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Key EEOC Letters & Decisions
And Related Evidence
in Support of Whistleblower
Including Orders for Review to Begin
1. 9 April 1980
2. 23 February 1982
3. 4 March 1983
4. 8 April 1983
5. 14 March 1991
6. 8 April 1994
7. 26 Feb 1996

[Below is EEOC Reply to Pletten's
Appeal to EEOC of the Ouster]
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
First National Building Suite 600
Detroit Michigan 48226
Telephone 226-7636

April 9, 1980


IN REPLY REFER TO:
 
EEO CLASS COMPLAINT OF
Pletten, Leroy
Charge No: 054-O8O-X0009

Mr. Leroy J. Pletten
8401 18 Mile Road
Apt. 29
Sterling Heights, Michigan 48078

Dear Mr. Pletten:

Pursuant to your letter of April 2, 1980, you appear to be somewhat confused as to my present involvement with your complaint. Let me attempt to enlighten you on some procedural matters. On the 7th of March 1980, the agency sent this agency a letter requesting the Complaints Examiner issue a recommended decision on whether to accept, reject or cancel your complaint. Thus, at this point of the proceedings I am not concerned so much with the merits of your complaint as I have been requested to render an opinion on whether you have sufficient standing to act as the agent for the proposed class.

You must realize that your mere request to act as class agent will not suffice without a further showing that you comply in all respects with 29 CFR § 1613.601 et seq.

Futher be advised that I am not now in a position to interfere with or disrupt the agency's decision to terminate you. Should I find at a subsequent hearing, if and when it is held, that members of your proposed class have been discriminated against, then and only then will I be authorized to recommend corrective action.

Ed. Note: I filed on 'individual case' basis for review, not awaiting the 'class action' process. Agency obstruction of justice, refusing to process same, occurred, and still continues.
The cut-off of access to EEOC review was later cited by HQ EEOC.

Therefore, should you remain sincere [Ed. Note: now that you've been terminated and will have your own reinstatement as your priority] in your decision to pursue a class action complaint, you should familiarize yourself with the applicable law and procedures.

Sincerely yours,
/s/Henry Perez, Jr.
Henry Perez, Jr.
Complaints Examiner
HPJ/ca

cc:

Mr. Kenneth R. Adler
EEO Officer
Department of the Army
U.S. Army-TARCOM
Warren, Michigan 48090

TACOM Letter Corroborating Ouster Time-Frame
Contradicting TACOM's Prior Denials of Perez's Accuracy!
By At Long Last Admitting the Early Ouster Time-Frame
DEPARTMENT 0F THE ARMY
UNITED STATES ARMY TANK-AUTOMOTIVE AND ARMAMENTS COMMAND
WARREN, MICHIGAN 48397-5000

February 26, 1996


REPLY TO
ATTENTION 0F:

AMSTA-CS-CQ

SUBJECT: EEO Complaint- Mr. Leroy Pletten

Administrative Judge Henry Perez
Equal Employment Opportunity Commission
McNamara Building, Room 1540
477 Michigan Avenue
Detroit, Michigan 48226

Dear Mr. Perez:

This is in reply to the request for information in reference to the above named complainant.

Our records indicate that the complainant was counseled nineteen different occasions following his dismissal. He is currently scheduled for counseling beginning March 4, 1996, by an EEOC directed action (encl).

The dates of counseling indicated in our records are as follows:

October 30, 1979
November 29, 1979

November 9, 1989
July 6, 1990
November 11, 1990
November 20, 1990
November 30, 1990
December 14, 1990
April 4, 1991
June 27, 1991
October 25, 1991
February 16, 1993
March 12, 1993
March 29, 1993
June 23, 1993
July 9, 1993
August 19, 1993
November 5, 1993
June 14-15 and 16, 1994
August 24, 1994

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For additional assistance you may contact Ms. Annie Gary-Johnson, Complaints Manager, on 810-574-8483.

Sincerely,
     
/s/ Gonzellas Williams
Gonzellas Williams
Chief, Office of Equal
Opportunity
Enclosure



Ed. Notes:
  • 1. Counseling is informal discussion with an agency representative lacking genuine authority to resolve a matter; it is step one in review. Note that TACOM makes no claim of allowing review to get to step two, investigation, and step three, hearing.
  • 2. Note that TACOM makes no claim of allowing even "review step one"--counseling to occur in Jan 1982! the time when TACOM finally admitted that it "removed" Pletten!
  • 3. TACOM had no intention of ever allowing review. Refusing review is malicious, deliberate, intimidate all employees: no laws and no rules (no matter how clear) can protect from reprisal.
  • 4. Note the dates back to October and November 1979. TACOM on other occasions denied that the ouster even occurred until January 1982!!
  • 5. Fortunately, the local Detroit EEOC office's Henry Perez had observed the ouster by April 1980!
  • 6. TACOM brazen criminality had the gall to write this 1996 letter to the very same EEOC official (Henry Perez) as had in 1980 observed the ouster!


  • EEOC Decision 23 February 1982
    EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
    WASHINGTON, D.C. 20506

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

    DECISION

    INTRODUCTION

    Leroy Pletten (hereinafter referred to as appellant) timely initiated appeals to the Equal Employment Opportunity Commission from the final decisions of the Department of Army (hereinafter referred to as agency) rendered in all the above reference appeals as indicated in the Appendix, concerning his allegations of discrimination based upon [perceived, non-job-related] physical handicap (asthma) in violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 701 et. seq and based upon reprisal in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq. These appeals are accepted in accordance with EEOC Order No. 960, as amended.

    BACKGROUND

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

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


    -2-

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

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

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

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

    ANALYSIS AND FINDINGS

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

    A review of the record in Docket No. 01800273 establishes that appellant filed a formal complaint of discrimination alleging that in an agency's publication derogatory references were made to his physical handicap. The appellant's complaint properly alleges a basis of discrimination reocognized by the Regulations. The agency improperly rejected appellant's complaint on the basis it did not come within the purview of the Regulations. The agency, therefore, must accept the complaint for investigation and decision thereon.

