Brief to EEOC, 25 Aug 1982, in Continued Effort to Secure Review 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.
    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.
    See also other Briefs, e.g., those to OPM, 21 March 1983, 27 July 1983, 25 Nov 1983, and 2 Jan 1985, 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.
    More in the series will be posted as scanned. The volume is enormous, takes some time.
    Equal Employment Opportunity Commission
    25 Aug 1982
    Part 12 - 8
    Concluding Analysis and Request for Relief110 - 112

    (pp 1-3)

    It is clear that “the burden of proving inability to accommodate is upon the employer,” Prewitt v. United States Postal Service, 662 F.2d 292 (5th Cir. 1981). We have not yet reached that issue because the local [TACOM] officials have not yet complied with AR 1-8 to the point of halting the entanglement, removing smoke, and establishing an equitable balance including healthful conditions, prior to reaching the “personal determination” aspect under the personal standard envisioned by AR 1-8. The safety duty, for example, has not yet been met. The “unqualified and absolute” safety duty recognized by the Courts years ago is “above all other considerations,” American Textile Mfrs. Inst. v. Donovan, 452 US 490 [509; 101 S Ct 2478; 69 L Ed 2d 185] (1981). It is clear that the results show that the cause has not been dealt with. OPM noted lack of accommodation. EEOC noted lack of AR 1-8 implementation. USACARA noted many violations.

    However, MSPB did not seek local [TACOM] evidence for its alleged inability to implement the 25 Jan 80 Report. “Courts ought not to have to speculate as to the basis for an administrative agency's conclusion,” Northeast Airlines, Inc. v. C.A.B., 331 F.2d 579 at 586 (1964). It is far worse for the unaccommodated person to have to speculate. I am simply not qualified to “undertake to catalogue all the deficiencies in the Board's decisions,” while simultaneously being ignored by local [TACOM] officials who are unwilling or unable to communicate with me to begin the enforcement process. In Prewitt, supra, at 308, “The employer can look to its own experience, or, if that is not helpful, to that of other employers . . . Furthermore, the employer may be able to obtain advice . . . from private and government sources.” The 25 Jan 80 Report is part of the agency “experience.” So is the AR 1-8 guidance based on the common problem of smokers endangering, discomforting, and bothering others, as well as endangering property. The agency experience includes recruiting harm noted as long ago as Austin v. Tennessee, 179 US 343 [21 S Ct 132; 45 L Ed 224] (1900) and recruiting advice as recently as March 1982 in Army brochure RPI 914 “How Not to Blow A Job Interview,” which states

    “Don't smoke. If the interviewer doesn't, he probably won't like you smelling up his office. This also avoids accidents like setting your application on fire or marring the furniture.”

    Smokers are not simply to wait for a “personal determination” as that would not be “affirmative action.” Smokers are to anticipate a “personal determination” and not smoke, even though a specific nonsmoker may in fact not make such a “personal determination.” When the Army writes a regulation envisioning a personal standard, the Army means it. As a matter of time orientation, March 1982 is months and years after the weird and disconnected assertions of “cannot” and “undue hardship.”

    The December 1978 RPI 914 uses the exact identical words. That was many months before my June 1979 grievance. The February 1980 RPI 914 was issued just before local smokers made the unlawful “decision to terminate” me obvious 9 April 1980. That Feb 80 brochure was issued just after the 25 Jan 80 Report. The March 1981 edition of RPI 914 was after the odd 27 Jul 80 MSPB decision and before the even more strange 18 Jun 81 MSPB claims [6 MSPB 626; 7 MSPR 13, by Ronald P. Wertheim, Ersa H. Poston, etc.]. The local [TACOM] and MSPB behavior in regard to the Army words “Don't smoke” is inexplicable in law; that fact provides insight on the need to cite data on mental disorders to provide insight. [These statements are pre-bribery awareness.]

    Page 3 of 112 pages.Affiant's initials _________

    In Re United Corporation, 249 F.2d 168 (3rd Cir. 1957), provides insight. For example, an Examiner who issues a report such as the 25 Jan 80 Report “is a guide to our conclusion and should have been given due regard by the” Board as well as by the installation prior to the unlawful local “decision to terminate” me without advance notice or specificity so long ago. At 178, the Court said that such a “practical determination” “should be accorded the relevance that they reasonably command in answering the over-all question whether the evidence supporting the Board's order is substantial.” [Cf. Donovan v Phelps Dodge Corp, 228 US App DC 260; 709 F2d 86, 92; 1983 OSHD (CCH) P 26,579 (1983).] The local and MSPB behavior that is blunted, disoriented, and/or disconnected from reality gives no weight at all to the Report. The Report deals with causes; the malicious local and MSPB behavior refuses to even advert to, much less explain, the refusal to deal with causes.

    The Court in the United Corporation case referred to the Supreme Court guidance as cited in Universal Camera Corp. v. N.L.R.B., 340 US 474, 71 S.Ct. 456 [95 L Ed 456] (1951). Local lawyers as well as MSPB are presumed to be familiar with well-established legal concepts, so the disregard of them is clearly willful. In the Universal Camera case, said the United Corporation court at 179, “it was found that the recommendations of the examiner were supported by substantial evidence while the findings of the Board were not. Accordingly, the enforcement of the Board Order was denied.” The MSPB decision pattern is disconnected from the evidence, is disoriented in time, fixates on the remote and irrelevant past, makes no relevant findings, ignores the rules, fabricates claims deliberately contrary to the evidence, refuses to correct its own egregious errors even given more than ample opportunity, etc., etc. In contrast, the many other reviewers (MESC, USACARA, OPM, EEOC) all go by the evidence. Their findings on the non-implementation of the Report, the local violation pattern, my clear ability to work, my long ago termination, the refusal of reasonable accommodation, etc., etc. are “supported by substantial evidence while the” pattern of “findings of the Board were not” and evidently do not intend to become supported by evidence.

    OPM found that reasonable accommodation is not shown. MESC found that I am ready, willing, and able to work. USACARA found multiple violations too numerous to summarize here. EEOC found efforts to limit EEO rights, lack of consideration of the merits, erroneous information or miscalculations, and indeed, a pattern of errors warranting reversal “in all the instant cases” decided 23 Feb 82 [Dockets 01800273 et al.]. All these decisions and findings mesh together harmoniously. When violations are found, opposition to further review is an expected consequence, when local officials decide to refuse to comply with the rules they have been told to obey. An improper decison to terminate the employee pointing out the pattern of violations is part of the pattern of [management] misconduct and resultant reprisals.

    Here local officials in ousting me summarily, and MSPB in refusing to take jurisdiction to review the merits, failed, nay refused, “to make the explicit findings required . . . by both judicial decision and the Administrative Procedure Act” and other rules and the need for fairness for opportunity for me to reply. Local and MSPB officials ignore the many adverse findings, and fail to make competent, responsive findings of their own. They know their violations and falsifications are obvious, and that findings show that. By refusing to make competent findings, they are stalling. Words at 181 are insightful, “That this violates the unequivocal mandate of the law is clear.”

    Page 4 of 112 pages.Affiant's initials _________

    Anglo-Canadian Shipping Co. Ltd. v. Federal Maritime Commission, 310 F.2d 606 (9th Cir. 1962), provides insight. At 613, “What we find lacking here is compliance with those provisions of the Administrative Procedure Act [5 USC § 706] which call for the production of evidence and the making of findings based thereon to support the conclusions of the administrative body.” [Compare Barnhart v U. S. Treasury Dept, 588 F Supp 1432 (D CIT, 1984).] Neither local officials nor MSPB show compliance with the pertinent duties. OPM, MESC, EEOC, and USACARA have shown [found] local failures. Those failures and deficiencies are longstanding. There is a pattern. The pattern of errors has been noted by USACARA and EEOC, which told the local officials to take corrective action. If any of what MSPB has asserted is true (and IT IS NOT) as to corrections taken, “There must be an abundance of available evidence to disclose just how” such was done. Once the violations are halted [as MSPB knowingly falsely alleged 18 June 1981], why was I not allowed to return?

    At 6l3, “The record is wholly wanting [lacking] in any information that might answer these questions, but we think we can take judicial notice that evidence on this subject is obtainable, available, and can be procured.” (No doubt—other reviewing institutions have found and examined the evidence—they found violations.) “As the Supreme Court has said in matters calling for administrative determinations similar to this one: 'There must be a full hearing. There must be evidence adequate to support pertinent and necessary findings of fact.' Morgan v. United States, 298 U.S. 468, 480, 56 S.Ct. 906, 911, 80 L.Ed. 1288. This requirement of hearing applies to the respondent . . . .” (MSPB admits the hearing requirement at 5 CFR 1201.24(c), but refuses to obey its own rule.) “Not only was there a want [lack] of hearing and evidence,” the Court continued, “but also a complete failure . . . to conform to the requirements of . . . the Administrative Procedure Act . . . whereby parties are afforded an opportunity to propose findings and to note exceptions to decisions or recommended decisions.” In my case, there was no advance notice, so no opportunity to reply. MSPB changed the findings so completely from reality as to be directly contrary to the position taken by local officials. The 23 Jul 80 decision considered the rules and compliance “not relevant.” [This attitude 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)]. The 18 Jun 81 MSPB decision pretended that the actions accepted 7 Jul 81, though not needed for ability to work, had been done. These diametrically opposed positions are clearly false and wrong, and intentionally so. Lack of specificity was objected to by me; instead of MSPB acting with integrity and admitting its errors, it has chosen a pattern of even less specificity.

    Blunted and incoherent decisions have no weight. There is not even an attempt at showing compliance with the rules including but not limited to each aspect of the OSHA “mixture” guidance, with specific reference to a pattern of daily, even hourly test results. There is no showing that endangerment has halted. The goals are to be achieved, by whatever means necessary. A ban on the causative behavior is what is fixated on, when neither local nor MSPB employees have made a showing that that is the only method of achieving the regulatory goals. Seeking enforcement of the regulatory goals was and is the entire sum and substance of the requests for corrective action during and after the June 1979 grievance as upheld 25 Jan 80. Judicial insight at 617 rejects “mere expressions of opinion” which are clearly wrong concerning a closed [won] grievance.

    Page 5 of 112 pages.Affiant's initials _________

    Missouri Pacific Railroad Company v. United States and I.C.C., 203 F. Supp. 629 ([ED Mo] 1962), provides insight. The agency there “argues that this lack of evidence is chargeable to the railroads' failure to carry the burden of proof,” at 635, like MSPB argues on me. The Court rejected such assertions, saying, “On the contrary, the railroads have sustained their burden of proving . . . .” The problem in the case at bar is local and MSPB refusal to go by the evidence. The problem is their blunted, disoriented, and disconnected reaction to the record. At 634, the Court noted that the agency behavior contrary to the law “would drain its strength and negate its effect entirely.” Ignoring the endangerment that gives rise to the situation (ignoring causes) violates AR 1-8 and “would drain its strength and negate its effect entirely.” The Court rejected such behavior. Blunted, disoriented, and disconnected behavior is unacceptable.

