EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036

Leroy J. Pletten,
Appellant,
Docket No. 01A41229
v.
Agency No. ARTACOM03FEB0010
Dr. Francis J. Harvey, Secretary,
Department of the Army,24 March 2005
Agency.

____________________________________/

AFFIDAVIT IN SUPPORT OF BRIEF

STATE OF MICHIGAN)
) SS
COUNTY OF MACOMB)

Appellant Leroy J. Pletten, being first duly sworn, deposes and says that his statements in his Brief on Reconsideration in this case, are true and correct.

1. In summary, I am an employee of the Department of the Army at its Tank_Automotive Command (TACOM), a small base in Warren, Michigan, no pre-decision notice of charges having been issued to me. Such a notice is a jurisdictional and due process condition precedent to removal.

2. TACOM assigned me personnel and crime prevention functions, e.g., discipline and complaints administration; employee efficiency, rank, and pay analyses; employee welfare, and familiarity with TACOMer misconduct (e.g., insubordination, leave abuses, assault, thefts, bribery).

3. TACOM’s ventilation system was only semi-functional, thus violating e.g., 32 CFR § 203/ Army Regulation 1-8 mandating functionality before smoking (the No. 1 cause of handicaps), could be permitted to begin on-site. TACOM Regulation 190-4 banned non-prescription drugs (of which nicotine is a notorious example) and discouraged bringing personal property on-site. TACOM management was hostile to said rules, refused compliance, pretended lack of authority! Employees on-site were complaining of this employee welfare issue. TACOMer sick leave rate was substantially above

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Army maximums, impairing [workforce] efficiency.

4. I became a whistle blower, filed in safety, Inspector General, and grievance forums, and won a favorable USACARA Report (alluded to by EEOC 23 Feb 1982, p 2, top (Exhibit 7, Jan 2004 appeal)).

5. USACARA was the Army entity that conducted investigations of both grievances and EEO cases. In my grievance, it rejected TACOM’s authority denial. It affirmed TACOM’s authority to cease permitting smoking under the pure air rule, AR 1-8 / 32 CFR § 203. USACARA did so without reaching subsequent hypothetical “accommodation issues,” per the TACOM Chief Counsel’s analysis that AR 1-8 “does give officials the authority to ban smoking” (19 June 1979).

6. Pursuant to government-wide pattern of retaliation against employees who do either (file grievance or whistleblower action, per Exhibit 18 of the January 2004 appeal), TACOM demanded I alter anticipated testimony and (when I responded in negative), purported to oust me. Ouster was a void action as done without jurisdictional and condition precedent 5 USC § 7513.(b) advance notice of charges. TACOM cited no reasons, no specificity, e.g., no misconduct or job description duties’ performance requirements and qualifications unmet or below standards. My supervisor Jeremiah Kator affirmed I was performing above job standards.

7. I had done no misconduct; I had a record of awards; my attendance was better than co-workers; my appraisals were for acceptable quality work IAW performance evaluation law 5 USC § 4304. TACOM has not issued documentation to the contrary.

8. TACOM nonetheless claims to have made some decision to terminate me. This was reprisal due to my refusal to alter anticipated testimony, and cease and desist pursuing whistleblowing issues. That was the “proximate cause” for the “decision to terminate” (Exhibits 5, 12, 17, of Jan 2004 appeal).

9. The ouster claims began according to the record in 1979 (see e.g., Exhibit 17). I began to

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seek review. My Personnel Office experience related to grievances (providing investigation); appeals (providing hearing); Inspector General and safety (generally providing neither); and the EEO process (providing both investigation and hearing). From a thoroughness point of view, the EEO process was my preferred choice, especially as investigation would be by USACARA, which had just ruled for me.

10. At the time (early 1980) TACOM clearly put me off-site, it did not provide a notice of charges, right to reply, nor identify all review-forum rights for me to make “informed choice.” It has never done so thereafter, despite doing various incidents (termination, forced leave, suspension, removal; terms vary as per no notice), requiring notification of rights.

11. At each separate act (termination, suspension, forced leave, removal, separation; agency terms vary absent notice), an agency must notify employee of review forums to enable “informed choice” among them. As per my TACOM job duties, I had enforced this concept for others impartially.

12. But for me, TACOM via its Legal Office has often denied I have appeal rights, and opposed my efforts to secure review like others. Contradictorily, TACOM officials such as EEO Officer Kenneth R. Adler and Deputy Commander BG David W. Stallings assured me the review I had requested would be done. Their credibility was greater with me than that of the Legal Office, as they had direct line authority to cause the EEO review (e.g., counseling, investigation, hearing) I sought, whereas the Legal Office could only provide non-binding advice so far as could be known by me at the time, in the face of the opposing line manager assurances apparently rejecting Legal Office advice to not allow me review.

13. After receipt of the February 2005 EEOC decision, due to its not having addressed the facts adequately, connoting that TACOM did not provide the full case file, behavior documented in EEOC’s 23 Feb 1982 decision (Exhibit 7 of January 2004 appeal), I filed a FOIA request for a copy of the case file. Having not yet received a response, and with deadline approaching, pertinent additional exhibits are hereby being sent with my Reconsideration, lest EEOC otherwise not have access.

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14. As stated, para 9, various TACOM words and actions connoting my being ousted appear in the record beginning in 1979. Re the 22 January 1982 “removal” which is the focus of the February 2005 EEOC decision, I immediately sought review in the then 29 CFR § 1613 forum. The TACOM EEO Office under EEO Officer Kenneth R. Adler date-stamped acknowledging receipt of same (Exhibit A). TACOM EEO Office also provided the follow-up form (Exhibit B) for me to complete. This was in context of the Deputy Commander Stallings letter (Exhibit 6 with the Jan 2004 appeal) assuring me of case processing. I relied on this, unaware of TACOM’s deception thereby.

15. As stated, para 9, various forums of review exist. My choice of the EEO forum under then 29 CFR 1613 was clear on the record, albeit that it was not an “informed choice” absent TACOM actually notifying me of my rights. Regardless, my effort to obtain EEO review prior to any other is clear, and significantly, sought done before knowing of, even the existence of, a later case that would confirm EEO jurisdiction, not MSPB's, when the employee has filed first–as I did--in the EEO forum, Carreno v Dept of Army, 22 MSPR 515, 518 (1984).

16. I am NOT alleging dissatisfaction with the processing of a previously filed complaint (reference 29 C.F.R. § 1614.107(a)(8)). No processing has occurred on my 25 Jan 1982 Exhibit A complaint (the only one with jurisdiction of the 22 Jan 1982 “removal”), nor indeed any thereafter.

17. Reference Exhibit C, local EEOC letter of 9 March 1993 on my seeking help to get review to begin under the circumstances. EEOC advised that EEOC mandates that “counseling is a required first step” and that EEOC does “assume that federal agencies will not refuse counseling,” but provided no information on how to secure the process to begin when the agency does “refuse” to allow the process to begin. I rely on that concept (of review process procedure of what is both “required” and “assumed”) throughout this 25 year period, and remain unaware of how to get the “assumed” process to begin, except by EEOC ordering that it begin.

18. I am NOT re-litigating (have not in law, jurisdictionally begun), but am rather attempting

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to learn sequentially, first (a) the charges and specifics, and second, (b) forum-review-rights, as done for others. Such data is needed for processing to begin! My review-seeking is not contesting processing! Processing has not begun on the only documentation (see e.g., Exhibit A) with jurisdiction of the “removal” IAW Carreno (itself in turn based on EEOC’s own regulation 29 CFR §1613.403 / 1614.302(b)). Nor am I re-litigating; rather, my effort is persistence that TACOM would otherwise commend (if doing this as a job duty for others), my trying to get the notice and review notice of rights and process to begin as for others. Perhaps litigating may later occur, after such notice, though that is doubtful as review would verify the glaring violations shown in the record (no jurisdiction to start with, for even alleging ouster, much less, that somehow MSPB and thereby courts, somehow acquired jurisdiction contrary to the process’ own rules, and thus contrary to law 5 USC § 552 which mandates that the government can only go by published rules, not outside the rule of law.

19. Until TACOM notifies me of appeal rights, I do not know what they are, can only speculate (especially in view of the TACOM reaction to my filing first in EEO forum, Exhibit A), in the face of TACOM fraud pretending it would allow review, while also refusing processing of same!

20. All I have done was “uninformed,” mere guesses, thus void, in the face of TACOM’s contradictions, fraudulent indications review would be allowed. I deny ever waiving my right to notice, charges, specifics, forum review options, and merits review like others typically receive, as per my years of experience providing same to others. I deny ever making an “informed choice” to seek judicial review, as in my experience, review by investigators occurs first; and, if the investigator did not resolve the matter, by hearing officers thereafter, with court-seeking quite unlikely.

21. Moreover, I rely on EEOC having verified in Docket Nos. 01800273 et al, p 2 (23 Feb 1982) (Exhibit 7 of the January 2004 appeal), a decision TACOM did not appeal, that it had cut me off from access to EEO review by Feb 1980. Significantly, that is in the time-frame of Mr. Perez noting the “decision to terminate” (Exhibit 5 with the January 2004 appeal).

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22. I could not make, was not allowed to make, uncoerced free “informed choice” of forum in which to seek review, of which the agency neither notified me, nor allowed me to have access, as EEOC’s Mr. Perez then saw, and TACOM EEO officials later admitted against interest. (Exhibits 5, 12, and 17 of the January 2004 appeal).

23. TACOM alleged ‘disqualification.’ But in a female co-worker case, Re Bertram, File No. A9-190131, it denied that the matter at issue is in employment, “a condition of her work,” or in her job description requirements. For me, it pretends, without notice, the contrary. Once review begins in the only forum with jurisdiction, Exhibit A, I expect this fact will be officially noted.

24. As a Position Classification Specialist, GS-221-12, I wrote job descriptions. Neither mine, nor anyone else’s, has a BFOQ of the type TACOM alleges. (This is additional jurisdictional issue).

25. I have continually been seeking review to begin as done for others, e.g., to be told the charges, specifics, to thus enable “reply” as provided for by 5 USC § 7513.(b), time and again, see for example Exhibit 20; and to get processing to begin on my EEO requests for review to commence administratively, pursuant to the then EEO regulation, 29 CFR § 1613, now 29 CFR § 1614.

26. Such review was twice ordered by EEOC, Feb 1982 and March 1983 (Exhibits 7 and 9).

27. Harm is clearly shown, refusal of review is an inherent “harm,”"irreparable injury should be presumed from the very fact that the statute [many rules cited herein] has been violated,” U.S. v. Hayes Int'l Corp., 415 F.2d 1038, 1045 (CA 5, 1969). The agency is harmed by its loss of my services due to the reprisal, and setting a bad precedent for all employees, via its obstructing review beginning in chosen forum.

28. America is harmed by the practice of retaliation, in terms of federal employees verified fears, e.g., FBI agents’ fears, NASA engineers’ fears, etc., with respect to, e.g., terrorism and safety deficiencies, e.g., in the Columbia Shuttle incident occurring during the pendency of this case–whistleblowing at NASA apparently was deterred, as shown by the Report at www.caib.us.

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29. I incorporate by reference my prior affidavit.

30. All copies provided with my filings are true copies.

31. Assuming that TACOM continues its pattern of merely filing attorney pleadings, or nothing, without any first hand evidence under oath, this affidavit is to be accepted as undisputed, see case law, e.g., Ceja v U.S., 710 F2d 812 (CA Fed, 1983) [and Vargas v USPS, Appeal No. 01922245 (1992)].

/s/Leroy J. Pletten
Leroy J. Pletten

Exhibits:

A. Local EEO Form, 25 Jan 1982, filled out by me seeking EEO process to begin with respect to the 22 Jan 1982 “removal”

B. Follow-up agency form, 30 Jan 1982, immediately after issuance of BG Stalling’s letter

C. EEOC letter, 9 March 1993, saying that “counseling is a required first step” and EEOC rules “assume that federal agencies will not refuse counseling,” but providing no information on how to secure the process to begin when the agency does “refuse” to allow the process to begin [EEOC made decision without investigation and hearing, assumes facts]

This document was acknowledged and signed
by Leroy J. Pletten before me on March 24, 2005.


/s/Janice L. Stys

Janice L. Stys
  NOTARY PUBLIC MACOMB CO., MI
MY COMMISSION EXPIRES Nov 20, 2005

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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036

Leroy J. Pletten,
Appellant,
Docket No. 01A41229
v.
Agency No. ARTACOM03FEB0010
Dr. Francis J. Harvey, Secretary,
Department of the Army,24 March 2005
Agency.

____________________________________/

REQUEST TO RECONSIDER

Appellant hereby requests that the Commission reconsider the 23 February 2005 decision, for the reasons stated in the attached Brief and Affidavit (Exhibit G).

Respectfully,
 
28 March 2005Leroy J. Pletten
Appellant
8401 18 Mile Road #29
Sterling Heights, MI 48313-3042
(586) 739-8343


EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036

Leroy J. Pletten,
Appellant,
Docket No. 01A41229
v.
Agency No. ARTACOM03FEB0010
Dr. Francis J. Harvey, Secretary,
Department of the Army,24 March 2005
Agency.

____________________________________/

BRIEF IN SUPPORT OF REQUEST TO RECONSIDER

28 March 2005Leroy J. Pletten
Appellant
8401 18 Mile Road #29
Sterling Heights, MI 48313-3042
(586) 739-8343


TABLE OF CONTENTS

Table of Contents ....................................................................................................................... i

Table of Controlling Authorities .................................................................................................. iii

Statement of Facts ....................................................................................................................... 1

Argument

1. The 23 February 2005 EEOC Decision Involved A Clearly

Erroneous Interpretation of Material Fact or Law ..................................................... 6

2. The February 2005 EEOC Decision Is In Error

By Not Making Subordinate Findings of Fact ........................................................... 7

3. The 23 February 2005 Interpretation Is

Tantamount to Repeal of 29 CFR § 1614 .................................................................. 9

4. EEOC Has Authority to Grant Relief Pursuant to Inherent

Agency Authority, Also Note the Various Criteria of FRCP 60(b) .............................. 10

5. The Agency Committed Fraud By Promising EEO Review

Without Any Intention of Carrying Out That Promise ................................................ 12

6. The Agency Committed Fraud Preventing Appellant’s Defense ................................. 13

7. It Is No Longer Equitable That the Ouster Decision Have

Prospective Application, While Other Employees Ousted
Without Due Process Notice of Charges Remain on Rolls ......................................... 14

8. It Is No Longer Equitable That the Ouster Decision Should Have

Prospective Application, See Unjust Discharge Criteria ............................................. 16

9. It Is No Longer Equitable That the “Decision to Terminate” Should

Have Prospective Application Pursuant to the 5 USC § 552 Jurisdictional Bar ....... 19

10. It Is No Longer Equitable That The “Decision to Terminate” Have

Prospective Application Absent Compliance With Conditions
Precedent (Notice of Charges and Specifics Enabling Reply) ................................... 22

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11. It Is No Longer Equitable That The “Decision to Terminate” Should
Have Prospective Application Where TACOM Denied Appellant
“Informed Choice” To Even Commence Review .................................................... 23

12. It Is No Longer Equitable That The “Decision to Terminate”

Should Have Prospective Application Where There Has Been
Intervening Change in the Legal Atmosphere ........................................................... 26

13. It Is No Longer Equitable That The “Decision to Terminate”

Should Have Prospective Application, In Context of the Proper
Reaction to Tobacco Hazard—To Discipline Smokers, Not
Personnel Office Staff Reporting Their Hazardous Behavior .................................... 30

14. It Is Extraordinary That the Agency Did Not Abide

By Its Own Guidance and Data in Doing The Better
Practice To Not Hire/Enlist Smokers in the First Place ............................................ 30

15. In Total Context, The Ouster Process Was Void ..................................................... 31

16. It Is No Longer Equitable That The “Decision to Terminate”

Have Prospective Application, In Context of All These Facts
and Precedents, re Which for Others On Even One Aspect,
The Government Does A “Confession of Error” ...................................................... 31

17. Harm is Clear .......................................................................................................... 32

Conclusion ................................................................................................................................. 32

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TABLE OF AUTHORITIES
Case Law

Advance Notice Requirement Federal Employee Cases ................................................... 15-16, 30

Aiken v Wisconsin, 195 US 194; 25 S Ct 3; 49 L Ed 154 (1904) .................................................. 25

Aiken v Obledo, 442 F Supp 628 (ED Cal, 1977) ........................................................................ 21

Albemarle Paper Co v Moody, 422 US 405, 432 n 30; 95 S Ct 2362; 45 L Ed 280 (1975) .......... 20

American Zinc Co v Graham, 132 Tenn 586; 179 SW 138 (1915) .................................. 9, 14, 19