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


    -3-

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

    " . . . where, as here, discrimination is not limited to isolated incidents but pervades a series or pattern of events which continue to within (the time period) of filing charges, the filing is timely."
    Id. , 13 FEP Cases at 1100. See also, Cedeck v. Hamiltonian Federal S&L Assn., 551 F.2d 1136, 14 FEP Cases 1571 (8th Cir. 1977); Clark v. Olinkraft, Inc., 556 F.2d 1219, 15 FEP Cases 377 (5th Cir. 1977);. and, Rich v. Martin Marietta Corp., 552 F.2d 333, 11 Fep (sic) Cases 211 (10th Cir. 1977). It is clear that appellant was alleging a continuing pattern of discrimination against him because of his handicap. It is also clear the agency made some effort to limit his number of complaints, his right to file complaints and to seek EEO counseling. The agency, additionally, went so far as to utilize erroneous information or miscalculations upon which to base its rejection. See Appendix, Docket Nos. 01810323, 01810321, 01810555 and 01810324.

    Extortioners refuse "to process grievances." U. S. v Russo, 708 F2d 209, 212 (CA 6, 1983). A policy to "utilize erroneous information or miscalculations" is called criminal mail fraud.

    In view of the foregoing, this Commission must conclude the agency's rejection of all appellant's complaints were erroneous on the grounds given. In that it appears that appellant was alleging a continuing pattern of discrimination and in that some of the agency's rejection of his complaints were based on the wrong information and in that the record reveals that the agency attempted to restrict and/or deny appellant the right to file EEO complaints and seek counseling, the Commission holds that all the above references cases must be reversed and rescinded [remanded] (sic) for further processing in accordance with EEO Regulations 29 C.F.R. 1613.211 et seq.

    CONCLUSION

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


    -4-

    IMPLEMENTATION OF THE COMMISSION DECISION

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

    ATTORNEY'S FEES

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

    NOTICE OF RIGHT TO FILE A CIVIL ACTION

    Pursuant to 29 C.F.R. §1613.282, the appellant is hereby notified that this decision is final and that he has the right to file a civil action on the Title VII claim in the appropriate U.S. District Court within thirty (30) days of the date of receipt of this decision.

    APPOINTMENT OF COUNSEL

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

    NOTICE OF RIGHT TO REQUEST REOPENING

    The appellant and the agency are hereby notified that the Commissioners may, in their discretion, reopen and reconsider any previous decision when the party requesting reopening submits written argument or evidence which tends to establish that:


    -5-

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

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

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

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

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


    [-6-]

    APPENDIX

    APPEALS OF LEROY PLETTEN

    1. EEOC DOCKET Number: 01800273 2/

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

    See EEOC v Tallgrass Golf Club, et al, #CV 05 4648
    (ED NY, 30 Sept. 2005) (ex rel Eugene Palumbo, 34K)

    2. EEOC DOCKET Number: 01810321

      Date of Formal EEO Complaint: 9/11/80
      Date of Final Agency Decision: 11/06/80
      Date of Appeal: 11/18/80
      Brief Description of Complaint: "Misconduct by medical officer against appellant"
      Reason for Agency's Rejection: "Untimely presented to EEO counselor

    3. EEOC DOCKET Number: 01810322

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

    4. EEOC DOCKET Number: 01810323

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

    5. EEOC DOCKET Number: 01810324

      Date of Formal EEO Complaint: 9/9/80
      Date of Final Agency Decision: 11/05/80
      Date of Appeal: 11/18/80
      Brief Description of Complaint: "Wrong information conveyed to Merit Systems Protection Board"
      Reason for Agency's Rejection: "Untimely presented to EEO counselor 4/ 3/"

    6. EEOC DOCKET Number: 01810555

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

    7. EEOC DOCKET Number: 01810887

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

    8. EEOC DOCKET Number: 01811012

      Date of Formal EEO Complaint: 1/15/81
      Date of Final Agency Decision: 4/2/81
      Date of Appeal: 4/8/81
      Brief Description of Complaint: "Agency's failure to implement no smoking regulations"
      Reason for Agency's Rejection: "Untimely presented to EEO counselor 5/"

    9. EEOC DOCKET Number: 01812239

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

    10. EEOC DOCKET Number: 018112239 1/ 2/

      Date of Formal EEO Complaint: 1/20/81
      Date of Final Agency Decision: 5/12/81 and 5/15/81
      Date of Appeal: 5/19/81
      Brief Description of Complaint: "Refusal to provide EEO process to appellant"
      Reason for Agency's Rejection: "Untimely presented to EEO counselor 5/"

    11. EEOC DOCKET Number: 018112239 1/ 2/

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


    [-7-]

    "1/Complaints consolidated under this case number.

    2/ No agency file ever received in this case

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

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

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

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

    EEOC Decision 4 March 1983
    EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
    WASHINGTON, D.C. 20506



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


    )

    ACCEPTANCE OF REQUEST TO REOPEN

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

    EEOC Regulation 29 C.F.R. Section 1613.235 sets forth the criteria for reopening a previous decision of this Commission. Under the Regulation, the Commissioners may, in their discretion, reopen and reconsider any previous decision if the party requesting reopening and reconsideration submits written evidence or argument which tends to meet one or more of the regulatory criteria.

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

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


    Request No. 05820275
    -2-

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

    On appeal appellant asserts that the instant complaint although grounded upon the same basis of discrimination, i.e. physical handicap, concerned a separate incident and should have been accepted for processing. The Commission takes administrative notice of our decision issued February 23, 1982, which includes Docket Nos 01800273, 01810321, 01810322, 01810323, 01810324, 01810555, 01810887, 01811012 and 01812239. Our decision reversed all of these cases on procedural grounds finding that the agency erred in refusing and failing to process appellant's complaints.

    Under the applicable EEOC Regulation 29 C.F.R. Section 1613.215, an agency may only reject those allegations in a complaint which set forth identical matters contained in a previous complaint filed by the same complainant which is pending in the agency or has been decided by the agency. While the same type of discrimination was being alleged by appellant in his complaints, the record shows that the complaints resulted from different incidents several months apart. The Commission therefore finds that the agency erred in rejecting appellant's complaint filed July 11, 1980. The agency's final decision is hereby reversed and the case remanded for investigation in accordance vith the applicable EEOC Regulations. The agency may consolidate this case to the extent it is possible vith the other complaints referred to above pending before the agency.

