Appeal to EEOC, 22 July 1982, in Effort to Get Review to Begin, of the TACOM Decision to Terminate, Retaliating Against Pletten's Whistleblowing. The retaliation took the form of multiple violations, including but not limited to:
  • Inconsistencies and Due Process Violations Warranting Reversal: pdf, html
  • Violations of TACOM's Own Discipline Regulation: pdf, html
  • Violations Overview: pdf, html.
  • See also the Amicus Curiae Brief.
    MSPB is a federal agency with a notorious hatred and loathing of whistleblowers. It ignored all the violations, upheld the gross disregard of the controlling laws and rules. See MSPB decisions such as those of 23 June 1980 affirmed 18 June 1981 (6 MSPB 626; 7 MSPR 13), with false claims.
    On appeal, a more honest federal agency, EEOC, rejected the MSPB position, and ruled for Pletten. EEOC and debunked and challenged MSPB's false claims. EEOC decision is recorded in Docket 03.81.0087, 83 FEOR 3046 (8 April 1983).
    MSPB refused to retract its falsifications.
    This material parallels other Briefs in the series, e.g., 22 July 1982, 25 Aug 1982, 3 Sept 1982, 21 Sept 1982, and continuing into the 1990's and into 2004.
    Briefs appealing likewise to OPM include but are not limited to those of 21 March 1983, 27 July 1983, 25 Nov 1983, and 2 Jan 1985.
    There are many, as per Pletten's working full-time+ developing every evidence for seeking his reinstatement, and recording his position, for anticipated use in the EEOC forum, which TACOM was obstructing.
    For background on his work record, click here.
    For background on the unlawful ouster process, see, e.g.,
  • Violations Overview and html
  • Discipline Regulation Violations and html
  • Inconsistencies and html
  • the Amicus Curiae Brief
    More Briefs in the series will be posted as scanned. The volume is enormous, takes some time.

    • UNITED STATES OF AMERICA
    EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

    LEROY J. PLETTEN)JUL 22 1982
    )
    v.
    		)Docket No. 03.81.0087
    )
    DEPARTMENT OF THE ARMY)
    ____________________________)


    BRIEF
    Pages
    Data from the Public Domain on the Psychiatric Aspects of Smoking Behavior and Related Conditions1 - 25
    Data Showing that Reasonable Accommodation and the Required Prior Underlying Rule Enforcement Process Has Been Refused by Local Personnel and Disregarded by MSPB Despite the Legal Duties Involved26 - 42
    Data on the Local Engineering Malpractice that Gives Rise to the Situation at Bar43 - 55
    Data on Pertinent Aspects of Medical Malpractice Guidance as Tailored to the Local Situation56 - 69
    Data on the Violations in the Adverse Action as Effected in Disregard of Pertinent Rules and thus Being an Improper Removal in Substance, without the Prior Required Specifics, Advance Notice, Right to Reply, Showing of Smoking as Job-Related (which it is not), and without prior Resolution Efforts70 - 85
    Concluding Statement86 - 89
    Enclosures
    (a) 9 Apr 80 letter "to enlighten" me "on some
    procedural matters" arising from my expressed
    concern re the apparent suspension (which is
    what I thought it was);
    (b) 18 Jun 81 assertions;
    (c) 22 Jan 82 analysis.


    (pp 1-4)

    Data on conditions such as schizophrenia, paranoia, and delusions of grandeur provides insight on the assertions and behavior of culpable government employees. There is “'a certain lack of harmony, integration, and coordination between” assertions. The 23 Jul 80 [MSPB, Martin Baumgaertner] decision says that the compliance process is “'not relevant,” while the 18 Jun 81 decision [6 MSPB 626; 7 MSPR 13, Ronald P. Wertheim, Ersa H. Poston] asserts that the process is completed. The 27 Jul 80 decision upheld the local view that compliance does not have to start; the 18 Jun 81 decision pretended that the process had not only started, but that the process had come to an end before the 23 Jul 80 decision was even issued! Management refusal to even start the process is, of course, clear. The 23 Feb 82 EEOC decision [Dockets 01800273 et al.], p. 2, references the 25 Jan 80 [agency, USACARA, Norma Kennedy] “recommendation of ways the agency had to accommodate appellant”' which “'the agency failed to abide by.”

    Management locally [TACOM] agrees with the 23 Jul 80 [MSPB, Baumgaertner] claim that even beginning the process of implementing the guidance is “not relevant.” The 23 Jul 80 decision is sinister. Management has made clear to me that it refuses to begin compliance--because MSPB does not care. 0f course, management had disagreed with AR 1-8 even prior to the wrongful MSPB reaction.

    When MSPB decisions conflict so wildly (the process need not even start vs. the process has been completed), indifference to reality is clear. Clarity of thought is lost in the confusion. The lack of regard for rules reflects a serious loss of self-control on the part of deciding officials. In the real world, rule enforcement is required; so is the subsequent “reasonable accommodation” process. Disregard of such duties involves a withdrawal “from reality into a world of” their “own,” i.e., “a world of fantasy,” or a “make-believe world.” Ignoring the duty to begin the process and calling that duty “not relevant” reflects a “'marked deviation from normal human behavior.” It is certainly a “most marked deviation from normal . . . behavior” expected of deciding officials. It is “severe” when deciding officials “do not respond to and are not motivated by normal stimuli” such as rules they are responsible for enforcing.

    Pretending that the unstarted process is already completed when the installation [TACOM] officials had not even considered starting the process and thus had not started it also reflects disorientation. The assertion also arises from withdrawal “from reality into” “a world of fantasy.” EEOC on 23 Feb 82 [Dockets 01800273 et al.] noted agency opposition to even considering “the merits.” MSPB had similar evidence––the whole premise of the local input was opposition against action to “ever consider the merits.” The essence of what was needed was to “consider the merits.'” When MSPB missed the whole point, that is a “marked deviation from normal human behavior” and especially for supposedly professional deciding officials. MSPB unresponsiveness shows that the involved MSPB employees [Martin Baumgaertner, Ronald P. Wertheim, Ersa H. Poston, etc.] “do not respond to and are not motivated by normal stimuli,” including obvious. admitted opposition to “ever consider the merits.”

    Local employees opposed to the rules noted the odd MSPB behavior. They had refused compliance before, and they continued to refuse. The 23 Jul 80 MSPB [Baumgaertner] decision especially reinforced local views and guaranteed continued refusal to begin compliance thereafter. Local personnel made that fact clear.

    Page 5 of 89 pages.Affiant's initials _________


    (pp 6-7)
    Tobacco as a factor in mental illness has been recognized for some time. Dr. [Matthew] Woods in 1899 called attention to the fact that smoking “causes insanity.” The ICD-9-CM and the DSM-III [1980] continue the recognition of smoking as related to mental illness. Dr. Tennant [1981] and others have noted the link with alcoholism, another drug related behavior disturbance harmful to self and others. Dr. Kellog [1922] cited [100% correlation] data on smoker dementia praecox (schizophrenia). Data on schizophrenia [thus] provides insight into the smoker behavior directed against nonsmokers such as me.

    Insight on schizophrenia is provided in the book, Introduction to Psychology 3rd edition [New York: Harcourt, Brace & World, 1962], by Ernest R. Hilgard. At 525, the book states that “Schizophrenic reactions, by far the most common disorders among hospitalized mental patients, are so named because they represent a lack of harmony or split between aspects of personality functioning; (schizo derives from a Greek root meaning 'split or divided').” Such is “common” just as smoking has become common. The book continues, “The split is particularly noticeable between emotion and conduct . . . . Very often the patient withdraws from reality into a world of his own. The patient may have hallucinations . . . The disorder may manifest itself as early as childhood or late in life, though the most common time of incidence is in late adolescence and early adult life.“ Smokers retreat from the reality that smoking is harmful. They refuse to consider that the harm is both physical and mental. Their judgement is so severely impaired that they do not even recognize the impairment [anosognosia]. It thus is no surprise that they retaliate so savagely against me for citing the facts about their behavior. The “time of incidence” is also insightful—the same timeframe as smoking begins.