    The burden of proof that endangerment and discomfort are and have been occurring, and that the Report telling the installation to halt such behavior harmful to others has not been implemented, has been met. OPM, MESC, USACARA, and EEOC have noted the various violations. The local and MSPB behavior is predicated upon the occurrence of the endangerment. But even if neither I nor the evidence were able to show any such impartial reviews (considering that MSPB refuses to consider the evidence, the outside reviews are most insightful), the Missouri Pacific case shows that something more than assertions of alleged failure to meet the burden of proof is necessary for a specific finding that sick leave is appropriate in a safety hazard situation involving a matter that is not “job-related” by even an attempt to show such. The fact is that the agency has failed to meet the burden of proof, so MSPB maliciously disregarded that fact by
  • (a) claiming such lacking is “not relevant,” and then

  • (b) claiming [18 June 1981] that the agency had done what the agency had been insisting it could not do!
  • The MSPB behavior is tantamount to unlawful repeal of the guidance on burdens of proof, among many other unlawful repeals. The one-year [LWOP] rule [TACOM-R 600-5.14-27 et seq.] was unlawfully repealed (abrogated) at the stroke of an unauthorized pen. MSPB clearly does not respect rules.

    The Court emphasized that “we are bound by the basis of the order as originally promulgated,” at 633. MSPB simply chose to ignore the March 1980 blunted remarks by [smoker] Dr. Holt acting under the improper influence of the personnel office, specifically [Colonel] Charles D. Phillips, who is not a doctor. MSPB should have summarily overruled Dr. Holt's [March 1980] legal opinions as directly contrary to the Report just issued [January 1980]. But MSPB does not consider itself “bound by the basis of the order as originally promulgated,” so it sets out to engage in a pattern of fabrications and blunted, disconnected remarks contrary to the evidence. When questions arise, it reduces specificity in reprisal.

    The Court noted Supreme Court guidance "As stated in Securities & Exchange Commission v. Chenery Corporation, 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626: “The grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based.'” Otherwise, it “cannot be upheld.” MSPB chooses to ignore that guidance as well. MSPB repeals any rules it opposes. MSPB spurns subsequent opportunities to correct its own errors. Such apathy and indifference is unbecoming.

    Page 6 of 112 pages.Affiant's initials _________

    Northeast Airlines, Inc. v. C.A.B., 331 F.2d 579 (1st Cir., 1964), provides insight. The Court noted “vital flaws in the Board's decision” such that in review, “we cannot be sure of the basis on which the Board rested its refusal.” In this case, the Board's refusal to be specific is clear. There are neither agency showings nor Board findings on compliance with the rules [e.g., AR 1-8, OSHA, 5 USC § 7513, etc.], on any job-related aspects [e.g., job description, qualifications, performance record], on “affirmative action,” etc. etc. The many voids in the local and MSPB behavior are clear. The contradictions are obvious.

    In Northeast Airlines, supra, at 586, “There should be no room for this dispute. Courts ought not to have to speculate as to the basis for an administrative agency's conclusion. Indeed, to prevent just such speculation . . . the Administrative Procedure Act [5 USC § 706] . . . provides that all agency decisions shall include not only the appropriate rule, order, sanction, relief or denial thereof, but also findings and conclusions as well as the reasons or basis (emphasis added) therefor, upon all the material issues of fact, law, or discretion presented on the record.'” In this case, there is no basis for the blunted, disoriented, disconnected and other personal behavior and misconduct in clear violation of freedom of expression, safety duties, accommodation duties, etc. etc. The irrational nature of the stereotyped behavior at issue involves multiple speculations, to the extreme that the repeated acceptance of the actions alleged to have occurred is refused [e.g., acceptance 7 July 1981]. The refusal includes refusal of even the courtesy of an acknowledgement, showing the malice of the smokers involved—their malice and reprisal against me for seeking enforcement of a rule [AR 1-8] on smoking that envisions a personal standard.

    The Court indicated, “We do not undertake to catalogue all the deficiencies in the Board's decisions.” The many deficiencies [by TACOM, etc.] are simply too grotesque. Assertions that are delusional, blunted, disconnected from reality, disoriented, or otherwise deviant are, from a personnel management [human resources] point of view, normally to be catalogued in proceedings such as fitness for duty examinations of the persons who make such deviant remarks. This is especially insightful when false assertions known to be false are made in decisions.

    The Court rejected both “irrelevant or inadequately developed” aspects. MSPB fixation on the contents of a closed grievance as distinct from the reprisaL for winning it, and the refusaL of implementation, is clearly “irrelevant.” Indeed, malice and paranoia are evident. MSPB simply fixated on the wrong aspects, and refuses even the opportunity to develop evidence showing refusal of compliance [with e.g., AR 1-8, OSHA, 5 USC § 7513, etc.]. Of course, the refusal of implementation is obvious, no doubt, but that fact renders MSPB and local culpability greater, not lesser. When every proper review (by OPM, MESC, EEOC, and USACARA) shows the local violations, the problem is with the MSPB reviewers' blatant disregard of the facts that were allowed into the record. Even the undeveloped record shows local violations and lack of showings. There is clearly no showing as to any changes that “will meet the statutory requirement” on safety, the AR 1-8 guidance on smoking, etc., “when it did not in the past,” when local behavior had the many violations and deficiencies noted by the 25 Jan 80 Report. The reason that there is no showing of improvement includes (a) non-implementation as EEOC noted 23 Feb 82 [Dockets 01800273, et al.], and (b) worsening, as even the undeveloped record clearly shows.

    Page 7 of 112 pages.Affiant's initials _________

    Northern Pacific Railway Company v. United States and I.C.C., 241 F. Supp. 816 (D. Minn., 3rd Div. 1965), provides insight. At 818, the Court indicated that “ultimate finding . . . must necessarily depend upon subordinate factual findings . . . .” MSPB has made no findings on elimination of the endangerment, discomfort, and unremoved smoke giving rise to the situation; compliance with the “mixture” guidance on which there is still “no evidence” of compliance; implementation of the 25 Jan 80 Report which EEOC has noted [23 February 1982 (Dockets 01800273 et al.) and 8 April 1983 (Docket 03.81.0087; 83 FEOR 3046)] has not been implemented; and on the full “authority” and “unqualified and absolute” duty to eliminate the hazard. MSPB has made no findings on the fact that reasonable accommodation has not been shown, as OPM noted [October 1981]; or on the MESC finding that I am ready, willing, and able to work. MSPB allegations are disconnected, disoriented, blunted, and/or delusional. The examining doctors unanimously indicate that I am “ready, willing, and able to work.” The MSPB assertions to the contrary are clearly disconnected. MSPB has made no findings that smoke is removed, that the environment is healthful, and that the goals against endangerment and loss of efficiency from tobacco-induced conditions are met. MSPB is clearly ignoring its own de minimis assertions of actions allegedly taken, as [Ronald Wertheim, Ersa Poston, et al. abruptly, sua sponte] fabricated 18 June 1981. MSPB has made no findings on the repeated acceptances of those alleged actions taken [beginning 7 July 1981].

    The list of matters about which MSPB avoids making findings is significant. The disregard is intentional. MSPB officials are clearly well aware that the assertions MSPB made were, and are, false. Thus, the acceptances are disregarded. MSPB simply refuses to correct its own errors. MSPB refuses to correct its own errors even when several other agencies note the errors. OPM, MESC, and EEOC noted aspects of the MSPB pattern of errors. MSPB refuses to even acknowledge its errors, as part of that refusal, MSPB refuses to grant a hearing for me to present my case, and thus—as an incidental matter but one of foundational significance—obtain record evidence of MSPB errors. MSPB ignores its own 5 CFR 1201.24(c), “Under 5 U.S.C. 7701, an appellant has a right to a hearing.” A hearing is especially needed considering “the agency's decision to terminate” me as noted 9 Apr 80 [by EEOC's Henry Perez, Jr.]. A hearing will provide “subordinate factual findings” that show the MSPB refusal of analysis is improper.

    The order simply refers to “a blanketed entity” (the whole installation). But the installation has “boundaries,” i.e., separate buildings, floors, quadrants, etc., in most of which my job does not ever take me. The “pertinent supporting factors” are ignored by MSPB. Indeed “there is no dispute now that” endangerment is occurring, that the 25 Jan 80 Report has not been implemented (EEOC noted this [23 February 1982: Dockets 01800273 et al.; 8 April 1983: Docket 03.81.0087; 83 FEOR 3046]), and that I am ready, willing and able to work (MESC noted this). “There is no dispute now” except for MSPB disregard of the evidence, its refusal of a hearing, its mailing back evidence, etc. Court emphasis on specificity is clear. Competent reviewers have already shown the local violations. MSPB has displayed no interest. MSPB “provides no rational basis for the ultimate finding reached.” That is because of its refusal to make its own “subordinate factual findings” and disregard of others when they do so.

    Page 8 of 112 pages.Affiant's initials _________

    Great Lakes Screw Corporation v. N.L.R.B., 409 F.2d 375 (7th Cir. 1969), provides insight. The issues of lack of specificity, violations of due process, prejudice, denial of a fair hearing, intimidation, perfunctory explanation years after the fact, need to speculate on the Board's rationale if any, etc., were involved. The Court rejected the Board's behavior.

    At 381, “Denying petitioner his chosen counsel [here, Ray Regiani] may have had a prejudicially adverse effect . . . and inhibited . . . fully advancing petitioner's position.” Worse than merely “may” is utter refusal to hold a hearing at all. Such Board misconduct as mere refusal of choice of counsel warrants reversal; refusal of a hearing [by racketeers Martin Baumgaertner then the Board under Ronald P. Wertheim, Ersa H. Poston, et al.] even more clearly warrants reversal. Such is especially true when so many other reviews (by EEOC, OPM, USACARA, MESC, etc.) show the falsity of the local and MSPB premises. Local and MSPB behavior is wrong on the merits, not just on the many other violations. The Court at 381 noted that even “understandable error” which is “nevertheless prejudicial” is improper. The local and MSPB behavior is not even “understandable”--their errors have been called to their attention so thoroughly that malice, defiance, contempt for the rules, etc. is clear on their part.

    The Court stated, “It is axiomatic that if the order of the Board is found to be premised upon an unfair hearing then such order must be set aside . . .” according to several precedents. Indeed, “The due process requirement of a fair hearing is unwavering even though the findings of an unfair hearing might otherwise be justified on the merits. National Labor Relations Board v. Phelps, 5 Cir., 136 F.2d 562, 563-564 (1943).” In the case at bar, the decision pattern from MSPB is clearly false on the merits, as well as clearly unfair. MSPB clearly displays a defiant, contemptuous attitude that everybody is wrong but MSPB; and local officials prey upon that obvious [malicious] attitude.