    CONCLUSION

    Based upon a review of the record and in light of appellant's request to reopen and reconsider our previous decision in Docket No. 01801850, it is the decision of this Commission to accept appellant's request to reopen. Furthermore, the Commission finds that our previous decision erroneously affirmed the agency's rejection of appellant's complaint and is, by virtue of this decision, reversing the agency's final decision in this matter. The case is remanded to the agency for further processing as discussed herein.


    Request No. 05820275
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    IMPLEMENTATION OF THE COMMISSION DECISION

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

    NOTICE OF RIGHT TO FILE A CIVIL ACTION

    Pursuant to 29 C.F.R. Section 1613.282, the appellant is hereby notified that this decision is final and that appellant has the right to file a civil action on the Rehabilitation Act claim in the appropriate United States District Court within thirty (30) days of the receipt of this decision.

    APPOINTMENT OF COUNSEL

    If you choose to file a civil action, and you do not have, or are unable to obtain the services of a lawyer, you may also request the court to appoint a lawyer to represent you. In such circumstances as the court may deem just, the court may appoint a lawyer for you and may authorize the commencement of the action wichout the payment of fees, costs or security. Any such request must be made within the above referenced 30 day time limit and in such form and manner as the court may require.

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


    EEOC Decision 8 April 1983
    EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
    WASHINGTON, D.C. 20506



    Leroy Pletten,)
    Petitioner
    )
    )
    v.
    )Request No. 03810087
    )
    [83 FEOR 3046]
    Department of the Army,)
    Respondent
    )


    )

    DECISION

    INTRODUCTION

    On July 17, 1981, Leroy Pletten (hereinafter referred to as petitioner) timely initiated a petition to the Equal Employment Opportunity Commission for the review of the final decision of the Merit Systems Protection Board (MSPB) rendered June 18, 1981, concerning his allegations of discrimination based upon physical handicap in violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 701 et seq. Because the petition involves an action occurring subsequent to January 11, 1979, the effective date of the Civil Service Reform Act of 1978, it is governed by the provisions of that Act and EEO Regulations 29 C.F.R. 1613.414 et seq. [45 F.R. 147, July 29, 1980].

    BACKGROUND

    At the time of the alleged discrimination, petitioner was employed with the agency as a Position Classification Specialist, GS-12. On March 28, 1980, the agency informed petitioner that he was [retroactively to 17 March 1980] not considered fit for duty and would not be allowed to return to work until the agency received [an alleged] clearance from his personal physician. The agency placed petitioner on [involuntary] sick leave effective March 17, 1980. Petitioner appealed [ferst in EEOC forum then later] on March 31, 1980 to the MSPB, arguing that forcing him into sick leave status was an adverse action within the meaning of the applicable regulations [e.g., 5 USC § 7513, 5 CFR § 752]. Most of the following background information was supplied by petitioner in support of his petition and not by the agency in support of its action.

    -1-

    In the summer of 1979, petitioner was diagnosed as suffering from acute [episodic, short-term impact] asthma [meaning, after protracted exposure to tobacco smoke's toxic chemicals, OK when away from it]. Medical records indicate that his asthma attacks [brief episodes] were caused by exposure to tobacco smoke of any kind. Petitioner began requesting that the agency accommodate his [perceived] handicap by providing him with a smoke-free office, improving the [mal-functioning and mechanically failing] ventilation system in his building and prohibiting other employees from smoking within 25 feet of him, as prescribed by his physician.

    Ed. Note: Pletten specifically asked the agency to enforce the pertinent laws and agency rules, e.g., its own AR 1-8.
    EEOC has translated this request for law and regulation compliance, into its EEOC in-house jargon, “handicap” and “accommodation.”
    Rules are, of course, to be enforced regardless of such issues.

    When petitioner was unable to obtain any accommodations [compliance with either law or regulation], he filed a labor grievance in June, 1979.

    Ed. Note: Translating from EEOC's in-house jargon, Pletten failed to obtain law and regulation compliance. Reason: TACOM management disagreed with the rules, i.e., rampant insubordination. So Pletten filed the labor grievance to involve higher authority to take action, and halt the TACOM management insubordination.

    The report of the grievance examiner in January, 1980 found that the agency had failed to establish that petitioner's work area was reasonably free of toxic substances associated with tobacco smoke. Citing Army Regulation AR 1-8, the examiner found that petitioner had a right to an environment reasonably free of contamination. Record at 126.

    Ed. Note: The mandatory legal safety duty, zero hazards, them being 'eliminated,' not merely reduced (as some might argue), is by definition, “reasonable.” It is “reasonable” to obey the law. The legal duty and safety “adjective [“free” of hazards] is unqualified and absolute,” says Nat'l. Rlty. & C. Co., Inc. v. OSHRC, 160 US App DC 133; 489 F2d 1257 (1973).

    The regulation provides that smoking will be permitted only if ventilation in the building is adequate to remove smoke from a work area and provide an environment that is healthful. Relying upon the agency's own regulations [not accommodation law, as was no need to reach it], the examiner dismissed the agency's contention that it had no authority to ban smoking in those areas necessary to assure petitioner a smoke-free environment. He noted that the agency made no response to petitioner's request that fellow employees be banned from smoking within 25 feet of him. Id. at 132.
    “No information,” wrote the examiner, “regarding any educational programs initiated at the (agency's installation) to discourage smokers as recommended in AR 1-8 was evident.” Id. at 134.
    Referring to the burden [duty] placed upon [local] officials under AR 1-8 to take affirmative action to implement the smoking policy for each building, the examiner found that if such action had been taken at the installation, “. . . it is not evident from the material furnished with this grievance.” Id. at 135-6. Likewise, the agency, according to the examiner, did not provide any information which proved that the air in petitioner's work area was reasonably free of contamination so as to constitute a healthy environment.

    The examiner recommended that: (1) more consideration should be given petitioner's health problem which may warrant additional accommodation; (2) that the agency conduct an air study to determine the level of toxic substance present; and, (3) that the agency take whatever further action necessary to provide him with a work area reasonably free of contamination. Id. at 137.

