of the process is foreseeable when rigidity, apathy and indifference to reality, irritability, and/or unwillingness to be responsive upon the presentation of evidence, is part of the symptom pattem as well. At 474, Dr. Tussing indicates, “When a person wants to support a prejudice, even though he is not conscious of this desire, he sees only the bad and unpleasant things about the people at whom his feeling is directed.” In mental illness, the word “fragmentary” provides insight. In this case, the [TACOM and MSPB] behavior/fixation on disciplinary intent is part of the pattem of refusing case processing. Words such as “extreme withdrawal from personal contacts, ranging from sullen reluctance . . . to actual muteness” come to mind. Mr. [Martin] Baurngaertner [of MSPB] displayed “sullen reluctance” and “actual muteness.” He refused to consider my case by the normal means such as by a hearing. His second issuance, 4 August 1980, confirmed his pattern. Even years later, his condition has shown no improvement. Ms. Bacon's behavior is even more pronounced.
The 23 Feb 82 EEOC decision noted that “the agency failed to abide by the” 25 Jan 80 USACARA Report, “made some effort to limit his number of complaints, his right to file complaints and to seek EEO counseling,” “went so far as to utilise erroneous information or miscalculations,” and did not “ever consider the merits.” When lawyers are asked to engage in plans to violate laws, words borrowed from State v. Collentine [39 Wis 2d 325], 159 N.W.2d 50 [at 53] (1968), come to mind, “it is the absolute duty of the attorney to refuse to act.” Cf. Disciplinary Board v. Amundson, 297 N.W.2d 433 [at 443] ([N.D.] 1980), “Even personal illness does not shield an attorney from his professional responsibility. State ex rel. Oklahorna Bar Ass'n v. Fore, 562 P.2d 511 (Okl.1977).” When “fragmentary” assertions are made, “it cannot be said that” the maker “is a person of normal sensibilities,” words from Aldridge v. Saxey [242 Or 238], 409 P.2d 184 (1965).
|Ed. Note: These “like cattle, sitting around until someone tells them what to do next” symptoms continued among TACOM and MSPB officials (Hoover, Benacquista, Bacon, Baumgaertner, Wertheim, Poston, Russell, Ellingwood, et al.) until overruled by the Supreme Court and the Federal Circuit Court of Appeals, e.g., by Thomas v General Svcs Admin, 756 F2d 86, 89-90 (CA Fed, 1985); Cleveland Bd of Ed v Loudermill, 470 US 532; 105 S Ct 1467; 64 L Ed 2d 494 (1985); Mercer v Dept. of Health & Human Svcs, 772 F2d 856 (CA Fed, 1985); and Pittman v Army and MSPB, 832 F2d 598 (CA Fed, 1987).
An Army's own analyst would say: "The MSPB [erroneously] ruled that it had no jurisdiction [not for the correct 29 CFR § 1613.403 regulatory reason but on the pretext] that it had no jurisdiction over enforced leave cases because enforced leave was not an adverse action (this is no longer good law; after Valentine v. Department of Transportation, 31 M.S.P.B. 358 (1986), enforced leave is now an adverse action)," says Capt Scott D. Cooper, "Handling Tobacco-Related Discrimination Cases in the Federal Government," 118 Military Law Review 143, p 35 of 39, n 206 (Fall 1987).
|Page 199 of 229 pages.||Affiant's initials _________|
Pritchard v. Liggett & Myers Tobacco Company, 350 F.2d 479 (3d Cir. 1965), provides insight. The tobacco company “pleaded assumption of risk as an affirmative defense” against its smoker customer. The tobacco company opposition to smokers' rights to collect compensation is part of the pattern of opposition to basic legal principles evident in the record. The local [TACOM] and MSPB behavior parallels tobacco company opposition to smokers' rights; nonsmokers’ rights are also opposed, even when expressly protected by specific guidance including but not limited to AR 1-8 and the 25 Jan 80 USACARA Report.