    At 380, “By excluding counsel without setting forth with sufficient particularity the basis for such action, the Board has substantially and prejudicially violated the Administrative Procedure Act. By denying petitioner his statutorily afforded right, administrative due process has been violated.” Lack of “sufficient particularity” is obvious—no dates, places, locations, citations, names, times, job-related standards, “mixture” guidance, etc. are cited. The reason for the lack of “sufficient particularity” is likewise clear; the MSPB decision pattern makes false statements. MSPB falsely cites non-events. “Sufficient particularity” about non-events is impossible. Assertions are thus blunted of necessity, since the underlying delusional aspects are blunted. For example, the delusions or hallucinations of corrective actions not taken, but alleged, cannot be expected to be specific, except perhaps from a pathological liar.

    There are no conclusions about compliance with the mixture guidance, the safety of the environment, the implementation of the 25 Jan 80 Report, job-related aspects in smoking, etc., for the reason that compliance has not started, the environment [smoker behavior] is not safe, and smoking is personal behavior, not a prerequisite to job duties, the Report has not been implemented, etc. At 379, the Court rejected “mere conclusions unsupported by specific factual references to the record.”

    MSPB misconduct is clear; MSPB behavior is so de minimis that it is not yet at the “mere conclusions” level.

    Page 9 of 112 pages.Affiant's initials _________

    Marco Sales Company v. F.T.C., 453 F.2d 1 (2nd Cir. 1971), provides insight. At 6, the Court notes Supreme Court guidance against “unbridled power to institute proceedings which will arbitrarily destroy one of many law violators in an industry.” That fundamental legal principle sheds insight on the wrongfulness of the malicious “proceedings which will arbitrarily destroy one of many” victims of the disregard of AR 1-8 for having sought implementation of the rule which itself envisions a personal standard, and for having sought implementation of the Report which EEOC noted 23 Feb 82 has not been implemented. Since there is no “unbridled power to . . . arbitrarily destroy one of many law violators,” there is no “unbridled power to . . . arbitrarily destroy one of many” persons expressly granted protection by express phraseology of agency regulation AR 1-8, for having sought such protection to which entitled.

    At 6, “The arbitrary character of the . . . action here consists of . . . total failure to even advert to, much less explain, its reason for the rigid ad hoc adjudicatory stance it adopted toward the petitioner,” while disregarding others with the same entitlement to healthful conditions. The 25 Jan 80 Report had noted the disregard of others; the local and MSPB behavior brazenly disregards that fact, and does not “even advert to, much less explain” it. The oversight is not an oversight; it is intentional. FPM Supplement 752-1 clearly warns against singling people out. Clearly, any effort to “advert to” or “explain” would draw attention to their wrongdoing, so they remain silent. The pattern of uncommunicativeness is clear.

    At 7, the Court notes “That an administrative agency is obligated to provide petitioner with an explanation for the difference in their treatment, is well established. Secretary of Agriculture v. United States, 347 U.S. 645, 652-655, 74 S.Ct 826, 98 L.Ed. 1015 (1954), FTC v. Crowther, 139 U.S.App.D.C. 137, 430 F.2d 510, 514-515 (1970); ABC Freight Co. v. CAB, 391 F.2d 295, 300-303 (2d Cir. 1968); Burinskas v. NLRB, 123 U.S.App.D.C. 143, 357 F.2d 822, 827 (1966); Melody Music, Inc. v. FCC, 120 U.S.App.D.C. 24l, 345 F.2d 730 (1965); City of Lawrence, Mass. v. CAB, 343 F.2d 583, 588 (Ist Cir. 1965). See also Friendly, Chenery Revisited: Reflections on Reversal and Remand of Administrative Orders, 1969 Duke L.J. 199, 206-209.” When a duty is “well established,” the conscious, intentional, deliberate, voluntary disregard of the duty is willful.

    At 6, the Court noted that the FTC at least tried to explain, however inadequately, the difference in treatment. In this case, no explanation at all is offered or even attempted. The duties cited on pp. 11-12 of the 25 Jan 80 Report were so clearly unmet that the Report showed that the installation had not even “considered the rights of all nonsmokers,” much less taken affirmative action to implement those rights. Refusal of implementation is likewise true in my case; non-implementation was noted by EEOC 23 Feb 82, and by OPM 5 Oct 81. The remarkable consistency in findings between reviewers acting independently rings true and confirms both non-implementation of rules for me and for others. It is MSPB that is out of line, that is disconnected from reality. Thus the anomalous MSPB behavior “has made no findings and has articulated no reasons for its disparate treatment of petitioner.” MSPB does not “even advert to, much less explain” the marked disregard of the clear inconsistencies.

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    Garrett v. F.C.C., [168 US App DC 266;] 513 F.2d 1056 (D.C. Cir. 1975), provides insight. At 1060, “Hitherto, we have had occasion to deal with claims of disparate decisional treatment accorded parties by administrative bodies. Speaking of one agency, we have twice said that it 'cannot act arbitrarily nor can it treat similar situations in dissimilar ways,” in Herbert Harvey, Inc. v. NLRB, 424 F.2d 770 at 780 (1969), and in Burinskas v. NLRB, 357 F.2d 822 at 827 (1966). “These rulings reflect the underlying principle that agency action cannot stand when it is 'so inconsistent with its precedents as to constitute arbitrary treatment amounting to an abuse of discretion.'” Army opposition to endangering, discomforting, and bothering nonsmokers is expressly spelled out in AR 1-8. FPM Supplement 752-1 expressly prohibits behavior harmful to others. No rule refers in even a de minimis way to forbidding the "capacity to be harmed." The local and MSPB insistence on such concept is irrational, blunted, and disconnected.

    The Army has been adversely impacted by smoking since at least when it was noted in Austin v. Tennessee, 179 US 343 (1900). The Army has noted incidents of harm to property. Army rejects fire hazards. Army rejects explosive hazards. Army opposes smoking “because of fire, explosive, or other safety considerations.” The Army pamphlet RPI 914 goes so far as to state “Don't smoke. . . . This also avoids accidents like setting your application on fire or marring the furniture.”

    Smoking is the #1 cause of fires. The Army responds to real concerns.

    The Army has also noted impairment of the efficiency of nonsmokers when they are harmed or made ill by others' smoking. Federal employee compensation cases result. It is Army policy to forbid the harm in the first place. Army commands its employees to note impaired efficiency caused by the harm from smoking. Impaired efficiency is to be anticipated. The Army opposes allowing the inefficiency to happen and then play “catch-up.” A tobacco-induced absence for year after year undoubtedly impairs efficiency, which is forbidden. Any impairment of efficiency shows non-compliance with the mandate “to remove smoke from work areas and provide a healthful environment,” paragraph 4.a.(7) of AR 1-8.

    One example of the use of the prohibition on letting smoking impair efficiency is with computers. Computers are “ready, willing and able to work,” compute, issue printouts, etc., but computers have demonstrated that second-hand smoking “does constitute a safety hazard to” them. There are no blunted, time disoriented, or disconnected reactions to such obvious facts. If someone smoked by [near] a computer, the computer would not be declared “sick” for any longer than really true [at all!!!]. It [the computer] would not be asked, maliciously, to bring in a medical (or engineering) clearance. Instead, smokers would be directed not to impair its efficiency any more, or else.

    Army concern for people and property is clear in both AR 1-8 and RPI 914. Thus, the local action is “so inconsistent with . . . precedents” as well as the rules “as to constitute arbitrary treatment amounting to an abuse of discretion.” Mistreating a computer would be understood as irrational and counter-productive. Mistreating a human being is malicious.

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    112 pages
    MSPB and local officials continue to fail to provide “subordinate factual findings” to support any “ultimate finding” on the situation, despite the Court guidance in Northern Pacific Railway Co. v. U.S., 241 F. Supp. 816 ([D Minn, 3rd Div] 1965), and normal specificity requirements. The lack of specificity is intentional; the pattern shows lessened data rather than improvement. There is no progress shown on, for example, reference to the deficiencies noted in the 25 Jan 80 Report. There was “no evidence” of compliance with OSHA such as the “mixture” guidance, “affirmative action,” etc. There is still no analysis of the lack of implementation of the Report and AR 1-8. Facts such as were cited by OPM and MESC are ignored. The EEOC guidance and letters are disregarded. Army statements against disregard of actual or anticipated “personal determinations” such as cited in RPI 914 and the Report are disregarded.

    These failings continue even though the [OSHA] safety duty is “above all other considerations” as “unqualified and absolute.” An equitable balance must be established to eliminate harm, endangerment, unhealthful conditions, etc. A “personal determination” that a nonsmoker might make is to be anticipated as the “affirmative action” guidance indicates. The duties are clear; the blatant refusal to obey the rules is unthinkable. The blatant refusal to implement the 25 Jan 80 Report is thus [legally] unexcuseable [as medically abulic]. Instead of compliance, local smokers continue to insist upon the same claims as the agency USACARA Report already repudiated. The continued claims of “cannot” comply are nowhere substantiated; they are simply asserted without explanation. When the basic rules and guidance are flouted, it is clear that the reasonable accommodation process has not even started. Local officials refuse to communicate with me and defy EEO rules on counseling, as EEOC noted 23 Feb 82. How can the process start without communication? Local officials with MSPB blessing have derailed the process before it even started.

    Claims of inability to obey the rules to provide a healthful environment are simply [objectively] false [medically abulic]. AR 1-8 is consistent with repeated Army statements such as are in the various RPI 914 brochures. The purpose of safety rules is to save money, save lives, and save property. Safety is a cost-saving program. That explains why the [OSHA] duty is so strong—“unqualified and absolute.” It is a rare person who objects to saving money! But suppose that there were some cost. Safety is “above all other considerations.” That duty is juxtaposed with the reasonable accommodation duty. Prewitt v. U.S. Postal Service, 662 F.2d 292 at 308 (1981) indicates that once the issue of reasonable accommodation is reached, if ever, “Congress clearly intended the federal government to take measures that would involve more than a de minimis cost. As the debate over the McClure amendment shows, Congress was even unwilling to approve language that would have limited the government's duty to make reasonable accommodation to instances in which the cost of accommodation does not 'disproportionately exceed actual damages.'” Contrary to the knowingly false [18 June 1981] MSPB claims, the reasonable accommodation process has not begun. The 23 Jul 80 decision [had] recognized that the process had not started, and [but] declared it “not relevant,” thus assuring continued malicious local refusal to begin the process. Thus there has been no showing of any cost at all, even as much as de minimis. It is clear that AR 1-8 contemplates only benefits will arise from protecting nonsmokers and honoring their “personal determinations” and preventing impaired efficiency, which is otherwise one of the excessive costs of allowing smoking that the Army opposes.