    Ed. Note: Compliance was mandatory. Reference Spann v Army Gen. McKenna, et al., 615 F2d 137 (CA 3, 1980).
    Instead of complying, TACOM management continued their disagreement with the rules, i.e., continued their insubordination.
    See also EEOC's verification, at p 5, infra. Note that EEOC had said likewise, 23 February 1982, p 2, supra.

    Medical records show that on May 11, 1979, petitioner's doctor certified that petitioner could not [safely] work within 25 feet of people who are smoking because of his asthma.

    Ed. Note: As this view (not safe to work around smokers) is true for all), Pletten's supervisor Jeremiah Kator immediately tried to begin compliance with AR 1-8, but was overruled by Personnel Officer Archie Grimmett. Pletten continued amidst the unsafe smoker behavior, and continued receiving awards for excellent performance. Pletten with Kator's support began reporting the mal-functioning and mechanically failing ventilation, as well as pursuing the above-cited grievance to successful conclusion.

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    Id. at 156. On January 7, 1980, the [consulting] doctor [Bruce Dubin] stated that petitioner was capable of returning to work [as always] and [like all people] must avoid cigarette smoke at all costs. Id. at 96. The agency's medical officer [Francis J. Holt] agreed with this diagnosis and recommended to his superiors that if a smoke-free environment could not be provided, he would suggest a job change. Id. at 84.

    Ed. Note: But Holt refused to support supervisor Kator's effort to begin compliance with AR 1-8. Holt was hostile to the regulation, as he was personally a smoker. Holt, thus unresponsive to normal stimuli, ignored even his own Industrial Hygiene staff (Edwin Braun) informing him of the malfunctioning ventilation with its mechanical failures, of which he was personally well aware.

    Again on March 24, 1980, petitioner's doctor [Jack Salomon] certified that petitioner was able to return to work in a safe work environment. Id. at 84. By memorandum dated the same day, the medical officer [Francis J. Holt] wrote the “. . . employee must have smoke-free environment including eating area and rest room facilities, because of the aggravation of his chronic [meaning, episodic] asthma by exposure to tobacco smoke. A smoke-free work environment as defined above cannot be provided at this installation at this time. Therefore he is not fit for duty pending further directive from (the agency) regarding smoking at this installation.” Id. at 88.

    Ed. Note: Holt thus ignored Salomon's actual words, pursuant to layman Col. Benacquista having overruled Salomon.
    Holt was a smoker, thus unresponsive to normal stimuli. Holt was also practicing law without a license, giving his legal opinion of what "cannot" be done. Holt disregarded the fact that his "cannot" delusion had already been overruled by USACARA on 25 January 1980.

    In correspondence to the presiding official, the agency [Edward Hoover and Emily Bacon] argued [falsely] that it had endeavored to accommodate petitioner's condition. It stated that petitioner had been placed in an office shared with a non-smoker. He had [supposedly] been allowed to post “no smoking” signs in his office and fellow employees had been advised not to smoke near petitioner. In support of its position, the agency presented letters to the Health Clinic from the Commander purporting to instruct the clinic to begin an educational program regarding the hazards of smoking and, additionally, to conduct periodic air quality surveys of petitioner's work area. Id. at 121-2. However, the agency's representative [Emily Bacon] later informed the presiding official that, in fact, these memoranda were never sent to the addressees. Id. at 167. With regard to petitioner's new office assignment, the grievance examiner found and the agency did not contradict that the partition forming his office extended only 2/3 of the distance from the floor to the ceiling and smoke from other employees easily drifted over these [known ineffective, phony] barriers. Id. at 126.

    After soliciting and receiving statements from the parties concerning the jurisdictional question,
    but refusing to accept Pletten's sending the 9 April 1980 EEOC letter showing TACOM's “decision to terminate”
    the presiding official [Martin Baumgaertner] issued his initial decision on July 23, 1980, concluding [outside the rule of law] that the agency's action of [forcibly] placing petitioner in a sick leave status [though not sick] was not disciplinary
    extortion as admitted by Col. Benacquista, Dep p 62, who had overruled the doctors, Dep. p 13, in the "suspension" process, Dep p 47
    in nature and was, therefore, not a suspension within the Board's jurisdiction. Petitioner was not afforded an opportunity to present his evidence [including these confessions] in a hearing before the official.

    Ed. Note: MSPB's presiding official, pursuant to MSPB hostility and universal malice against whistleblowers, refused to allow these confessions to occur at that timely time. Baumgaertner carried out MSPB's policy and practice to terrorize civil servants, so they'd know that they would not be protected even against blatant illegal action.
    The MSPB terrorism policy against whistleblowers, intended to deter whistleblowing, has had its “natural and probable consequence,” would-be whistleblowers have indeed been deterred. The MSPB terrorism policy has led to numbers of deaths.
    Against Pletten, to set a deterring example of what would happen to other whistleblowers, the intent was to destroy his finances, career, family. Pursuant to the MSPB terrorism policy, whistleblowing on any and all subjects, was to be deterred, so as to deter it on all subjects, without regard to the particular subject matter which Pletten raised.

    Petitioner petitioned the Board for review of the initial decision on August 22, 1980. During the pendency of the

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    case, the Board accepted an amicus curiae brief from the Action on Smoking and Health which argued [as EEOC agreed] that the action of the agency was tantamount to a suspension as well as the denial of petitioner's right to work in a smoke-free environment.

    In its final decision the Board [via Ronald P. Wertheim, Ersa H. Poston, et al.] found that an analysis of the merits of the agency's action was necessary before determining whether it had jurisdiction over petitioner's case. Finding that he was a handicapped employee within the meaning of 29 C.F.R. 1613.702, the Board
    [Wertheim, Poston, et al.] enumerated the ways by which the agency had [allegedly] attempted to accommodate petitioner's condition. The Board cited as [alleged, lied, invented, made up, fabricated] accommodations, the prohibition of smoking in the entire personnel division, the institution of educational programs and the prohibition of people smoking within petitioner's vicinity. The Board noted that the agency had [supposedly] conducted periodic air surveys of toxic substances in petitioner's work area. Based upon these alleged [fabricated] actions [the Wertheim and Poston lied, fabricated, invented, made up], the Board concluded [fabricated] that the agency made reasonable accommodations and [Wertheim, Poston, et al, further fabricated, made up the story, that] petitioner's requests for further accommodation [TACOM to begin compliance with USACARA Report 05-80-001-G] were impossible and would constitute an undue hardship on the agency. Consequently, the Board then decided that petitioner was not ready, willing and able to work in the environment [allegedly] improved by the agency and that the placement of him on sick leave was not a suspension appealable to the Board.