The court rejected the tobacco company position. “It has been held by the Superior Court of Pennsylvania, an intermediate court of appeals, that contributory negligence is inapposite as a defense in an action for breach of warranty. Jarnot v. Ford Motor Company , 191 Pa.Super. 422, 156 A.2d 568 (1959). We have found, and the parties to this appeal have cited no other case on point. We are therefore obliged to follow this decision . . . The rule as announced by the Superior Court appears to represent the majority view and is supported by substantial authority in other jurisdictions. Green v. American Tobacco Co., 325 F.2d 673, 679 (5th Cir. 1963), cert. den. 377 U.S. 943, 84 S.Ct. 1349, 12 L.Ed.2d 306; Brown v. Chapman, 304 F.2d 149, 163 (9th Cir. 1962); Hansen v. Firestone Tire and Rubber Company, 276 F.2d 254, 258 (6th Cir. 1960) . . . It was held in the cited cases that . . . the defense of contributory negligence is inapposite. There are other decisions to the same effect. . . . We are of the view, and so hold, that since contributory negligence is not available as a defense . . . assumption of risk in the sense of contributory negligence is likewise not available.”
|Page 201 of 229 pages.||Affiant's initials _________|
P. Lorillard Co. v. Federal Trade Commission, 186 F.2d 52 (4th Cir. 1950), provides insight. It was a false advertising case. "The company was ordered to cease and desist 'from representing by any means directly or indirectly,’” that the cigarettes at issue “‘will not harm or irritate the throat’” and “‘will not irritate the throat or mouth of a smoker, or is cool, or is free from bite, burn, or harshness,’” and that their length “will filter out or eliminate the harmful properties in the smoke from such cigarettes’ . . . .” The company admitted its behavior, i.e., “The company does not contend that the falsity of the representations referred to in paragraphs (1), (2) and (4) of the above order was not established by substantial evidence . . . .” At 56, “. . . the Commission found . . . that the advertising was false, misleading and deceptive. The evidence amply supports this finding.” At 57, what the company had done “shows a perversion of the meaning . . . to cause the reader to believe the exact opposite of what was intended by the writer . . . .” At 58,"To tell less than the whole truth is a well known method of deception . . . .”
The local [TACOM] and MSPB behavior, fabrications, innuendo pattern, etc. shows a like pattern, a “false, misleading and deceptive” pattern. Clearly “a perversion of the meaning” of the evidence is involved.
At 58, “In determining whether or not advertising is false or misleading within the meaning of the statute, regard must be had, not to fine spun distinctions and arguments that may be made in excuse, but to the effect which it might reasonably be expected to have . . . .” In this case, no “excuse” has been made for the local [TACOM] and MSPB behavior pattern. The pattern of violations is still in process. Thus, it is not necessary to reach the subtle wisdom of the Court decision to deal with the local [TACOM] and MSPB violations. Their violations are brazen. The falsehoods are clear and not a matter of “fine spun distinctions.” The refusal of correction for so long a period confirms that the falsehoods are intentional.
The Court rejected the company claims that its violations could not be controlled because of “alleged procedural irregularities.” Here, local [TACOM] and MSPB offenders refuse corrective action on like insubstantial grounds. The real fact is––they hate the rules and are willing to commit falsifications and other offenses to “repeal” the rules. As part of their pattern of refusing compliance, insubstantial claims such as on time limits and “res judicata” and on alleged corrections are made. When the falsity of such claims is made an issue, the response is––muteness. Pretense of concern for time limits is made by some offenders; as such claims are clearly disconnected from their own behavior pattern, words such as “blunted,” “deranged,” and “perversion of the meaning” come to mind.
It is public policy to control falsifications, control the insane, eliminate hazards, etc. “Nor can the principles of equitable estoppel be applied to deprive the public of the protection of a statute because of mistaken action or lack of action on the part of public officials. United States v. City & County of San Francisco, 310 U.S. 16 . . . Utah Power & Light Co. v. United States, 243 U.S. 389 . . . .” Here, the local [TACOM] and MSPB behavior is not “mistaken”; it is intentionally wrong. The legal duties protect employees as well as the “public.” Obeying the legal duties is what local [TACOM] and MSPB behavior opposes.
|Page 202 of 229 pages.||Affiant's initials _________|
Pritchard v. Liggett & Myers Tobacco Company, 295 F.2d 292 (3d Cir. 1961), provides insight. For example, the issue of causation was raised. The tobacco company wrongly “contends that even though the plaintiff's experts may have given categorical opinions concerning the relationship between smoking and cancer, such opinions should have no validity since there was no proof of the acceptance of this relationship by the medical profession.” The tobacco company claim, wrong as it is, is insightful in showing the intentional errors of local [TACOM] and MSPB offenders. They make statements, including false statements, that deal only inadequately with the alleged effects, but utterly disregard the data on the causes. Endangerment is a cause, so is discomfort, unreasonable annoyance, and malicious reprisal. AR 1-8 and other rules forbid such misconduct by smokers. Moreover, even the fraudulent local [TACOM] and MSPB claims do not specifically and directly assert the lack of a hazard. But even if they did make such claims, bizarre and disconnected from reality as they would be, they “will not rebut an employee's statement that smoke in the air in his or her workplace is damaging his or her health.” [DHEW, Soc Sec Admin v AFGE Local 1923, 82-1 Lab Arb Awards (CCH) § 8206 (22 Jan 1982), p 1.]