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    Introduction to Psychology [Harcourt, Brace & World, Inc.], 4th edition [1967], by [Ernest R.] Hilgard and [Richard C.] Atkinson, at 537, indicates that certain mental disorders “are classified as ‘psychogenic’ or ‘functional,’ meaning that there is no identifiable organic change in the brain or nervous system associated with them. There are in addition to these reactions many kinds of mental disturbance associated with known organic changes in the brain or nervous system––with alcoholism, acute infections, syphilis, tumors, head injuries, epilepsy, and cerebral arteriosclerosis (hardening of the arteries). Usually the individual has shown normal adjustment prior to the disease or injury, and his subsequent peculiarities in behavior are attributed to damage of the nervous system.” The book goes on to caution that reaction might be different with “An already unstable individual.” The book indicates that once “damage of the nervous system” occurs in such a person, “An already unstable individual might become psychotic following a brain injury, while a better-adjusted person might show little change in behavior.”

    “An already unstable individual might become psychotic following a brain injury.” Tobacco organic mental disorder is an organic disorder. Smoking behavior is known for the adverse organic effects it produces. The suicidal nature of smoking is a matter of public domain knowledge; smoking behavior is 'slow-motion suicide.’

    In Psychology for Better Living, [5th ed., (New York: John Wiley, 1965)], Dr. [Lyle] Tussing at 361 - 362 notes, “The treatment for mental illness is called psychotherapy. The patients are interviewed periodically . . . Some have to be confined to cells with padded walls to keep them from doing harm to themselves; others have to be confined to keep them from doing harm to other people.” In the situation at bar, honoring AR 1-8 guidance against letting smokers “endanger” others would be a solution. Dr. Tussing continues, “But unless they are violent, they are encouraged to relax and engage in conversation with each other, and they are taught arts and crafts such as painting, sewing, and clay modeling.” In the case at bar, smokers are uncommunicative. They are unable to speak or write coherently. Their communications, if any, appear at the “word salad” level. The culpable offenders appear to lack the insight to recognize the incomprehensible nature of their incoherent disregard of rational meanings of words and phrases. Data on neologisms sheds insight on such deviant misuse of language. When smokers are suffering from aphasia or other communication disorder(s), the therapy of “conversation with” others is indicated, to such extent, if any, that the causative brain damage that has already occurred is reversible. Therapy such as teaching them arts and crafts may also be of value in controlling their fixation on their “highly overlearned” “odd stereotyped gestures” of hand-mouth motions [smoking]. Arts and crafts therapy may be useful in rehabilitating persons with an obsession for for compulsive deviant hand movements [smoking].

    Dr. Tussing notes that “The vast majority of mental-hospital patients . . are more like cattle, sitting around until someone tells them what to do next.” When smokers are apathetic and indifferent to reality, it is therapeutic when “someone tells them what to do next.” Hence, AR 1-8 envisions a personal standard. A nonsmoker makes a “personal determination” which informs listless and disturbed smokers of AR 1-8 guidance and “tells them what to do next.”

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    In The Addicted Society, at 88, Dr. Joel Fort observes about tobacco cigarettes that '”use = abuse.” In Abnormal Psychology and Modern Life, 5th edition, p. 477 cites a tragic medical reality: “Loss of ability to read,” as “Among the more common of” “brain damage results.” Alexia (“Loss of ability to read”) impairs a fundamental and essential ability; we are a literate society. P. 477 also cites “Agraphia–loss of ability to express thoughts in writing.” As recently as 15 June 1982, the Supreme Court stated, “The inability to read and write will handicap the individual deprived of a basic education each and every day of hse life,” Plyler v. Doe [457 U.S. 202, 102 S.Ct. 2382], 72 L.Ed.2d 786 (1982).

    Alexia and agraphia provide insight on the culpable government behavior. For example, the 18 Jun 81 MSPB decision [6 MSPB 626, 7 MSPR 13] alleges local action “prohibiting smoking in the entire Civilian Personnel Division.” The statement is not expressing an order; it is alleging a supposedly past action, of an on-going nature. Yet the very next page of the 18 Jun 81 decision calls such action an “undue hardship.” Ability to read and understand the case is clearly not demonstrated. The underlying point of the filing of the grievance that led to the 25 Jan 80 [USACARA] Report is missed. Indeed, the refusal is expressly documented in the case file. Why is the odd claim made? Is the reason alexia? Or, in the alternative, was the decision trying to issue instructions to do the things alleged? Is the problem at MSPB agraphia? The incoherent statements are a puzzle. Do MSPB officials comprehend their own statements? Do they understand that if such actions as were stated are in effect, the situation would be resolved? [These statements are pre-bribery-pattern awareness].

    The 25 Jan 80 [USACARA] Report cited the pertinent regulatory and factual principles: “The commander has the authority . . . to ban all smoking.” “The rights of smokers exist only insofar as discomfort or unreasonable annoyance as not caused to nonsmokers.” Those sentences answer the questions on authority, and the factual circumstances when the authority is to be used. Who decides when nonsmokers are bothered? That decision is not by management; instead. it is “a personal determination to be made by that individual” nonsmoker. Who effects the nonsmoker decision with the pertinent ministerial acts? “It is considered reasonable . . . for management officials . . .” to comply. They would act in the individual quadrant(s) that may apply. Does the 18 Jun 81 MSPB [issuance, [6 MSPB 626, 7 MSPR 13] reflect such full power and duty? No, the MSPB decision overlooks that aspect completely. MSPB does not even address AR 1-8 and AR 600-20. It skips directly to reasonable accommodation aspects, without reflecting any grasp of having read or understood the 25 Jan 80 Report. The “all” aspects are not expressed or even acknowledged. Is the reason alexia? Or is the reason agraphia? When critical aspects are left out, the assertions that are made, especially when they are disorganized, blunted, and conflicting, are a puzzle. [These statements are pre-bribery-pattern awareness].

    Plyler v. Doe, supra, notes that “The inability to read and write will handicap the individual . . . .” Other factors are also a handicap. Prejudice is a handicap, particularly in deciding officials. It is a handicap to be “not capable of change through the examination of evidence . . . .”

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    The condition of tobacco organic mental disorder is cited in the organic mental disorders section of the DSM-III. Data on brain dysfunction provides insight of a general nature. Organic mental disorders have various causes, including self-inflicted causes. A general explanation on organic mental disorders shows the context to provide greater insight into the smoker pathology that is the matter of concern in the case at bar.

    At 361 [of Psychology for Better Living, 5th ed (New York: John Wiley, 1965)], Dr. [Lyle] Tussing states “that there are a number of mental cases that are referred to as organic, which means that a part of the brain has been affected physically. This may be due to an infections disease such as syphilis, which destroys nerve tissue. Injuries to the head may cause personality disturbances and psychotic behavior. The brain may also have been affected by toxins, such as alcohol [and tobacco].”

    The book Psychology [(Boston: Allyn & Bacon, 1961)] by authors [Allen D.] Calvin, et al., at 432 states, “When the cerebral cortex is damaged, certain symptoms arise directly from the fact of damage. There may be a tendency toward distractability and disorganization . . . an apparent lack of awareness of his defect [anosognosia]; the patient does not perceive his handicap as particularly worthy of notice. These are general consequences of cerebral injury; damage in various areas of the brain may produce symptoms of a particular type. If, for example, the parieto-temporal area, the region above and forward from the ear, is injured, a disturbance of language, called aphasia, often results.”

    The book Introduction to Psychology [New York: Harcourt, Brace & World, 1962], 3rd edition, by [Earnest R.] Hilgard, states at 526, “There are in addition to these reactions many kinds of mental disturbance associated with known organic changes in the brain or nervous system: disorders associated with alcoholism, syphilis, acute infections, tumors, gunshot wounds.” The 4th edition [1967], p. 537, adds “head injuries, epilepsy, and cerebral arteriosclerosis (hardening of the arteries).”

    Calvin et al. at 433 indicate, “Lessened ability to adjust that stems from brain injury is present in organic psychoses, states that resemble other psychoses with the additional feature that symptoms of brain injury complicate the patterns. The brain can be damaged in ways other than gross physical insult; drugs [e.g., nicotine] also alter its functioning and produce marked behavioral changes. . . . Brain injury . . . permanently impairs functioning and return to completely normal behavior is not to be expected.” P. 435 discusses “patients whose symptoms followed the pattern of paresis, or general paralysis. Its earliest phase is marked by symptoms resembling brain damage. Patients have poor control of impulses, are irritable, restless, and disorganized, and memory for recent events is badly impaired. As the disorder continues, coordinated activity, like speech and locomotion, become disorganized. The deterioration of behavior increases with time; seizures occur, orientation and memory fail, and death finally intervenes. Delusions of grandeur are common, and many paretics develop delusions of persecution, fall into depressions, or show other psychotic patterns. . . . When cases of paresis are discovered, medical treatment arrests the progress of the disease, but damage to brain tissue inflicted by the spirochetes of syphilis cannot be reversed.”

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    Data on schizophrenia and other disorders provides insight on the assertions and behavior of culpable employees. Unresponsiveness to reality is a common trait of certain psychotic individuals. Unresponsiveness to reality is displayed by smokers, of course, by the fact they smoke. The 23 Jul 80 MSPB decision [by MSPB Presiding Official Martin Baumgaertner] cites one local delusion as “the agency reaffirmed its offer to return the appellant to work as soon as he provides medical clearance from his personal physician.” It is clearly “feeble-minded” at best.   [EEOC rejected Baumgartner's view.] Clearances are not appropriate in a hazard. Local officials are not “the agency.” Indeed, the local personnel are clearly insubordinate. The AR 1-8 guidance envisions a personal standard which is ignored, despite the 25 Jan 80 guidance on the duty to implement AR 1-8. The insane idea of “recovering” from the capacity to be harmed by a hazard underlies the obviously deviant remark.

    Ed. Note: See
  • background on smoker brain damage
  • Dr. Holt's deposition, p 46
  • EEOC's rebuttal of Baumgartener.
  • Disturbed individuals sometimes can not grasp cause and effect; the weird “offer” reflects lack of grasp of cause and effect. The ineptness of the MSPB deciding official [Martin Baumgaertner] is also clear, by the very fact the clearly deviant and delusional local remark is treated as though it were rational. Mr. Baumgaertner does not display the capacity to note even obviously irrational local remarks. Yet Mr. Baumgaertner is supposedly authorized to review cases involving federal employees, some of whom may be the subject of adverse action because of their mental problems. Mr. Baumgaertner is himself not apparently mentally capable of recognizing delusions; his decision displays no such capacity.