    Ed. Note: Due process includes the right to notice, and to reply, prior to decision. Even slaves had a right to proper notice of charges! Josephine, a slave v State of Mississippi, 39 Miss (10 Geo) 613, 647 (1861): The right to a properly drafted statement of charges is “a substantial right . . . and not a mere question of form or proceeding.” It is extraordinary, shocking to conscience, to refuse me that right. MSPB upheld TACOM violation of basic human and constitutionaol rights. TACOM had not issued
    “statement or citation of the written regulations . . . said to have been violated [and] a detailed statement of the facts,” Boilermakers v Hardeman, 401 US 233, 245; 91 S Ct 609, 617; 28 L Ed 2d 10, 21 (1971) before “decision to terminate”).

    Congress, to protect the public by precluding agencies from doing unjust, discriminatory, unreasoned, or reprisal terminations of employees, has required agencies to state in writing the basis for even proposing an ouster 30 days in advance. 5 USC § 7513.(b). A notice must:

    a. comply with 5 CFR § 752.404(f) by stating all reasons including ex parte contacts. Sullivan v Navy, 720 F2d 1266, 1273-4 (CA Fed, 1983); SEC v Chenery, 332 US 194; 67 S Ct 1575; 91 L Ed 1995 (1947) ("judge the propriety of action solely by the grounds invoked"; not by “counsel's post hoc rationalizations"; but only by what is “given");

    b. say more than conclusion, Mulligan v Andrews, 93 US App DC 375, 377; 211 F2d 28, 30 (1954);

    c. enable more than “general denials,” Deak v Pace, 88 US App DC 50, 52; 185 F2d 997, 999 (1950);

    d. list witnesses and say “the names . . . places . . . dates” of alleged acts, Money v Anderson, 93 US App DC 130, 134; 208 F2d 34, 38 (1953). Examples include being:

    (i) “lengthy and detailed,” Baughman v Green, 97 US App DC 150; 229 F2d 331 (1956);

    (ii) “numerous examples of specific errors,” Long v Air Force, 683 F2d 301 (CA 9, 1982);

    (iii) “item by item,” Mandel v Nouse and TACOM, 509 F2d 1031, 1032 (CA 6) cert den 422 US 1008; 95 S Ct 2630; 45 L Ed 2d 671 (1975). MSPB upheld TACOM disregard of the rule of law, including the Mandel precedent involving itself!

    Pursuant to Smith v Dept of Interior, 9 MSPR 342, 344 (1981), an agency must provide “specific examples” of “alleged performance deficiencies” “to meet the 'specificity' test” as “[a] notice of proposed adverse action is required to be specific enough so that the employee is presented with sufficient information to enable him or her to make an 'informed reply.' S. Rep. No. 95-969, 95th Cong., 2d Sess. 50 (1978), U.S. Code Cong. & Admin. News 1978, p 2723, Report of the Senate Committee on Governmental Affairs."
    MSPB hatred of the rule of law meant it ignored the law. It supported TACOM's illegal activity. Hence TACOM has never provided me in all these years, such specificity, thus has precluded me ever replying.
    Note the long line of case law that proper 30 days advance notice of charges must be given for an ouster to be upheld, e.g., Hart v U.S., 148 Ct Cl 10, 16-17; 284 F2d 682, 686-687 (1960); Smith v Dept of Interior, 9 MSPR 342 (1981); Heikken v D.O.T., 18 MSPR 439 (1983); Van Skiver v Postal Service, 25 MSPR 66 (1984); Woodall v FERC, 28 MSPR 192 (1985); Miyai v D.O.T., 32 MSPR 15, 20 (1986); Cleveland Bd of Ed v Loudermill, 470 US 532; 105 S Ct 1467; 64 L Ed.2d 494 (1985); Thomas v General Svcs Admin, 756 F2d 86, 89-90 (CA Fed, 1985); Mercer v Dept. of Health & Human Svcs, 772 F2d 856 (CA Fed, 1985); Pittman v Army and MSPB, 832 F2d 598 (CA Fed, 1987); Childers v Air Force, 36 MSPR 486 (1988); Bivens v Dept of Navy, 38 MSPR 67 (1988); and Brown v Dept of Navy, 49 MSPR 277 (1991); and Comptroller decisions, e.g., 38 Comp Gen 203; 39 Comp Gen 154; and 41 Comp Gen 774, cited in FPM Supp 752-1, S1-6c(4)(c) - (d) (4 Feb 1972).
    The bottom line is, showing how exceptional and extraordinary is what TACOM did, and wants to be allowed to get away with, nobody ousted without 5 USC § 7513.(b) notice fails to win! Why exception here? Answer: the pattern of reprisals against whistleblowers that MSPB itself admits.
    "The proof of the pattern or practice supports an inference that any particular decision, during the period in which the policy was in force, was made in pursuit of that policy.” Teamsters v U.S., 431 US 324, 362; 97 S Ct 1843, 1868; 52 L Ed 2d 396, 431 (1977).
    The goal is justice, balancing finality and the public interest in reaching what ultimately appears to be “the right result.” Anderson v Dept of Transp, FAA, 46 MSPR 341 (1990). Here, an ouster without notice of charges, without providing specifics to which to reply before the “decision to terminate” is made (verified by EEOC's own Henry Perez, Jr.), is clearly NOT “the right result."
    All others' precedents show otherwise: that any other federal employee ousted without notice, without due process of law, in short, remains “on the rolls.” Sullivan v Navy, 720 F2d 1266, 1273-4 (CA Fed, 1983) (employee fired without notice remains “on the rolls").
    Federal law 5 USC § 552.(a)(l)(C) - (D) makes publication of a qualification requirement “jurisdictional," Hotch v U.S., 212 F2d 280 (1954); Bowen v City of New York, 476 US 467; 106 S Ct 2022; 90 L Ed 2d 462 (1986). Others have had actions taken against them canceled when there was no notice of a qualification requirement or other rule. See Morton v Ruiz, 415 US 199, 231; 94 S Ct 1055, 1072; 39 L Ed 2d 270 (1974); W. G. Cosby Transfer & Storage Corp v Dept of Army, 480 F2d 498, 503 (CA 4, 1973) (Army has done this violation before); Onweiler v U.S., 432 F Supp 1226, 1229 (D ID, 1977); Berends v Butz, 357 F Supp 143, 154-158 (D Minn, 1973); Anderson v Butz, 550 F2d 459 (CA 9, 1977); Dean v Butz, 428 F Supp 477, 480 (D HAW, 28 Feb 1977); St. Elizabeth Hospital v U.S., 558 F2d 8, 13-14 (CA 9, 1977); Aiken v Obledo, 442 F Supp 628, 654 (D ED Cal, 1977); Historic Green Springs, Inc v Bergland, 497 F Supp 839, 854-857 (D ED Va, 1980); Vigil v Andrus, 667 F2d 931, 936-939 (CA 10, 1982). Others similarly situated are not treated like me, an inequity.
    TACOM ousting me on a non-BFOQ (on same job description as co-workers!), is inconsistent, needs explanation, Garrett v F.C.C., 168 US App DC 266; 513 F2d 1056 (1975); Marco Sales Co v F.T.C., 453 F2d 1, 7 (CA 2, 1971); Yorkshire v MSPB, 746 F2d 1454 (CA Fed, 1984). Yet MSPB sought no such explanation, refuses me a hearing, and refuses to go by any "standards of proof."
    Per Hanifan v U.S., 173 Ct Cl 1053; 354 F2d 358, 364 (1965), "The rule has been firmly established in pay cases 'that lawful administrative action depriving claimant of a procedural right voids the action and leaves the plaintiff to his money otherwise due, until (at the least) proper procedural steps are completed [citations omitted] . . . . These references [cited by the agency] do not mean that the agency's action is fully effective to separate the employee for all purposes; as is often the case in judicial proceedings, an appeal or application for review by the Commission suspends the final operative effect of the intial decision. It follows that an employee who has been deprived of a procedural right by the Commission [board] must be regarded as not yet lawfully removed and thus entitled to his pay otherwise due."
    Federal employers cannot claim to have a basis for discipline/ removal based on "approved leave." Punishing an employee for approved leave is an improper reason, Bond v Vance [Army], 117 US App DC 203, 204; 327 F2d 901, 902 (1964); Washington v Dept of Army, 813 F2d 390, 394 (CA Fed, 1987). (I didn't request any leave.)
    Pursuant to Weiden v Weiden, 246 Mich 347, 352; 224 NW 345 (1929), malice may be inferred from lack of probable cause.