The court answer rejecting the tobacco company position, and thus, the local [TACOM] and MSPB position, is “Aside from the fact that the testimony in question reveals that such acceptance existed, this contention has no merit unless we are to overrule what we said in Brett v. J. M. Carras, Inc., 3 Cir., 1953, 203 F.2d 451, which was approved by us in Deitz v. United States, 3 Cir., 1955, 228 F.2d 494. See also Puhl v. Milwaukee Automobile Ins. Co., 1959 . . . 99 N.W.2d 163; People of the State of New York v. Williams, 1959 . . . 159 N.E.2d 549; McKay v. Texas, 1950 . . . 235 S.W.2d 173 . . . . This we have no intention of doing.” In my case, the record clearly shows that my “personal determination” of the hazard exists, along with overwhelming evidence on the hazard. The record shows perverse response by local [TACOM] and MSPB culprits. The sadistic emphasis on rejecting dealing with the cause is pronounced; the decision by Mr. [Martin] Baumgaertner is particularly sarcastic in the rejection of his duty, and in maliciously twisting the evidence as provided.
Note that the [Pritchard] decision was in the year 1961. Note “that such acceptance existed” “by the medical profession” which local [TACOM] and MSPB offenders, clearly bizarre and disconnected, purport to reject, directly or by innuendo. The Court behavior is consistent with the evidence, including that ten (10) years later, referenced in Larus & Brother Co. v. F.T.C., 447 F.2d 876 (1971), “. . . the detrimental effects of cigarette smoking on health are beyond controversy” based on the “'overwhelming evidence.” Cf. Austin v. State [101 Tenn 563], 48 S.W. 305 (1898) [aff’d 179 US 343 (1900)]. Clearly, the local [TACOM] and MSPB behavior is obviously wrong, directly flouting the basis for AR 1-8, and is clearly contrary to the principle “designed to insure to the whole world, governmental employees and the general public alike, that any record, document, instrument or statement made by a governmental employee, great or small, in his official capacity and in the course of his official duties can be relied upon by all,” insightful words from U.S. v. Myers, 131 F. Supp. 525 (1955). The court in Pritchard, supra, had “no intention of doing” anything contrary to the law and evidence. Local [TACOM] and MSPB issuances do not reflect such restraint. They ignore what “acceptance existed” so long ago, what exists in AR 1-8, what was upheld in the 25 Jan 80 USACARA Report, etc., etc.
|Page 203 of 229 pages.||Affiant's initials _________|
Attorney misconduct, particularly the making of false statements, is not acceptable. See Matter of Looby, S.D., 297 N.W.2d 487 (1980), and Matter of Voorhees, S.D., 294 N.W.2d 646 (1980). In Looby, the court vas especially concerned because the felony at issue “involves willful misrepresentation and the making of false statements.” Victims “complained of these misrepresentations.” Under the circumstances, the court indicated, “Not only has respondent transgressed the statutory prohibition against commission of a ‘serious crime,’ he has made a mockery of Disciplinary Rule 9-101 of the Code of Professional Responsibility . . . which requires avoidance of even the appearance of impropriety.”