Anderson v Butz, 550 F2d 459 (CA 9, 1977) ............................................................................... 21

Anderson v Dept of Transp, F.A.A., 46 MSPR 341 (1990) .............................................. 11, 16, 33

Anglo-Canadian Shipping Co, Ltd v Federal Maritime Commission, 310 F2d 606 (CA 9, 1962) .8

Austin v State of Tennessee, 101 Tenn 563; 48 SW 305 (1898) aff’d 179 US 343 (1900) .. 24, 30

Basinger v OPM, 5 MSPR 210 (1981) ........................................................................................ 22

Baughman v Green, 97 US App DC 150; 229 F2d 331 (1956) .................................................... 15

Berends v Butz, 357 F Supp 143 (D Minn, 1973) ......................................................................... 21

Bevan v N.Y. St. T. R. System, 74 Misc 2d 443; 345 NYS2d 921 (1973) .................................... 21

Bishop v E. A. Strout Realty, 182 F2d 503 (CA 4, 1950) ............................................................. 13

Bivens v Dept of Navy, 38 MSPR 67 (1988) .......................................................................... 16, 30

Blanchard v St Paul Fire & Marine Ins Co, 341 F2d 351 (1965)

cert den 382 US 829; 86 S Ct 66; 15 L Ed 2d 73 .......................................... 12, 14, 27, 31

Boilermakers v Hardeman, 401 US 233; 91 S Ct 609; 28 L Ed 2d 10, 21 (1971) ........................ 15

Bond v Vance, 117 US App DC 203; 327 F2d 901 (1964) ........................................................... 22

Bowen v City of New York, 476 US 467; 106 S Ct 2022; 90 L Ed 2d 462 (1986) ......................... 21

Boyce v U.S., 211 Ct Cl 57; 543 F2d 1290 (1976) ....................................................................... 18

Brown v Dept of Navy, 49 MSPR 277 (1991) ........................................................................ 16, 30

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B.T.C. v Norton C.M.C., 25 F Supp 968 ([DWD Ky] 1938) ................................................................. 23

Byrd v Campbell, 591 F2d 326 (CA 5, 1979) .................................................................................18

Carreno v Dept of Army, 22 MSPR 515 (1984) ........................................................ 3, 6, 9, 13, 24

Celotex Corp v Catrett, 477 US 317; 106 S Ct 2548; 91 L Ed 2d 265 (1986) ............................. 23

Childers v Air Force, 36 MSPR 486 (1988) ........................................................................... 16, 30

Clark v U.S., 162 Ct Cl 477 (1963) ............................................................................................. 18

Cleveland Bd. of Ed. v Loudermill, 470 US 532; 105 S Ct. 1467, 64 L Ed 2d 494 (1985) 11, 16, 30

Coleman v Darden, 595 F2d 533 (1979) ..................................................................................... 19

Combustion Engineering, Inc, 42 Lab Arb (BNA) 806 (1964) ..................................................... 17

Deak v Pace, 88 US App DC 50; 185 F2d 997 (1950) ................................................................. 15

Dept of Health, Educ and Welfare, Social Sec. Admin. and AFGE Local 1923,

82-1 Lab Arb Awards (CCH) § 8206 (1982) ................................................................. 27

Douglas v Veterans Admin., 5 MSPR 280 (1981) ........................................................................ 17

Enrich v Touche Ross & Co, 846 F2d 1190 (CA 9, 1988) ........................................................ 8, 21

Equity Cases ................................................................................................................................ 26

Francisco v Campbell, 625 F2d 266, 269-70 (CA 9, 1980) ......................................................... 18

Garrett v F.C.C., 168 US App DC 266; 513 F2d 1056 (1975) ..................................................... 21

Giles v U.S., 213 Ct Cl 602; 553 F2d 647 (1977) ........................................................................ 18

Glus v Eastern District Terminal, 359 US 231; 79 S Ct 760; 3 L Ed 2d 770 (1959) .............. 23, 25

Great Lakes Screw Corp v N. L. R. B., 409 F2d 375 (CA 7, 1969) ............................................. 8

Grief Bros Coop Corp, 42 Lab Arb (BNA) 555 (1964) ................................................................ 17

Haines v Kerner, 404 US 519; 92 S Ct 594; 30 L Ed 2d 652 (1972) ........................................... 32

Hall v U.S. Postal Service, 857 F2d 1073 (CA 6, 1988) .............................................................. 20

Hardison v Gledhill, 72 Ga App 432; 33 SE2d 921 (1945) ................................................. 23, 31

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Hart v U.S., 148 Ct Cl 10; 284 F2d 682 (1960) ........................................................................... 16

Hazel-Atlas Glass Co v Hartford-Empire Co, 322 US 238;

64 S Ct 991; 88 L Ed 1250 (1944) ............................................................... 11, 13-14, 33

Heikken v Dept of Transportation, 18 MSPR 439 (1983) .......................................................16, 30

Historic Green Springs, Inc v Bergland, 497 F Supp 839 (ED Va, 1980) .................................... 21

Hotch v U.S., 212 F2d 280 (CA 9, 1954) ............................................................................. 21, 25

Howard v U.S., Civ. LV-77-219 RDF (D Nev, 3 July 1980) (Mem. Order at 9) ........................... 18

In re Oliver, Bkrtcy, Minn, 38 B.R. 245; 10 Collier B Cas 2d 944 (1984) ............................ 23, 31

In re United Corporation, 249 F2d 168 (CA 3, 1957) ................................................................ 8

Jackson v Concord Co, 54 NJ 113; 253 A2d 793, 796 (1969) .................................................. 32

Johnson v Dept of Labor, 26 MSPR 447 (1985) .......................................................................... 25

Johnson Waste Materials v Marshall, 611 F2d 593 (CA 5, 1980) ............................................. 11

Jones v J. J. Security, 767 F Supp 151 (ED Mich, 1991) ............................................................ 29

Koenig v Patrick Constr Corp, 298 NY 313; 63 NE2d 133 (1948) ........................................... 10

Langley v Rodriguez, 122 Cal 580; 55 P 406 (1898) .................................................................... 13

Locker v American Tobacco Co, 194 F 232 (SD NY, 192) .......................................................... 26

Long v Air Force, 683 F2d 301 (CA 9, 1982) .............................................................................. 15

Malone v Colyer, 710 F2d 258 (CA 6, 1983) ............................................................................. 32

Mandel v Nouse and TACOM, 509 F2d 1031 (CA 6) cert den 422 US 1008 (1975) .................... 15

Marquette Corp v Priester, 234 F Supp 799 (D SC, 1964) ....................................................... 11

McCahill v Commercial Ins Co, 179 Mich App 761; 446 NW2d 579 (1989) ........................... 13

Mercer v Dept. of Health & Human Services, 772 F2d 856 (CA Fed, 1985) ........................ 16, 30

Miyai v Dept of Transportation, 32 MSPR 15 (1986) ..................................................... 16, 25, 30

Money v Anderso, 93 US App DC 130; 208 F2d 34 (1953) ....................................................... 15

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Montgomery Ward Bureau of Labor, 16 FEP 80; 280 Or. 163; 570 P2d 76 (1977) ................... 11

Morton v Rui, 415 US 199; 94 S Ct 1055; 39 L Ed 2d 270 (1974) ............................................ 21

Mulligan v Andrews, 93 US App DC 375, 377; 211 F2d 28, 30 (1954) ....................................... 15

National Realty & Const Co Inc v Occupational Safety & Health Review Commission,

160 US App DC 133; 489 F2d 1257 (1973) ................................................................... 27

New Orleans v Texas & P Ry Co, 171 US 312; 18 S Ct 875; 14 L Ed 178 (1898) ........................ 22

New York Life Ins Co v Nashville Trust Co, 200 Tenn 513; 292 SW2d 749 (1956) .................... 13

Newton Co v Erickson, 70 Misc 291; 126 NYS2d 949 (1911) ............................................ 23, 25

Northeast Airlines, Inc v Civil Aeronautics Board, 331 F2d 579 (CA 1, 1964) ........................... 9

Onweiler v U.S., 432 F Supp 1226 (D ID, 1977) ...................................................................... 23

Pence v Langdon, 99 US 578; 25 L Ed 420 (1879) ................................................................. 24

People v Gorne, 99 Mich App 199; 297 NW2d 648 (1980) lv app den 410 Mich 911 (1981) ..... 32

Pittman v Dept of Army, 832 F2d 598 (CA Fed, 1987) ....................................................... 16, 30

Rowe v General Motors Corp, 457 F2d 348, 354 (CA 5, 1972) ................................................ 11

Sabol v Snyder, 524 F2d 1009 (1975) .......................................................................................... 19

Saint Elizabeth Hospital v U.S., 558 F2d 8 (CA 9, 1977) ........................................................... 21

Scharf v Dept of Air Force, 710 F2d 1572 (CA Fed, 1983) ................................................. 13, 24

S. E. C. v Chenery, 332 US 194; 67 S Ct 1575; 91 L Ed 1995 (1947) .................................... 8, 15

Service v Dulles, 354 US 363; 77 S Ct 1152; 1 L Ed 2d 1403 (1957) .................................. 23, 25

Siemering v Siemering, 95 Wis 2d 111; 288 NW2d 881 (Wis App, 1980) .................................... 22

Smith v Dept of Interior, 9 MSPR 342 (1981) ................................................................ 15-16, 30

Stalkfleet v U.S. Postal Service, 6 MSPB 536 (1981) .................................................................. 19

Stevenson v Golden, 279 Mich 710; 276 NW 848 (1938) ..................................................... 23, 25

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Stewart v Wyoming Cattle Ranch Co, 128 US 383; 9 S Ct 101; 32 L Ed 439 (1888) ................ 24

Sullivan v Dept of Navy, 720 F2d 1266 (CA Fed, 1983) ...................................... 8, 11, 15-16, 22

Taubman Co v Webfeats, 319 F3d 770 (CA 6, 2003) ................................................................ 21

Taylor v Meirick, 712 F2d 1112 (CA 7, 1983) ............................................................................. 14

Teamsters v U.S., 431 US 324; 97 S Ct 1843; 52 L Ed 2d 396 (1977) .......................... 16, 24, 26

Tenorio v NLRB, 680 F2d 598 (CA 9, 1982) ............................................................................... 14

Texaco Inc v U.S., 217 Ct Cl 416; 579 F2d 614 (1978) ................................................................ 26

Thomas v General Services Administration, 756 F2d 86 (CA Fed, 1985) ............................. 16, 30

Tucker v U.S., 224 Ct Cl 266; 624 F2d 1029 (1980) .................................................................... 18

U.S. v Bausch & Lomb Optical Co, 321 US 707, 64 S Ct 805; 88 L Ed 1024 (1944) .............. 26

U.S. v Cirami, 563 F2d 26 on remand 92 FRD 483 (CA 1, 1977) ............................................. 11

U.S. v City of Chicago, 549 F2d 415 (CA 7, 1977) ...................................................................... 20

U.S. v Graham, 688 F2d 746 (CA 11, 1982) .......................................................................... 31, 34

U.S. v. Hayes Int'l Corp., 415 F2d 1038 (CA 5, 1969) ................................................................. 32

U. S.v Philip Morris, Inc et al., CA 99-2496 (GK) (filed 22 September 1999 ........................... 26

U.S. v Russo, 708 F2d 209 (CA 6, 1983) ............................................................................. 31-32

U.S. v $3,216.59 in U.S. Currency, 41 FRD 433 (DC SC, 1967) .............................................. 11

Van Skiver v U.S. Postal Service, 25 MSPR 66 (1984) .......................................................... 16, 30

Vigil v Andrus, 667 F2d 931 (CA 10, 1982) ............................................................................. 23

Washington v Dept of Army, 813 F2d 390 (CA Fed, 1987) .......................................................... 22

W. G. Cosby Transfer & Storage Corp v Dept of Army, 480 F2d 498 (CA 4, 1973) ..................... 21

White v Mathews, 559 F2d 852 (CA 2, 1977) cert den 435 US 908 (1978) .................................. 13

Wilson v Turnage, 791 F2d 157 (CA Fed, 1986) ......................................................................... 26

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Woodall v FERC, 28 MSPR 192 (1985) ................................................................................ 16, 30

Yorkshire v MSPB, 746 F2d 1454 (CA Fed, 1984) .................................................... 8, 18, 21, 29

Federal Laws

5 USC § 552 / 552a. ............................................................................ 2-3, 7-8, 11, 19, 21-22, 25

5 USC § 2302.(b)(6).................................................................................................................... 19

5 USC § 7513.(b) .......................................................................... 2, 4, 7-8, 11,13, 15-16, 22, 28

5 USC § 7902.(d)........................................................................................................... 1, 26, 30

29 USC §§ 651-678 .................................................................................................................... 1

Federal Rules of Civil Procedure

Fed.R.Civ.P 12(h)(3) ............................................................................................................ 8, 21

Fed.R.Civ.P 60(b) .................................................................................................................... 60

Federal Regulations

5 CFR § 731.202(c) .................................................................................................................... 18

5 CFR § 752.404(a) ..................................................................................................................... 15

29 CFR § 1607.5(b)(3) ................................................................................................................ 20

29 CFR § 1613/1614 .............................................................................. 3-7, 9-10, 12, 14, 20, 24

29 CFR § 1910.1000 ................................................................................................................ 20

32 CFR § 203 (also known as Dept of Defense Instruction 6015.18) .............................. 1, 27, 30

CSC Board of Appeals and Review, Memorandum No. 2 ............................................................ 18

Federal Personnel Manual Supplement 296-33 ..................................................................... 19, 29

Federal Personnel Manual 751 and 752-1 ........................................................................... 16, 18

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Michigan Laws

MCL § 750.27, MSA § 28.216 ................................................................................. 1, 20, 26, 27

Defense, Army, and TACOM Regulations

Army Regulation 1-8 (on smoking conduct, directed by 32 CFR § 203)............. 1, 22, 24, 26, 27, 30

Army Regulation 385-10.3-5a (employee duty to report hazards) ............................................... 1

TACOM-R 190-4 (anti bringing personal property and drugs onto premises) ....................... 1, 27

TACOM-R 600-5.14-27 to 29 (banning forced leave with pay (LWOP)) ..................................... 22

Miscellaneous References

Army Aeromedical Research Laboratory Report No. 86-13, Smoking and

Soldier Performance (June 1986) ................................................................................. 30

Black's Law Dictionary ................................................................................... 13-14, 21, 23-26, 31

Blumrosen, Alfred W., et al., “Injunctions Against Occupational Hazards: The Right

to Work Under Safe Conditions,” 64 California Law Rev (#3) 702-731 (May 1976) ... 9-10

Columbia Shuttle Crash Investigation (www.caib.us) (finding hostility “culture”) ............... 12, 29

Comptroller General Decisions (on forced leave) ........................................................................ 16

Devine, Thomas M. and Donald G. Aplin, “Abuse of Authority: The Office of the Special

Counsel and Whistleblower Protection,” 4 Antioch Law J 5-71 (Summer 1986) ............... 28

Devine, Thomas M. and Donald G. Aplin, “Whistleblower Protection—Gap

Between Law and Reality,” 31 Howard Law J (#2) 223-239 (1988) ................................ 28

Devine, Thomas M , “The Whistleblower Protection Act of 1989: Foundation for the

Modern Law of Employment Dissent,” 51 Admin Law Rev (#2) 531-577 (1999) .......... 28

Kohn, Stephen M. and Michael D. Kohn, “An Overview of Federal and State

Whistleblower Protection,” 4 Antioch Law Journal 99-152 (Summer 1986) ..................... 28

MSPB Retaliation Rate Study (http://www.mspb.gov/studies/00decnws.pdf, Dec 2000) ..... 12, 28

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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036

Leroy J. Pletten,
Appellant,
Docket No. 01A41229
v.
Agency No. ARTACOM03FEB0010
Dr. Francis J. Harvey, Secretary,
Department of the Army,24 March 2005
Agency.

BRIEF IN SUPPORT OF APPEAL

STATEMENT OF FACTS

The facts have been stated in the January 2004 Brief in this case, incorporated here by reference. In essence, Appellant Leroy J. Pletten of the Army (Tank-Automotive Command, TACOM, Exhibit 1 with Jan 2004 Brief), pursuant to Army Regulation 385-10.3-5a and b, specifying to report hazardous situations, reported a hazard underlying higher rate of employee sick leave, absenteeism and premature deaths, impairing agency operations. (Exhibit 3 with Jan 2004 Brief).

The hazard involved is also long known in medical writings to be linked to abortions, drug abuse and employee misconduct including crimes, etc. (Exhibit 3 with Jan 2004 Brief). Re e.g., abortion, “right to life,” and drug abuse and employee misconduct, Pletten followed federal policy.