    Mr. Baumgaertner also fails to display the capacity to “respond to and” be “motivated by normal stimuli.” For example, he does not “respond to” the 25 Jan 80 USACARA Report on the full “authority” to eliminate the local disregard of the personal standard envisioned by AR 1-8. Instead, he trivializes the Report by citing the supposed mere “opinion that the agency could” achieve the personal standard envisioned by AR 1-8, p. 2. A USACARA Report is not mere “opinion.” Mr. Baumgaertner does not display the capacity to grasp the nature of a USACARA Report, a lacking that is completely unbecoming a person in his position of responsibility and trust. EEOC on 23 Feb 82 was able to grasp the significance of what was transpiring. The EEOC professionalism is in marked contrast with Mr. Baumgaertner's ineptitude.

    The delusion that compliance “is not relevant” reflects malice and irritability and clearly is a “most marked deviation from normal human behavior,” especially of persons whose duty includes analyzing discrimination and non-accommodation in adverse actions.

    Ed. Note: MSPB's ridiculing the agency duty to obey the law defies decades of precedents, 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).
    MSPBers such as Baumgartner are psychiatrically unable “to appreciate the wrongfulness of his [their] conduct,” and unable “to conform his [their] conduct to the requirements of the law.”—People v Matulonis, 115 Mich App 263; 320 NW2d 238 (1982).

    The 23 Jul 80 MSPB claim [later rejected by EEOC] is a delusion in addition to the insane delusions that local smokers display. Disturbed local smokers hallucinate that compliance has already occurred-a delusion clearly contrary to reality, considering the p. 2 admission “that the installation environment threatens . . . health,” and clearly contrary to the various legal duties against hazards and hazardous employees. Mental illness when severe is displayed in various forms. Mental illness that says compliance “is not relevant” as an output of the disorder(s) involved is mental illness just as surely as is mental illness that alleges compliance when there is no compliance; the difference is simply in the nature of the output, i.e., the specific result of the symptom. A disturbed individual displaying hallucinations might hallucinate one animal one day, and a different animal another day. [TACOMers and MSPBers came up with contradictory varying stories! typical of smoker delusions and hallucinations].

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    Examples of Similarities in Disturbances

    tobacco organic mental disorderSmoking “causes insanity”—Woods
    craving for tobacco
    a cause of mental decay
    diminishes mental capacity
    difficulty concentrating
    callous to others' requests
    often leads to drink
    gastrointestinal disturbances

    poor control of impulses
    weak memory
    impulsive ideas
    memory impaired
    deterioration of behavior
    loss of self control
    delusions of grandeur
    delusions of persecution
    difficulties in speaking
    and writing
    neurasthenic symptoms

    emotional apathy and indifference in the patient with respect
    to other individuals
    a certain lack of harmony, integration, and coordination between
    emotional and rational or intellectual activities
    gradual mental deterioration
    hallucinations common
    clarity of thought is lost
    apparent inappropriateness of reactions
    lack of judgment and foresight
    seem feeble-minded
    senseless and illogical thought processes
    withdraws from reality
    rationalizations and projections
    fantasy world
    word salad

    alcohol intoxication
    maladaptive behavioral effects
    slurred speech
    unsteady gait
    flushed face
    mood change
    impaired attention

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    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.

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    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?

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    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.

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    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, 177 N.W. 831 (Neb. 1920). The rights of healthy people have priority. That is the AR 1-8 philosophy. Smokers are not allowed to make people ill.

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    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.

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    a sickness within himself

    The reasonable accommodation process has not been started.

    Ed. Note: That process presumes compliance with other rules, does not serve as pale substitute, contrary to the TACOM and MSPB position.

    The book, Abnormal Psychology and Modern Life, 5th edition [Scott, Foresman & Co, 1976], by [Prof. James C.] Coleman, at 632 states, “As used in the present context prejudice refers to any attitude toward other individuals or groups that is based on inadequate and selective sources of information, while discrimination refers to overt acts that unjustly deny equal status or opportunity to persons on the basis of their membership in certain groups. Usually, of course, prejudice and discrimination go together.” In Psychology for Better Living [(New York: John Wiley, 5th ed., 1965)], Dr. [Lyle] Tussing at 474 refers to “Social prejudice” “as a kind of sickness” with “a number of negative aspects” including “that the prejudiced person has a sickness within himself.”

    At 120, Dr. Tussing notes that “Prejudiced people make up their minds about something or someone before they have any evidence.” He advises that “An individual who finds that he possesses a number of prejudices should make every effort to get rid of them or he will find it impossible to think logically.” At 474, the “sickness within himself” in the prejudiced person exists by “a form of rationalization,” i.e., “When a person wants to support a prejudice, even though he is not conscious of this desire, he sees only the bad and unpleasant things about the people at whom his feeling is directed. This is a form of rationalization.” Prejudice “creates problems. . . .” At 475, Dr. Tussing correlates prejudice and “the stereotype concept” and “stereotype thinking.”

    Ed. Note: Example is the TACOM and MSPB refusal to allow review on merits.

    Discrimination involves “the curtailment of people's rights as human beings.” One aspect is that it “debases all those involved—the victims, those who victimize, and those who function as accessories by standing idly by.” See Coleman at 633. He notes that “The physically handicapped are another group that suffer from discrimination.” He notes that prejudice has been “notoriously easy to rationalize. . . ,” even though “we look at the maiming of others—both psychologically and physically—'with disgust and horror' . . . .” Prejudices “come to be built in systematic ways . . . .”

    The parallel with functional and organic mental disorders is clear. Apathy and indifference to others as typical of schizophrenics is evident in prejudice. In schizophrenia, “clarity of thought is lost in the confusion.”

    Ed. Note: This is a classic smoker symptom.

    That fact provides insight on prejudice. In schizophrenia, “simple cases are marked by . . . scarcity of acute psychotic symptoms,” as is likewise true with prejudice. Schizophrenia includes “blunted” aspects, as does prejudice. The “fragmentary” and “world of fantasy” aspects are also notorious. Prejudice involves emphasis on “trivialities” or other disproportionate aspects, like schizophrenia. “In schizophrenia, reality orientation is especially weak.” A supposed “threatening reality” may be a cause.

    Ed. Note: Example is noted as long ago as 1845.

    Prejudice has historically and notoriously been “justified” by claims of “threatening reality” of alleged behavior by the victims of prejudice. The paranoid aspects of prejudiced behavior also reflect “a sickness within.” Dr. Tussing at 345 indicates that “those individuals who are psychotic . . . have very little insight into their own conditions.” No doubt—both the psychotic and the prejudiced person have “a sickness within himself.”

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    Psychology for Better Living [(New York: John Wiley, 5th ed., 1965)], by Dr. [Lyle] Tussing, at 474, notes “that the prejudiced person has a sickness within himself.” Introduction to Psychology [Harcourt, Brace & World, Inc.], 4th edition [1967], by [Ernest R.] Hilgard and [Richard C.] Atkinson, at 177, cites of prejudices that “the people holding them are not capable of change through the examination of evidence bearing on them.”

    Ed. Note: See People v Matulonis, 115 Mich App 263; 320 NW2d 238 (1982).

    The inflexibility, and the apathy and indifference to reality, shown by local and MSPB personnel is clear. They refuse “examination of evidence bearing on” the situation, such as “examination” to determine that safety and health standards have been disregarded, that the personal standard envisioned by AR 1-8 has not been effected, that there is no job-related standard for claiming that a non-smoker wanting rules enforced should be declared ill for a medically impossible duration, that time limits are ignored, etc., etc. Indeed, even the 18 June 1981 MSPB assertions are ignored, and there is no “examination” or even response to my inquiries on the matter.

    Hilgard and Atkinson at 177 provide a definition of prejudice, “An attitude that is firmly fixed and not open to free discussion is known as a prejudice.” Such data provides insight on the smoker behavior [that EEOC cited] of refusal to “ever consider the merits.” Even when their own EEO Officer (Mr. Kenneth Adler) in September 1980 recommended discussion, they refused. Mr. Baumgaertner of MSPB considered compliance “not relevant.”

    Ed. Note: MSPB brazenly flouts decades of precedents that agencies must obey their own regulations. Service v Dulles, 354 US 363; 77 S Ct 1152; 1 L Ed 2d 1403 (1957); Watson v Dept of Army, 142 Ct Cl 749; 162 F Supp 755 (1958); Piccone v U.S., 186 Ct Cl 752; 407 F2d 866, 871 (1969); California Human Dev Corp v Brock, 246 US App DC 65; 762 F2d 1044, 1049 (1985). See also U.S. v Nixon, 418 US 683, 695-96, 94 S Ct 3090, 3100-02; 41 L Ed 2d 1039 (24 July 1974), and Vitarelli v Seaton, 359 US 535, 539-40; 79 S Ct 968, 972; 3 L Ed 2d 1012 (1959).
    These precedents show that it is well settled that an agency is bound by the regulations it has promulgated, even though absent such regulations the agency could have exercised its authority to take the same actions on another basis, and that the agency must abide by its regulations as written until it rescinds or amends them.
    It is characteristic of the criminally insane that they are unable “to appreciate the wrongfulness of [their] conduct,” and “to conform [their] conduct to the requirements of the law,” says People v Matulonis, 115 Mich App 263; 320 NW2d 238 (1982).

    The pre-reasonable accommodation process has not started; the 25 Jan 80 Grievance Report on the personal standard envisioned by AR 1-8 has not been implemented; local management in “the agency failed to abide by” it [as EEOC said].

    Ed. Note: The accommodation process presumes compliance with other rules, i.e., does not serve as a pale substitute for it, contrary to the TACOM and MSPB position.

    When in reaction [to the non-compliance, as EEOC noted], “appellant filed even more EEO complaints,” “miscalculations” [as EEOC noted] that suggest acalculia resulted [at TACOM], as did “the agency's decision to terminate” me [as cited by EEOC's Perez] in reprisal.

    Dr. Tussing at 356, says of schizophrenia, “Because the disorder lasts so long, schizophrenics accumulate in mental hospitals and constitute about 50 per cent of the inmates at any given time.” Evidently schizophrenics, like prejudiced persons, “are not capable of change through the examination of evidence . . . .” They are unresponsive even when provided data from USACARA, MESC, and EEOC showing aspects of their unresponsiveness to reality.

    At 474, Dr. Tussing notes that prejudice “is harmful to those against whom there is a prejudice . . . creates problems . . . directed against people . . . Prejudice is learned behavior . . . resentment and hatred . . . Once prejudices have been acquired . . . they tend to keep them . . . .” The analysis of “not capable of change” despite reality to the contrary is insightful. Malicious officials are “against” people, “against” rules, “against” those who disagree with them, “against” reality. Hilgard and Atkinson at 578 indicate, “The practice of finding a victim upon whom to place the blame for our troubles and hence to make the object of our agressions is a familiar one.” The local wrath at me has existed since I began [in 1979] seeking rule enforcement, and especially since I won the 25 Jan 80 Report, as Ms. Bacon's 29 April 1980 [letter] makes clear. At 579, the book says, “The law must increase the retaliatory strength of the victims of aggression,” and “it must invoke the usual sanctions that protect individual liberty . . . .” The MSPB behavior reflects rage and irritability that I suggested “the usual sanctions” [e.g., following hiring and discipline rules] for past rule violations, and asked for future rule enforcement. MSPB offenders [Baumgaertner, Wertheim, Poston, et al.] are clearly “not capable of change” to correct their errors. Their continued blunted actions show this.