    ANALYSIS AND FINDINGS

    While this Commission must give great deference to the Board's determination of the parameters of its own jurisdiction, we find its decision in the instant case most troublesome. Inasmuch as the Board looked to the merits of petitioner's discrimination allegations to determine its jurisdiction, this Commission is charged with the responsibility to review its conclusions as to this issue. Initially we note that the Board [via Martin Baumgaertner, Ronald Wertheim, Ersa Poston, et al.] made a factual determination, without benefit of a hearing or the compliance with any of the applicable standards of proof required of an agency, see 5 U.S.C. Section 7701(c)(1)(A) or (B), that petitioner was a handicapped employee for whom the agency made reasonable accommodations. The Commission asserts that a more careful review and analysis is required of the agency's position herein.

    Ed. Note: Discharge, "the most serious sanction an employer can impose," requires "special care in handling" review, Tenorio v N.L.R.B., 680 F2d 598, 602 (CA 9, 1982). Due to its universal malice hatred of whistleblowers, MSPB definitely did not do "special handling." It did not even do normal "handling," e.g., (a) a hearing to present evidence, and (b) compliance with the law's required "standards of proof," though both are routinely done for non-whistleblower employees.

    As noted in the discussion above, the Board's conclusion that the agency attempted to accommodate petitioner is far from accurate and, moreover, even contradicted by the record before this Commission. The Board cited [invented, made up, lied, fabricated] actions the agency allegedly took to accommodate petitioner but

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    evidence in the record would indicate such actions were not even attempted. The Board [fabricated, invented made up, lied] stated that the agency conducted periodic air surveys of the toxic substances but the record shows only one study which measured [not the ingredients but only] the cubic feet of fresh air per person. The agency does not argue nor does the record support that it ever complied with the recommendations of the grievance examiner. The agency presented no evidence that it considered the rights of the non-smokers or even recognized that its own regulations permitted smoking only to the extent that it did not cause discomfort or unreasonable annoyance to others. Insofar as the record is incomplete and often contradictory, the Commission is unable to perceive how the Board was able to reach any conclusion regarding the agency's efforts to accommodate petitioner.

    Ed. Note: For analysis of the deviant fabricated claims in their abnormal psychology symptom context, see the 27 July 1983 “Brief to OPM,” page 335. MSPB staff displayed same type psychiatric disorder symptoms as TACOM's, indeed, worse, coming up with lies (or hallucinations) even TACOMers had not had!

    Therefore, the Commission finds that the agency did not establish such accommodations.

    Moreover, the Commission is unconvinced by the Board's conclusion that further accommodations [meaning, beginning the law and rule compliance process] would be an undue hardship for the agency. Clearly, the agency had the authority to ban smoking from its buildings but the Board decided that such a ban was impossible and, even though not substantiated by the agency, an undue hardship on it. Id. at 365. In a footnote, the Board summarily dismissed other accommodations such as restructuring, reassignment or retraining, stating, “The record is silent as to the viability of these alternatives since petitioner never raised them for consideration and therefore the agency was unable to respond.” Ibid. at fn. 5.

    Ed. Note: MSPB knew that TACOM had refused, and was continuing to refuse, to even discuss any resolution.
    Col. Benacquista admitted extortion, Dep p 62. He had overruled the medical evidence, Dep. p 13, in the "suspension" process, Dep p 47. Benacquista's purpose to extort Pletten to change his anticipated testimony, Dep p 62. Pletten would not acquiesce to not testify on TACOM's violating the safety laws and pertinent rules, and its defying the USCARA Report (implementation of which was mandatory pursuant to CPR 700. 771 and Spann v McKenna, 615 F2d 137 (CA 3, 1980).
    When Pletten did not acquiesce in the extortion, Pletten was summarily ousted, ordered off the premises. Discussion was thus ended by TACOM; and all Pletten's efforts could not restore it. TACOM Lt. Colonel Larry Wigner on 24 July 1980 said, “the Command will no longer respond to” me. This ostracism and silence policy against Pletten was affirmed by MSPB, in its hatred and universal malice, determined to shift all blame for the lack of discussion onto the whistleblower.

    The Commission's interpretation of the applicable regulation is at variance with the Board's and would place a much greater burden upon the agency. 29 C.F.R. 1613.704(a) reads as follows:

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

    The clear intent of the mandatory language of this regulation requires an agency to make such accommodations unless it can prove that such actions would be an undue hardship. The record does not support an assertion that the agency made any accommodation, much less, as the Board even admitted, prove that the banning of all smoking in its building would have imposed undue hardship. Consequently, the Commission remains unconvinced that the Board's findings and analysis in the

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    instant case adequately considered the record before it in light of the allegations of discrimination presented therein.

    Without ruling on the issue, the Commission questions the Board's [bizarre, contrary-to-precedents] decision that enforced sick leave in this case was not a jurisdictionally appealable action.

    Ed. Note: MSPB had defied many precedents, already extant, and soon forthcoming, see note p. 4 above.

    The consequences of the agency's action, i.e. petitioner no longer worked at the agency, was [as ASH had correctly said] essentially the same as a suspension or termination. Additionally, it would seem that the only way petitioner [Pletten] can purge himself of this enforced leave status would be by presenting a doctor's certificate that he is capable of working in the agency's smoke-filled environment [amidst prohibited behavior] which the agency [contrary to laws and rules] refuses to alter [as confessed by Col. Benacquista, Dep. p 25, an extortioner, Dep. p 62, aided and abetted by TACOM's Dr. Holt, Dep. p 46 and p 71].

    Ed. Note: In fact, the doctors had so stated. But pursuant to Benacquista's extortion, that was not what TACOM wanted. TACOM extorted, demanded, as shown at p 5 above, that Pletten alter his anticipated testimony about TACOM's many violations.
    The extortion, Dep. p 62, demanding statements 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).
  • The medical evidence [as thus overruled by Benacquista] suggests that petitioner will never be able to return to the agency's employment if it does not accommodate his condition. Inasmuch as the petitioner no longer works at the agency and inasmuch as the agency has not proven that it has accommodated him or would suffer undue hardship to do so, the Commission recommends that the Board reconsider the issue of whether the action taken against petitioner was in fact an adverse action appealable to the Board.

    CONCLUSION

    Based upon a review of the record, the decision of the Equal Employment Opportunity Commission is that the decision of the Board constitutes an incorrect interpretation of the applicable regulations and is not supported by the evidence in the record as a whole. The Commission therefore, refers this case to the Board for reconsideration of the issues raised herein.

    IMPLEMENTATION OF THE COMMISSION DECISION

    The Commission recommends that MSPB reopen and reconsider its decision and remand the instant case to the presiding official for a hearing and development of the record as discussed herein.

    REFERRAL TO MERIT SYSTEMS PROTECTION BOARD

    Pursuant to 5 U.S.C. 7702(b)(5)(B), this matter is hereby referred to the Board for further consideration.

    FOR THE COMMISSION:
         
    4/8/83/s/Treva McCall
    DATEEXECUTIVE SECRETARY
    TO THE COMMISSION

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    EEOC Decision 14 March 1991
    EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
    Office of Federal Operations
    P. O. Box 19848
    WASHINGTON, D.C. 20506

    Leroy J. Pletten,)
    Appellant
    )
    )
    v.
    )Request No. 01910498
    )Agency No. 90-09-0062
    )
    Michael P. W. Stone,)
    Secretary,)
    Department of the Army,)
    Agency
    )


    )

    DECISION

    Appellant filed an appeal with this Commission from a final decision of the agency concerning his complaint of unlawful employment discrimination. The final agency decision was received by appellant on October 27, 1990. The appeal was postmarked November 15, 1990. Accordingly, the appeal is timely (see, 29 C.F.R. §1613.233(a)), and is accepted in accordance with EEOC Order No. 960, as amended.

    The issue on appeal is whether the agency properly cancelled appellant's complaint for failure to prosecute.

    An agency may cancel an allegation or complaint for failure to prosecute only as provided in 29 C.F.R. §1613.215 (a)(6). The agency must provide appellant with a notice of proposed cancellation that requests appellant to either submit certain information or otherwise proceed with the complaint. When appellant fails to satisfy the agency's request within fifteen (15) calendar days of receiving the notice, the agency may cancel the allegation or complaint. However, instead of canceling for failure to prosecute, the agency may adjudicate the allegation or complaint if the record contains sufficient information to do so.

    Appellant did not fail to prosecute his complaint. Specifically, the agency did not specify with certainty the nature of the information it sought in its letter of September 19, 1990, warning appellant of the possibility of the cancellation of his complaint for failure to provide specific information within fifteen (15) days of receipt of the letter. Rather, the agency referred back to its letter of August 15, 1990, as specifying the exact information which it continued to seek. According to the record, the agency did not enclose a copy of the earlier letter to appellant accompanying its letter of September 19, 1990. The agency bases its cancellation of appellant's complaint on appellant's [alleged] failure to provide the information requested in its letter of September 19, 1990. We find that the agency's request for more specific information pursuant to §1613.215(a)(6) was procedurally detective. The agency did

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    not make clear, at the time of the notice of proposed cancellation letter of September 19, 1990, the nature of the specific information which it sought. Section 1613.215(a)(6) contemplates that the notice of proposed cancellation and the request for specific information should be made simultaneously. Here, the agency's letter of September 19, 1990 requires appellant to refer to an earlier letter sent to him by the agency in order to discern what specific information is required of him. This, we find, is an unreasonable burden to place on a complainant where a copy of the referenced letter is not enclosed with the current request for information.