TACOM average sick leave use was in the 80's of hours per person per year vs the Army policy of NTE 62 hour average. Other employees (e.g., persons filing Worker Compensation claims such as co-worker Evelyn Bertram, due to being injured by the behavior at issue), were deterred by local TACOM hostility into not reporting violations, only seeking compensation.

The hazard was prohibited or precluded by rules such as 32 CFR 203 / AR 1-8 (1977), 5 USC 7902.(d) (1905), 29 USC §§ 651 - 678 (1970); MCL § 750.27, MSA § 28.216 (1909); and TACOM’s own Regulation 190-4. However, local management, i.e., TACOM management, was hostile to the rules, opposed having TACOM come into compliance.

The TACOM ventilation system was not working. It was thus in violation of 32 CFR § 203 / AR 1-8 which disallow the hazard’s cause, tobacco smoking, absent a ventilation system in good working order. Other employees complained but ineffectually as untrained (unlike Pletten) in grievance processing. So with support of immediate supervisor Jeremiah H. Kator, he filed reports to safety and Inspector General personnel, of misconduct by TACOM managers.

In The Tank Automotive News, 7 Jan 1980, Vol X (Issue # 26), p 2, was a question on whether employees feared reprisal for giving their views in the newspaper. The editor, Frank Gaal,

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Jr., lamented that nobody answered the question; nobody surveyed would answer! Fear of TACOM's reprisal policy was clearly rampant, understandably so. Pletten would soon be another example..

Pletten also filed in the EEO class action system (reference Exhibit 5 with the Jan 2004 Brief) on behalf of self and affected co-workers endangered by the widespread violations (as per the behavior at issue being, said Surgeon General, major cause of disease, i.e., of preventable handicaps).

Pletten’s citing TACOM violations was upheld by the Army’s own Civilian Appellate Review Agency (USACARA) investigator Norma Kennedy. This fact was cited by EEOC in Dockets Nos. 01800273 et al, p 2 top (Exhibit 7 with the Jan 2004 Brief). Pletten made clear he'd use the supportive USACARA investigator findings in the EEO system to aid his co-workers. (Investigators did double duty, investigating both personnel and EEO matters).

In reprisal for Pletten’s mere filing, much less, success, with the Investigator, and to obstruct Pletten’s EEO class action activity on behalf of coworkers, agency management forthwith made

a. A whole litany of reprisals (listed by EEOC Decision, Appendix, Exhibit 7 of Jan 2004 Brief) including newspaper denunciation, medical officer misconduct, falsification, refusal of counseling (despite EEOC assuming non-refusal, Exhibit C), refusal to accept complaints, and refusal to allow review on merits of said incidents;

b. And (without Pletten’s supervisor Kator’s support) a “decision to terminate,” noted by EEOC’s Henry Perez, Jr. (Exhibit 5 with Jan 2004 Brief). Note also that manage-ment committed extortion and embezzled Pletten’s pay to force him to stop, see admission by TACOM Colonel John J. Benacquista (Exhibit 8 with Jan 2004 Brief).

The Army ex parte made, or had made, the extraordinary termination decision in 1979 or 1980 (TACOM stories vary) summarily

a. without citing any Pletten misconduct, malperformance, mal-anything re identified conduct or job standards and

b. without providing Pletten the jurisdictional and condition precedent required constitutional due process and 5 USC § 7513.(b) 30 days advance notice of charges.

Without notice of what charges to defend against, Pletten was thus obstructed from his constitutional and statutory right to reply BEFORE the decision was made. Agency not allowing right to reply via lack of 5 USC § 7513.(b) notice prima facie voids the ouster. Adherence to that law is jurisdictional, as agencies must follow published law. 5 USC § 552. TACOM does not provide admissible evidence by affidavit or testimony to the contrary, so Pletten’s position on this is undisputed.

Eventually, TACOM chose the story of “removal” (however contradictorily) effective 22 Jan 1982. That is the story time-frame / date which the EEOC decision of 23 Feb 2005 selectively cites. The Feb 2005 EEOC decision goes on to allege that Pletten then sought MSPB and court review. The clearly erroneous interpretations of material fact or law, detailed below, are that the EEOC decision

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a. contradicts the undisputed EEOC prior findings 23 Feb 1982 (Exhibit 7 with the Jan 2004 Brief), of the agency having cut Pletten off from access to the 29 CFR § 1613 system, to the extreme of refusing to accept complaints

b. contradicts the undisputed fact that Pletten sought review of each TACOM incident including but not limited to the Jan 1982 “removal” in the EEO forum FIRST, and only when obstructed in said forum, would perhaps uninformedly later go elsewhere.

Note that the 23 Feb 1982 EEOC Decision (Exhibit 7 with the Jan 2004 Brief) is undisputed by the agency. The agency does not deny having cut Pletten off from access to the 29 CFR § 1613 process as of at least February 1980, about two years before the January 1982 “removal” on which the Feb 2005 EEOC decision focuses. Even Gen. Stallings’ claim (Exhibit 6 with the Jan 2004 Brief) that processing would occur (presumably in 1982!!) corroborates that no processing HAD hitherto occurred, else would not be still be so long pending, but was only an illusory–lying--promise for the future. As the agency does not deny cutting Pletten off from access to the 29 CFR § 1613 review process, it is clear that no processing occurred on Pletten’s FIRST effort to get review of the January 1982 “removal” (Exhibit A). The agency claims to have done none (except date-stamping!!).

The Feb 2005 EEOC decision is thus, as will be detailed below, in error on both facts and law, as such review-seeking is jurisdictional according to EEOC’s own rule 29 CFR § 1613.403, now §1614.402. Moreover, as a fact and law matter, MSPB itself agrees on the jurisdictional aspect when an employee first seeks review in forum other than MSPB, i.e., in EEOC’s review forum, per Carreno v Dept of Army, 22 MSPR 515, 518 (1984).

Disregarding material facts and law including the ultra-crucial jurisdictional rule of law, will as detailed below, have significant impact on agency policies, practices, or operations, in that the decision enables disregard of EEOC’s clear jurisdictional rule, 29 CFR § 1614.402, indeed of the entire 29 CFR § 1614, enables agency refusal to ever allow processing of an EEO case whenever the agency pleases. The decision in essence is tantamount to a repeal of the entire 29 CFR § 1614, and of course, the jurisdictional law 5 USC § 552 which bans agencies from outsiding published laws, rules, processes..

Even if EEOC assumed review was done in MSPB and courts, as the decision appears to do, such supposed “review” was conducted

a. without ever allowing either an investigation or a hearing (e.g., Exhibit D, p 4), and

b. long before the new arose evidence, including TACOM’s sudden implementation of its authority to control smoking–an authority it had successfully fraudulently denied all along, until suddenly choosing to exercise it! Not to mention the new evidence of the Macomb County Court and my satisfactory service, connoting excellent work ability, refuting TACOM’s denial of same, etc.

My issues, as summarized by the February 2005 EEOC decision, relate to the agency refusing to allow me the EEO process!–neither 29 CFR §1613 at the time, nor 29 CFR § 1614 as now styled.

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The agency essentially admits this, see the post-dismissal chronology reported by the agency EEO Office to local EEOC as starting 30 October 1979 (Exhibit 17 with the Jan 2004 Brief). Note that the agency letter does not claim to have ever allowed EEO review to proceed beyond counseling, into investigation and hearing, notwithstanding the then 29 CFR § 1613, now 1614, mandate to do so. The letter in fact further supports and corroborates that the said EEO forum was in fact closed to Pletten in the crucial decade, as EEOC had years before verified in Docket Nos. 01800273 et al, p 2, top (Exhibit 7 with Jan 2004 Brief), and as TACOM confesses against interest (Exhibits 12 and 17 with Jan 2004 Brief).

Exhibit 17 does not even claim, even acknowledge, that or whether counseling was done in response to Pletten’s request for same (Exhibit A) on the 22 Jan 1982 “removal” on which the Feb 2005 EEOC Decision focuses. Bottom line: TACOM did nothing except date-stamp!! That’s not “processing” and date-stamping surely is not a notice of rights as to what to do next, as to what redress applies. I deny receiving notice!

TACOM is carrying out long-standing policy articulated b y Colonel Larry Wigner on 24 July 1980, “the Command will no longer respond to” Pletten. (See corroborating Exhibits C and E).

The clear and undisputed refusal by TACOM to allow Pletten access to the then 29 CFR § 1613 EEO forum continued despite the Deputy Commanding General David W. Stallings promising Pletten that his appeals would be processed as Legal Office had also said in the Investigator Office! (Exhibit 6 with Jan 2004 Brief). This written 29 Jan 1982 promise was after Pletten had filed for review in the EEO forum against the ouster (Exhibit A); and bare weeks before the 23 Feb 1982 EEOC order to do processing. (Docket Nos. 01800273 et al, Exhibit 7 with Jan 2004 Brief).

Pletten relied on the General’s word that processing would occur as both he and the TACOM Legal Office (Emily Bacon) to the Investigator said (Exhibit 6 with Jan 2004 Brief). Pletten did not suspect the General had lied, committed fraud, an extraordinary thing. In Pletten’s experience in Dept of Army, a General’s word was good. But fraud, lying, is what the General’s word turned out to be, unless EEOC orders TACOM to do as promised, what I had just again requested, and what EEOC would days later be ordering.

With the normal review processed closed, the government has felt free to retroactively alter its stories justifying the ouster, eventually (among various claims not put into a 5 USC § 7513.(b) notice) going so far as to allege Pletten’s inability to work and a supposed “disability retirement”.

What turned out to be TACOM’s permanent refusal of review in the EEO forum with investigators in the process with which Pletten was familiar, has continued to date, despite my every effort (and they have been many) to get the promised review to begin. The refusal has now continued for an extraordinary amount of time. Pletten has periodically provided updated data for inclusion in file (reply and review) once same is allowed. That is the situation giving rise to the present case.

The instant situation arose when Pletten was called for Macomb County Circuit Court jury duty December 2002, performed it to Jury Commission satisfaction, showing him to be in fact able to perform duty notwithstanding TACOM‘s claims, and provided such data to the agency for

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inclusion in the file and action, with request for action (Exhibit 20 with January 2004 Brief). The agency, TACOM, should have forthwith placed the material in the case file that should have been started on receipt and date-stamping of Exhibit A; and should have caused the long-stalled / refused EEO process to begin.

When no response came, Pletten filed for EEO counseling to begin on this immediate matter and the pattern. The agency stalled and obstructed, did not allow counselor to meet Pletten in-person, and (after the half-hearted “counseling” which may not even record my claims nor proffered evidence) did not send notice for going forward until months later, as the record shows.

TACOM refused to send Pletten a copy of the Counselor Report, despite repeated requests, pursuant to long-standing agency policy alluded to by its Colonel Larry Wigner on 24 July 1980, “the Command will no longer respond to” me, confirming refusal to allow me to reply to the ouster nor have EEO review of same. (Agencies control the counselor and investigation process, and can, and here easily do, prevent normal review ever occurring by invariably refusing to “accept” a case for processing, thus forever preventing development of the record by an investigator, the system I am trained in and have, by experience, confidence in). I hope the Counselor included in Report in case file to be sent EEOC, the appropriate data, but not having seen it, do not know.

The TACOM refusal-of-review process documented by TACOM’s own EEO Officer, Gonzellas Williams, 26 Feb 1996 (Exhibit 17 with the January 2004 Brief), does claim having talked with Pletten "nineteen different occasions following his dismissal . . . . October 30, 1979 . . . ." Williams did not claim that the Army had allowed more review on merits than that—talk! (Williams called it "counseled"!!!) Significantly, it corroborates the 23 Feb 1982 EEOC finding (Exhibit 7 with Jan 2004 Brief) that TACOM cut off Pletten’s access to review, during the entire crucial period of the ouster process according to one of TACOM ‘s own versions (that the process occurred in the 1980 - 1982 period). Despite Pletten’s many requests for EEO review to commence in that crucial period, TACOM itself by its own admission against interest, shows refusal.

TACOM’s EEO Manager Gonzellas Williams did not claim TACOM had over obeyed the 23 Feb 1982 EEOC order (Exhibit 7 with Jan 2004 Brief). The Army clearly has no intention of ever complying by its terms. This refusal occurs despite its own General David W. Stallings and Legal Office promising me EEO review as sought (Exhibit 6 with Jan 2004 Brief).

The February 2005 EEOC decision suffers from the significant factual flaw of disregarding the jurisdictional fact that with Pletten cut off from access to the EEO 29 CFR §1613 system, of assuming validity of his later, repeat, later, having sought review from the Merit Systems Protection Board (MSPB) and courts. The EEOC decision fails to cite TACOM’s misconduct and coercion in forcing Pletten out of the 29 CFR § 1613 review forum, and the extraordinary and exceptional aspects such as TACOM’s having refused him “informed choice” to obtain review, thus no jurisdiction by same, as NEVER my freely made “informed choice.”

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ARGUMENT

1. THE 23 FEBRUARY 2005 EEOC DECISION INVOLVED A CLEARLY
ERRONEOUS INTERPRETATION OF MATERIAL FACT OR LAW

The Feb 2005 EEOC decision focuses on the 22 January 1982 agency removal. EEOC alleges that Pletten then sought MSPB and court review. The clearly erroneous interpretation of material fact or law is that the EEOC decision

a. contradicts the undisputed EEOC prior findings 23 Feb 1982 (Exhibit 7 with the Jan 2004 Brief), of Pletten’s seeking EEO review, of the agency having cut Pletten off from access to the EEOC 29 CFR § 1613 system, to the extreme of refusing to accept complaints

b. contradicts the undisputed fact that Pletten sought review of each TACOM incident including but not limited to the Jan 1982 “removal” in the EEO forum FIRST (e.g., Exhibit 7 list of prior Pletten review attempts; and Exhibits A and B on said “removal”), and only when obstructed in said forum, would perhaps uninformedly seek aid elsewhere, e.g., MSPB and courts.

The Feb 2005 EEOC decision is thus in error on both facts and law, as Pletten’s “first” review-seeking forum is jurisdictional according to EEOC’s own rule 29 CFR § 1613.403, now §1614.402. Moreover, as a fact and law matter, MSPB itself agrees on the jurisdictional aspect when an employee first seeks review in forum other than MSPB, i.e., in EEOC’s review forum, per Carreno v Dept of Army, 22 MSPR 515, 518 (1984).

Wherefore MSPB could not have had jurisdiction of the 22 January 1982 “removal” on which the Feb 2005 EEOC decision focuses, nor could courts thus have had any. Pletten denies making any informed choice of same, and indeed can not anticipate need to seek court redress in this matter once the EEO review first sought 25 Jan 1982 (Exhibit A) occurs, as Pletten expects to prevail in the administrative process; and that the agency obstructed review in the 29 CFR §1613 forum due to its own anticipation of losing on the merits.

On its face, the February 2005 EEOC decision cites no basis on which those entities (MSPB, courts) could have had jurisdiction over the 22 January 1982 “removal.” This lack of fact basis for the February EEOC conclusion omission is particularly startling in view of the absence of processing of the only documents (Exhibits A and B) wherein jurisdiction could have arisen. This in turn presupposes some agency acknowledgment (beyond date-stamping!) of same, and its providing to Pletten a notice of his rights of further redress. The record shows no such occurrence. The agency does not claim to have done any processing. EEOC made no subordinate findings of fact on which to have arrived at its conclusions.

Clearly, not until the “informed choice” process shall be allowed to proceed, by the administrative EEO forum being ordered opened for Pletten, and investigation and hearing as done for others on request, and not until then, will it be legitimate to say, someday in future, that pletten may sometime in future go to such forums.

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Pletten does not anticipate that ever occurring, as Pletten expects to prevail on merits without going past the EEO administrative stages of counseling, investigation, hearing, decision, as per the entire matter ab initio constituting misconduct, absence of notice of charges and rights, denial of right to reply to charges, fraud by agency, “error of law” including constitutional law, and “extraordinary and exceptional circumstances.” Lack of 5 USC § 7513.(b) notice prima facie voids the ouster. Adherence to that law is jurisdictional, as agencies must follow published law. 5 USC § 552.

As EEOC ordered review in Dockets Nos. 01800273 et al (Exhibit 7 with the January 2004 Brief), of the ouster, etc., EEOC should find that this case is, at least, tantamount to a Federal Rule of Civil Procedure (FRCP) 60(b), especially (4), (5) and (6) request concerning what happened and/or it is an independent action on point.

EEOC attorneys and personnel office/human resources staff surely know that no federal employee can legally be ousted as Pletten was, without notice of charges, opportunity to reply to the unknown charges, and notice of review rights, and refused access to first chosen review. Such agency misconduct is extraordinary and exceptional.

2. THE FEBRUARY 2005 EEOC DECISION IS IN ERROR
BY NOT MAKING SUBORDINATE FINDINGS OF FACT.

The immediate agency decision on appeal was conclusory. The February 2005 EEOC decision likewise in turn is also conclusory. For example, citing 29 CFR 1614.107(a)(8), EEOC says I am “alleging dissatisfaction with the processing of a previously filed complaint.” EEOC identifies none! A basic question is, which such complaint?!! None has been ever allowed to be filed, nor accepted by agency, on the 22 January 1982 removal, despite my attempt starting at Exhibit A continuing at, e.g., B and E, for example. The agency was continuing its refusing (as EEOC has already verified, Exhibit 7) to let me have access to the EEO review forum. Indeed, the agency did not even notify me of the right to file in the EEO forum, nor does it claim to have so notified me. (In fact, the agency admits not having so notified me, Exhibit 19 confession to Senator Levin.)

The EEOC decision also in a conclusory way, merely says I “previously, filed numerous EEO complaints, Merits Systems Protection Board appeals, and federal court proceedings . . . .” EEOC makes no finding of subordinate facts showing the latter ever had jurisdiction.

And EEO appeals filed “previously” are on their face, prima facie, NOT on the matter at issue, the 22 January 1982 “removal.” Yes, in 1979, I filed about the newspaper denunciation. Yes, in 1980 I filed about the denial of phone services. Etc. (See EEOC’s own list of such filings, Exhibit 7 with the January 2004 Brief). Yes, I am a well-qualified employee.

But not so well-qualified as to be a mind-reader, fortune teller, predictor of future events--in say 1979 predicting and filing complaint concerning a future January 1982 removal! So I do deny that there is or ever can be, anything of record, showing I filed any “previously filed” EEO Complaints on the subject, none with jurisdiction. (EEOC’s then 29 CFR § 1613 allowed only 30 days in which to file! And Pletten met that time frame!!) Could not do so PRIOR, and would not be allowed to do so AFTER!

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It is clear prima facie that 1979 and 1980 “complaints” could not have “brought [the 1982 removal] to the attention of a Counselor [then]!! Quoting EEOC’s own 29 CFR § 1614.107(a)(2) mandating when “the agency shall dismiss”!! The Feb 2005 EEOC Decision citing one regulation contradicts the other. Pletten could not bring 1979-1980 Counselor attention to a then future 1982 “removal”! Thus Pletten filed ANEW (Exhibit A) (i.e., when the removal happened!!) and received nothing but date-stamping–no counseling, no notice of rights, no acknowledgment, not even a “dismissal,” and certainly not a “right to sue” letter! Thus the case should be adjudicated! i.e., processing should begin!! Please order that, and also specify dating the processing documents back to the date when they would have been generated but for the agency refusing to allow the process to occur (beyond date-stamping).

The February 2005 EEOC decision, by being conclusory, did not follow case law. For example, an agency must say in the decision the basis for its conclusions; there is to be no speculation; even proper reasons are not to be implied; reject the improper processing (here no lawful and factual reasons for the conclusions). Great Lakes Screw Corp v N. L. R. B., 409 F2d 375 (CA 7, 1969).

Agency decisions must make findings on all material issues; reasons must be clearly enunciated; each disregard of its own staff writings must be explained. In re United Corporation, 249 F2d 168 (CA 3, 1957). The February 2005 decision does not do this. It does not even acknowledge EEOC’s own prior decision of 23 Feb 1982 (Exhibit 7 with January 2004 Brief). It does not acknowledge the material by TACOM’s own EEO Officers Williams, etc., refuting its January 1982 story (Exhibits 12 and 17 with the January 2004 Brief), much less, that of the corroborative impartial memo of that era, by EEOC’s Henry Perez, Jr. (Exhibit 5 with the January 2004 Brief). Significantly, note that the agency confession by EEO Officer Williams of no processing except talk (said Exhibit 17) comes AFTER the alleged EEO Complaints and MSPB and court review, thus constituting both new evidence, and a showing of agency fraud.

Pursuant to Yorkshire v MSPB, 746 F2d 1454, 1457 n 4-5 (CA Fed, 1984), inconsistency in facts means the employee is to prevail. Here it is crucial inconsistency, going to the heart of the lack of processing. And on merits, the lack of 5 USC § 7513(b) 30 days advance notice of charges, and the non-notification of appeal rights, establishes that the February 2005 Decision fails to apply case law that an ouster without advance notice is a constitutional and statutory due process notice violation, and void. Sullivan v Navy, 720 F2d 1266, 1274 (CA Fed, 1983). Employee stays “on the rolls . . . until proper procedural [due process] steps are taken toward removing . . . him. In that situation, the merits of the adverse action are wholly disregarded.” As 5 USC § 552a mandates agencies to go by published rules of law, this is a jurisdictional issue. Jurisdiction is an issue which raiseable by a party or adjudicator at any time. Enrich v Touche Ross & Co., 846 F2d 1190 (CA 9,1988); Fed. R. Civ. P. 12(h)(3). But the Feb 2005 EEOC decision ignores not just this, but all Pletten’s jurisdictional issues–thus constitutes a clearly erroneous interpretation / application of law.

An absence of required findings requires reversal, even if there may allegedly or actually be evidence in the record to support proper findings. Anglo-Canadian Shipping Co, Ltd v Federal Maritime Commission, 310 F2d 606 (CA 9, 1962). And SEC v Chenery, 332 US 194; 67 S Ct 1575; 91 L Ed 1995 (1947), says to “judge the propriety of action solely by the grounds invoked”; not by “counsel's post hoc rationalizations”; but only by what is “given.”

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The deciding EEOC office should not put the reconsideration section of EEOC in the position of speculating as to the full factual basis for its conclusion; you must know what the initial decision means first, including what actual relevant and pertinent specific facts and laws in case context are actually found. Northeast Airlines, Inc v Civil Aeronautics Board, 331 F2d 579 (CA 1, 1964).

Wherefore, please reverse and remand for investigation and hearing, so the factual record can be developed, and the validity of the 23 February 1982 decision (Exhibit 7 with January 2004 Brief) be shown, thus further refuting the February 2005 decision with its clearly inconsistent conclusions.

3. THE 23 FEBRUARY 2005 INTERPRETATION IS
TANTAMOUNT TO REPEAL OF 29 CFR § 1614.

The February 2005 EEOC decision is a clearly erroneous interpretation of material fact and law, in view of the fact that Pletten’s FIRST filing (Exhibit A) has not been “processed,” only date-stamped, and Pletten is trying to get the process to begin on it–the ONLY document filed enabling jurisdiction over the January 1982 “removal” on which the decision focuses; reference EEOC’s own rule 29 CFR § 1613.403, now § 1614.402 and Carreno v Dept of Army, 22 MSPR 515, 518 (1984) (the first filing establishes jurisdiction!)

Trying to get the 29 CFR § 1613 now §1614 process to occur is not what is banned by 29 CFR § 1614.107(a)(8). Thus the February 2005 EEOC Decision is a clearly erroneous interpretation of material fact and law in treating the 107(a)(8) words as preventing me trying a complainant from trying to get the review process to begin.

The February 2005 EEOC interpretation of 107(a)(8) is in effect a repeal of the entire 29 CFR § 1613 now §1614 process, by forbidding efforts to get that process to occur. Reference American Zinc Co v Graham, 132 Tenn 586, 589; 179 SW 138, 139-140 (1915):

“To hold that he [the worker] did assume the risk [cannot object to non-processing] would be equivalent to a repeal of the statute [regulation], since it would be a continuing invitation to the company [agency] to forbear compliance with its provisions. The statute [regulation 29 CFR § 1613 now §1614] was passed under the police power of the state [of the EEOC] for the purpose of protecting those who are unable to protect themselves, occupying as they necessarily do a position much inferior in financial security to that of their employers; the physical necessity of themselves and their families making it essential that they should have work in order to secure the means of sustenance. It would defeat this beneficent purpose if it should be admitted as a sound principle that a failure of the employer to obey the statute [processing regulation] could be [legally] condoned by the employe[e] [by preventing employee / complainant effort to get the review process to occur]. Such a conclusion would place the employer in the position of power which only the Legislature [Cognress] should occupy, since it would enable him [the employer] to either destroy or maintain the policies of the state [EEOC processing rule] according to his own will and purpose.”—Cited by Prof. Alfred Blumrosen, et al, “Injunctions Against Occupational Hazards: The Right to Work Under Safe Conditions,” 64 Calif Law Rev (#3) 702 at 712 n 48 (May 1976).

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And see Koenig v Patrick Constr Corp, 298 NY 313, 318-319; 63 NE2d 133, 135 (1948):

“Workmen . . . are scarcely in a position to protect themselves from accident [agency refusal to process their first filing in the EEOC forum]. They usually have no choice but to work with the equipment at hand [local EEO staff] though danger [their hostility to the rule of law] looms large. The legislature [EEOC] recognized this and to guard against the known hazards of the occupation [non-processing] required the employer to safeguard the workers from injury [wrote the entire 29 CFR § 1613 now §1614 to cause processing] . . . . If the employer could avoid this duty by pointing to the concurrent negligence of the injured worker in using the equipment [§ 107(a)(8)], the beneficial purpose of the statute [entire rest of 29 CFR § 1613 now §1614] might well be frustrated and nullified.”—Cited by Blumrosen, “Injunctions,” 64 Calif Law Rev 702, supra, at 711-712 n 47 (May 1976)

As getting the process to begin and occur is the essence of my case, please overrule the February 2005 EEOC decision. Rule that a complainant’s effort to get the 29 CFR § 1613 now § 1614 “process” to occur is NOT what is meant to be precluded by, 29 CFR § 1614.107(a)(8).

4. EEOC HAS AUTHORITY TO GRANT RELIEF PURSUANT TO INHERENT
AGENCY AUTHORITY, ALSO NOTE THE VARIOUS CRITERIA OF FRCP 60(b).

Assuming arguendo that Pletten’s “previously filed complaints” of 1979-1981 somehow magically by some legerdemain covered a then far-in-the-future, unknown, subsequent January 1982 “removal,” the EEOC decision is still a clearly erroneous interpretation of material fact and law.

Assuming arguendo that somehow my Exhibit A is somehow magically by some legerdemain deemed as “processed” due to the agency having date-stamped it!!!, and even if the review process had actually been fulfilled all the way though to an EEOC decision issued in say late 1982, somehow ruling against my January 1982 complaint, EEOC would still have authority to “reopen” based on the subsequent new evidence of agency fraud concerning authority (Exhibits 10, 12-14, 16-17, 19- 20, etc.) and other new evidence as alluded to in the January 2004 Brief.

Assuming arguendo that the agency processed the 23 Feb 1982 Order (Exhibit 7 with the January 2004 Brief), as ordered (which it did not—no investigation or hearing ever occurred, and the agency cites no names of investigators, hearing officers, etc.), and somehow there was a ruling against me, this concept applies. Assuming arguendo that the agency processed my actual, and ONLY timely, and FIRST choice complaint re the 22 January 1982 “removal,” which it did not, the concept applies.

EEOC did not cite, and the agency cannot cite, ANY action (beyond date-stamping) of my effort to obtain EEO review (Exhibit A, etc.) Neither the agency nor EEOC did cite ANY Counselor Report, any Investigation, any Hearing, any Agency Decision, or any EEOC decision with respect to that filing!!! This is so the reason that, as EEOC noted 23 Feb 1982 (Exhibit 7 with Jan 2004 Brief), the agency had cut me off from access to EEO review!

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Administrative agencies have authority to reconsider decisions on their own initiative as long as proper notice is given and the right is reasonably exercised. The goal is justice, balancing finality and the public interest in reaching what ultimately appears to be “the right result.” Anderson v Dept of Transp, FAA, 46 MSPR 341 (1990).

This authority exists even when there have been court proceedings, as the Anderson decision notes. Anderson is based on a line of cases such as Hazel-Atlas Glass Co v Hartford Empire Co, 322 US 238, 244; 88 L Ed 1250; 64 S Ct 997 (1944).

Please take note of the fact that a federal court reopening guideline, Federal Rule of Civil Procedure, FRCP 60(b), lists reasons, e.g., (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial (here, the Macomb County jury duty aspect (Exhibit 20); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) when it is no longer equitable that a judgment should have prospective application, and (6) “any other reason justifying relief from the operation of the judgment.”

This rule authorizing relieving a party or a legal representative from a final judgment or order for any reason justifying relief is to be liberally applied in a proper case, that is, in a case involving extraordinary circumstances or extreme hardship. U.S. v. Cirami, 563 F2d 26, on remand 92 F.R.D. 483 (CA 1, 1977); Marquette Corp v Priester, 234 F Supp 799 (D SC, 1964); U.S. v $3,216.59 in U.S. Currency, 41 F.R.D. 433 (D SC, 1967).

A liberal construction of this rule is particularly appropriate where equitable considerations are involved. Johnson Waste Materials v Marshall, 611 F2d 593 (CA 5, 1980).

The “right result” when there has been no due process notice under 5 USC § 7513.(b) is to follow case law such as Hanifan v U.S., 173 Ct Cl 1053; 354 F2d 358, 364 (1965) and Sullivan v Navy, 720 F2d 1266, 1273-4 (CA Fed, 1983) (employee fired without notice remains “on the rolls”), and rule accordingly. Not doing so destroys employee career, finances, family, a situation clearly inequitable and an extreme hardship to me, and which civil rights law is designed to forestall, Rowe v General Motors Corp, 457 F2d 348, 354 (CA 5, 1972).

The “right result” concept is especially pertinent as providing advance notice is a constitutional duty, Cleveland Bd of Ed v Loudermill, 470 US 532; 105 S Ct 1467; 64 L Ed.2d 494 (1985), to avoid precisely such inequities as here; and is jurisdictional, 5 USC § 552a, as agencies must adhere to published law and regulations.

It is extraordinary to be ousted without the agency notifying the accused employee of the charges in advance, and allowing pre-decision reply right (Exhibits 5, 12, 17 of January 2004 Brief).

It is especially extraordinary on a “qualifications” charge as unmet non-requirements (here, for tobacco smoke in job site air) “can never prevent performance of the job,” see the principle at Montgomery Ward v Bureau of Labor, 16 FEP 80; 280 Or 163; 570 P2d 76 (1977). Note the federal qualifications’ writing agency, Office of Personnel Management, denial of a qualification requirement for smoking (Exhibit 10). TACOM had fraudulently acted as though such a requirement existed.

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It is extraordinary for a federal agency with a large personnel (human resources) office such as TACOM had, reviewing employee qualifications continually, to fraudulently invent a qualification requirement which its own job analysis personnel know they never demand of any other employee.

Subd. (b)(4) to (6) of FRCP 60(b) providing for relieving party from a final judgment if it is void, if it is no longer equitable that judgment should have prospective application or for any other reason justifying relief from operation of judgment, is to be liberally construed to carry out purpose of avoiding enforcement of erroneous judgment. Blanchard v. St. Paul Fire & Marine Ins Co, 341 F2d 351 (1965), cert den 382 US 829; 86 S Ct 66; 15 L Ed 2d 73. A judgment condoning firing an employee without notice is clearly an “erroneous” one not to be enforced.

EEOC is requested to apply this concept. Pletten is suffering extreme hardship, loss of career, finances, family, in deep debt. And the “extreme hardship” goes deeper. The nation is suffering from the rampant “culture” of anti-federal employee activity, notoriously the employee fear to report problems that would lead to the February 2003 Columbia Shuttle explosion, and resultant CAIB report (see http://www.caib.us) citing the hostility “culture” at NASA.

Note also the fear at FBI leading to failure to prevent 9/11, and the widespread civil service fear to raise the issue of violations, as the retaliation rate study shows (Exhibit 18, also at http://www.mspb.gov/studies/00decnws.pdf , page 5). Federal employees are deterred by the fact

a. that NO LAW Congress passes for us has worked in violations-reporting situations except the EEOC review process (Exhibits 7 and 9 with Jan 2004 Brief)

b. we each are the guinea pig to show such ineffectiveness in our own case, until

c. the next employee protection law is passed, and

d. adjudicators invariably find yet another alleged loophole to deny relief, and

e. Congress supposedly again “fix the problem” for future whistleblowers while,

f. adjudicators leave the past ones out-of-remedy. Result: widespread federal employee fear.

As TACOM and the Frank Gaal article, p 1 supra, MSPB reports that many employees dare not take that risk (Exhibit 18). Widespread fear of reprisal deters whistleblowing, on safety/EEO matters as here, or whatever, and endangers the public.

Reprisals are NOT being deterred. What IS being deterred is whistleblowing, e.g., not just at TACOM re admittedly bad ventilation, but at FBI re terrorism, NASA re Shuttle deficiencies, etc., with the result that Americans are injured or killed. This deterrence by fear will continue unless relief is provided, and made clear to federal employees generally, that when a situation occurs of being ousted without notice, without charges, without notice of all review rights, and with every effort to attain review obstructed, redress will be provided as a matter of law, equity, and justice.

5. THE AGENCY COMMITTED FRAUD BY PROMISING EEO REVIEW WITHOUT ANY INTENTION OF CARRYING OUT THAT PROMISE.

The Feb 2005 EEOC decision reflects clearly erroneous interpretation of material fact, e.g., that TACOM Deputy Commanding General David W. Stallings promised Pletten his appeals would be processed (Exhibit 6 with Jan 2004 Brief). As the agency controlled access to the 29 CFR §1613

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EEO forum, that was a most significant promise, of the highest magnitude. That written 29 Jan 1982 promise was after Pletten had first filed in the EEO forum (Exhibit A) on the “removal”; and just before the 23 Feb 1982 EEOC processing order (Docket Nos. 01800273 et al, Exhibit 7 with Jan 2004 Brief). That Pletten’s FIRST “removal”-related filing (Exhibit A) precluded any alleged later MSPB jurisdiction, Carreno v Dept of Army, 22 MSPR 515, 518 (1984). (See also 7 MSPR 13 (18 June 1981), MSPB’s prior refusal to accept jurisdiction).

Pletten relied on the General’s promise (paralleling that of the Legal Office’s Emily S. Bacon a few months earlier, Exhibit 6 with Jan 2004 Brief). However, TACOM has never allowed counseling, investigation, hearing, to occur in the EEO forum, instead, for decades resisted all Pletten’s efforts to attain fulfillment of the promise, and EEOC’s own order immediately following, to Pletten’s extreme detriment and undue hardship. The word of a General being “intentional perversion of truth” (Black’s Law Dictionary, 6th ed (1990), p 660, terminology) is indeed extraordinary. White v. Mathews, 559 F2d 852 (CA 2, 1977), cert den 435 US 908 (1978), shows that even agency trying (at “glacial pace”) to schedule review is not constitutionally adequate.

Pletten did “rely on what had been told him.” “There is nothing in law or in reason which requires one [Pletten] to deal as though dealing with a liar or scoundrel [Stallings], or that denies the protection of the law to the trustful [Pletten] who have been victimized by fraud . . . it was never any credit to the law to allow one who had defrauded another to defend on the ground that his own word should not have been believed.” Bishop v E. A. Strout Realty, 182 F2d 503, 505 (CA 4, 1950).

EEOC neglects to note that TACOM had no intention of doing as Gen. Stallings promised (and as its own rules provide; no Army rules say, defy EEOC decisions!!); “a promise made without any intention of performing it [is] one of the forms of actual fraud,” Langley v Rodriguez, 122 Cal 580; 55 P 406 (1898). TACOM’s EEO Office confirms the fraud (Exhibit 17 with Jan 2004 Brief), access denial in the crucial timeframe. The agency’s “extreme and outrageous . . . conduct [arises] from the abuse of a relationship which puts [the agency] in a position of actual or apparent authority . . . or gives [the agency] power to affect [appellant's] interests,” McCahill v Commercial Ins Co, 179 Mich App 761, 768; 446 NW2d 579, 582 (1989).

It is clearly erroneous interpretation of material fact to ignore such crucial material evidence.

6. THE AGENCY COMMITTED FRAUD PREVENTING APPELLANT’S DEFENSE.

The Feb 2005 EEOC decision disregarded facts such as of the agency not having provided Pletten a 5 U.S.C. 7513(b) notice of charges, of forum options, and of pretending review would occur which it intended not to do (Exhibit 6 with Jan 2004 Brief)—each aspect is fraud, and fraud of a specific type, the kind preventing Pletten from presenting my case in freely chosen forum chosen with free and uncoerced “informed choice,” with proper truthful information, Scharf v Air Force, 710 F2d 1572 (CA Fed, 1983). Thus, Pletten seeks the EEO process to begin, not complaining of prior processing. He can’t complain of that! Such processing never occurred to complain about!!

“'Fraud which . . . prevents [Pletten] from presenting an available defense [is] a proper ground for equitable relief against the judgment,'” New York Life Ins Co v Nashville Trust Co, 200 Tenn 513, 519; 292 SW2d 749 (1956), relying on Hazel-Atlas Glass Co., supra, 322 US 238 (1944).

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Upholding an ouster under these fraudulent circumstances is a clearly erroneous interpretation of material fact or law as per the Blanchard v. St. Paul Fire & Marine Ins. Co., 341 F2d 351 (1965) criteria; and that listed in Black’s Law Dictionary, 6th ed (1990), p 660, and definitely unjust and contrary to law and Congressional intent. It is extraordinary for an agency to not state the charges to enable the accused to reply, to refuse access to one of the 29 CFR §1613.403 now § 1614.203(b) forum options, to pretend it will make the closed-off forum (the EEO forum) after. Significantly, the agency controls access to that forum, by allowing or obstructing access to investigation and hearing, the normal review allowed for others. Allowing an agency to shut off access to the review process will have a substantial impact on agency policies, practices, or operations–the detriment of not just Pletten but the nation as a whole, by the in essence abolition, repeal, of review rights at agency whim. Reference American Zinc Co v Graham, 132 Tenn 586, 589; 179 SW 138, 139-140 (1915):

“To hold that he [the worker] did assume the risk [cannot object to non-processing] would be equivalent to a repeal of the [regulation], since it would be a continuing invitation to the [agency] to forbear compliance with its provisions [and] since it would enable [the agency] to either destroy or maintain the policies of the [EEOC processing rule] according to his own will and purpose.”

Discharge, “the most serious sanction an employer can impose,” requires “special care in handling” review, Tenorio v N.L.R.B., 680 F2d 598, 602 (CA 9, 1982). The agency “tampering with the administration of justice in the manner indisputably [starting with the cut-off of access in February 1980 though the refusal to do more than date-stamp Pletten’s FIRST “removal” review effort, Exhibit A, and all other TACOM reprisals, etc.] shown here involves far more than an injury to a single litigant. It is a wrong against the institutions set up to protect and safeguard the public.” Hazel-Atlas Glass Co v Hartford-Empire Co, 322 US 238, 246; 64 S Ct 991, 88 L Ed 1250 (1944).

"A tortfeasor has a duty to assist his victim. The initial injury creates a duty of aid and the breach of the duty is an independent tort. See Restatement (Second) of Torts, § 322, Comment c (1965)." Taylor v Meirick, 712 F2d 1112, 1117 (CA 7, 1983).

Wherefore, please reverse the Feb 2005 EEOC decision, and tell the agency to fulfill its legal and regulatory duties in terms of letting Pletten have review now so many decades delayed..

7. IT IS NO LONGER EQUITABLE THAT THE OUSTER DECISION HAVE
PROSPECTIVE APPLICATION, WHILE OTHER EMPLOYEES OUSTED
WITHOUT DUE PROCESS NOTICE OF CHARGES REMAIN ON ROLLS.

Assuming arguendo that EEOC on reconsideration

a. finds, consistent with your 23 Feb 1982 decision (Exhibit 7 with Jan 23004 Brief), that processing was cut off for Pletten, including through the “removal” Jan 1982 time frame (Exhibit A);

b. determines that 29 CFR § 1614.107(a)(8) does not bar effort to get processing to occur,

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c. that the agency clearly by 25 years showing, has no intention of ever allowing review to occur for Pletten on the “removal” and anything else (Exhibit A juxtaposed with Exhibit 7 of 24 Jan 2004 Brief),

please note the following on merits.

Note that the agency provided Pletten no due process for the “removal,” not even the minimal due process to which even slaves had a right–the right to notice, and reply, prior to decision. Note that slaves had such rights! Josephine, a slave v State of Mississippi, 39 Miss (10 Geo) 613, 647 (1861): The right to a properly drafted statement of charges is “a substantial right . . . and not a mere question of form or proceeding.” It is extraordinary, shocking to conscience, to refuse me that right.

It is undisputed that the agency, TACOM, did not issue a “statement or citation of the written regulations . . . said to have been violated [and] a detailed statement of the facts,” Boilermakers v Hardeman, 401 US 233, 245; 91 S Ct 609, 617; 28 L Ed 2d 10, 21 (1971) before “decision to terminate” (Exhibits 5, 12, 17).

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

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

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

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

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

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

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

(iii) “item by item,” Mandel v Nouse and TACOM, 509 F2d 1031, 1032 (CA 6) cert den 422 US 1008; 95 S Ct 2630; 45 L Ed 2d 671 (1975). TACOM knows this, but here did none of this.

Pursuant to Smith v Dept of Interior, 9 MSPR 342, 344 (1981), an agency must provide “specific examples” of “alleged performance deficiencies” “to meet the 'specificity' test” as “[a] notice of proposed adverse action is required to be specific enough so that the employee is presented with

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sufficient information to enable him or her to make an 'informed reply.' S. Rep. No. 95-969, 95th Cong., 2d Sess. 50 (1978), U.S. Code Cong. & Admin. News 1978, p 2723, Report of the Senate Committee on Governmental Affairs.” TACOM has never provided Pletten such specificity, thus precluded Pletten replying--a major dues process rights violation.

As a matter of equity, and to show the extraordinary and exceptional circumstances, note the long line of case law that proper 30 days advance notice of charges must be given for an ouster to be upheld, e.g., Hart v U.S., 148 Ct Cl 10, 16-17; 284 F2d 682, 686-687 (1960); Smith v Dept of Interior, 9 MSPR 342 (1981); Heikken v D.O.T., 18 MSPR 439 (1983); Van Skiver v Postal Service, 25 MSPR 66 (1984); Woodall v FERC, 28 MSPR 192 (1985); Miyai v D.O.T., 32 MSPR 15, 20 (1986); Cleveland Bd of Ed v Loudermill, 470 US 532; 105 S Ct 1467; 64 L Ed.2d 494 (1985); Thomas v General Svcs Admin, 756 F2d 86, 89-90 (CA Fed, 1985); Mercer v Dept. of Health & Human Svcs, 772 F2d 856 (CA Fed, 1985); Pittman v Army and MSPB, 832 F2d 598 (CA Fed, 1987); Childers v Air Force, 36 MSPR 486 (1988); Bivens v Dept of Navy, 38 MSPR 67 (1988); and Brown v Dept of Navy, 49 MSPR 277 (1991); and Comptroller decisions, e.g., 38 Comp Gen 203; 39 Comp Gen 154; and 41 Comp Gen 774, cited in FPM Supp 752-1, S1-6c(4)(c) - (d) (4 Feb 1972).

The bottom line is, showing how exceptional and extraordinary is what TACOM did, and wants to be allowed to get away with, nobody ousted without 5 USC § 7513.(b) notice fails to win! Why exception here? Answer: pattern of reprisals against whistleblowers (Exhibit 18) MSPB cites.

“[P]roof of the pattern or practice supports an inference that any particular decision, during the period in which the policy was in force, was made in pursuit of that policy.” Teamsters v U.S., 431 US 324, 362; 97 S Ct 1843, 1868; 52 L Ed 2d 396, 431 (1977).

The goal is justice, balancing finality and the public interest in reaching what ultimately appears to be “the right result.” Anderson v Dept of Transp, FAA, 46 MSPR 341 (1990). Here, “removal” without notice of charges (specifics) to which to reply before the “decision to terminate” is made (verified at Exhibits 5, 12, 17 with Jan 2004 Brief), is clearly NOT “the right result.”

As a matter of equity to deal with extraordinary combination of circumstances, please help. It is not equitable to prospectively continue my extraordinary and exceptional status as not on the rolls, when all others' precedents show otherwise: that any other federal employee ousted without notice, without due process of law, in short, remains “on the rolls.” Sullivan v Navy, 720 F2d 1266, 1273-4 (CA Fed, 1983) (employee fired without notice remains “on the rolls”).

8. IT IS NO LONGER EQUITABLE THAT THE OUSTER SHOULD HAVE
PROSPECTIVE APPLICATION, SEE UNJUST DISCHARGE CRITERIA.

Here by TACOM’s own subsequent “confession against interest” (Exhibits 12 and 17, of ouster time frame verified earlier by EEOC’s Henry Perez, Jr., Exhibit 5, with Jan 2004 Brief) was no “advance notice” to which Pletten could reply, present a defense, to the “decision to terminate” (or, as styled in 1982, “removal”) No “just cause” existed by any criteria, private or federal. Pletten had excellent performance, attendance, conduct, awards, recognition, better than others.

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TACOM had not applied any discharge criteria, not

a. the private enterprise seven point criteria of Grief Bros Coop Corp, 42 Lab Arb (BNA) 555 (1964), Combustion Engineering, Inc, 42 Lab Arb (BNA) 806 (1964):

(1) Forewarning employee of possible consequences of conduct (No, not done here)

(2) The allegedly violated rule or order must be reasonably related to orderly, efficient, and safe operations (No, no rule has been cited that Pletten “violated”)

(3) Before administering discipline, employer is to investigate whether employee did, in fact, violate or disobey the rule or order (No, no investigation occurred)

(4) Employer investigation must be conducted fairly and objectively

(5) In investigation, employer must obtain sufficient evidence or proof that employee was guilty as charged. (No, as OPM denies a requirement exists, Exhibit 10)

(6) Employer must apply its rules, orders, and penalties evenhandedly and without discrimination (I was singled out for action different than other similarly situated employees)

(7) Degree of discipline must be reasonably related to seriousness of offense and employee's record. (No. Pletten committed no offense; TACOM issued no notice citing any)

“'No' answer to one or more normally signifies that just and proper cause did not exist.”

B. the 12 point civil service criteria of Douglas v Vet. Adm., 5 MSPR 280, 305-306 (1981):

(1) Nature and seriousness of the offense, and its relation to the employee's duties, position, and responsibilities, including whether the offense was intentional or technical or inadvertent, or was committed maliciously or for gain, or was frequently repeated (No, no offense was cited)

(2) Employee's job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position

(3) Employee's past disciplinary record (None, Pletten’s record was exemplary)

(4) Employee's past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability. (Work and attendance were above-norm)

(5) Effect of the offense upon the employee's ability to perform at a satisfactory level and its effect upon supervisors' confidence in the employee's ability to perform assigned duties (No offense)

(6) Consistency of the penalty with those imposed upon other employees for the same or similar offenses. (Pletten was singled out in reprisal, different than similarly situated employees)

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(7) Consistency of the penalty with any applicable agency table of penalties (No)

(8) Notoriety of the offense or its impact upon the reputation of the agency (No offense)

(9) Clarity with which the employee was on notice of any rules violated in committing the offense, or had been warned about the conduct in question (No notice of non-existent offense)

(10) Potential for the employee's rehabilitation (None needed, no offense was committed)

(11) Mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice or provocation on the part of others involved in the matter. (Example, denunciation in newspaper! See Exhibit 7 summary.)

(12) Adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others; and citing 5 C.F.R. §§ 731.202(c); Federal Personnel Manual, ch. 751, subch. 1-2 Dec. 21, 1976); CSC Board of Appeals and Review, Memorandum No. 2; Francisco v Campbell, 625 F2d 266, 269-70 (CA 9, 1980); Howard v U.S., Civ. LV-77-219 RDF (D Nev, 3 July 1980) (Mem. Order at 9); Giles v U.S., 213 Ct Cl 602; 553 F2d 647, 650-51 (1977); Boyce v U.S., 211 Ct Cl 57; 543 F2d 1290, 1294 (1976); Tucker v U.S., 224 Ct Cl 266; 624 F2d 1029, 1034 (1980); Byrd v Campbell, 591 F2d 326, 331 (CA 5, 1979); Clark v U.S., 162 Ct Cl 477, 485 (1963)

c. the five-point criteria of Yorkshire v MSPB, 746 F2d 1454, 1456 (CA Fed, 1984).

(1) Where the agency engaged in a “prohibited personnel practice” (5 §§ 7701(g)(l)) (here using a qualification “requirement” it knows does not exist, and applied to no other employee)

(2) Where the agency's action was “clearly without merit” (5 § 7701(g)(l)), or was “wholly unfounded,” or the employee is “substantially innocent” of the charges brought by the agency (no charge of any misconduct was made in any advance notice).

(3) Where the agency initiated the action against the employee in “bad faith,” including:

a. Where the agency's action was brought to "harass" the employee;

b. Where the agency's action was brought to “exert improper pressure on the employee
to act in certain ways” (here, extortion, Exhibit 8 with Jan 2004 Brief).

