|UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHICAGO REGIONAL OFFICE
IN THE MATTER OF:
LEROY J. PLETTEN
UNITED STATES DEPARTMENT
NOW COMES the Appellant, LEROY J. PLETTEN, by and through attorneys COOPER & COHEN, P.C., and for his Closing Argument pursuant to stipulated trial procedure states as follows:
OF THE ARMY
LEROY J. PLETTEN was a Position Classification Specialist with the United States Army Tank Automotive Command in Warren, Michigan. He had been employed at a GS-12 level since 1977 and had been employed by the United States Army since 1969. By all statements and comments, Mr. Pletten was an exemplary employee. (See deposition of Kator at Tr. 50)
Beginning in 1979, Mr. Pletten complained [blew the whistle] to his supervisor, Mr. Kator, regarding cigarette smoke within his work area. Mr. Pletten explained to Mr. Kator that he suffered from asthma and that tobacco smoke irritated his asthmatic condition. Mr. Pletten provided a
|Ed. Note: Federal law 5 USC § 7902.(d) bans hazards in the federal government. Federal law 29 USC § 651 - § 678 hazards and hazrdous behavior on the job. The implementing regulation 29 CFR § 1910 lists prohbitied quantities of toxic chemicals. The Surgeon General Report, PHS Pub 1103 (1964), p 60, lists examples of the violation, showing that Toxic Tobacco Smoke (TTS) inherently violates said laws and rule. The U.S. Constitution and Bill of Rights preclude nuisances. Department of Defense regulation 32 CFR § 203 and Army Regulation (AR) 1-8 commanded compliance with the foregoing. It is called "whistle blowing" when one reports a violation. AR 385-10.3-5a. and b. requires employees to blow the whistle on safety matters. |
physician's note to Mr. Kator regarding the circumstance. Mr. