|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:
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.
UNITED STATES OF AMERICA
Equal Employment Opportunity Commission
|25 Aug 1982|
|TABLE OF CONTENTS|
||Part 1||2 - 8
||Concluding Analysis and Request for Relief||110 - 112
|“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.”
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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 was unlawfully repealed (abrogated) at the stroke of an unauthorized pen.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.
(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!
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|Ed. Note: See
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.
|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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|tobacco organic mental disorder||Smoking “causes insanity”—Woods
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"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.
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|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.”
|Ed. Note: Example is the TACOM and MSPB refusal to allow review on merits.|
|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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|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.
|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.
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|Ed. Note: For background of the sadistic and vicious federal policy of reprisal, see documentation by, for example:
David W. Ewing, "Canning Directions: How the Government Rids Itself of Troublemakers," Harpers 16, 18, 22 (August 1979)
Thomas M. Devine and Donald G. Aplin, “Abuse of Authority: The Office of the Special Counsel and Whistleblower Protection," 4 Antioch Law J 5-71 (Summer 1986)
Thomas M. Devine and Donald G. Aplin, “Whistleblower Protection--Gap Between Law and Reality," 31 Howard Law J (#2) 223-239 (1988).
Peter Lance, 1000 Years for Revenge: International Terrorism and the FBI: The Untold Story (New York: Regan Books, August 2003), pp 172, 214, and 373-374.
Threats and events of reprisal are common throughout Federal Civil Service; see the government's own MSPB Retaliation Rate Study (December 2000) www.mspb.gov/studies/00decnws.pdf, citing a seven - twelve per cent retaliation rate, meaning hundreds of thousands of incidents.
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|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 §§651-678||The 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 § 791||Refusal 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 § 1001||False 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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Unconstitutional Local Acts
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|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.
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|“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).”
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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).
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).
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)
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|EEOC 22 July 1982|