    A review of the record reveals no EEO counselor's report in a form indicating that appellant received adequate EEO counseling. In a letter from an EEO counselor [Jeffrey McLain] dated July 6, 1990, to an agency employee, whose position with the agency is unspecified, the counselor states that he has had several conversations with appellant but could not get him to meet at the agency

    Ed. Note: TACOM had ordered Pletten off-post! McLain pretended to misunderstand!

    The counselor [McLain] does not record dates of telephone conversations or dates and times for meetings proposed which appellant [Pletten] declined. Such evidence does not appear elsewhere in the file. The counselor further states in his letter:

    “Also, I do not feel I have the inclination to deal with (appellant) any longer. He has obviously been abusing the system for quite a long time and it is a shame that some sort of final disposition can (sic) be initiated to end this chapter.”

    Ed. Note: TACOM was the one abusing the system, the one abusing Pletten! McLain pretended to misunderstand!

    Appellant, throughout his contact with the agency wrote letters to the agency requesting counseling. The agency fails to document appellant's alleged lack of cooperation in assessing the nature of his complaint. There is no evidence that appellant met with an EEO counselor to discuss his complaint. The record fails to show that appellant is responsible for this lack of contact. Appellant requests counseling in his formal complaint dated August 6, 1990. Appellant continues on appeal to request counseling.

    We find the record inadequate to assure us that appellant has had an opportunity for EEO counseling. We further find the record inadequate to assure that the agency did not contribute to appellant's apparent inability to obtain EEO counseling. Therefore, we remand appellant's complaint for EEO counseling.

    Accordingly, the agency's decision to cancel appellant's complaint for failure to prosecute was improper and is VACATED. See, 29 C.F.R. § 1613.215(a) (6). The complaint is REMANDED to the agency for further processing in accordance with this decision and applicable regulations.

    ORDER

    Accordingly, the agency's decision is VACATED and the complaint is hereby REMANDED for processing in accordance with the Order below:

    The complaint is REMANDED for EEO counseling with an EEO counselor to be assigned from the agency's regional EEO office.

    Ed. Note: The agency refused to obey this order.

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    The agency shall process the complaint pursuant to 29 C. F. R. §§ 1613.215-.222. A final decision shall be issued with[in] ninety (90) calendar days of the date this decision becomes final, unless the matter is otherwise resolved within that timeframe. A copy of the relevant document finalizing the complaint must be sent to the Compliance Officer as referenced below.

    IMPLEMENTATION OF THE COMMISSION'S DECISION (R990)

    Compliance with the Commission's corrective action is mandatory. The agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action by writing the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. The agency's report must contain supporting documentation, and the agency must send a copy of all submissions to the appellant.

    STATEMENT OF RIGHTS - ON APPEAL
    RIGHT TO REOUEST REOPENING

    This decision will become final within 30 calendar days from the date that you receive it, unless either party files a Request to Reopen within the thirty (30)-day period.

    The Commissioners may, in their discretion, reopen and reconsider the decision in this case if the appellant or the agency submits a written request and argument which tend to establish that:
    1. New and material evidence is available that was not readily available when the previous decision was issued; or

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

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

    Requests and supporting arguments MUST be submitted to the Commission and the opposing party within the thirty (30)-day timeframe for filing a Request to Reopen. A cross Request to Reopen, or any argument in opposition to the Request to Reopen, MUST be submitted to the Commission and the opposing party within twenty (20) calendar days of receipt of the Request to Reopen. See 29 C.F.R. §1613.235. All requests and arguments must bear proof of postmark and be submitted to the Director, Office of Federal Operations, Equal Employment

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    Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. In the absence of a postmark, the Request to Reopen shall be deemed filed on the date it is received by the Commission.

    RIGHT TO FILE A CIVIL ACTION (R990)

    This is not a final decision by the Commission on your complaint. See 29 C.F.R. §1613.234. This is a decision requiring the agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within thirty (30) calendar days of receipt of notice of final action taken by the agency on your complaint subsequent to this remand, or after one hundred and eighty (180) calendar days from the date you filed your appeal with the Commission if there has been no final Commission decision. 29 C.F.R. §1613.281(c). As to any claim brought under the Age Discrimination in Employment Act of 1967, 29 U.S.C. §633a (the ADEA), you may be required to exhaust the administrative process prior to filing a civil action, depending upon the jurisdiction in which you file. Furthermore, you may be foreclosed from filing a civil action on any claim brought under the ADEA if you fail to file within the limitations period applied by the court in the jurisdiction in which your action is filed. See Lehman v. Nakshian, 453 U.S. 156 (1981); 29 U.S.C. §633a(f); 28 U.S.C. §2401(a). This limitations period may differ from the period set out for the filing of civil actions under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq., and the Rehabilitation Act of 1973, 29 U.S.C. §791. If you file a civil action, YOU MUST STATE THE NAME AND OFFICIAL TITLE OF THE PERSON WHO IS THE OFFICIAL HEAD OF THE AGENCY NAMED IN YOUR COMPLAINT. The term “agency” means the national administrative body, and not a local office or facility. Failure to state the NAME AND OFFICIAL TITLE of the person who is the agency head may result in the dismissal of your case. Filing a civil action will terminate the administrative processing of your complaint.

    RIGHT TO REOUEST COUNSEL (R990)

    If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request that the Court appoint an attorney to represent you and that the Court permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney does not extend your time in which to file a civil action. Both the request and

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    the civil action MUST BE FILED WITHIN THIRTY (30) DAYS from the date you receive the Commission's decision.

    FOR THE COMMISSION:
    MAR 14 1991/s/Dolores L. Rozzi
    DATE
    DOLORES L. ROZZI, Director
    Office of Federal Operations

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    EEOC Decision 8 April 1994
    EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
    Office of Federal Operations
    P. O. Box 19848
    WASHINGTON, D.C. 20506



    Leroy J. Pletten,)
    Appellant
    )
    )
    v.
    )Request No. 01934758
    )DA-93-04-0114
    )
    Togo D. West, Jr.,)
    Secretary,)
    Department of the Army,)
    Agency
    )


    )

    DECISION


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    Ed. Note: See also rulings in my favor by MESC, OPM, and USACARA.