4. Where the agency committed a “gross procedural error” which “prolonged the proceeding” or “severely prejudiced” the employee (no pre-decision advance notice, Exhibit 5 with Jan 2004 Brief)

5. Where the agency “knew or should have known that it would not prevail on the merits” when it brought the proceeding. (The agency knew, as evidenced by its cutting off access to an entire review forum, EEOC’s, Exhibits 12 and 17 with Jan 2004 Brief, and as evident throughout)

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“Removal” is defined as “A disciplinary separation action, other than for inefficiency or unac-ceptable performance . . . where the employee is at fault,” per Federal Personnel Manual Supplement 296-33, Subchap 35, Glossary, p 35-11, pursuant to pre-identified (30 days prior) written notice of charges of violating conduct rules or performance standards, citing the rules, qualifications require-ments, and/or performance standards allegedly willfully violated, and typically citing prior corrective action (warnings, unsatisfactory ratings, reprimands, suspensions, etc.) having failed to secure improvement in conduct. Clearly, as Pletten had done nothing “at fault,” the agency could and did provide, no 30 days advance notice, or even a retroactive one, alleging such.

The Feb 2005 EEOC decision is clearly erroneous in failing to apply the pertinent rules and laws including jurisdictional law 5 USC § 552a to this situation of the agency blatantly operating outside framework of published law and regulation.

9. IT IS NO LONGER EQUITABLE THAT THE “DECISION
TO TERMINATE” SHOULD HAVE PROSPECTIVE APPLICATION
PURSUANT TO THE 5 USC § 552 JURISDICTIONAL BAR.

The Feb 2005 EEOC decision is clearly erroneous on fact and law and enables significant impact on agency policies, practices, or operations--by enabling “repeal” (the above-cited American Zinc concept, pp 9 and 14) of processing rules, by altering focus onto the complainant’s alleged error in seeking to get review to occur, in essence calling that the significant violation!

That new error follows on TACOM’s twisting focus on merits as well. To obstruct focus on merits, TACOM alleged as a cover story, the deleterious cigarette smoke issue, and treated it as an uncontrollable Bona Fide Occupational Qualification (BFOQ) requirement; and further, that Pletten des not meet that qualification requirement!

The[r]e is no such requirement, the qualifications writing agency, Office of Personnel Management denies it (Exhibit 10 with Jan 2004 Brief). Even if the TACOM claim were somehow true, “the job requirements and qualifications [of Pletten’s job description, shared with others] had never been formally changed," Sabol v Snyder, 524 F2d 1009, 1011 (1975). Moreover, once review begins the record will show that TACOM had previously granted a qualifications waiver!

Once the review closed to Pletten during the entire timeframe at issue, see Exhibits 7, 12 and 17 with Jan 2004 Brief, begins, it will “examine the position descriptions,” look for “legitimate job requirements,” pursuant to law and precedents such as Coleman v Darden, 595 F2d 533 (1979), Stalkfleet v U.S. Postal Service, 6 MSPB 536, 541 (1981). Such review will find tobacco smoke is not, never was, “in the requirements for any position.” TACOM using a non-existent BFOQ is a prohibited personnel practice, violating 5 USC § 2302(b)(6).

Note the qualifications writing agency (OPM) BFOQ denial (Exhibit 10 with Jan 2004 Brief). OPM is the same agency that did the study (at www.fhcs.opm.gov) finding foreseeable high employee quit rate due to a significant rate of poor civil service management. It is inequitable to ratify poor management, prospectively disqualify Pletten on a non-existing BFOQ. Using real BFOQ’s is a basic civil rights / EEO principle.

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Significantly, no such requirement as TACOM alleges is published. Publication, notice, is jurisdictional. 5 USC § 552.(a)(1). This law is followed for others, not Pletten. See Exhibit 10 with Jan 2004 Brief, OPM’s reply under 5 USC 552 (FOIA) as Pletten was preparing for 29 CFR § 1613 case review starting. Pletten expected (due to Stallings’ fraud (Exhibit 6 with Jan 2004 Brief) and the presumed force of the EEOC processing orders (Exhibits 7 and 9 with said Brief)), that review would soon occur in the 29 CFR §1613 forum as sought, promised, ordered!) But unbeknownst to Pletten, TACOM would obstruct Pletten getting such review (Exhibits 12 and 17 with said Brief). TACOM foresaw that EEOC would enforce BFOQ law, so to prevent that, TACOM would violated rules, EEOC orders, to obstruct justice, to obstruct the review process Pletten so clearly had FIRST sought, including of the January 1982 “removal.”

TACOM fabricated the BFOQ issue from smoker preferences. Personal preferences lack legal standing as BFOQs.or are banned pursuant to

a. Michigan's cigarette ban, MCL § 750.27, MSA § 28.216 (banning deleterious cigarettes, the source of deleterious cigarette emissions such as carbon monoxide at 42,000 ppm says Surgeon General data, whereas the 29 CFR § 1910.1000 legal maximum is in the 50 - 100 ppm range), and

b. basic civil service and civil rights law, Knotts v U.S., 128 Ct Cl 489; 121 F Supp 630 (1954), and Diaz v Pan Am Airways, Inc., 442 F2d 385 cert den 404 US 950 (1971).

Claiming tobacco smoke is a BFOQ “suffers from a further inadequacy in that it failed to comply with 29 C.FR § 1607.5(b)(3), which requires that criteria used to predict job performance ‘must represent major or critical work behaviors as revealed by careful job analysis.’” Albemarle Paper Co v Moody, 422 US 405, 432 n 30; 95 S Ct 2362; 45 L Ed 280 (1975); U.S. v Chicago, 549 F2d 415, 431 (CA 7, 1970). At 432, “Job-relatedness can only be determined where the criteria for selection are clearly identified.” That means “individualized inquiry” on job description requirements, Hall v Postal Svc, 857 F2d 1073, 78-9 (CA 6, 1988). TACOM did none, no “job analysis,” “inquiry.”

BFOQ’s must be applied across the board, not to one person (singling out Pletten). BFOQ’s must be stated in advance, not fabricated retroactively, i.e., be pre-listed in hiring and medical forms, tests, be actually required for the job, checked for in background investigations, etc. The process is described in case law, e.g., U.S. v Chicago, 549 F2d 415, 429-434, supra.

Minimal medical requirements for personnel work exist, due to the nature of the desk job. Those few are limited to use of fingers, rapid mental and muscular coordination, near and far and color vision, hearing, clear speech, and mental and emotional stability. All of them TACOM's own Dr. Francis Holt certified Pletten meets! Once review process begins, such facts will be obvious in minutes. No wonder TACOM denies Pletten such review, Exhibits 7, 12 and 17. Any reviewer would see that in Michigan especially, tobacco smoke is not, cannot be, a BFOQ. Deleterious cigarettes are illegal pursuant to law MCL § 750.27, MSA § 28.216. Far from finding deleterious cigarette smoke a BFOQ, any reviewer would find it is result of illegal smuggling.

Please take administrative notice that no federal employee has ever, except Pletten, been accused of having a “presence of tobacco smoke” qualification requirement—accused without the right to reply, as per TACOM not providing a notice of charges, specifics, to which to reply.

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5 USC § 552.(a)(l)(C) - (D) makes publication of a qualification requirement “jurisdictional,” Hotch v U.S., 212 F2d 280 (1954); Bowen v City of New York, 476 US 467; 106 S Ct 2022; 90 L Ed 2d 462 (1986). Others have had actions taken against them canceled when there was no notice of a qualification requirement or other rule. See Morton v Ruiz, 415 US 199, 231; 94 S Ct 1055, 1072; 39 L Ed 2d 270 (1974); W. G. Cosby Transfer & Storage Corp v Dept of Army, 480 F2d 498, 503 (CA 4, 1973) (Army has done this violation before); Onweiler v U.S., 432 F Supp 1226, 1229 (D ID, 1977); Berends v Butz, 357 F Supp 143, 154-158 (D Minn, 1973); Anderson v Butz, 550 F2d 459 (CA 9, 1977); Dean v Butz, 428 F Supp 477, 480 (D HAW, 28 Feb 1977); St. Elizabeth Hospital v U.S., 558 F2d 8, 13-14 (CA 9, 1977); Aiken v Obledo, 442 F Supp 628, 654 (D ED Cal, 1977); Historic Green Springs, Inc v Bergland, 497 F Supp 839, 854-857 (D ED Va, 1980); Vigil v Andrus, 667 F2d 931, 936-939 (CA 10, 1982). Others similarly situated are not treated like me, an inequity.

TACOM disqualifying Pletten on a non-BFOQ (on same job description as co-workers!), is inconsistent, needs explanation, Garrett v F.C.C., 168 US App DC 266; 513 F2d 1056 (1975); Marco Sales Co v F.T.C., 453 F2d 1, 7 (CA 2, 1971); Yorkshire v MSPB, 746 F2d 1454 (CA Fed, 1984). By its erroneous focus on “process,” the Feb 2005 EEOC decision ratified merits error.

Please take official notice (a) that no tobacco qualification “requirement” exists for anyone and (b) of the OPM Denial Letter (Exhibit 10 with Jan 2004 Brief). The TACOM story to the contrary was invented purely ad hoc, solely for Pletten. EEOC would reject TACOM’s story, hence, TACOM’s determination to not allow Pletten EEOC review on merits (see 23 Feb 1982 verification by EEOC, Exhibit 7 with Jan 2004 Brief).

“Quod ab initio non valet in tractu temporis non convalescet. That which is bad in its commencement improves not by lapse of time. Quod initio non valet, tractu temporis non valet. A thing void in the beginning does not become valid by lapse of time.”—Black's Law Dictionary (5th ed, 1979), pp 1126-1127.

Pletten repeatedly returned to duty pursuant to the Bevan v N Y St T R System, 74 Misc 2d 443; 345 NYS 2d 921 (1973) precedent (case of employee also falsely accused of not meeting a non-existent qualification requirement!). In interim, Pletten continues following last assignment–get out! (An area employee James Ospalski also being retaliated against, had been assigned to count ceiling tiles!! no end of management creativity to retaliate!!)

And to benefit the agency by advancing his skills, Pletten continues performing typical personnel (now called “human resources”) duties of a prior TACOM job assignment, as evident here, analysis of job situation with respect to pertinent personnel and related regulations and laws. And per the assigned “Crime Prevention” function, Pletten analyzes the subject matter data that has progressively developed on underlying prevention for maximum cost and human effectiveness.

The lack of a qualification requirement of record (much less, notice thereof!), is a jurisdiction issue. Federal subject matter jurisdiction presents an issue which raiseable by a party or adjudicator at any time. Enrich v Touche Ross & Co., 846 F2d 1190 (CA 9, 1988); Fed. R. Civ. P. 12(h)(3). This issue may be raised at any time, even after disposition, and even collaterally. Fed.R.Civ.P. 12(h) and 60(b)(4); Taubman Co v Webfeats, 319 F3d 770, 773 (CA 6, 2003). It is not equitable, but is extraordinary and exceptional, to ratify an agency ultra vires act so clearly outside agency jurisdiction.

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10. IT IS NO LONGER EQUITABLE THAT THE “DECISION TO TERMINATE” HAVE
PROSPECTIVE APPLICATION ABSENT COMPLIANCE WITH CONDITIONS
PRECEDENT (NOTICE OF CHARGES AND SPECIFICS ENABLING REPLY).

Rather than be diverted onto the “process” issue, the EEOC decision should have focused on the merits. The bottom line of merits is that until an agency issues a notice of charges/specifics and enables reply/defense, an allegedly terminated employee remains an employee, as the ouster is constitutional violation, statutory violation, jurisdictionally, void. Sullivan v Navy, 720 F2d 1266, 1274 (CA Fed, 1983). The employee stays “on the rolls . . . until proper procedural [due process and jurisdictional per published] steps are taken toward removing . . . him. In that situation, the merits of the adverse action are wholly disregarded.”

Similarly, spouses remain married until proper divorce papers occur. Siemering v Siemering, 95 Wis 2d 111, 115; 288 NW2d 881, 883 (Wis App, 1980). The “condition precedent not having been met, the action was never commenced.” Thus it cannot be, or remain, ratified.

Until the “condition precedent” for status change occurs, the status quo ante (employment, marriage, etc.) remains in full force and effect. Please apply this doctrine. Pletten looks forward to returning to duty, remain ready, willing, able and eager to do so, and do personnel and crime prevention functions in interim, preparatory to such return, so oft sought.

The “condition precedent” concept (one event MUST precede another to preclude voidness of the subsequent event) is well-established. The concept is traceable back to precedents applied in a significant case on-point, New Orleans v Texas & P Ry Co, 171 US 312; 18 S Ct 875, 883; 14 L Ed 178 (1898) (“the obligation [here, ouster] is suspended until” compliance). (Exhibit 6 defies this).

Showing the extraordinary, inequitable, and exceptional nature of TACOM’s ousting Pletten, this notice and compliance principle is being adhered to for everyone civil-service-wide except Pletten, e.g., Basinger v OPM, 5 MSPB 210 (1981) action “cannot be effected if there is a lack of compliance with departmental regulations,” here, AR 1-8, and the regulations implementing the Constitution’s due process criteria and laws such as the 30 days notice law, 5 USC § 7513.(b), and the 5 USC § 552a jurisdictional rules of law.

Prior to the January 1982 “removal” on which the February 2005 EEOC decision focuses, TACOM did for a time, use a pretext, forced leave, as its cover story to conceal the ouster subsequently admitted by its own staff (Exhibits 12 and 17 with Jan 2004 Brief), an admission fraudulently concealed for years. But, significantly, the agency’s own regulation bans forced leave (TACOM-R 600-5.14-27 to 29, Exhibit 4). The forced leave ban had been adopted to prevent just such situations as mine. A female employee had been put on forced leave against her will due to her medical condition (pregnancy). TACOM wrote the forced leave ban rule in 1980 to expressly bar forced leaves, then immediately in 1980 violated it for Pletten!

Pertinent precedents disallow “approved leave” as a basis for discipline. Bond v Vance, 117 US App DC 203, 204; 327 F2d 901, 902 (1964); Washington v Army, 813 F2d 390, 394 (CA Fed, 1987).

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Absent notice, absent agency obeying own rules, absent jurisdiction, ouster is void, cannot be ratified, see definition of “void,” Black's Law Dictionary (6th ed, 1990), p 1573: “Null, ineffectual; nugatory; having no legal force or binding effect; unable, in law, to support the purpose for which it is intended. Hardison v. Gledhill, 72 Ga.App. 432, 33 S.E.2d 921, 924 [1945]. An instrument or transaction which is wholly ineffective, inoperative, and incapable of ratification and which thus has no force or effect so that nothing can cure it. In re Oliver, Bkrtcy. Minn., 38 B.R. 245, 248 [1984].”

Such words describe a termination without notice. It has “no legal force or binding effect; unable, in law, to support the purpose for which it is intended.” The Feb 2005 EEOC decision diverted attention off merits onto process. It is thus clearly erroneous on law and facts, as these merit facts are controlling; each invalid act long before the process issues, “necessarily renders all of the other facts immaterial.” Celotex Corp v Catrett, 477 US 317, 323; 106 S Ct 2548; 91 L Ed 2d 265 (1986). It is inequitable to allow attention to be diverted off the up-front agency misconduct, onto my long subsequent uninformed alleged process error. Such mis-focus does continue my punishment prospectively under such extraordinary circumstances.

“One cardinal principle must be borne in mind, that any element of illegality essential to a scheme or combination makes the whole illegal.” Newton Co v Erickson, 70 Misc 291, 298; 126 NYS 949, 954 (1911).

Please note the agency invalid acts (no notice, no BFOQ, no compliance instead acting outside jurisdictional law, etc.) prior to the process issues. See, e.g., Service v Dulles, 354 US 363; 77 S Ct 1152; 1 L Ed 2d 1403 (1957) (agencies cannot lawfully justify their actions against employees contrary to the agency’s own rules); Glus v Eastern Dist Terminal, 359 US 231, 232; 79 S Ct 760, 762; 3 L Ed 2d 770, 772 (1959); B.T.C. v Norton C.M.C., 25 F Supp 968, 969 ([DWD Ky] 1938). “No one may take advantage of his own wrong,” Stephenson v Golden, 279 Mich 710, 737; 276 NW 848 (1938); and similar precedents.

11. IT IS NO LONGER EQUITABLE THAT THE “DECISION TO TERMINATE” SHOULD HAVE PROSPECTIVE APPLICATION WHERE TACOM DENIED APPELLANT “INFORMED CHOICE” TO EVEN COMMENCE REVIEW.

The Feb 2005 EEOC constitutes clearly erroneous interpretation of law and fact in that it ignores that it is undisputed that TACOM cut me off from access to EEOC review by not later than Feb 1980. See EEOC Dockets 01800273, et al. (Exhibit 7 with Jan 2004 Brief). TACOM did not appeal or seek reconsideration. Note the significant, crucial time frame, the time of the TACOM “decision to terminate” (Exhibit 5 with same).

Note by its own Gonzellas Williams (Exhibit 17 with same), the absence of claim of having allowed Pletten EEO counseling during the crucial timeframe of the termination process, the January 1982 period on which the Feb 2005 EEOC decision focuses, and Pletten’s desperate efforts to get review to commence. Sadistically, TACOM refused to allow access to EEO counseling until AFTER it could then allege, “hah, hah, res judicata, you’ve lost your right to review.” So it refused to ever allow review to proceed to investigation and hearing stages–though routinely allowed to others.

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“In the law of estoppel, ‘silence’ implies knowledge and an opportunity to act upon it. Pence v. Langdon, 99 U.S. 578, 581, 25 L.Ed. 420 [1879]; Stewart v. Wyoming Cattle Ranch Co., 128 U.S. 383, 9 S. Ct. 101, 32 L.Ed. 439 [1888].”—Black’s Law Dictionary (6th ed, 1990), p 1382. TACOM is estopped from alleging compliance with EEOC’s orders (Exhibits 7, 9 with Jan 2004 Brief), from claiming it ever allowed review on merits, of claiming it did anything other than date-stamp Pletten’s seeking review (Exhibit A) of the January 1982 “removal.”

For example, verifying the pattern of none-review on merits, no investigation and hearing have been held on the newsletter denunciation case (witnesses Frank Gaal and Fred Grosby); the medical officer misconduct case (witness Francis J. Holt, M.D.); the telephone case (witness Carma Averhart); the medical aid denial (again, Dr. Holt); the wrong-information-to-MSPB case (witnesses Norma Kennedy, Edward Hoover, Emily Bacon, Edwin Braun, Jeremiah Kator, James H. Long); the performance appraisal case (witnesses Carma Averhart and Edward Hoover); the forced off-base case (termination) (witnesses Dr. Holt, Edward Hoover, Emily Bacon, Col. John Benacquista); non-implementation of AR 1-8 (witnesses Edwin Braun, Evelyn Bertram, Dennis Tracy); and the refusals to counsel (witness Kenneth R. Adler). The February 2005 EEOC decision is clearly erroneous interpretation of fact and law in disregarding this pattern of TACOM’s not allowing review.

The Feb 2005 EEOC decision ignored a basic pattern analysis principle set forth by the US Supreme Court: “[P]roof of the pattern or practice supports an inference that any particular decision, during the period in which the policy was in force, was made in pursuit of that policy.” Teamsters v U.S., 431 US 324, 362; 97 S Ct 1843, 1868; 52 L Ed 2d 396, 431 (1977).

Implementation of the 23 Feb 1982 EEOC order was vital to show the pattern of retaliation. Gross procedural abuses (no compliance with rules or the USACARA Report, no notice for firing, no opportunity to reply pre-decision, no notice of rights, etc.) are themselves discriminatory acts, Cohen v Austin, GSA, 833 F Supp 512 (ED Pa, 1993). TACOM knew an investigator would develop, assemble, the witness data, thus corroborate my showing the “decision to terminate” (forced-off-base) was retaliatory, and pattern of TACOM misconduct. (This is not to say that the January 1982 “removal” would not have been overturned simply and solely due to its own inherent flaws! But assuming arguendo that somehow some reviewer might not have been convinced of that aspect alone, the pattern would have established a context of agency misconduct and violations giving enhanced credibility to Pletten’s claims of misconduct / violations re the January 1982 “removal.”)

The agency does not even claim it provided Pletten notice of all forum rights IAW 29 CFR § 1613.403, now § 1614.302(b) (see Exhibit 19 admission to Senator Levin), much less, of how to proceed under such a severe restraint (denial of access to an entire review forum), during the crucial decade. Wherefore, Pletten did not have then, and still does not have now, unobstructed “informed choice” as others are allowed it.

Note the 29 CFR § 1613.403, now §1614.402.requirement to provide such forum data, not just as a matter of human dignity, but under due process and case law, e.g., Scharf v Air Force, 710 F2d 1572 (CA Fed, 1983). Indeed, even if the agency were to claim that after my obviously abortive Exhibit A, etc., I by some legerdemain chose some “forum” (MSPB’s) anyway (despite its bad record of refusing to allow hearing or go by normal “standards of proof,” Exhibit D, p 4) thereafter, doing so was not my “first action,” Exhibit A, hence depriving MSPB of jurisdiction, Carreno v Dept of Army, 22 MSPR 515, 518 (1984).

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There certainly is no “jurisdiction” for the agency’s such egregious departure from published regulations as here! neither notice of rights nor allowance of the “forum” chosen! So this is also jurisdictional, pursuant to 5 USC § 552.(a)(l)(C) - (D) case law above-cited. That law makes publication of federal rules, including review rights, “jurisdictional,” Hotch v U.S., 212 F2d 280 (1954). Absent notice of review forum rights, and absent genuine unobstructed opportunity to use the forum chosen, the alleged “previously filed complaint . . . court proceedings”were without jurisdiction for them, and are thus void, void ab initio.

“The agency has not shown—or even alleged—that it ever notified the appellant of his right to file an appeal or of any limitations on that right . . . it evidently has maintained consistently that the appellant has no appeal rights.” Miyai v D.O.T., 32 MSPR 15, 20 (1986).

Johnson v Dept of Labor, 26 MSPR 447, 449 (1985) says an agency must “afford appellant proper notice of her potential avenues of redress”; without that, “even appellant's action in filing an appeal to the Board did not constitute an informed election.” Here, without notice of rights, going to both MSPB and Court itself were without uncoerced “informed choice.”

“Quod ab initio non valet in tractu temporis non convalescet, That which is bad in its commencement improves not by lapse of time. Quod initio non valet, tractu temporis non valet. A thing void in the beginning does not become valid by lapse of time.”—Black's Law Dictionary (5th ed, 1979), pp 1126-1127.

Johnson, supra, 26 MSPR 447, arose in context of construing what employee choice of redress came first, under 5 USC § 7121(d), which provides in pertinent part:

“An employee shall be deemed to have exercised his option under this subsection to raise the matter under either a statutory procedure or the negotiated procedure at such time as the employee timely initiates an action under the applicable statutory procedure or timely files a grievance in writing, in accordance with the parties' negotiated procedure, whichever event occurs first.”

No choice except a void one can occur until after being notified by the agency of what the choices are. Here is yet another TACOM statutory violation. In equity, a party, here TACOM, cannot ignore and violate rules, then expect adjudicator to affirm! See, e.g., Service v Dulles, 354 US 363; 77 S Ct 1152; 1 L Ed 2d 1403 (1957); Glus v E Dist Term, 359 US 231, 232, supra. “No one may take advantage of his own wrong,” Stephenson v Golden, 279 Mich 710, 737; 276 NW 848 (1938).

“No conduct has such an absolute privilege as to justify all possible schemes of which it may be a part. The most innocent and constitutionally protected of acts or omissions may be made a step in a criminal plot, and if it is a step in a plot, neither its innocence nor the Constitution is sufficient to prevent the punishment of the plot by law.” Aiken v Wisconsin, 195 US 194, 205-206; 25 S Ct 3, 6; 49 L Ed 154, 159 (1904).

“One cardinal principle must be borne in mind, that any element of illegality essential to a scheme or combination makes the whole illegal.” Newton Co v Erickson, 70 Misc 291, 298; 126 NYS 949, 954 (1911).

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“Equity has power to eradicate the evils of a condemned scheme by prohibition of the use of admittedly valid parts of an invalid whole. U.S. v Univis Lens Co, 316 US 241, 254; 62 S Ct 1088, 1095; Ethyl Gasoline Corp v U.S., 309 US 436, 461; 60 S Ct 618, 627. Cf. Standard Oil Co v U.S., 221 US 1, 78; 31 S Ct 502, 523; 34 LRA (NS) 834; Ann Cas 1912D, 734; U.S. v Union Pac R Co, 226 US 61, 96; 33 S Ct 53, 61; U.S. v Union Pac R Co, 226 US 470, 476, 477; 33 S Ct 162, 165 (1913); . . . U.S. v Bausch & Lomb Optical Co, 321 US 707, 724; 64 S Ct 805; 88 L Ed 1024 (1944).

"The proof of the pattern or practice [of refusing Pletten review, and of a deterring retaliation rate civil-service-wide, Exhibits 7, 17, and 18 with Jan 2004 Brief] supports an inference that any particular decision [to commit a like offense], during the period in which the policy was in force, was made in pursuit of that policy. Teamsters, ssupra, 431 US 324, 362; 97 S Ct 1843, 1868; 52 L Ed 2d 396,431 (1977).

Here are so many violations it is a burden to list all, they are so extraordinary and exceptional, that it is inequitable to ratify them prospectively, especially in view of the void aspects cited herein. The Feb 2005 EEOC decision is thus clearly erroneous in ignoring all these facts and rules of law.

12. IT IS NO LONGER EQUITABLE THAT THE “DECISION TO TERMINATE”
SHOULD HAVE PROSPECTIVE APPLICATION WHERE THERE HAS
BEEN INTERVENING CHANGE IN THE LEGAL ATMOSPHERE.

There has been “intervening change in the legal atmosphere that it renders the bar of collateral estoppel [prior complaints, etc.] inapplicable in this case,” Texaco Inc v U.S., 217 Ct Cl 416; 579 F2d 614 (1978), in turn cited in Wilson v Turnage, 791 F2d 157 (CA Fed, 1986), a federal employee case.

A. Fraud. The Department of Justice cites significant fraud by tobacco companies in its tobacco costs recovery lawsuit, US v Philip Morris, Inc. et al., CA 99-2496 (GK) (22 Sep 1999) (Complaint) www.usdoj.gov/civil/cases/tobacco2/complain.pdf and (Appendix) www.usdoj.gov/civil/cases/tobacco2/appendix.pdf, concerning illegal tobacco selling practices.

Had there been no illegal selling, not just here violating Michigan’s MCL § 750.27, MSA § 28.216, but also nationally, there would have been no resultant contaminated air situation re which the extortion occurred, thus no issue of it being an “undue hardship” to enforce the provisos of Army Regulation 1-8 or federal safety law, 5 USC 7902(d) directing eliminating hazards. (Exhibit 8).

“Quod ab initio non valet in tractu temporis non convalescet. That which is bad in its commencement improves not by lapse of time. . . . Quod initio non valet, tractu temporis non valet. A thing void in the beginning does not become valid by lapse of time.”—Black's Law Dictionary (5th ed, 1979), pp 1126-1127.

A litigant can show as part of the evidence in his/her own case, the guilt of others so as to show a pattern. Locker v American Tobacco Co, 194 F 232 (SD NY, 1912). It is not equitable for the government to be arguing the tobacco issue in fraud terms while leaving Pletten prospectively ousted for rest of life, due to past consequences of that very fraud over which the government is itself litigating.

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B. TACOM Now Bans Smoking. TACOM made the “decision to terminate”(compare Exhibits 5 and 8) me on the pretext that it simply could not cease permitting smoking behavior, that doing so would somehow be an “undue hardship.” No matter that its own agency rules did not allow smoking conduct (e.g., 32 CFR § 203, AR 1-8, TACOM Regulation190-4) nor does Michigan law, MCL §750.27, MSA § 28.216, by its precluding the deleterious product even being in the State.

TACOM has now vacated the claimed basis for having ousted me. After terminating me, it later decided to follow the cited guidelines after all (Exhibit 16 with Jan 2004 Brief; and recently, Exhibit F attachment). Doing so was no hardship at all, much less an “undue” one. Authority and ability to do this is so obvious, TACOM did not even bother to cite any for the smoke-free action!

You at EEOC likely have substantial smoke-free working conditions yourself. Yet, the Feb 2005 decision ignored such, in favor of focusing on process, which in turn arose from TACOM’s hostile “it can't be done” attitude. This type of “erroneous judgment” as per the Blanchard v. St. Paul Fire & Marine Ins. Co., 341 F2d 351 (1965) reference to when the authority to reconsider exists, is applicable here. Please do not sit in your smoke-free work area and uphold decision saying it can't be done, too “undue hardship.” TACOM ignored the health of its own workforce for years, until confident it had beat me at MSPB and in court, it then decided to follow the 32 CFR § 203 and AR 1-8 guidelines after all.

It decided to follow the pure air rule that EEOC had noted had been flouted when Pletten won the ‘arbitration’ [Investigator Norma Kennedy Report] EEOC alludes to, telling TACOM to comply with AR 1-8 (Exhibit 7 with Jan 2004 Brief, p 2, top). TACOM decided to solve the contaminated air situation it had committed the extortion (Exhibit 8 with said Brief) against Pletten for refusing to stop blowing the whistle on. No big “undue hardship”! The agency knew it always had adequate authority in this matter, National Realty & Const Co Inc v O.S.H.R.C., 160 US App DC 133; 489 F2d 1257 (1973), had lied about lacking it! More egregious fraud can hardly be imagined.

AR 1-8 paralleled the Dept of Health, Education and Welfare (now Health and Human Services) regulation; see analysis at DHEW, Soc Sec Admin and AFGE Local 1923, 82-1 Lab Arb Awards (CCH) § 8206 (22 Jan 1982), confirming ease of enforcement, an analysis near identical to that of Investigator Kennedy as alluded to by EEOC in its 23 February 1982 decision, p 2, top (Exhibit 7 with Jan 2004 Brief).

TACOM had looked every adjudicator (where I’d without “informed choice” notice ) sought aid (Investigator, Inspector General, EEOC, MSPB and Court) in the eye and fabricated, knowingly making false fraud claims of “undue hardship”! Now admits, No hardship! Never was! Hah-hah! We at TACOM just invented that story for the Pletten case. Forget that claim, once we beat Pletten!— The “hah-hah” approach in dealings with adjudicators–a clear, blatant, prima facie indicator of fraud.

Having vacated its pretextual position, TACOM’s smoking ban vacates the basis for having terminated me. It is inequitable to prospectively keep me ousted for life, to ratify forever a TACOM viewpoint TACOM itself no longer holds. I look forward to returning to duty.

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C. Wider Awareness of Danger of Abusing Whistleblowers. In the years since the “decision to terminate” noted by EEOC’s Henry Perez, Jr. 9 April 1980 (Exhibit 5 with Jan 2004 Brief), and the Jan 1982 “removal” of which complaint was first made 25 Jan 1982 (Exhibit A), society has become more aware of the dangers to itself of the rampant reprisal against whistleblowers. The prevalence of reprisal has been documented by the MSPB, for example, its Retaliation Rate Study (December 2000) (Exhibit 18, www.mspb.gov/studies/00decnws.pdf). Seven - twelve per cent report retaliation, meaning hundreds of thousands of incidents. The subject matter has also been documented by law review writers, for example:

Stephen M. Kohn and Michael D. Kohn, “An Overview of Federal and State Whistleblower Protection,” 4 Antioch Law Journal 99-152 (Summer 1986)

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 (Sum’r 1986)

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

Thomas M Devine, “The Whistleblower Protection Act of 1989: Foundation for the Modern Law of Employment Dissent,” 51 Admin Law Rev (#2) 531-577 (Spr 1999)

In attacking a whistleblower, federal managers policy, practice, formula, recipe, is to: “go well beyond merely defeating a whistle blower . . . prove to others that no one is safe . . . make the most outrageous charges possible. . . . for purposes of teaching others a lesson, the more obvious the inconsistency [with work record (and law)] the better . . . ."—Devine and Aplin, “Whistleblower Protection--Gap Between Law and Reality,” supra, p 226.

This type abuse succeeds as MSPB and OSC are anti-employee; only EEOC (see e.g., Exhibits 7 and 9 with Jan 2004 Brief) rule for employees to get genuine impartial review. The abuse formula is how TACOM did Pletten. Since Pletten’s personnel job had long been preparing 30 day advance notices pursuant to 5 USC § 7513(b) to employees accused of violating rules, and since Pletten had never used a sick day ever (Pletten had received awards for that record, it is so unusual, vs numbers of employees who use sick leave even when they not sick, misusing “sick leave” as extra vacation in effect! And TACOM had had Pletten write up people like that!!), therefore, for maximum retaliatory effect, for terrorizing the workforce purposes, TACOM ousted Pletten pursuant to the wrongful ouster formula:

(1) without following the 5 USC § 7513(b) mandated 30 days advance notice requirement,

(2) by violating its own rules itself, and

(3) claiming Pletten is always too sick to work! (e.g., contact staff, write memos on same)

Society has also seen scandals such as at Enron, and the explosions of the Challenger and Columbia NASA Shuttles.

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Society has seen the fear among federal employee engineers who dared not report problems in advance, concerning the Columbia shuttle which blew up on re-entry in February 2003, for fear of the reprisal that is rampant (Exhibit 18). When CAIB investigators sought input, I responded (Exhibits 21-22 with Jan 2004 Brief). The CAIB Report, www.caib.us, cites the bad government, NASA, “culture.” It’s not just NASA where the fear is.

Now in society there is concern, in view of such incidents and the 9/11 tragedy wherein FBI whistleblowers complaint was of being unheeded. Moreover, the years since the “decision to terminate” noted by EEOC’s Henry Perez, Jr. 9 April 1980 (Exhibit 5), as indicated by Devine, “The Whistleblower Protection Act of 1989: Foundation for the Modern Law of Employment Dissent,” supra, a new Whistleblower Protection Law has been passed.

In view of these circumstances heightening societal awareness, and change in legal atmosphere, to one of concern, it is inequitable to prospectively keep Pletten punished, for life. Pletten is not a criminal, with crimes warranting life sentence.

D. TACOM Misuse of Terms Without Notice: TACOM at last admitted, to Senator Carl Levin (Exhibit 19), using interchangeably the terms “termination” (general term) and “removal” (specific term).

“Removal” is defined as “A disciplinary separation action, other than for inefficiency or unacceptable performance . . . where the employee is at fault,” according to Federal Personnel Manual Supplement 296-33, Subchap 35, Glossary, p 35-11, pursuant to pre-identified (30 days prior) written notice of charges of violating conduct rules or performance standards, citing the rules, qualifications requirements, and/or performance standards involved as allegedly having been willfully violated, and typically citing prior corrective action (warnings, unsatisfactory ratings, reprimands, suspensions, etc.) having failed to secure improvement in conduct.

Note the definition of “removal,” including the concept of discipline-warranting “fault” by the employee. TACOM issued Pletten no notice defining any “fault” by me warranting discipline, but nonetheless calls my ouster a “removal.” TACOM’s Exhibit 19 admission of using inconsistent terms should not be ratified, Yorkshire v MSPB, 746 F2d 1454, 1457, n 4 (CA Fed, 1984). EEOC’s February 2005 decision thus clearly erred on fact and law.

The two different personnel terms must be distinguished, not muddled as TACOM did. In the years since the “decision to terminate” noted by EEOC’s Henry Perez, Jr. (Exhibit 5), a federal precedent accepting this concept arose, Jones v J. J. Security, 767 F Supp 151, 152 (ED Mich, 1991):

“While removal, like discharge, results in separation, it is a quite different action. Separation by discharge is through the power of discipline. Separation because of ineligibility [disqualification] is not because of discipline at all. It is like a circuit judge having to vacate his office because he moved from his residence within the circuit. It is the non-existence of a sine qua non to employment.”

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The agency denied Pletten the right to reply, never having specified which (removal or disqualification) it meant, by its using both terms interchangeably.

The legal atmosphere is now more favorable to enforcing the advance notice rules. See precedents established in the years since the “decision to terminate” noted by EEOC’s Henry Perez, Jr. 9 April 1980 (Exhibit 5), e.g., Smith v Dept of Interior, 9 MSPR 342 (1981); Heikken v D.O.T., 18 MSPR 439 (1983); Van Skiver v Postal Svc, 25 MSPR 66 (1984); Woodall v FERC, 28 MSPR 192 (1985); Miyai v D.O.T., 32 MSPR 15, 20 (1986); Cleveland Bd of Ed v Loudermill, 470 US 532; 105 S Ct 1467; 64 L Ed.2d 494 (1985); Thomas v Gen Svcs Admin, 756 F2d 86, 89-90 (CA Fed, 1985); Mercer v Dept. of Health & Human Svcs, 772 F2d 856 (CA Fed, 1985); Pittman v Army & MSPB, 832 F2d 598 (CA Fed, 1987); Childers v Air Force, 36 MSPR 486 (1988); Bivens v Dept of Navy, 38 MSPR 67 (1988); and Brown v Dept of Navy, 49 MSPR 277 (1991), etc.

In view of the changes in legal atmosphere, it is inequitable that EEOC should focus on process vs merit, and that the discipline without advance notice, against me be retained prospectively, ratified in essence as a life sentence.

13. IT IS NO LONGER EQUITABLE THAT THE “DECISION TO TERMINATE”
HAVE PROSPECTIVE APPLICATION, IN CONTEXT OF THE PROPER
REACTION TO TOBACCO HAZARD—TO DISCIPLINE SMOKERS, NOT
PERSONNEL OFFICE STAFF REPORTING THEIR HAZARDOUS BEHAVIOR.

TACOM’s approach is extraordinary and inequitable in being so aberrant from the norm, and its own rules, e.g., AR 1-8, and federal safety laws such as 5 USC § 7902.(d) banning hazards, on firing the perpetrators of hazards, not the personnel workers who report them. Reporting violations is our personnel job! See precedents, as listed at pp 28-30 of the January 2004 Brief.

It is extraordinary and inequitable for an employer to be so aberrant from the norm of the rule of law and precedents, and its own rules, e.g., 32 CFR § 203 / AR 1-8, and federal safety laws such as 5 USC § 7902.(d) banning hazards, on firing the perpetrators of hazards, not the personnel workers who report them. Reporting violations is our personnel job! The EEOC decision clearly erred by not applying this concept from the rule of law.

14. IT IS EXTRAORDINARY THAT THE AGENCY DID NOT ABIDE
BY ITS OWN GUIDANCE AND DATA IN DOING THE BETTER
PRACTICE TO NOT HIRE/ENLIST SMOKERS IN THE FIRST PLACE.

The Feb 2005 EEOC decision disregards the fact that the agency knows the better practice, not to hire smokers in the first place. It had a record of leadership on this, see Austin v Tennessee, 101 Tenn 563; 48 SW 305; 70 Am St Rep 703 (1898) aff’d 179 US 343 (1900). Army knows its own data, summarized January 2004 at pp 30-32, says, e.g., that “if the military [did still] restrict enlistments to nonsmokers, there would be far fewer discipline, alcoholism, and drug abuse problems in the Army and other services,” says Army Aeromedical Research Lab Report No. 86-13, Smoking and Soldier Performance (June 1986), p 149.

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It is extraordinary that an agency should not act on its own and government data, and when the behaviors it professes to wish to prevent do occur, it fires the personnel employee doing his job of reporting same. It is clear error of fact and law, and impairs agency operations, for the February 2005 EEOC decision to have failed to reverse such extraordinary aberration.

15. IN TOTAL CONTEXT, THE OUSTER PROCESS WAS VOID.

In this combination of extraordinary circumstances (no advance notice of charges or appeal rights, agency concealment of truth, obstructing access to EEOC forum choice, not honoring agency’s own promises of EEO case processing, defying EEOC orders for review, no jurisdiction due to non-publication of the qualifications and process used, etc.), the ouster was void. The Feb 2005 EEOC is clearly erroneous on fact and law in failing to applying pertinent rules of law and precedents to this fact situation.

EEOC ignored the concept of applying, e.g., FRCP 60(b)(4) on relieving party from a final judgment if it is void, if it is no longer equitable that judgment should have prospective application. This concept is to be liberally construed to carry out purpose of avoiding enforcement of erroneous judgment. Blanchard v. St. Paul Fire & Marine Ins. Co., 341 F2d 351 (1965), cert den 382 US 829. A judgment condoning firing an employee without notice is clearly an “erroneous” one not to be enforced.

“Quod ab initio non valet in tractu temporis non convalescet. That which is bad in its commencement improves not by lapse of time. Quod initio non valet, tractu temporis non valet. A thing void in the beginning does not become valid by lapse of time.”—Black's Law Dictionary (5th ed, 1979), pp 1126-1127.

The EEOC decision erred by failing to apply the definition of “void,” Black's Law Dictionary (6th ed, 1990), p 1573: “Null, ineffectual; nugatory; having no legal force or binding effect; unable, in law, to support the purpose for which it is intended. Hardison v. Gledhill, 72 Ga.App. 432, 33 S.E.2d 921, 924. An instrument or transaction which is wholly ineffective, inoperative, and incapable of ratification and which thus has no force or effect so that nothing can cure it. In re Oliver, Bkrtcy. Minn., 38 B.R. 245, 248.”

16. IT IS NO LONGER EQUITABLE THAT THE “DECISION TO TERMINATE”
HAVE PROSPECTIVE APPLICATION, IN CONTEXT OF ALL THESE FACTS
AND PRECEDENTS, RE WHICH FOR OTHERS ON EVEN ONE ASPECT,
THE GOVERNMENT DOES A CONFESSION OF ERROR.

When precedents arise, as so many did during the pendency of my situation, the government as a matter of integrity files a “Confession of Error,” e.g., in U.S. v Graham, 688 F2d 746 (CA 11, 1982). For others, the government even calls attention to extortion refusing “to process grievances.” U. S. v Russo, 708 F2d 209, 212 (CA 6, 1983).

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Here, there is both extortion (Exhibit 8 with Jan 2004 Brief), and EEOC findings of similar-to-Russo processing refusal (Exhibits 7 and 9 with said Brief). The criminality of the underlying extortion (Exhibit 8 with said Brief) produces results in Pletten typical of crime victims, “interference with the victim's ability to conduct a normal life, . . . . absence from the workplace,” People v Gorney, 99 Mich App 199, 207; 297 NW2d 648, 651 (1980) lv app den 410 Mich 911 (1981).

It is inequitable to prospectively continue Pletten’s life sentence punishment simply because TACOM refuses to admit any error of law or inequity.

17. HARM IS CLEAR.

The February 2005 EEOC decision is clearly erroneous on fact and law, and sets a bad “repeal” (see pp 9 and 14) type precedent for the rule of law, by having claimed to have found no showing of harm. Here, numerous showings of harm have been shown, in terms of both fact and law.

“[I]rreparable injury should be presumed from the very fact that the statute[s cited herein have] been violated." U.S. v. Hayes Int'l Corp., 415 F2d 1038, 1045 (CA 5, 1969).

The criminality of the underlying situation (Exhibit 8 with Jan 2004 Brief), produces results in me typical of crime victims, “interference with the victim's ability to conduct a normal life . . . . absence from the workplace,” People v Gorney, 99 Mich App 199, 207; 297 NW2d 648, 651 (1980) lv app den 410 Mich 911 (1981). “[A] . . . business could not possibly survive if all potential customers [employees] were treated as this complainant was,” Jackson v Concord Co, 54 NJ 113; 253 A2d 793, 796 (1969). “Even in the case of an individual complainant, it is plain that the public interest is also involved. Discrimination, by its very nature, is directed against an entire class in the particular circumstances and wrongful conduct against a complaining individual is indicative of such a state of mind in the worongdoer against the class,” p 799.

As the agency cut off Pletten’s pay, embezzled it to pressure him to cease and desist (Exhibit 8 with Jan 2004 Brief), Pletten is near destitute, thus suffers the harm of lacking an attorney, and am obstructed in presenting his side without one. Pursuant to case law such as Haines v Kerner, 404 US 519, 520; 92 S Ct 594, 595; 30 L Ed 2d 652 (1972), pro se complaints are held to “less stringent standards than formal pleadings drafted by lawyers”). See also Malone v Colyer, 710 F2d 258, 260 (CA 6, 1983) (“the allegations in pro se complaints must be taken as true and construed in favor of the plaintiff. Westlake v. Lucas, 537 F.2d 857, 858 (6th Cir. 1976).”)

Too, the nation is harmed by the rampant reprisal against whistleblowers, including EEO whistleblowers such as Pletten (Exhibit 18, at www.mspb.gov/studies/00decnws.pdf), of which this case is one example, not to mention destruction of career, family, finances. All of this harm is inequitable, extraordinary, exceptional.

CONCLUSION

While the Feb 2005 EEOC decision focused on process, this requests that is vital you bear in mind that the goal is justice, balancing finality and the public interest in reaching what ultimately

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appears to be “the right result.” Anderson v Dept of Transp, FAA, 46 MSPR 341 (1990), a decision in turn based on a long line of cases such as Hazel-Atlas Glass Co v Hartford Empire Co, 322 US 238, 244; 88 L Ed 1250; 64 S Ct 997 (1944). Thus with a view of convincing you of both, this Brief has addressed both procedural process matters and merits.

WHEREFORE, Appellant moves

1. that EEOC order investigation and hearing as done for others prior to making findings of fact

2. that simply and directly, that EEOC simply order the agency to simply start the EEO process by taking action on Pletten’s 25 Jan 1982 (Exhibit A) and 30 Jan 1982 (Exhibit B) effort to get the review process to begin on the 22 Jan 1982 “removal”on which the Feb 2005 EEOC focused, and order that the review (counseling, investigation and hearing) be each dated as of the date it would have been done, i.e., in 1982, but for the agency discrimination comprising refusal to do the processing as done for others.

3. that EEOC make findings of fact, seriatim, on the extortion, and on the constitutional and statutory violations in the absence of notice at each step of the ouster process, absence of forum notice, each voiding “informed choice,” thus voiding each subsequent step ab initio;

4. that EEOC tell the agency is must not refuse access to the EEO forum as it has been doing since February 1980 (Exhibit 7, page 2, top);

5. that EEOC make findings of fact on the changed legal circumstances;

6. that EEOC tell Respondent agency to provide Pletten specifics of its alleged charges, if it has any; then if it does, to consider Pletten’s reply, then if it still ousts me, to notify Pletten of ALL his rights so as top enable making uncoerced, “informed choice”;

7. that EEOC specify that the notice of rights must be made effective as of the earliest date its own people (e.g. Gonzellas Williams and Kenneth Adler, Exhibits 12 and 17 as verified by EEOC’s Henry Perez, Jr., Exhibit 5) cite, so that Pletten can make initial 29 CFR § 1614.203(b) “informed choice” of forum in which to appeal, to either EEOC or MSPB, without being obstructed by TACOM’s “jurisdiction” denial as MSPB’s decision notes (Pletten v Army, 7 MSPR 13, 18 June 1981));

8. Alternatively, that EEOC tell TACOM to notify Pletten of any reopening rights forums wherein to present the new evidence cited herein including changed national circumstances, including the Shuttle Disaster of February 2003 and subsequent www.caib.gov Report which focused national attention on the “culture” of intimidation of federal employees, of which Pletten is one recipient; the purpose of actually notifying Pletten of such rights so that Pletten can cease guessing and exercising uninformed choices against agency resistance to any and all “choices” hitherto, as uninformed “choices” are no choices at all.

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9. Alternatively, remand to MSPB, so that it can hear the case unobstructed by TACOM “jurisdiction” denials, and/or itself order No. 7 above (direct TACOM to notify me of 29 CFR 1614.203(b) forum choice rights so I can make an unobstructed choice).

10. And/or that EEOC tell TACOM to file a “confession of error” per the U.S. v Graham, 688 F2d 746 (CA 11, 1982), precedent.

11. Lastly, if there is some actual or perceived failure to articulate this matter on my part, please remand for fact finding, e.g., investigation and hearing, to develop the record.

Respectfully,
 
/s/Leroy J. Pletten
28 March 2005Leroy J. Pletten
Appellant
8401 18 Mile Road #29
Sterling Heights, MI 48313-3042
(586) 739-8343

EXHIBITS

A. Local EEO Form, STA Form 1453, 25 January 1982, filled out by me seeking EEO process to begin with respect to the 22 Jan 1982 “removal”

B. Follow-up agency form, 30 January 1982, immediately after issuance of BG Stalling’s letter

C. EEOC letter, 9 March 1993, saying that “counseling is a required first step” and EEOC rules “assume that federal agencies will not refuse counseling,” but providing no information on how to secure the process to begin when the agency does “refuse” to allow the process to begin

D. EEOC Decision, 8 April 1983, saying MSPB made decision without investigation and hearing, now makes same error – issues decision without investigation and hearing

E. Example follow-up Disposition Form DA Form 2496, 25 Jan 2000, again seeking review process to begin

F. Example follow-up Disposition Form DA Form 2496, 31 Jan 2005, again seeking review process to begin

G. Supporting Affidavit, 24 March 2005

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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036

Leroy J. Pletten,
Appellant,
Docket No. 01A41229
v.
Agency No. ARTACOM03FEB0010
Dr. Francis J. Harvey, Secretary,
Department of the Army,24 March 2005
Agency.

____________________________________/

CERTIFICATE OF SERVICE

I hereby certify that on this date, I transmitted my Brief In Support of Request to Reconsider, and exhibits, with Affidavit, to

Equal Employment Opportunity CommissionDir, EEOCCRA, Dept of Army
Office of Federal Operations Attn: SAMR-SFECR, Suite 109B
P. O. Box 19848 1941 Jefferson Davis Hwy
Washington, D.C. 20036 (certified)Arlington VA 22202-4508
 
USATACOM
Attn: AMSTA-LA
Ms. E. Bacon
Warren MI 48397-5000

/s/Leroy J. Pletten
Date: 28 March 2005     Leroy J. Pletten