    At 525, the book provides other illuminating data. “Paranoid reactions are characterized by persistent systematized delusions. Delusions differ from hallucinations in that they are false beliefs rather than false sense perceptions. The paranoid person may react entirely normally except when his delusions are touched upon . . . . Delusions often take the form of either delusions of grandeur (the patient believes he is Napoleon) or delusions of persecution (the patient has suffered at the hands of his enemies). Paranoid symptoms are common in some types of schizophrenia . . . The delusions of grandeur are elaborate rationalizations, and the delusions of persecution are clearly projections.”

    The data on paranoid reactions is most insightful. The delusions are of a continuing thing, even for years, since they are “systematized.“ TACOM [smoker management] employees [e.g., Edward E. Hoover, John J. Benacquista, Francis J. Holt, Emily S. Bacon] thus insist I am unfit for duty in advance for years. Their paranoia arises from their obvious and stated belief that stopping endangerment and discomfort violates smokers' presumed “rights,” even though endangering and discomforting others is expressly disallowed by AR 1-8. Smoker delusions of grandeur involve their view that they can overrule grievance reports, laws, regulations, examining doctors, and everybody who disagrees with them. In a disturbed “world of his own,” each deciding smoker in a “systematized” way displays his own particular delusion or hallucination as his “world of his own” needs. Managers have delusions of grandeur [or paranoia] that they can pretend they have no authority to resolve the matter. Non-doctors [e.g., Hoover, Benacquista, MSPB and court adjudicators, etc.] have delusions of grandeur that they can disregard the examining physicians.

    Delusions of persecution are evident when smokers insist that halting the endangerment or discomfort is an “undue hardship” or somehow “cannot” be done. Such claims “are elaborate rationalizations” or “projections” as the circumstances and a hearing can show. Since such claims are from a “world of his own,” clues to the disorganized thinking process are evident in the inconsistencies, double standards, refusals to consider evidence, actions contrary to evidence, non-responsive to input, disregrard of rules, etc. Placing claims in both the accomplished and “undue hardship” categories are other clues.

    Page 8 of 89 pages.Affiant's initials _________
    The DSM-III and ICD-9 cite tobacco dependence. The 1980 Transactions of the Society of Actuaries shows smoker deaths from mental illness at a rate higher than that of nonsmokers. Smoking “causes insanity” as Dr. Woods noted in 1899. Dr. Kelloggs's book on Tobaccoism or How Tobacco Kills cites smoker dementia praecox (schizophrenia). Insight on schizophrenia is provided by authors Allen D. Calvin, et al., in their 1961 book Psychology [(Boston: Allyn & Bacon, 1961)]. At 430, the authors indicate that “The commonest of psychoses, and by all means the state involving the greatest deviation in thinking, contact with reality, emotion, and overt behavior, is schizophrenia.”

    The book continues, “In schizophrenia, reality orientation is especially weak; the patient lives in a world of fantasy.” Smokers fantasize that harm will not befall them; i.e., that they are somehow unique. People with delusions thus are clearly projecting uniqueness delusions they have by pretending that I am unique. At 430, the authors continue, “The schizophrenic patient seems to have reacted to a threatening reality by creating for himself a more comfortable make-believe world. The existence of this fantasy world is shown in delusions and hallucinations, both common in schizophrenia.” The “threatening reality” of tobacco-induced “slow-motion suicide” is cited by the many reports of the Surgeon General, the warning on each pack of cigarettes, and by the very existence of AR 1-8. In the fantasy world of schizophrenic delusions, the “more comfortable make-believe world” does not contain such threats. Such facts help shed light on the fact the decision materials from TACOM and MSPB officials do not even allude to such data. MSPB decisions do not even acknowledge the bare existence of AR 1-8. They certainly do not acknowledge the duties AR 1-8 prescribes. The AR 1-8 threat to the “make-believe world” is dismissed summarily [by] with assertions of “undue hardship.” The claim is an obvious “fantasy”; the 25 Jan 80 USACARA Report does not provide the slightest basis for belief that AR 1-8 goals constitute an “undue hardship.”

    At 430, the Psychology authors note that “Lack of appropriate emotionality is also present—the patient weeps over trivialities and is unmoved by tragic events.” The lack of proportion is obvious in the TACOM and MSPB behavior. The documents focus on “trivialities” such as supposed requests made, while utterly ignoring the multiple regulatory duties. Trivia is made grossly disproportionate in the smoker fantasy world. At 430, “Thinking may be seriously disturbed, waking-thought processes resemble those in a dream or, it is hypothesized, those of an infant.” Smoking is not allowed to cause even so “subjective” a thing as mere “discomfort.” Yet smokers and decisions insist that AR 1-8 guidance is wrong; they disagree with it, and they demand I be declared unfit for duty in advance. The “threatening reality” of having to obey rules is too terrifying to them. The idea of providing a proper environment is declared an “undue hardship” or “cannot” be done for the sake of their “make-believe world.” At 430, the book notes that “Marked distortions of normal behavior appear in the form of odd stereoyped gestures and in disturbances of speech.” Smoking comprises a series “of odd stereotyped gestures.” The DSM-III notes such “highly overlearned” behavior.

    At 430, “The patient seems farthest from normal in hebephrenic schizophrenia. His symptoms include a slow and gradual deterioration of personality. The adult hebephrenic exhibits a great deal of silly behavior . . . Speech deteriorates to the point where it resembles a 'word salad.' Peculiar mannerisms develop, and hallucinations are common.” When decision correspondence contains thoughts strewn together without regard for consistency, the concept of “word salad” sheds insight. Difficulty speaking [aphasia] sheds light on why [TACOM smoker] management refuses to begin the process of reasonable accommodation for me. Uncommunicative smokers are being overaccommodated in their [tobacco-caused brain damage] handicap.

    Page 9 of 89 pages.Affiant's initials _________
    Dr. Woods observed [by 1899] that smoking “causes insanity.” The DSM-III cites tobacco organic mental disorder. The ICD-9-CM notes tobacco use disorder. Dr. Kellogg discussed dementia praecox (schizophrenia). Information on schizophrenia provides insight on the pattern of smoker behavior directed against me. In the book Psychology for Better Living, 5th edition [New York: John Wiley], 1965, Lyle Tussing, Ph.D., notes at 356 that “the most common symptom of this disorder is the emotional apathy and indifference in the patient with respect to other individuals.” Smokers have no capacity to care that they endanger or discomfort others; that [psychiatric fact] helps explain the otherwise incomprehensible insistence that they [personally] “cannot” provide a safe environment, or that it is an “undue hardship.”

    Dr. Tussing indicates that “The second noticeable characteristic of the behavior of schizophrenics is a certain lack of harmony, integration, and coordination between their emotional and rational or intellectual activities.” That fact can provide insight into the [TACOM smoker] use of [falsified, altered, lowered] TLVs vs. AR 1-8 criteria; insistence the environment is safe while claiming it is not safe enough to let me return; placing data in both the completed and “undue hardship” categories simultaneously; etc. Dr. Tussing notes that “The third symptom that seems to characterize all schizophrenic patients is a gradual mental deterioration.” That [psychiatric fact] helps show why the reprisal pattern has intensified. That [psychiatric fact] helps show why TACOM and MSPB assertions become more and more strange and farther and farther from reality.

    Dr. Tussing notes that “Hallucinations, particularly of hearing and vision, are fairly common during the early stages . . . disorganized experience . . . clarity of thought is lost in the confusion. His explanations for his behavior are frapnentary and have a dreamlike quality. Another aspect of schizophrenic behavior that is frequently mentioned is its apparent inappropriateness.” This [psychiatric fact] sheds insight into the varied [TACOM, MSPB, and court] explanations given from time to time as to the basis for not letting me work; inconsistency between thoughts in decision correspondence as though the author could not recall one idea to the next; delusions that studies under AR 1-8 criteria have occurred; etc. P. 357 continues “. . . schizophrenia is generally broken down in subgroups: simple, hebephrenic, catatonic, and paranoid. Any two or more of these may occur at the same time or successively in the same person. Such combinations are generally referred to as dementia praecox mixed. . . .” The change in assertions from time to time may be the product of such deteriorations or variations.

    At 357, “Simple cases are marked by their apparent and long-lasting deterioration and scarcity of acute psychotic symptoms. Their indifference, their lack of judgment and foresight make them seem feeble-minded rather than psychotic. Generally, they are rather inadequate persons who seem run-down, and rarely, if ever regain interest in normal life.” The adverse effects of smoking on intelligence has long been noted. Smoker incapacity to comprehend that a smoky work environment can cause a development or worsening of health is obvions. Incapacity to comprehend that pre-17 Mar 80 events could lead to the post-17 Mar 80 events is also clear. MSPB displays clear unwillingness to consider such cause and effect aspects. Smokers rarely are capable of stopping smoking and thus normally remain hooked for life—“slow-motion suicide.” The “seem feeble-minded rather than psychotic” insight by Dr. Tussing is most illuminating. When a decision is merely arbitrary and capricious as not based upon reasons, such a thing can be committed by honest (but sane) error. Cf. McNutt v. Hills, 426 F. Supp. 990 ([D DC] 1977). A one-time error can happen. But here, the pattern for years and years raises deeper questions, Why are TACOM and MSPB assertions the way they are?

    Page 10 of 89 pages.Affiant's initials _________


    (pp 10-62)
    Data on schizophrenia and other psychoses provides insight into the assertions and behavior of culpable government employees. The 9 Apr 80 letter from EEOC official Henry Perez, Jr. noted “the agency's decision to terminate” me and concerning which I had appealed to [EEO, then to] MSPB. However, MSPB employees reviewing my appeal of “the agency's decision to terminate” me “do not respond to and are not motivated by normal stimuli.” One of the “normal stimuli” to which they did not respond is 5 CFR 1201.3 guidance on MSPB jurisdiction which includes review of adverse actions. The 23 Jul 80 MSPB decision [by MSPB Presiding Official Baumgaertner] shows “marked deviation from normal human behavior” in not only refusing to “ever consider the merits of appellant's allegations” on “the agency's decision to terminate” me, but also citing “other avenues for redress.” MSPB is the avenue for redress of adverse actions; the p. 3 reference reflects listlessness, difficulty concentrating on the duty to review, irritability at my appeal, indifference to reality and human considerations, and some sort of fantasy world of altered MSPB jurisdiction. The 23 Jul 80 decision is clearly callous.

    The 23 Jul 80 pretense of no jurisdiction to review the adverse action of “the agency's decision to terminate” me is, of course, delusional. It is based on the underlying delusion that reasonable accommodation and rule enforcement “is not relevant.”

    Ed. Note: MSPB's anti-rule-of-law behavior defies decades of case law, e.g., 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).
    Note the rule of law on person unable “to appreciate the wrongfulness of his [her] conduct,” and “to conform his [her] conduct to the requirements of the law.”—People v Matulonis, 115 Mich App 263; 320 NW2d 238 (1982)

    The [MSPB] decision expressly refused to consider accommodation under AR 1-8 such as the "recommendation of ways the agency had to accommodate appellant" by complying with AR 1-8 which “the agency failed to abide by.” EEOC on 23 Feb 82 noted the local violations along those lines. The 23 Jul 80 MSPB decision reflects the odd kind of behavior when “the patient withdraws from reality into a world of his own.”

    Ref. Ernest R. Hilgard, Introduction to Psychology, 3rd ed (New York: Harcourt, Brace & World, 1962), p 525.

    With such people, one tragic effect is that “Their indifference, their lack of judgment and foresight make them seem feeble-minded rather than psychotic. Generally, they are rather inadequate persons who seem run-down, and rarely, if ever regain interest in normal life.”

    Ref. Lyle Tussing, Ph.D., Psychology for Better Living, 5th ed (New York: John Wiley, 1965), p 357.

    A tragic consequence of dealings with such “inadequate persons” is harm to those around them and who come in contact with them. In my case, the harm has been to me and to my career, as well as the harm of impaired efficiency for my installation by the loss of my duty time. Loss of efficiency caused by smoking is also prohibited by AR 1-8; that prohibition is also being ignored.

    Reference in the 23 Jul 80 MSPB decision to “other avenues” is delusional in another way. It is based on the fantasy world idea that insane smokers who refuse to enforce rules would consent to having their deranged behavior reviewed. Smokers are a danger to themselves and others; insane people who are dangerous are to be restrained by force if necessary.

    Ref. Jacobs v Michigan Mental Health Dept, 88 Mich App 503; 276 NW2d 627 (1979).

    Having mentally ill people investigate themselves when they refuse to honor the first investigation (25 Jan 80) is senseless and reflects indifference to reality. The fact of "the agency's decision to terminate" me instead of implement that Report put MSPB on notice of the absurdity of the reference to “other avenues.” Indeed, malicious smokers went to extremes to prevent action to “ever consider the merits,” as the 23 Feb 82 EEOC decision noted. Veal v. Califano, 610 F.2d 495 at 498 ([CA 8] 1979), provides insight pertinent to the MSPB remark on “other avenues,” “this statement is most likely the rationalization of a sick individual.”

    Page 22 of 89 pages.Affiant's initials _________


    (p 23)
    "The flat earth people have more company than we know of."

    People are entitled to safe conditions and the government doing its duty in all locations, not just in one room (if that), as the 25 Jan 80 USACARA Report notes. AR 1-8 is an Army-wide rule, not just for my room. Cf. Sleeper v. Sandown, 52 N.H. 244 (1872), and Missouri ex rel. Gaines v. Canada, 305 US 337 [59 S Ct 232; 83 L Ed 208] (1938). On 23 Feb 82, EEOC noted [at p 2] that “the agency failed to abide by the” USACARA Report. The March 1981 Michigan Law Review [Vol. 79 (Issue # 4), pp 754-756 at 754, review of Mental Disabilities and Criminal Responsibility by Herbert Fingarette and Anne Fingarette Hasse (Berkeley: Univ of Calif Press, 1979)] states that “criminal actions resulting from mental disease are often purposeful, intentional, and ingeniously planned.” One [TACOM-MSPB] reason for refusing enforcement of AR 1-8 despite the many employees who want it enforced is that such unIawful management behavior “sets up an unjustified clash of interests . . . to reduce the likelihood and the effectiveness of their [fellow employees] holding in concert to achieve their legitimate [pro-law] goals." The savage and viciously sadistic reprisal against me is a warning to others; "discrimination creates in its victims an apathy or docility whuch inhihits them from asserting their rights against the perpetrator of the discrimination." See United Packinghouse, Food & Allied Workers v. NLRB [135 US App DC 111], 416 F.2d 1126 (D.C. Cir. 1969) [cert den 396 US 903; 90 S Ct 216 (1969)]. Such unlawful [TACOM-MSPB] motives help to explain the multiple intentional false claims by both TACOM and MSPB.

    Ed. Note: For background of the sadistic and vicious federal policy of reprisal, see documentation by, for example:

    David W. Ewing, "Canning Directions: How the Government Rids Itself of Troublemakers," Harpers 16, 18, 22 (August 1979)

    Thomas M. Devine and Donald G. Aplin, “Abuse of Authority: The Office of the Special Counsel and Whistleblower Protection," 4 Antioch Law J 5-71 (Summer 1986)

    Thomas M. Devine and Donald G. Aplin, “Whistleblower Protection--Gap Between Law and Reality," 31 Howard Law J (#2) 223-239 (1988).

    Peter Lance, 1000 Years for Revenge: International Terrorism and the FBI: The Untold Story (New York: Regan Books, August 2003), pp 172, 214, and 373-374.

    Threats and events of reprisal are common throughout Federal Civil Service; see the government's own MSPB Retaliation Rate Study (December 2000) www.mspb.gov/studies/00decnws.pdf, citing a seven - twelve per cent retaliation rate, meaning hundreds of thousands of incidents.

    The scientific evidence on smoking shows “no safe level of consumption” and “no level of tobacco smoke exposure below which there are no human effects.” Those facts notwith standing, local employees such as Braun and Shirock for their own personal reasons pretend there is no hazard. They fraudalently manipulate scientific evidence on TLVs and ignore the synergistic aspects in a twisted effort to support their own purposes. The weak, ineffective, and ignored Dr. Holt tries to play it both ways. In writing to management, he asserts the environment is safe, for that is what management wants to hear. Yet as a doctor, he knows better, so he tells USACARA examiners about the nature of the hazard including the fact “that inhalation of tobacco smoke whether 'mainstream' or 'ambient' constitutes an endangerment to Mr. Pletten as well as to any other employee,” p. 7 of USACARA Report 12 Dec 80.

    Messrs. Baumgaertner, Wertheim, etc. also know better. MSPB decisions clearly avoid saying that the environment is safe. MSPB prefers decisions by innuendo.

    Claims that smoking is safe are as nonsensical as claims that the earth is flat. The Detroit Free Press, 12 April 1982, p. 12A, discusses the dangers of smoking. The absurdity of efforts to defend smoking is cited. Such “opinions indicate that somewhere, somehow, support can be found for the most unlikely proposition.“ Also, “smoking is in such disrepute that smokers are hard put to find somebody to defend their habit.” (If TACOM looks hard enough, they might be able to find some crackpot somewhere [MSPB, OSC, judiciary.) Also, “The flat earth people have more company than we know of."

    The latter statement does not apply to [RICO] MSPB. MSPB carefully avoids saying that the environment is safe. Yet a finding on safety is precisely what is needed. TACOM has repeatedly been invited to back up the local claims of safety by letting me return. Since the many doctors statements repeatedly confirm that I am ready, willing and able to work, all that is needed is that TACOM believe its own claims. Admittedly, MSPB refuses to say “specifically and directly” that the TACOM claims of safety are true. Out of its own words, MSPB does not want the crackpot label pinned on its officials such as Messrs. Baumgaertner, Wertheim, etc. But their innuendos about safety do suggest the fact they so much want to avoid. Their insistence on supporting a medically impossible duration simply hits the nail on its head.

    There is no escape for MSPB. Views as absurd as a “flat earth” idea show their possessors for what they are.

    Page 24 of 89 pages.Affiant's initials _________


    (pp 25-30)

    Sleeper v. Sandown, 52 N.H. 244 (1872), shows the error in the pretense that providing a safe environment need not be done, “cannot” be done, and/or is an “undue hardship.” Such claims are invalid as a matter ot lap. At best, they are matters of fact in the official situation. As “private conduct,” having no privilege, Shelley v. Kraemer, 334 US 1 [68 S Ct 836; 92 L Ed 1161] (1948), there is no privilege, and it is to be overturned. Enforcing law is a fundamental function of government, Kelley v. Johnson, 425 US 238 [96 S Ct 1440; 47 L Ed 2d 708] (1976). A fundamental purpose is not an “undue hardship.” Duty is another fundamental principle. See Heaven v. Pender, 11 Q.B.D. 503 (1883), “. . . whenever one person is by circumstances placed in such a position with regard to another . . . and if he did not use ordinary care and skill in his own conduct . . . he would cause danger or injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger.”

    The Heaven v. Pender case uses words similar to AR 1-8 on the matter of protecting life and property from smoking. The safety duty is “unqualified and absolute.” Yet [TACOM] management refuses to take any measures to resolve the danger, pretending that the use of even “ordinary care and skill” is an “undue hardship.” Studying a couple of irrelevant TLV’s and disregarding the synergistic aspects which AR 1-8 includes in its scope is certainly not “ordinary care and skill.” Until [TACOM] management begins to fulfill that process, the “reasonable accommodation” process (which presupposes that regular rul enforcement processes have been completed) has clearly not begun. Cf. Payton v. U.S., 636 F.2d 132 (5th. Cir. 1981), relative to right to expect vigorous regular enforcement and protection efforts as an initial duty.

    The Surgeon General and others have made clear the overwhelming enormity of the danger of tobacco poisoning. There is no known safe level, and it is the most important health issue of our time. Prudence dictates that nonsmokers avoid exposure to second hand smoke to the extent possible. AR 1-8 sets the standard of care––no endangerment. [TACOM’s] Dr. [Francis J.] Holt’s behavior does not conform to that standard of care.

    The Department of Health and Human Services publishes NIH Publication No. 80-568, Science and Cancer, Third Revision 1980. P. 48 states “This cancer epidemic is related to two factors. The major one, amounting for over 70 percent of the increase in the United States, is cigarette smoking, with other forms of tobacco having a lesser role. . . The identification of cigarette smoke as a major cause of lung cancer and other lung diseases ranks as one of the major scientific discoveries of this century, equivalent to the 19th century discovery of water pollution as a cause of many gastrointestinal diseases such as typhoid.” Rejection of such data is tantamount to insistence that the earth is flat. Cf. the Detroit Free Press, 12 April 1982, p. 12A, “The flat earth people have more company than we know of,” rejecting a foolish defense of smoking. While TACOM officials such as Messrs. Shirock, Braun, and sometimes Holt are evidently willing to bear a crackpot label by their impassioned defense of the safety of smoking, MSPB avoidance of saying the TACOM environment is safe is clear. An MSPB finding on that point is conspicuous by its absence. [These statements are pre-bribery awareness.]

    It is not legal to harm or poison people. Cf. State v. Giles, 183 Neb. 296, 159 N.W.2d 826 (1968), and People v. Carmichael, 5 Mich. 10, 71 Am. Dec. 769) (1858). These cases enforce fundamental principles. Tobacco is far more dangerous than the substance [lye] cited in Tatum v. U.S. [71 App.D.C. 393], 110 F.2d 555 (D.C. Cir. 1940). Tobacco is being used as a weapon to keep me off-post. It is being used as a dangerous weapon. Had AR 1-8 been enforced in a timely manner, such would still be the case for other persons even if not for me. But now, the principle applies––take the victim as he comes. Cf. Brown v. U.S., 256 US 335 [41 S Ct 501; 65 LEd 961] (1921), for defense rights against an immediate threat.