The disregard of AR 1-8 led to the issuance of the 25 Jan 80 USACARA Report. EEOC on 23 Feb 82 [Dockets 01800273 et al.] observed that “the agency failed to abide by” it. The disregard violated Army guidance, cf. Spann v. McKenna, 615 F.2d 137 (1980). False assertions were made [by e.g., Edward E. Hoover, Emily S. Bacon, Ronald P. Wertheim, and Ersa H. Poston] in the process of the disregard of the Report. Local [TACOM] issuances from 18 and 29 April 1980 to the present reflect misconduct of various types. MSPB went along [as accessory] with the unlawful local [TACOM] pattern. MSPB disregarded its role as a reviewing agency. See its decisions, particularly the false assertions [by Ronald P. Wertheim and Ersa H. Poston] in the 18 June 1981 issuance [6 MSPB 626; 7 MSPR 13,
[falsity noted by EEOC, Docket 03.81.0087, 83 FEOR 3046]. There is not even a de minimis reference to the USACARA Report; cf. proper behavior such as was referenced for guidance [“is a guide to our conclusion and should have been given due regard”] in In Re United Corporation, 249 F.2d 168 [22 P.U.R.3d 341] (1957). Examples of such nature should not be needful, considering the safety and EEO guidance for the federal government on being a “model” and an “example.” Thus, I have “complained of” the misrepresentations,” false statements, non-compliance, etc. I accepted the 18 June 1981 allegations, [thus enabling EEOC to determine their falsity, 83 FEOR 3046].
Voorhees, supra, provides additional insight. In that case, there were efforts made to show mitigating circumstances for the false statements involved. Nonetheless, the Court disbarred the offender. For example, “Counsel suggests that Voorhees was guilty more of naivete, stupidity and lack of perception then dishonesty.” In this case, “naivete, stupidity and lack of perception” cannot justify the local [TACOM] and MSPB false statements. The 25 Jan 80 [USACARA] Report contains answers to [rebuttals of] the false claims. AR 1-8 contains answers to [rebuttals of] the false claims. There simply is no basis whatsoever for a finding of any extenuating circumstances for the false statements. The MSPB deciding officials are acting in their specialty, personnel cases. The local [TACOM] legal office is involved in personnel cases, in accordance with TACOM Regulation 600-5, Chapter 18, p. 11, para. 18-12.e. The record provides ample evidence of the falsehoods committed. The circumstances also show a refusal to retract when errors are brought to the attention of the culprits. It is clear that the offenders are not “penitent to the sense of a revised or reformed personal moral view,” words borrowed from Matter of Rabideau [102 Wis.2d 16], 306 N.W.2d 1 (1981) [app. dism. 454 U.S. 1025, 70 L. Ed. 2d 469, 102 S. Ct. 559], which also observed, “There is clearly a moral aspect to this behavior, and under the circumstances it may be characterized as turpitudinous.”
Voorhees indicated, “There can be no question that the making and use of a forged document to obtain greater cash benefits reeks of dishonesty, fraud, deceit, and misrepresentation.” (United States v. Myers, 151 F.Supp. 525 (1955), indicates that under 18 USC § 1001, “establishment of . . . financial loss is neither necessary nor required . . . to prove its case,” p. 531). In this case, fabrications are clear, including but not limited to the reversal of my [victim] role as an “immediate threat” in the 29 April 1980 letter [by Emily S. Bacon], the fabrications in the 18 June 1981 issuance from MSPB [by Ronald P. Wertheim, Ersa H. Poston], etc. Fabrications of actions taken, which did not happen, brings to mind words such as: “reeks of dishonesty, fraud, deceit, and misrepresentation.” Considering that the whole case arises from the failure to comply with the rules and eliminate the hazard, it cannot be said that “naivete, stupidity and lack of perception” excuse the falsification. Instead, words such as “a mockery of . . . the Code of Professional Responsibility” come to mind.
|Page 210 of 229 pages.||Affiant's initials _________|
It is not acceptable in law to send people “elsewhere” to obtain the protections the law provides, State of Missouri ex rel. Gaines v. Canada, 305 U.S. 337 [59 S Ct 232; 83 L Ed 208 (1938)]. The “unitary” nature of law and the duty to comply is well-established in both the safety and the discrimination situations. Even compliance in one area does not excuse violations in other areas. In this case, of course, there is clearly “no evidence” of compliance; instead, there is “overwhelming evidence” of non-compliance. It is not necessary to show violation of the awesome legal duties such as the “unqualified and absolute” duty “above all other considerations.” The 25 Jan 80 USACARA Report was based on local violation of AR 1-8 guidance for “an environment reasonably free of contamination” to eliminate
behavior that would “endanger life or property, cause discomfort or unreasonable annoyance to nonsmokers, or infringe upon their rights.” When endangerment, discomfort, and other violations are evident, it is clear that the “environment” has not even been made “reasonably free of contamination.”