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    The DSM-III [1980] at [page] 177 notes the “highly overlearned” nature of smoking behavior. NIDA Research Monograph 23 [1977] at [page] 1 notes that the “behavior represents a prototypic dependence process.” In “Smoking as an Addictive Disorder” [by Jerome H. Jaffe, M.D., and Maureen Kanzler, Ph.D.] (pp. 4 - 23), “gradually the capacity to choose is eroded . . . a small 'bolus' of nicotine reaches the brain within seconds after a puff . . . hundreds of puffs inhaled each day should produce a well-established puff-inhalation habit.” The behavior “is a case of widespread self injury with enormous health consequences . . . sickness and death,” as noted at [page] vii. Dr. [Matthew] Woods noted in [32 J Am Med Ass'n (#13) p 68, 1 April] 1899 that smoking “causes insanity.” The psychogenic or other mental problems that produce initial smoking behavior clearly produces organic brain damage; repeatedly placing poison in the brain "hundreds of puffs" or times a day results in brain damage. Dr. Woods noted that smoking “causes insanity.” More specifically, Dr. Kellogg noted such aspects as “neurasthenic symptoms,” “difficulties in speaking and writing, defects of word memory, aphasia, neuralgia . . . .”

    Introduction to Psychology, 4th edition, at 512 - 513, discusses “stereotypy in behavior, that is, a tendency to blind, repetitive, fixated behavior. Ordinary problem-solving requires flexibility . . . .” Under certain circumstances in a person's life, “some of his flexibility appears to be lost, and he stupidly makes the same effort again and again . . . For example, a white rat can be taught to jump to one of a pair of stimulus cards . . . by so arranging the cards that the rat finds food behind the positive card but is punished if he jumps to the negative card. . . . The cards are so arranged that the rat knocks over the positive card when he hits it, opening . . . access to a platform where there is a food reward. If the rat jumps against the negative card, the card does not give way. Instead, the rat bumps against the card and falls into a net. By varying the position of the cards, the experimenter can teach the rat to select the positive one and to jump consistently to it.” However, the experiment can be changed so that “each of the two cards leads half the time to reward (positive reinforcement), half the time to punishment (negative reinforcement), regardless of its position . . . Hence, whichever choice the animal makes is 'correct' only half the time. The result is that the rat . . . tends to form a stereotyped habit of jumping regularly to one side, no longer paying attention to which card is exposed. . . . Once the stereotyped habit has been adopted, it is very resistant to change, so much so that it has been called an 'abnormal fixation.' For example, if the rat that has come to jump regularly to the right is now punished every time he jumps, he may continue to jump to the right for as many as 200 trials, even though the left window remains open as an easy and safe alternative . . . The behavior is so stereotyped that the altenative does not exist for the rat . . . .”

    Stereotypy provides insight on smoker behavior such as the disregard of the [15 USC § 1333] warning labels on tobacco, the “highly overlearned” aspects of the behavior, etc. Smokers do not foresee which smoker in particular will die of which physical or mental illness caused by smoking. Once brain damage has occurred, “gradually the capacity to choose is eroded.” Even if they were taught the principles of safety, job-related qualifications criteria, “not ready, willing and able to work” guidance, the “blind, repetitive, fixated behavior” continues even despite repeated showings of the mentally disordered and wrongful aspects of their deviant behavior.

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    "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), 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.

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    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.

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    Prohibited Personnel Practices

    Violation of Law

    5 USC § 7902.Section (d) provides for actions including to “eliminate work hazards and health risks.” Local [TACOM] officials for personal reasons refuse to do this. The Public Health Service notes that “we know of no level of tobacco exposure below which there are no human effects.” Mr. [Robert] Shirock [Safety Officer] thus refuses to confirm that the [TACOM] environment is safe; so unqualified persons such as Ms. [Carma] Averhart and Ed Hoover simply make such assertions.
    29 USC §§651-678The safety duty is “unqualified and absolute,” yet people such as Ms. Averhart and David Stallings indicate refusal to meet the duty. Even though a hazard is clear, they refuse even though “All preventable forms and instances of hazardous conduct must . . . be entirely excluded from the workplace.” Cf. Nat’l Rlty. & C. Co., Inc. v. OSHRC [160 US App DC 133], 489 F.2d 1257 [1 O.S.H. Cas.(BNA) 1422] (1973). The right to remain at work in safety is refused.
    29 USC § 791Refusal to initiate reasonable accommodation of my handicap, and refusal to protect the many others to whom the hazard also poses a danger and can cause short and long term effects.

    Over-accommodation of persons suffering from mental illness caused by drug abuse such as smoking or alcoholism, even though persons who are dangerous to themselves, property, and others are not to be accommodated. Persons such as Ms. [Carma] Averhart and Ed Hoover engage in disruptive behavior that impairs efficiency, for example, forbidding me to work for their own personal reasons instead of dealing with the cause––the prohibited endangerment. See Doe v. Hampton [184 US App DC 373], 566 F.2d 265 (1977) and Spragg v. Campbell, 466 F. Supp. 658 ([D. S.D.] 1979).

    The 25 Jan 80 Examiner’s findings in my favor showed no local [TACOM] consideration of the rights of non-smokers. Disregard of the rights of the majority is not an equitable balance. Freedom of choice includes the right to choose not to smoke. Local [TACOM] officials using their positions for their personal reasons insist on forcing others to smoke.

    18 USC § 1001False statements have been made by local [TACOM] officials such as claiming [as cited at 6 MSPB 626; 7 MSPR 13] to have done the following: “prohibiting smoking in the entire Civilian Personnel Division”; “advising fellow workers and visitors not to smoke in appellant’s presence”; “conducting an air content study of the appellant’s immediate work area to determine toxic substances present”; providing “an adequate ventilation system” adequate to prevent endangerment, discomfort, etc. as required by law and regulations such as AR 1-8; “conducting periodic air quality surveys of appellant’s immediate work area to insure compliance with health standards”; “relocating his office to improve air quality”; “initiating an educational program to discourage smoking within the general workforce”; etc.

    Claims have also been made that the duty is “‘reasonable’ attempt” as distinct from the legally required “unqualified and absolute” duty; that compliance with the legally required “unqualified and absolute” duty is an “undue hardship”; that achieving the core of the police power of government is an “undue hardship”; that my ability to work is contingent upon compliance with requests supposedly made by me but which I did not make; that smoking is essential for job performance; etc. Such claims by government officials are false or misleading. [See EEOC Docket 03.81.0087, 83 FEOR 3046, 8 April 1983, verifying accordingly.]

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    Prohibited Personnel Practices

    Unconstitutional Local Acts

    Equal Protection

    Refusal to let me return to duty to verify whether AR 1-8 is being complied with as per guidance of 25 Jan 80 USACARA Report, p 14, on “personal determination.” It is not lawful to refuse a person the right to take a test, Gurmankin v. Costanzo, 556 F.2d 184 [14 Fair Empl. Prac. Cas. 1359, 14 Empl. Prac. Dec. ¶ 7519, 1 A.D. Cases 20 (3d Cir, 1977)].

    Refusal to allow right to work in safe conditions in work area where I am called to be. See Brown v. U.S., 256 US 335 [41 S.Ct. 501; 65 L.Ed. 961] (1921); Yick Wo v. Hopkins, 118 US 256 [6 S.Ct. 1064; 30 L.Ed. 220] (1886); Truax v. Raich, 239 US 33 [36 S.Ct. 7; 60 L.Ed. 131; LRA 1916D, 543; Ann Cas 1917B, 283] (1915); Sleeper v. Sandown, 52 N.H. 244 (1872) [Prof. Alfred Blumrosen, et al, “Injunctions Against Occupational Hazards: The Right to Work Under Safe Conditions,” 64 Cal. Law Rev. [#3] 702 (May 1976)].

    Insistence on use of tradition, that excused absence is traditionally only for all hazards except smoking, when tradition is not a lawful reason, Shelley v. Kraemer, 334 US 1 [68 S. Ct. 836; 92 L. Ed. 1161] (1948); Browder v. Gayle, 142 F. Supp. 707 ([M.D. Alab.] 1956) [cert. den. 352 US 903 (1956)].

    Insistence on segregating me instead of acting on the rights of all nonsmokers as cited in the 25 Jan 80 Report, p. 11, and of handicappers sensitive to tobacco smoke, Missouri ex rel. Gaines v. Canada, 305 US 337 [59 S.Ct. 232; 83 L.Ed. 208] (1938); Hairston v. Drosick, 423 F. Supp. 180 (S.D.W. Va. 1976).

    Insistence that I or my doctor must accept the current endangering environment or else––an all or nothing approach––of a perfect solution or nothing, Buchanan v. Warley, 245 US 60 [38 S.Ct. 16, 62 L.Ed. 149] (1917); Bartels v. Biernat, 427 F. Supp. 226 (E.D. Wis. 1977); Swick v. Aetna Portland Cement Co., 147 Mich. 454 [111 NW 110] (1907).

    Violations are “readily apparent” including for those “similarly situated” while there is insistence on “too much deliberation” and no speed at all, including the clear (in substance) cancellation of all my EEO cases,     Goss v. Bd. of Education of Knoxville, 373 US 683 [83 S.Ct. 1405, 10 L.Ed.2d 632] (1963);   Rogers v. Paul, 328 US 198 [86 S.Ct. 358; 15 L.Ed.2d 265] (1965);   Griffin v. City School Bd. of Prince Edward County, 377 US 218 [84 S.Ct. 1226, 12 L.Ed.2d 256] (1964).

    Insistence that involuntary smoking is an essential part of successful job performance when involuntary smoking is in fact no part at all of the job or of any job requirement whatsoever, Griggs v. Duke Power Co., 401 US 424 [91 S.Ct. 849; 28 L.Ed.2d 158] (1971); Shimp v. N. J. Bell Telephone Co. [145 N J Super 516], 368 A. 2d 408 (1976).

    Use of aphorisms such as “unfit for duty” instead of actually conducting a proper analysis and noting that tradition is not a proper substitute for rules, and that no action can be for an obviously medically impossible duration, by use of ex parte communications as a stratagem to circumvent policies such as AR 1-8 to preclude endangerment from occurring, much less causing long-term sick leave, Snead v. Stringer [454 U.S. 988; 102 S. Ct. 535], 70 L.Ed.2d 402 (dissent); Clements v. Logan [454 U.S. 1304; 102 S.Ct. 284], 70 L.Ed.2d 461 (1981); Mattox v. U.S., 156 US 237 [15 S Ct 337; 39 L Ed 409] (1895); Phelps Dodge Corporation v. N.L.R.B., 313 US 177 [61 S.Ct. 845, 85 L.Ed. 1271] (1941).

    Personal reasons and smoker private conduct used as basis for adverse action without notice or opportunity to reply, Knotts v. U.S. [128 Ct.Cl. 489], 121 F. Supp. 630 (1954); Shelley v. Kraemer, 334 US 1 [68 S. Ct. 836; 92 L. Ed. 1161] (1948); Elchibegoff v. U.S., 106 Ct. Cl. 541 (1946); Money v. Anderson [93 US App DC 130], 208 F.2d 34 (1953); Matter of Rabideau [102 Wis.2d 16], 306 N.W.2d 1 (1981).

    Due Process

    Refusal of a hearing for so long is obvious. Also see Linn, “Uncle Sam Doesn’t Want You: Entering the Federal Stronghold of Employment Discrimination against Handicapped Individuals,” 27 De Paul Law Rev 1047 (1978).

    Page 71 of 112 pages.Affiant's initials _________

    MSPB and TACOM disrespect for AR 1-8 and the 25 Jan 80 Grievance Report is, of course, obvious. One disdainful remark against the rules is at p. 4, footnote 4, of the 18 June 1981 bill of attainder. What the Grievance Report uphold, MSPB snubbed. At 12, the Grievance Report rightly noted the decision authority of a "personal determination." MSPB says I merely "claimed." Perhaps MSPB officials are unaware of American legal principles. People make "personal determinations" on who to vote for; such decisions are final and binding and not subject to governmental challenge, disagreement, or interference. The government is compelled to honor such decisions! it has "no choice." People engage in freedom of speech; people engage in freedom of the press. It is deliberate, wanton "overbearing" behavior to trivialise a right as merely what the citizen "claimed." Such remarks are intentionally contemptuous.

    Relative to voting, speech, the press, discomfort, unreasonable annoyance, etc.—in America—the way the government is informed is by verbal and/or written notice from the citizen. Discomfort and unreasonable annoyance involve "a personal determination to be made by that individual." That is how violation of that aspect of AR 1-8 is brought to management attention—especially when mentally disordered officials refuse to do studies. The violation is occurring before the report is made to management. Once the report is made, it is management's duty to halt the violation. This is what TACOM and MSPB refuse to do; thus, they fake having done so, although in a slipshod way, so the falsity of their pretenses is made clear on review. "Once the conditions . . . are met, the duty . . . is . . . mandatory," Matter of Knust, S.D., 288 NW2d 776, at 778 (1980).

    An intellectually honest footnote 4 wuld have observed the fact of the non-resolution of the endangerment, discomfort, and unreasonable annoyance, without the use of knowingly offensive word "claimed." The fact of resolution is not apparent from the record; the record shows that endangement, discomfort, and unreasonable annoyance caused by smokers continued. Resolution will be apparent only when I report a halt to such prohibited behavior. Management makes clear the problem is installation-wide; it is not something merely "claimed" by me considering the input however distorted from persons such as Messrs. Holt and Shirock. See p. 22 of ny 9 May 1980 letter to Mr. Baumgaertner; see the information on tihe TACOM refusal to allow me to "come on-post to assess the situation by my 'personal determination.'" Do TACOM and MSPB realise that the previous notices of my "personal determination" have not been honored? that corrective action still has not been begun? Of course.

    It is not just MSPB that has ridiculed the Grievance Report and the strong AR 1-8 guidance. The pattern began locally. When officials disagree with rules they are responsible to enforce, the fact becomes evident. Even the tone of voice and facial expression is affected. The hearing will not limit itself to just TACOM officials; the responsible MSPB officials will also be displayed so their attitude will be evident. The rule entitling appellants to a hearing is clear. MSPB nevertheless refused me a hearing; MSPB officials do not want their anti-rule views explicitly revealed. Hearings are the norm in America. The lawbooks are replete with references. A hearing would show multiple violations, and devastate the very initial basis of the TACOM pretenses, i.e., Dr. Holt's March 1980 assertions made contrary to the input from the examining physicians and contrary to the rules and Grievance Report. Striking at the basis is a right even criminals have, Dunaway v. State of New York, 442 US 200 (1979). Here, I am the victim of crimes, many crimes, assault and battery, falsification, etc. as repeatedly indicated. Courts are impatient with victims being mistreated. The government should be setting an example of concern for victims' rights. Yet this case involves the government as the abuser. This case involves government officials using their jobs for their personal reasons against me.

    Page 72 of 112 pages.Affiant's initials _________

    Page 73-78 of 112 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 79 of _______ 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 80 of 112 pages.Affiant's initials _________

    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 81 of 112 pages.Affiant's initials _________

    (pp 82-86)

    Prohibited Personnel Practices

    Violation of Regulation 
    29 CFR § 1613.701 etc.The required “reasonable accommodation” presupposes compliance with basic rules. Local [TACOM] employees deny any hazard or violation [exists] and thus [they] refuse to begin regular rule enforcement. As the process has not starred, local [TACOM] employees also refuse to begin “reasonable accommodation.”

    For example, AR 1-8 requires that the environment “not endanger . . . cause discomfort or unreasonable annoyance.” The environment does these things to the extent [TACOM] management refuses to let me return to duty, but it refuses to halt the endangerment and discomfort the regulation prohibits.

    [TACOM] Management refuses to implement the “unqualified and absolute” safety duty specified by OSHA [29 USC § 651 - § 678] in Nat’l Rlty & C. Co., Inc. v. OSHRC [160 U.S. App. DC 133], 489 F.2d 1257 (1973). Compliance with OSHA (or 5 USC § 7902) would undoubtedly preclude need for superimposing “reasonable accommodation” on top of the “unqualified and absolute” duty. Achieving a non-endangering, non-discomforting environment would likewise undoubtedly preclude need for superimposing the “reasonable accommodation” duty on top. However, achieving them would most assuredly provide a sound basis for then beginning the “reasonable accommodation” process.

    The local [TACOM] employees involved also refuse to enforce other rules such as on courtesy, littering, loafing, efficiency, property control, etc. Enforcement of any one rule would resolve the situation. The local property control regulation, TACOM-R 190-4 is based on the same police power authority as was upheld in Austin v. Tennessee, 179 US 343 (1900). The rule forbids any habit-forming drug without a valid doctor’s prescription. It also limits personal effects to non-dangerous items. Even if personal effects were allowed to be dangerous, such would not allow personal reasons to be a basis for adverse action against a victim such as myself harmed by such personal effects.

    No reason has ever been provided for the refusal to (a) enforce the pertinent rules and (b) begin reasonable accommodation. Even if there are reasons (and there are none, or they would have been articulated––although untimely), there is no cause for adverse action until after any alleged reasons are stated and opportunity to reply provided. Cf. 5 CFR § 752 and advance notice [5 USC § 7513(b)] requirements.

    As made clear in cases such as State of Missouri ex rel. Gaines v. Canada, 305 US 337 (1938); Brown v. U.S., 256 US 335 (1921); and Sleeper v. Sandown, 52 N.H. 244 (1872), movement in safety is extensive and not limited to one room. Cf. OSHA cases and 5 USC § 7902. Reasonable accommodation superimposed on top of these basic legal facts will assuredly allow immediate return to duty in safe conditions.

    Page 87 of 112 pages.Affiant's initials _________

    Page 88-89 of _______ pages.Affiant's initials _________

    Army did not write a regulation saying, Smoking is allowed to endanger, discomfort, and unreasonably annoy nonsmokers. However, the installation [TACOM] and the MSPB have made clear that they feel that is the meaning of AR 1-8. The guidance that AR 1-8 in fact provides is “unqualified and absolute.” Any number of measures may and must be taken to achieve the criteria. The 25 Jan 80 Grievance Report in my favor by USACARA makes clear that there is no limit. None of the claims by MSPB 18 Jun 81 [6 MSPB 626; 7 MSPR 13, by Ronald P. Wertheim, Ersa H. Poston, etc.] on what the installation purportedly has done were true. But suppose all the MSPB claims were true. The test of whether the regulatory goals are met was simply ignored by MSPB. Instead, it used an irrelevant test, “reasonable accommodation.” Even then, it simply invented “undue hardship” ideas. MSPB acted on an empty record.

    A proper decision would simply note that endangerment is evident; therefore, the agency action involves non-compliance with its own rules.

    A proper decision would simply note that a medically impossible duration is involved; therefore, the action is clearly a suspension, without any of the required advance notice and reply rights.

    A proper decision would simply note that the installation [TACOM] has not provided specific facts to support its claims. Re studies––what items, when, by whom, what equipment, what standards, how are they relevant, why did the Examiner 25 Jan 80 disagree, what relevance to AR 1-8, what relevance to FPM Suppl. 752-1 [5 CFR § 752], etc. There are not specifics for the claims. Moreover, considering the inadequacies of TACOM behavior, it is clear that there was not compliance from the [November 1977] time of issuance of AR 1-8 until at least years later, if at all. And considering smoker mental disorders and alcoholism, it is not realistic to think that compliance suddenly began to happen once management decided that getting rid of me would be an easy way out. I ask questions that local officials do not want asked. They do not want a hearing.

    Michigan law provides pertinent insight. Michigan courts take note of Prosser, Torts (4th ed.), Section 105, pp. 885-886, summarized as follows:

    “1. A false representation made by the defendant. In the ordinary case, this representation must be one of fact. 2. Knowledge or belief on the part of the defendant that the representation is false—or, what is regarded as equivalent, that he has not a sufficient basis of information to make it. This element often is given the technical name of ‘scienter.’”

    The elements of fraudulent misrepresentation go on to provide more data. In Cormack v. Am. Underwriters Corp, 94 Mich. App. 379, 288 N.W.2d 634, the Prosser “definition is supported by Michigan case law. See, Graham v. Myers, 333 Mich. 111, 52 N.W.2d 621 (1952), Michael v. Jones, 333 Mich. 476, 53 N.W.2d 342 (1952) . . . Rose v. Wertheimer, 11 Mich.App. 401, 161 N.W.2d 406 (1968).”

    The 18 Jun 81 MSPB decision [6 MSPB 626; 7 MSPR 13, by Ronald P. Wertheim, Ersa H. Poston, etc.] admits only “some analysis.” Based on that, MSPB did not even bother looking for reprisal, when it should have been obvious to MSPB that only reprisal (personal reasons for smoking) causes the situation. MSPB alleges “reasonable attempts to accommodate” without regard for mandatory regulatory guidance. AR 1-8 does not say “attempt” to achieve the goals. It says—do it. This is the Army we are talking about. “Attempts” to obey rules are not listed. AR 1-8 does not say “attempts” to “take affirmative action,” “Full cooperation,” “be controlled in accordance with,” etc. The word “will” appears quite often in AR 1-8; the word “attempts” is an MSPB invention. MSPB does not just act on an empty record; it defies what evidence it did allow into the record. “Smoking will be permitted only if” goals are met.