    Page 31 of 89 pages.Affiant's initials _________


    (pp 32-37)

    The 23 Feb 82 EEOC decision [Dockets 01800273, et al.] noted “the recommendation of ways the agency had to accommodate appellant.” The “recommendation” was the product of the grievance initiated 18 June 1979. Under FPM 771 guidance, resolution is to be completed in 90 days. The agency had ignored that guidance, and other aspects as well, as noted on p. 3 pf the 25 Jan 80 Report. From 18 Jun 79 - 25 Jan 80 is significantly in excess of 90 days. When an agency violates rules, an employee (such as myself) is unduly burdened, including trying to obtain redress in other presumably more efficient channels. EEOC noted that aspect as what I did “Simultaneously'' and subsequently, including that “appellant sought EEO counseling. . . .” If the grievance had been processed in accordance with the FPM 771 time limits, such may not have had to come about.

    However, the agency disconnect became so much and so transparent that EEOC on 23 Feb 82 in analyzing the events of that period was able to conclude that “ In none of the appeals pending . . . did the agency ever consider the merits of appellant's allegations.” The reason for disregarding the merits was that “the agency failed to abide by the” Report, which had noted that the agency had failed to abide by its regulation on smoking. The incidents of wrong doing continued; they had occurred before the 25 Jan 80 Report; and they continued after it.

    Refusal of compliance with time limits is tantamount to the unlawful/unauthorized “repeal” of such time limits as well as “repeal” of the right to redress. (See ["Injunctions Against Occupational Hazards: The Right to Work Under Safe Conditions"] 64 Cal. Law Rev. 702 (1976) citing judicially cognizable use of the concept ot unlawful “repeal” and rejecting such unlawful “repeal” as improper. American Zinc Co. v. Graham, 132 Tenn. 586, 179 S.W. 138 (1915).)   When the grievance was not processed properly, and when violations continued, I “sought EEO counseling” on the incidents that gave raise to the formal complaint dated 12 June 1980. That case was in process “simultaneously” with the much-delayed grievance. That case covered lated Dec 79 - early Jan 80 incidents. (The grievance covered incidents up to the filing date of 18 Jun 79). If the agency were interested in resolution, it would have implemented the 25 Jan 80 USACARA Report, thereby making the resolution of the late Dec 79 - early Jan 80 incidents simple.

    When the 25 Jan 80 USACARA Report, received in Feb 80, was not implemented, that fact became apparent to me thereafter. It was only a matter of days before management made clear to me that the Report would not be implemented. EEOC alluded to this, in the 23 Feb 82 decision [Dockets 01800273, et al.], in saying that “When the agency failed to abide by the arbitration, appellant filed even more EEO complaints.” The refusal of implementation of the Report became a new cause of action, separate and distinct from the underlying regulatory violations. The new cause of action led to the case known as the 23 Jun 80 formal complaint, Docket No. 01801850. Any confusion of the two cases arises from the installation disconnect, including the interference with EE0 counseling already noted. It is significant that while the agency rejected the 23 Jun 80 case as a pretended duplicate, it refused to process the 12 Jun 80 case. EEOC may have noted that the 12 Jun 80 case is not among those considered 23 Feb 82. Truly, the agency utterly opposes review on the merits!

    Page 38 of 89 pages.Affiant's initials _________


    (pp 39-63)
    Tarasoff v. Regents of U. of California [17 Cal 3d 425], 131 Cal. Rptr. 14, 551 P.2d 334 ([July] 1976), provides insight.
    "When a doctor or a psychotherapist, in the exercise of his professional skill and knowledge, determines, or should determine, that a warning is essential to avert danger arising from the medical or psychological condition of his patient, he incurs a legal obligation to give that warning."
    In this case, Dr. Holt refuses to warn management of the danger; he pretends such action is "not" his "province." He refuses to examine smokers who cause endangerment to determine if they are suffering any of the known smoker mental illnesses; he refuses to take preventive steps such as confining them or declaring them unfit for duty. He fails to initiate action to have them declared "not ready, willing and able to work." Indeed, he perpetrates a double wrong. He refuses to act even when other doctors call his attention to the need to act. He ignores the duty to act, even when USACARA called such duty to the attention of all, on 25 Jan 80. Dr. Holt ignores AR 1-8 and rules such as the FPM Suppl. 752-1 guidance against posing a danger to self or others—a rule smokers routinely break. Even worse, he has engaged in reprisal against me.

    [The article by Prof. Alfred Blumrosen, et al, "Injunctions Against Occupational Hazards: The Right to Work Under Safe Conditions"] 64 Cal. Law Rev. [#3] 702 at 707 ([May] 1976) uses the phrase "fits comfortably within existing principles of equity" to describe application of new guidance with old concepts. A physician can be held responsible for negligently failing to diagnose tuberculosis when family members were thereby placed at risk, Hoffmann v. Blackmon, 241 So.2d 752 (Fla. App. 1970). Dr. Holt has cleared taken no steps to diagnose conditions such as smoker schizophrenia, tobacco dependence, delusions of grandeur, tobacco organic mental disorder withdrawal syndrome, paranoia, etc.

    It is wrong for a doctor toIt is clearly wrong to give management wrong data that the rules are being complied with, that smoking is not a hazard, that no employees have a smoker mental disorder, that ill effects of smoking do not spread to others, [while not saying] that ambient smoke can aggravate and trigger asthma episodes, that ambient smoke can initiate disease such as lung cancer, that ambient tobacco smoke can be fatal to certain individuals, that the sensitivity to tobacco smoke is common, that tobacco smoke can change healthy non-smokers to sick, that smokers are dangerous to themselves, that smokers have higher suicide and mental disorder and auto accident death rates, etc., etc. Obviously, the AR 1-8 goals are not being complied with; and the installation physician has not been willing to say that. He has, instead, repeatedly claimed the opposite. As a physician, he knows better. Ignorance is not an excuse. Scienter is not an excuse; it is an offense. Scienter is not an excuse; it is a violation.

    Even if smoker mental disorders were "confidential," the duty to society is paramount. See Simonsen v. Swenson [104 Neb 224], 177 N.W. 831 [9 ALR 1250] (Neb. 1920). The rights of healthy people have priority. That is the AR 1-8 philosophy. Smokers are not allowed to make people ill.

    Page 63 of __89___ pages.Affiant's initials _________


    (pp 64-69)
    Multiple Violations in the Adverse Actions

    Smoking is personal behavior. Mr. [Edward] Hoover, a smoker, has ridiculed AR 1-8 and the 25 Jan 80 USACARA Report in my favor. In a case involving his personal interests so directly and strongly, each was an insensitive and indeed, knowingly provocative, behavior that should have been avoided. Cf. Offutt v. U.S., 348 US 11 (1954). The [abuse] is especially clear considering the 23 Feb 82 EEOC assesment of the wrongdoing in the late 1979 - early 1980 period. Mr. Hoover's behavior in removing me for an improper reason (personal desire to smoke) is yet another example of wrongdoing in that period. An independent reviewing official analyzing that period used the past tense each time he referred to my employment with TACOM. It is significant that the analysis of the July 1979 - February 1980 period was conducted by that independent reviewing official in the March - September 1981 time period. Already my employment with TACOM was obviously in the past tense.

    Other independent analysts also have noted aspects of the local pattern. MESC provided me unemployment benefits for January - November 1981. See Decision B81 09032, 30 July 1981, rehearing denied, 2 September 1981. It is clear that Mr. Hoover decided to remove me once I won the 25 Jan 80 USACARA Report at the time “When the agency failed to abide by the arbitration, appellant filed even more EEO complaints,” an analysis from the EEOC decision 23 Feb 82, p. 2. Placing me on sick leave for a medically impossible duration was a way of achieving my removal in substance. Thus, EEOC noted that “The record indicates that as early as February, 1980, appellant was denied EEO counseling and prevented from filing further complaints.” In [TACOM] management's mind, I was already fired. They had not accommodated me [the term to avoid saying rule enforcement] as an employee; they clearly saw no reason to accommodate me [obey the rules] as (in substance) an ex-employee. [They dealt with the class action aspect by ousting me, to imtimidate coworkers].