Compliance is to be “integrated” without the need “to leave” or go “elsewhere.” Cf. Griffin v. State of Maryland, 378 U.S. 130 [84 S Ct 1770; 12 L Ed 2d 754 (1964)]. The safety duty is consistent with the integration duty. “And racially integrated working conditions are valid objects for employee action. N.L.R.B. v. Tanner Motor Livery, Ltd., 9 Cir., 349 F.2d 1 (1965),” as noted in United Packinghouse Food & Allied Wkrs, Int. U. v. N.L.R.B., 416 F.2d 1126 at 1135 (1969). The court also noted that “The principle of ‘divide and conquer’ is older than the history of labor relations in this country, but that does not lessen its application here.” The bizarre, disconnected. and blunted assertions and personal attacks make against me show the accuracy of data from the March 1981 Michigan Law Review [Vol. 79 (Issue # 4), pp 754-756, review of Mental Disabilities and Criminal Responsibility by Herbert Fingarette [Ph.D.] and Anne Fingarette Hasse (Berkeley: Univ of Calif Press, 1979)], p. 754, “. . . criminal actions resulting from mental disease are often purposeful, intentional, and ingeniously planned . . . .” The 25 Jan 80 Report supported my reading of AR 1-8, even to the point of noting that “the other nonsmokers also have rights even though they have not actively pursued such rights. No evidence was offered to indicate that the Command [TACOM] had considered the rights of all nonsmokers.” The compliance duty is "unitary"; it does not apply to “only the one nonsmoker.” There is “No evidence” of such consideration and, hence, “No evidence” of such compliance.
Cf. U.S. v. Hayes Int'l Corp., 415 F.2d 1038 at 1045 [CA 5, 1969]. “We take the position that in such a case, irreparable injury should be presumed from the very fact that the statute has been violated. Whenever a qualified . . . employee is discriminatory denied . . . a position . . . he suffers irreparable injury and so does the labor force of the country as a whole.” The government is supposed to be a model employer setting an example on safety and discrimination. Yet, the malice and abuse directed against me for winning the favorable 25 Jan 80 Report is the worst I have seen, in either the private or public sectors. The disconnect was in process before “the agency fabled to abide by the” guidance, and worsened thereafter. At least that case was processed; see the 23 Feb 82 EEOC decision for data on [TACOM] misprocessing of other cases. When there is “a pattern and practice of discrimination . . . affirmative and mandatory preliminary relief is required.”
|Page 217 of 229 pages.||Affiant's initials _________|
"Experience” from other sources is appropriate for use, Prewitt v. U.S. Postal Service [27 EPD 32,251], 662 F.2d 292 ([CA 5] 1981). Such “experience” is pertinent concerning the relief sought. Indeed, in smoker brain damage, such “experience” is essential, since typical symptoms of brain damage include but are not limited to impairment of orientation for time, impairment of memory, impairment of learning and comprehension, and impairment of ethical controls, as noted by Dr. [James C.] Coleman [Abnormal Psychology and Modern Life, 5th ed (Scott, Foresman & Co, 1976), pp. 460-461].
The bizarre issuances from local and MSPB offenders reflect severe mental incapacitation to distinguish “proscriptive” and “corrective” relief. Shimp v. New Jersey Bell Telephone Co. [145 N J Super 516], 368 A.2d 408 (1976), is an example of “proscriptive” relief concerning smoking; and Edgewater Motels, Inc. v. Gatzke, 277 N.W.2d 11 (1979); McKinney v. Bland [188 Okla 661], 112 P.2d 798 (1941); Wood v. Saunders, 238 N.Y.S. 571 (1930); and Maloney Tank Mfg. Co. v. Mid-Continent Petroleum Corp., 49 F.2d 146 (1931), all examples of after-the-fact relief, i.e., compensation.
Both types of relief, “proscriptive” and “corrective” or “compensatory,” are well-established. Legal malpractice and/or other deviance is evident when issuances, especially the 18 June 1981 MSPB issuance [by Ronald Wertheim and Ersa Poston], senselessly malassociate or otherwise garble the clearly discrete legal principles. Such is particularly evident when correction of the errors [verified by EEOC] is refused [by MSPB]; and the errors remain extant for a protracted period.