    MSPB knows better. That is why, on page 4, it did not stop with citing the guidance by the doctor on achieving the regulatory goals against endangerment, etc., but dredged up a stale grievance, closed but not implemented. The doctor stuck to the goals; I had provided motivating data on consequences of prior non-compliance.

    Page 90 of 112 pages.Affiant's initials _________

    The lack of “a sufficient basis of information to make” representations (scienter) meshes effectively to control TACOM and MSPB misconduct with the U.S. v. Olivares-Vega, 495 F.2d 827 (1974) “full equivalent of knowledge” data. This further meshes with the guidance “where a witness knowingly fabricates details in order to strengthen his credibility as such,” U.S. v Blackmon, 24 F.Supp. 830 (1938), aff'd 108 F.2d 572 (1940). The lack of relevant studies, disregard of the examining physicians, disregard of “personal determinations” and other "The agency does not argue nor does the record support that it ever complied with the recommendations of the Grievance Report guidance, failure to identify and control mentally disordered/alcoholic smokers, violation of basic constitutional rights, disregard of civil service and installation rules, etc., etc., make clear that this is no longer merely a civil case. The full power of governmental control mechanisms are vital to measures against government officials for their methods in handling the case to this point. In my 6 Nov 81 letter to the local FBI, “it is understood that from time to time, management and employees may disagree.” Likewise with MSPB. “But is never permissible for management to simply fabricate things.” Likewise with MSPB.

    Many ways are recognized to show a hazard exists. TACOM and MSPB are intentionally limiting the range of methodology to only TLV’s without evidence to do so, and indeed contrary to the evidence. The 25 Jan 80 Grievance Report and the examining doctors have made the facts clear. Dr. Holt has too, in substance. Mr. Shirock is evidently backing off from his claims. What are ways to show a hazard? See 64 Cal. Law Rev. 702 at 715 (1976). Examples include: government-compiled statistics . . . injuries that were redressed by workman’s compensation . . . a safety standard . . . a published study . . . apparent to the ‘ordinary person.’” All of these exist. There are thousands of studies on the matter. There have been compensation cases, as Mr. Grimmett’s 10 Oct 1979 memo makes clear––“at least several employees have filed claims stemming from smoking-related conditions.” The installation [TACOM] legal office on 1 Aug 1979 noted that “no asthmatic should be within 25 feet of a smoker.” AR 1-8 is not protection just for me. AR 1-8 is a standard that prohibits precisely the endangerment that is happening. American Smelting & Refining Co. v. Occ. Safety & Health Rev. Commission, 501 F.2d 504 (1974), provides insight into the concept on what is “apparent.”

    Out of control smokers have hurt themselves and others and property as Court records around the nation show. The problem of smoking behavior has been noted for centuries. Dr. William H. Stewart, Surgeon General in 1967, indicated that the health hazard “is flat, scientific fact.” He indicated that "establishing it and demonstrating it is no longer our goa1.” What is the matter with MSPB and TACOM officials? Are they so arrogant they feel everybody is wrong but them?

    Management has intentionally singled me out for abuse. MSPB has intentionally refused a hearing to show this fact. In 16 Archives of Environmental Health 443 (March, 1968), ill effects from tobacco smoke are shown to be common. Bad effects occur in both allergic and nonallergic persons. The article “Tobacco and the Nonsmoker” by Frederick Speer notes common complaint such as eye irritation. coughs, headache, and nasal symptoms. The article notes that “the many individuals who develop symptoms from tobacco smoke need the understanding and support of the physician in helping them to avoid its noxious effects.” Note “the many.” In my case, I need government compliance with criminal law. A halt to the multiple falsifications by itself will provide relief.

    Please arrange compliance with the criminal law.

    Page 91 of 112 pages.Affiant's initials _________

    (pp 92-95)

    Prohibited Personnel Practices

    5 CFR § 752 Federal employees are not allowed to engage in behavior that “may be . . . injurious to the employee, his fellow employees, or the general public.” Smoking behavior involves all these violations, as many lawsuits reveal:

    Lawsuits by Smokers on Smoking as Harmful to Themselves

    Green v. American Tobacco, 304 F.2d 70 (5th Cir. 1962), question certified on rehearing, 154 So.2d 169 (Fla. 1963), rev’d and remanded, 325 F.2d 673 (5th Cir. 1963), rev’d and remanded on rehearing, 391 F.2d 97 (5th Cir. 1968), rev’d per curiam, 409 F.2d 1166 (5th Cir. 1969) (en banc), cert. denied, 397 US 911 (1970).

    Pritchard v. Liggett & Myers Tobacco Co., 134 F. Supp. 829 (W.D. Pa., 1955), rev’d and remanded, 295 F.2d 292 [22 NCCA3d 421] (3d Cir. 1961), aff’d on rehearing, 350 F.2d 479 (3d Cir. 1965), cert. denied, 382 US 987 (1966), modified, 370 F.2d 95 (3d Cir. 1966), cert. denied, 386 US 1009 (1967).

    Albright v. R. J. Reynolds Tobacco Co., 350 F. Supp. 341 (W.D. Pa. 1972), aff’d mem., 485 F.2d 678 (3d Cir. 1973), cert. denied, 416 US 951 (1974).

    Cooper v. R. J. Reynolds Tobacco Co., 234 F.2d 170 [80 ALR 675] (1st Cir. 1956), dismissed, 158 F. Supp. 22 (D. Mass. 1957), aff’d, 256 F.2d 464 (1st Cir. 1958)

    Hudson v. R. J. Reynolds Tobacco Co, 427 F.2d 541 (5th Cir. 1970).

    Ross v. Philip Morris and Co., 328 F.2d 3 (8th Cir. 1964).

    Lartigue v. R. J. Reynolds Tobacco Co., 317 F.2d 19 (5th Cir. 1963), cert. denied, 375 US 865 (1963)

    Fine v. Phillip Morris, Inc., 239 F. Supp. 361 (S.D.N.Y. 1964).

    Padovani v. Bruchhausen, 293 F.2d 546 (2d Cir. 1961).

    Lawsuits v. Suppliers on Other Tobacco-Related Harm

    Pillars v. R. J. Reynolds Tobacco Co., 117 Miss. 490, 78 So. 365 (1918).

    Foley v. Liggett & Myers Tobacco Co., 136 Misc. 468, 241 N.Y.S. 233 (App. Term 1930), aff’d mem., 232 App. Div. 833, 249 N.Y.S. 924 (1931).

    Weiner v. D. A. Schulte, Inc., 275 Mass. 379, 176 N.E. 114 (1931).

    Liggett & Myers Tobacco Co. v. Rankin, 246 Ky. 65, 54 S.W.2d 612 (1932).

    Corum v. R. J. Reynolds Tobacco Co., 205 N.C. 213, 171 S.E. 78 (1933).

    Liggett & Myers Tobacco Co. v. Wallace, 69 S.W.2d 857 (Tex. Civ. App. 1934)

    Dow Drug Co. v. Nieman, 57 Ohio App. 190, 13 N.E.2d 130 (1936)

    For more information, see Southern California Law Review, Vol. 53, 1980, pages 1423 - 1465, article by law professor Donald W. Garner, “Cigarette Dependency and Civil Liability: A Modest Proposal.”

    Page 96 of 112 pages.Affiant's initials _________

    (pp 97-101)

    MSPB is ignoring the evidence. The installation [TACOM] has not even considered coming into compliance. The compliance process has been short circuited by local pressure on Dr. Holt to pretend that the process “cannot” start, a blunted claim. The claim is disconnected from reality. Disregard of rules is clear. No standards have been shown. No specifics have been cited. An employee answer (if not provided previously, as mine was, by means of the 25 Jan 80 USACARA Report, and other confirming material from other agencies) clearly must logically follow, not precede, specific data from management.

    Since the process has been short circuited, management chooses not to communicate with me. Once the process begins, any further answers that may be appropriate will be made. For now, the answers include but are not limited to the various analyzes by USACARA, EEOC, MESC, and OPM. No doubt they do cover all the salient points; the problem is uncommunicative local [TACOM] and MSPB officials who are unresponsive to reality. Communication must be two-way to be effective; management must become willing to communicate so that any salient points that might possibly be considered relevant can be addressed.

    The MSPB ignores the evidence. The examining physicians concur on my ability to work. The [18 June 1981] assertions by MSPB [6 MSPB 626; 7 MSPR 13, by Wertheim, Poston, etc.] have been accepted. No barrier to my return has existed at any time, except by the fact of the local [TACOM] “decision to terminate” [says EEOC’s Henry Perez, Jr.] me in the guise of a suspension. OPM has questioned the lack of physical retention standards; as smoking is no part on the job, no “job-related aspects” exist. There is no “business necessity.” No duties involve smoking, not even 1% or less, not even at the de minimis level. USACARA noted the full authority to accommodate [obey AR 1-8], and the duty to do so, including “affirmative action” to implement and anticipate “personal determinations” under the personal standard envisioned by AR 1-8. That was a complete answer. Management recognized it as such, but since local officials oppose the rules, they chose to oust me and not implement the Report. EEOC noted the lack of implementation of the Report. The various reviewing agencies, acting independently, come to the same conclusions. MSPB and local behavior is clearly what is out of step with reality. Being disconnected from reality is not only a psychiatric disorder; it is improper. It is improper, as administrative law cases such as In Re United Corporation, 249 F.2d 168 (3rd Cir. 1957), make clear.

    The pattern of MSPB decisions, from 23 Jul 80 - 26 Jul 82, is clear. Evidence is ignored, declared “not relevant,” or otherwise it rejected–even literally, by simply mailing it back. I am at a loss to deal with such odd, weird behavior. The intensity and duration of the bizarre behavior is beyond my experience in any role. When the details are strange. and the whole main point is missed, that is beyond the pale.

    MESC (like OPM) has a sound gasp of reality firmly connected to facts. The [MESC] Decision B81-09032, dated 30 Jul 81, granted unemployment compensation in accordance with Michigan law. The law, MCLA 421.28(1)(c), MSA 17.530(1)(c), specifies that requirements include that the applicant must be “able and available to perform suitable full-time work . . . .” The installation cites the disconnected claims of “not ready, willing and able to work” but loses. The numerous statements that start out with words to the effect of affirming ability to work are clear. MESC personnel are not disconnected from reality. The MESC decision has been upheld through every [TACOM] appeal, with dates of affirmance including 2 Sep 81, 21 Apr 82, 14 May 82, and 22 Jun 82. No administrative appeal rights for TACOM now exist.

    Page 102 of 112 pages.Affiant's initials _________

    Page 103-112 of _______ pages.Affiant's initials _________

    Other EEO Cases
    EEOC 22 July 1982

    EEOC 3 Sept 1982

    EEOC 21 Sept 1982

    EEOC 15 April 1983