    FPM Suppl. 752-1, S4-4a, commands “A notice must make it clear that it concerns only a proposed action and not a matter already decided (see Elchibegoff v. U.S.).” Claims about what “cannot” be done are not merely "proposed"; they are final and already decided [by TACOM]. (Indeed, they are made directly in defiance of the 25 Jan 80 USACARA Report.) Claims that [falsified] OSHA TLVs are to be used instead of AR 1-8 criteria are not merely “proposed”; they are clearly “already decided” even though the USACARA Report considered such [falsified] studies “no evidence” of compliance. Claims that are made so emphatically for such an extended duration are clearly “already decided.” The 28 March 1980 [ouster] letter from Mr. Hoover is the same in substance as the perfunctory notice given to Elchibegoff, cited at 106 Ct. Cl. 541 at 544 [1946].

    Like that employee, I too have sought to obtain the specifics. Each level has given different reasons, none specifically. The words of pp. 558-559 come to mind: “Plaintiff asserts that his discharge was illegal and was in effect no discharge at all because the matter was determined without first setting out the charges in specific and definite form.” Here, no charges have ever been made. What claims of accommodation rule compliance] “were later made, they were made after the matter was determined.” Such behavior is wrong under civil service guidance [e.g., 5 USC § 7513 and 5 CFR § 752], and indeed, under guidance in all forums of due process. The Nat'l Rlty. & C. Co., Inc. v. OSHRC [160 US App DC 133], 489 F.2d 1257 at 1267 (1973) case shows an example of after-the-fact [agency] ideas. The Court rejected them since they “came too late in the proceedings. . . . unfairly deprived . . . when it [the accused] learns the exact nature [of specifics] . . . only after” the right time frame [notice letter]. An “empty record” is not acceptable. MSPB ignores such guidance. The Court language in Brennan v. OSHRC, 491 F.2d 1340 at 1343 ([CA 2] 1974) is insightful: Normal Court practices against retroactive invention of reasons “seems far better calcalated than the” MSPB's “to achieve the congressional goal” in requiring advance statement of reasons as a measure in dealing with federal employees.

    Page 70 of 89 pages.Affiant's initials _________
    On 9 April 1980, Henry Perez, Jr., “advised that I am not now [April 1980] in a position to interfere with or disrupt the agency's decision to terminate you.” As a local EEOC representative, he was “not . . . in a position to” review the personal “decision to terminate” me, unless a formal EEO complaint were allowed to be processed by the local smokers. The 23 Feb 82 EEOC decision shows that local smokers used various improper tactics to interfere with and obstruct the [my] right to secure review [of] the late 1979 or early 1980 “decision to terminate” me. At 3 [EEOC said], "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” of the cases, cases caused in part by “the agency's decision to terminate” me without regard to the advance notice and specificity rules.

    The 23 Feb 82 EEOC decision also accurately noted that “In none of the appeals . . . did the agency ever consider the merits of appellant's allegations.” It is clear that smokers reacted as they did for the purpose of obstructing and preventing a finding that “the agency failed to abide by the” 25 Jan 80 USACARA Report, so “appellant filed even more EEO complaints,” in retaliation for which “the agency's decision to terminate” me came about by early 1980 (17 March) at the latest. Local smokers continued that pattern in dealing with MSPB. The insistence that MSPB lacked jurisdiction to review the merits of “the agency's decision to terminate” me by early 1980 is particularly reprehensible since MSPB jurisdiction expressly [5 CFR § 1201] covers adverse actions. EEOC noted [23 Feb 1982] that “The record indicates that as early as February, 1980, appellant was denied EEO counseling and prevented from filing further complaints,” p. 2 of the 23 Feb 82 decision. The “decision to terminate” followed immediately thereafter or in the same time frame.

    The many reprisals and interferences are clear. Improperly rejecting cases is but one example. Refusing counseling is but one example. Using erroneous information, miscalculations, and other misrepresentations show other examples. The adverse action is another example. It is clear that local smokers do not consider themselves duty-bound to obey rules and laws. [Cf. People v Matulonis, 115 Mich App 263; 320 NW2d 238 (1982).] It is clear that local smokers do not consider themselves duty-bound to honor facts and evidence.

    When smokers are willing to punish nonsmokers for seeking rule enforcement, it is clear that the “craving for tobacco” is intense. That intense “craving for tobacco” explains why local smokers refused compliance and “failed to abide by the” 25 Jan 80 Report. It is also clear why AR 1-8 strips management of the authority to decide nonsmoker endangerment, discomfort, etc., and why AR 1-8 envisions a personal standard [empowers nonsmokers to make the decision]. Smokers simply refuse to cooperate voluntarily. Indeed, smokers choose “to terminate” nonsmokers rather than comply. If smokers were allowed to decide, there would be no protection for nonsmokers. That fact explains why it is Army policy that AR 1-8 envisions a personal standard [empowers nonsmokers, the DoD and Army policy]—against which local smokers are so insubordinate.

    Page 71 of 89 pages.Affiant's initials _________
    Elchibegoff v. U.S., 106 Ct. Cl. 541 (1946), petition for cert. dismissed, 329 US 694 (1946), provides insight. At 560, the Court noted that, “When all the facts of this case are taken into consideration it is difficult to find that there was a real compliance with the terms of the law and the rules.” My case is far more obvious. In my experience as a personnel specialist, the officials purporting to be acting for the government have committed more violations of laws and rules than in any situation of which I am aware. The Court noted that “The law was enacted for the protection of the employees and to assure a fair consideration of their rights. . . . To construe the . . . [alleged notice] letters as a compliance with the law when each of them contains the statement that the matter has already been determined is almost to make a mockery of the provisions of the [advance pre-decision notice] law.” In the case at bar, the multiple rules (safety, mental health, alcoholism, smoking, etc.) were made for the protection of the public and co-workers from dangerous co-workers. There is absolutely no provision for adverse action against the victim instead of resolving the situation by initiating rule enforcement [against the pereptrators causing hazardous conduct].

    The many letters confirm that the decisions have long ago been made. Local officials for personal reasons have long ago determined to use [falsified] TLVs [contrary to Surgeon General data] instead of AR 1-8; to deny authority to enforce AR 1-8; to stonewall at every step; to refuse to process cases; to consider every reviewer wrong who supports my position, etc. MESC supports my ability to work; res judicata applies. EEOC on 23 Feb 82 noted that “. . . the agency failed to abide by the . . .” 25 Jan 80 USACARA Report. Invoking res judicata on that aspect “seems far better calculated . . . to achieve the congressional goal . . . .” My affirmed good health (ability to work) combined with the fact of the non-implementation of the 25 Jan 80 USACARA [Report] leave nothing of substance to bar immediate cancellation of the adverse action pattern up to and since l7 March 1980.

    The Court in the Elchibegoff case at 561 noted that “it seems in going over the entire record that the plaintiff allowed no grass to grow under his feet. If there ever was a case in which a man was active in trying to secure his rights, the plaintiff was in this instance. He protested all over the place.” My efforts to secure compliance with the rules would be foreseeably effective, thus [TACOM] management [with ex parte arranged MSPB connivance] determined on a course of obstruction. The 23 Feb 82 EEOC decision shows one tip of that iceberg of obstruction. Management's guilty knowledge of the [disciplinary and criminal law] consequences of what would happen to them once reviewers noted their pattern of misconduct prompted them to embark upon a campaign of multiple savage reprisals, including but not limited to the long-term suspension tantamount to removal, the psychiatric examination [contrary to Standard Knapp v IAM, 50 LA 833 (1968) guidance], false claims to MSPB and others, disregard of the MSPB-asserted accommodations, etc., etc. By gross delays, miscalculations, and obstructions, management sought to exhaust me, long before I exhausted administrative channels. Halting all review on the merits would prolong administrative stages interminably. Their only hope was that I would give up, so their [illegal] use of their positions to defend their personal behavior would succeed by default.