In personnel matters, MSPB is responsible for having expertise. The refusal to display such expertise is thus intentional. Rules against endangering people are well-established. There are rules for the private sector, and there are rules for the federal government. The federal government is to be an example. [See, e.g., then Executive Order 11807.] Federal precedents in terms of compliance with safety rules and mental health rules should be numerous, as an “example” to others. Yet MSPB nonetheless refuses to either (a) direct compliance, or (b) at least note the non-compliance, and overturn the adverse action-on either basis.
|Ed. Note: MSPB hatred for whistleblowers causes it to defy decades of case law concerning agency non-compliance with rules, case law obeyed for others. See precedents such as 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); Vitarelli v Seaton, 359 US 535, 539-40; 79 S Ct 968, 972; 3 L Ed 2d 1012 (1959); Piccone v U.S., 186 Ct Cl 752; 407 F2d 866, 871 (1969); U.S. v Nixon, 418 US 683, 695-96; 94 S Ct 3090, 3100-02; 41 L Ed 2d 1039 (1974).|
The MSPB behavior is in marked, and unfavorable, contrast to the 25 Jan 80 USACARA Report. Indeed, the MSPB behavior is in marked contrast to the behavior of a separate review agency, EEOC, whose 23 Feb 82 decision specified [at p 4] “further processing in accordance with this decision.” No doubt the installation would refuse to comply; but at least there was guidance. Installation representatives refuse to obey the rules; thus, it is foreseeable that they would refuse to obey a decision, as a decision is a mere creature of the rules, a subordinate creature.
MSPB did not even specify [to do] implementation of the 25 Jan 80 Report. Cf. Spann v. McKenna, 615 F.2d 137 ([CA 3] 1980) [compliance is mandatory!]. Implementation of the USACARA Report would resolve the situation, producing return to duty even according to the odd local claims, which involve refusal to let me stay on-post when I periodically returned [pursuant to precedents such as Bevan v N Y St T R Sys, 74 Misc 2d 443; 345 NYS 2d 921 (1973)]. EEOC noted [p 2] that the installation “failed to abide by the” Report. MSPB offenders undoubtedly noted the same; however, MSPB offenders disagree with the ruies, so they leave significant facts out of their decisions, as well as place fabrications in the issuances.
The [MSPB] misconduct is particularly noticeable, based on the fact that the misconduct takes the form of a multiplicity of criminal violations, one aspect of which is embezzlement of funds/leave account, i.e., embezzlement in the form of an “adverse action,” but nonetheless, embezzlement in substance
|Ed. Note: TACOM management, criminals, did indeed refuse to obey the 23 Feb 1982 EEOC order. No processing as ordered ever occurred [1982 - 2004].|
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Numerous cases show that there is no “right” to smoke. Such cases arise in the context of safety, nuisance, and other well-established legal principles. For example, see Commonwealth v. Thompson, 53 Mass. (12 Metc.) 231 (1847). The law is cited at 232, “‘Every person who shall smoke, or have in his or her possession, any lighted pipe or cigar, in any street, lane. or passage way, or any wharf in said town, shall forfeit and pay, for each and every offense, the sum of two dollars.’” The legal validity of such law is, of course, obvious to all who do not garble the “undue hardship” concept applicable to “reasonable accommodation” with the police power. Cf. Powell v. Texas, 392 U.S. 514 at 532 (1968), wherein “appellant was convicted, not for being a chronic alcoholic, but for being in public while drunk on a particular occasion.” Controlling smokers “in any street, lane, or passage way” which is “for being in public while” smoking is clearly proper.
The Massachusetts decision is consistent with the body of law; it is not disconnected from the body of law. At 231, “A warrant was issued on” a “complaint, and the defendant was carried before . . . court, where he was tried, found guilty, and ordered to pay a fine and costs of prosecution.” There is no indication of “undue hardship” at any stage of the proceedings, at the “complaint” stage, at the “carried before . . . court” stage, at the “tried” stage, at the “found guilty” stage, etc. Sane people comprehend both concepts involved, the “complaint” and “carried” “concrete”-type aspects, as well as the higher ideation concept of the “police power.” It is clear that mental illness or other deviance as displayed by MSPB 18 Jun 81 [6 MSPB 626; 7 MSPR 13, by Ronald P. Wertheim, Ersa H. Poston, etc.] does not demonstrate either level of understanding; the 18 Jun 81 issuance “seems feeble-minded.”
At 233, “This damage would be equally great from smoking in any street, used as such, whether laid out by lawful authority or not.” Clearly compliance is mandatory regardless of who makes the decision that dangerous behavior is to be controlled. My “personal determination” is by “lawful authority,” i.e., AR 1-8. Moreover, endangerment is to be anticipated, under the [AR 1-8] “affirmative action” guidance. It is not acceptable to wait for the “lawful authority” of a “personal determination.” There is no “undue hardship” since “smoking in any street” is not a “business necessity.” Smoking that causes endangerment (even potentially) is not a “business necessity.” Indeed. smoking per se is not a “business necessity.”