    “The record precludes any other reasonable conclusion than that no consideration whatever was given to plaintiff's answer and justifies a finding that it was not even seen by the personnel officer before the action was made final.” The violation in my case was even more gross than with Elchibegoff. He at least received a few days advance notice. The action against me was made retroactive. It is impossible to visualize a more clear situation wherein “the matter has already been determined.” Elchibegoff at least had a few days to dispute the matter before the already determined matter would be effective by its own terms. It is clear that [in my case] local [TACOM] employees acted for their personal reasons “without any real consideration for the rights of the plaintiff.”

    Page 72 of 89 pages.Affiant's initials _________

    Knotts v. U.S., 121 F.Supp. 630 ([Ct. Cl.] 1954), is another case wherein a federal employee (also a classification specialist) was punished for supervisory “personal” reasons. That action was taken for a friendship case; a supervisor wanted a friend in the job. Smoking is far more deeply embedded in the mind. It involves their very own personal mannerisms. Those odd [stereotyped] gestures involved in smoking are “highly overlearned” as the DSM-III notes. Alcoholics can resist rehabilitation. Smokers clearly vehemently resist rehabilitation. The smoker suicide rate is high. The medical evidence of a long-standing duration shows smoker apathy towards their fellow man. Their desperation is directed inward and is self-centered. They clearly will to act most viciously to be allowed to carry on their deviant behavior, and woe to whomever gets in their way. Smokers do not see very willing to act on behalf of others. Suicide certainly hurts others, including their family and friends and those closest to them. Yet that does not deter their excessive and disproportionate suicide rate.

    The Knotts case involved adverse action for what smokers would consider mere friendship. Smoking is far more important to smokers, certainly far more important than mere human beings. Smoking is clearly more important to smokers than life itself. It is thus obvious that they have no concern for “the good of the service.” AR 1-8 forbids letting smokers get out of hand so as to harm nonsmokers. AR 1-8 makes clear the proper emphasis on “the good of the service.” The 25 Jan 80 USACARA Report noted the full authority and duty to comply. Supervisors who should have implemented that report disagreed with it, ridiculed it, and manipulated the agency [TACOM] for their personal reasons. The result was, as EEOC noted [Dockets 01800273 et al.] on p. 2 of its 23 Feb 82 decision that “. . . the agency failed to abide by the . . .” Report, “appellant filed even more EEO complaints,” and the culpable offenders decided to take adverse action against me to get rid of me.

    Courts recognize legally cognizable harms, worthy of judicial protection. One basic principle is the right to the inviolability of one’s body. See 1 Restatement, Torts 2d Sec. 18. Intrusions far more limited than in my case have evoked judicial response in a wide variety of contexts. See e.g., Alcorn v. Mitchell, 63 Ill. 553 (1872) (single instance of spitting in the plaintiff 's face); Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627 (Tex. 1967) (single instance of snatching plate from the plaintiff’s hand, accompanied by racial slur); etc. The local offenders know how easy it would be to remove them under civil service rules [for their repeated violations]. See e.g., Ruffin v. U.S., 144 Ct. Cl. 689 (1959) (a single “slapping incident”). The decision cites no evidence of harm disabling the federal employee who was slapped. The Court said “It would indeed not only promote the efficiency of the . . . Department, but all other services if persons resorting to violent acts were dismissed for that reason.” It would promote efficiency and AR 1-8 goals on smokers not endangering and discomforting nonsmokers if smokers were dismissed when they perpetrated such violations. The Court said, “we can find noting improper in this action” [removing the slapper].

    When the Knotts and Ruffin cases are juxtaposed, it is clear why smokers take such savage reprisal against me. It is clear why I am falsely identified by Emily Bacon (the personal lawyer for the culpable smokers) in her 29 Apr 80 letter as other than the victim. Her letter directly contradicts the [25 January 1980] USACARA Report, which clearly has not been implemented. If smokers admitted their behavior were the source of the hazard, adverse action against them would follow as a matter of course. It is clear that smokers are using a pattern of falsification and deceit in order to divert attention from the real problem. Such is “personal” and wrong.

    Page 73 of 89 pages.Affiant's initials _________

    Prohibited Personnel Practices

    Violation of Regulations

    CPR 771/FPM 771A grievance report is to be implemented once USACARA makes recommendations, unless the local Command asks permission of Headquarters otherwise. [See Army Regulation CPR 700.771, and Spann v Army, Gen. McKenna, et al., 615 F2d 137 (CA 3, 1980).]   Local [TACOM] officials have acted in bad faith by pretending acceptance while denouncing the Report. As the local Command [TACOM] did not appeal the 25 Jan 80 Report, res judicata precludes disregard. The time limits for appeal have also expired. Yet [TACOM] management objects to the Report. Examples of USACARA statements objected to by local [TACOM] officials are the following:

    		 
    P. 6:“. . . smoking will be permitted only if ventilation is adequate to remove smoke from a work area and provide an environment that is healthful.” (under scoring provided by the Examiner)

    		 
    P. 6:“‘Army Regulation 1-8 does give officials the authority to ban smoking in areas under their jurisdiction . . . .’” The Examiner also called local [TACOM] attention to AR 600-20.2-1.

    		 
    P. 7:“Mr. Pletten has established that, insofar as he personally is concerned, smoke does constitute a safety hazard to him." (This precludes charging sick leave.)

    		 
    P. 9:“. . . the [TACOM] reply that the [TACOM] Commander has no authority to act appears to be not wholly accurate.”

    		 
    P. 10:“. . . the smoking of tobacco can constitute a hazard to health . . . an equitable balance between the rights of nonsmokers and those of smokers . . . cannot be accomplished by relocating one nonsmoker. . . . No evidence was offered to indicate that the Command [TACOM] had considered the rights of all nonsmokers.”

    		 
    P. 12:“Thus, it is clear that the rights of smokers exist only insofar as discomfort or unreasonable annoyance is not caused to nonsmokers. . . . whether or not an individual is discomforted by smoke is a personal determination to be made by that individual.”

    		 
    P. 13:“The Commander is not as devoid of authority as [TACOM Chief of Staff] COL Thomas’ letter indicates.”

    		 
    P. 14:“The Commander has the authority . . . to ban all smoking or take whatever action is necessary to control smoking in areas under his jurisdiction . . . .”

    		 
    P. 14:“That the Commander initiate an air content study . . . .”

    		 
    P. 15:“That the Commander take further action necessary . . . Ventilation in Mr. Pletten’s immediate work area to be evaluated periodically.”

    Officials who have expressed disagreement with some or all of the above include but are not limited to John Benacquista, Evelyn Bertram, Francis Holt, Archie Grimmett, Edward Hoover, Frank Ortisi, Emily Bacon, Carma Averhart, David Stallings, Edwin Braun, Robert Shirock, Charles Phillips, Constantine Thomas, James Best, etc. [thereafter aided and abetted by MSPB, DoJ, etc.].

    The purpose of such disagreement is to evade compliance, use tradition instead of rules, continue to over accommodate smoking, refuse implementation of the “unqualified and absolute” safety duty, insist on medical clearances instead of “personal determination,” insist correction “cannot” occur or is an “undue hardship,” etc.

    Page 74 of 89 pages.Affiant's initials _________


    (pp 75-89)

    Prohibited Personnel Practices

    5 USC § 2302 specifies prohibited personnel practices including but not limited to violations committed in this case. Example 6 has been violated in numerous ways. Example 6 prohibits grating unauthorized preferences or advantages intending to harm or improve “the prospects of any particular person for employment.” The prohibition includes altering “the requirements for any position.”

    Examples of the violations of the cited clause include but are not limited to:

    (a) inventing a non-existent qualification standard from which to disqualify me. [See OPM verifications 30 Jan 1984 and 2 June 1989.] TACOM has invented a requirement requiring me to choose to smoke.   Synonyms for the non-existent requirement include but are not limited to requiring me to accept being endangered, discomforted, and/or unreasonably annoyed; to stop seeking rule enforcement; to disregard the past misconduct and reprisal; etc. The Command [TACOM] insists I must accept smoke as though it were a condition of employment. My request for hazard pay under 5 CFR § 550.I is ridiculed. Yet, tobacco smoke is not a condition of employment, and is certainly not a part of the duties of a Position Classification Specialist, GS-12. When my co-worker Evelyn Bertram filed OWCP Case A9-190131 based on tobacco-induced injury, her supervisor admitted that “She is not exposed to fumes, chemicals, or other irritants as a condition of her work.” The 25 Jan 80 USACARA Report had addressed and relieved my concern that such a “condition” or “requirement” would be invented to use against me; my concern arose from the initial medical statement concerning me––“Patient is unable to work within 25 feet of people who are smoking”––issued by Dr. Pollak 11 May 1979. At p. 9, the 25 Jan 80 Report noted this, “Furthermore, suitability and qualification standards established with respect to federal employment do not identify the personal habit/choice to smoke or not smoke tobacco as germane.” Shimp v. N. J. Bell Telephone Co. [145 N. J. Super. 516], 368 A. 2d 408 at 411 (1976), had said likewise, calling smoke “a nonnecessary toxic substance.” Such is in line with the numerous Court decisions in worker compensation cases filed by smokers, i.e., that smoking is “personal.”

    (b) trying to get me to leave TACOM “voluntarily”––by pressuring me to seek to induce the equivalent of, or an actual, involuntary resignation. A pattern of such efforts is alluded to in the 28 March 1980 DF by [supervisor] Carma Averhart, and the 29 April 1980 letter by [TACOM attorney] Emily Bacon. Ms. Averhart complained that “Mr. Pletten continued to report for duty . . . refuses to request leave” from which it is clear there would be no return. Because I refused to resign or “request leave,” and unlike Mrs. Bertram, demanded rule enforcement assertively and effectively (with USACARA), the Command [TACOM] chose to get rid of me by forced leave. Ms. Bacon admitted that “the action here being appealed was one which was brought about by Mr. Pletten.” Indeed––for I refused to stop seeking rule enforcement, and refused to go away voluntarily.

    (c) TACOM grants preferences to smokers in opposition to AR 1-8.   AR 1-8 precludes smoking from harming non-smokers’ prospects for employment by being endangered, etc., by smoking. TACOM intentionally and knowingly allows endangerment, in full awareness that foreseeable harm and endangerment will result. The harm is foreseeable based on the available evidence of an overwhelming nature, including but not limited to AR 1-8, the many smoker-filed compensation cases, the smoker-filed product liability cases, the cases filed by non-smokers for unemployment compensation and other relief, and last but not least, the many reports of the U.S. Surgeon General. The preferences include disregard of rules on courtesy, smoking, safety, health,   alcoholism,   mental illness,   littering, loafing, endangering self and others, etc.

    Page 75 of 89 pages.Affiant's initials _________


    (pp 76-88)

    Escott v. BarChris Construction Corp., 283 F. Supp. 643 (S.D.N.Y. 1968), provides insight on the lack of “due diligence” by government officials in the situation. It is not acceptable to not read documents. Reliance on experts cannot legally be overdone. People with executive authority or responsible to know/resolve matters cannot ignore their duties when they have clear knowledge of facts. Relying on supposed experts who make mistakes is not acceptable. Failure to inquire sufficiently into matters is not acceptable. Officials with intimate knowledge of facts and normal ways of conducting business and official transactions are expect to investigate thoroughly, and especially, to comprehend and act upon materials that are readily available. Officials are responsible to notice errors, false or misleading statements, omissions of data, and other types of matters and business with which they are to be familiar. Failure to acquire knowledge is not acceptable. Signing documents without understanding what is being signed is not acceptable.

    Disregard of these simple, common sense principles is evident through out the government behavior. [TACOM] Dr. [Francis J.] Holt's notes of 24 and 25 Mar [19]80 to the present reflect his opposition to rule enforcement, his inexplicable view that recommending a healthful environment is not his “province,” his insistence on declaring me unfit for duty in advance, his opposition to preventive measures, his disregard of the 25 Jan [19]80 USACARA Report and of AR 1-8, his pretense that smoking may be safe, his disregard of the phony and incompetent TLV studies allegedly performed under OSHA “standards” not demonstrably relevant, reprisal and opposition to my effort to secure a safe environment as the installation is obligated to provide, etc.

    The wrong data by [TACOM] Mr. [Edward E.] Hoover from the 28 Mar [19]80 and 18 Apr [19]80 letters to the present reflect like misconduct. As the alleged personnel officer, he ought to be setting an example of compliance with a personnel channels USACARA Grievance Report; instead he denounces it. [TACOM Legal Office’s] Ms. [Emily Sevald] Bacon's letters and statements from 29 Apr [19]80 to the present also reflect the like pattern of disregard of facts. As a lawyer, she is particularly responsible to know the law and rules. She is also supposed to familiarize herself with the pertinent facts. The evidence shows that such has not happened, even from her initial letter (29 Apr [19]80), when she misrepresented my presence as the “threat,” and not the presence of the tobacco smoke. Ms. [Carma J.] Averhart from 20 Mar [19]80 to the present has been involved in the like pattern of disregard of facts. Failure to familiarize herself with the pertinent facts is clear.

    MSPB wrongdoing from 23 Jul [19]80 [and thereafter] is also obvious. When a person is endangered, the hazard is to be eliminated, not the victim. [“An employer has a duty to prevent and suppress hazardous conduct by employees” even going beyond what “the average workplace” does, National Realty. & Const. Co, Inc. v Occ. Safety & Health Rev Comm’n, 160 US App DC 133; 489 F2d 1257, 1266; 1 O.S.H. Cas.(BNA) 1422 (1973); and FPM Suppl. 532-1, S8-7, employer to do “elimination or reduction to the lowest level possible of all hazards . . . .”] Yet [MSPB’s] Mr. [Martin] Baumgaertner wrongfully attempted to evade his legal duty by using the “threat” synonym, to evade use of the AR 1-8 word “endanger.” Mr. [Ronald P.] Wertheim brazenly ignored the evidence, to invent claims contrary to the evidence [6 MSPB 626; 7 MSPR 13, falsity noted by EEOC, Docket 03.81.0087, 83 FEOR 3046]. Mr. [Stephen] Manrose did likewise. Due diligence and taking normal measures to acquire familiarity with the facts was not done; indeed, my requests for proper action by them—a hearing—were brutally and summarily denied. Such misconduct is not mere negligence; it is far worse.

    Culpability is obvious. The only questions that remain, pertain to the nature of the penalties to be imposed against the various culpable personnel.

    Page 89 of 89 pages.Affiant's initials _________

    Other EEO Cases
    EEOC 25 Aug 1982

    EEOC 3 Sept 1982

    EEOC 21 Sept 1982

    EEOC 15 April 1983