At 232, “The case is precisely within the words of the statute.” Here, the case at bar “is precisely within the words of” AR 1-8. I am being endangered, etc., have made a “personal determination,” and am seeking implementation of the 25 Jan 80 USACARA Report, etc. My conservative approach (quoting) “is precisely within the words of the statute” and other quoted citations.
Thompson, supra, is insightful not only for law, but also on the facts. Smokers can indeed be dangerous outdoors, dangerous to lumber yards, Rum River Lumber Co. v. State, 282 N.W.2d 882 (1979); dangerous to people, Wood v. Saunders [228 App Div 69], 238 N.Y.S. 571 (1930); dangerous to fields, Triplett v. Western Public Service Co. [128 Neb 835], 260 N.W. 387 (1935); etc. Clearly, smoker “dangerousness” “may affect” property and “third persons in much the same sense as a disease may be communicable,” words borrowed from McIntosh v. Milano [168 N J Super 466], 403 A.2d 500 (1979).
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Not all “discrimination” involves “accommodation” for resolution. For example, see Diaz v. Pan Am World Airways, Inc., 442 F.2d 385 ([CA 5] 1971) cert den 404 US 950 (1971]; in that case, supposedly “passengers overwhelmingly preferred to be served by female stewardesses.” Resolution of the case did not involve “accommodating” men but simply the application of law. Weird statements that the person bringing the case was somehow “unique” or had a “peculiar sensitivity” do not appear in the decision.
Brown v. Board of Education of Topeka, 347 U.S. 483, 74 S.Ct. 686 [98 L Ed 873] (1954), also shows that resolution of “discrimination” does not per se involve “reasonable accommodation.” Medical data was utilized in the case on the “detrimental effect” of the “discrimination.” Nonetheless, that medical data did not give rise to bizarre and mentally disordered allegations that Ms. Brown was somehow “unique” or “peculiar.” Sound minds are able to recognize “universal” situations in cases brought by individuals.
Resolution of Missouri ex rel. Gaines v. S. W. Canada, 305 U.S. |337, 59 S.Ct. 232 [83 L Ed 208] (1938), was also not “accommodation” in a “discrimination” case. Nor was Mr. Gaines considered “unique” or “peculiar.”
Browder v. Gayle, 142 F. Supp. 707 (1956) [cert den 352 US 903 (1956)], concerned public accommodations (i.e., buses), but the resolution of the “discrimination” involved application of fundamental law, not “accommodation.” No person bringing the case was cited as “unique” or “peculiar.”
Vietnamese Fishermen's Ass’n. v. Knights of the Ku Klux Klan, etc, 543 F. Supp. 198 ([S.D. Tex] 1982), shows “discrimination,” but resolution involved application of law, not “accommodation.” Moreover, the number of “Vietnamese fishermen” is demonstrably fewer than the number of nonsmokers in America; yet no claims of “unique” or “peculiar” were made in that case.
It is clear that when smokers are suffering from mental disease, their “thinking” is deranged to the extent that it is fragmentary, impoverished, bizarre, concrete, depraved, and/or otherwise deviant. Weird remarks about “accommodation” are both raised and rebuffed by them. In their mentally disturbed and incoherent writings, abruptness is obvious. They are supposedly addressing an issue on smoking; yet they do not cite any precedents on smoking. To insane people, with delusions of grandeur, they are their own authority.
Such behavior is in marked and unfavorable contrast with the professional techniques seen in competent issuances. For example, note the 23 Feb 1982 EEOC decision [Dockets 01800273 et al]. It cites precedents. Moreover, it shows a resolution of a case by the application of rules, not by “accommodating” the matters raised.
“Workmen are not employed to smoke,” Maloney Tank Mfg. Co. v. Mid-Continent Petroleum Corp., 49 F.2d 146 at 150 ([CA 10] 1931). That is a “universal” principle, but mentally ill smokers are not able to bring such “higher ideation” to bear on the specific duties (position classification duties) in the case at bar. Where no “duty” is involved, no duty “restriction” is involved, as a matter of law. Hence, in addition to the general principles concerning resolution of “discrimination” without “accommodation,” such is particularly appropriate in this case. Simply stop the “discrimination.”
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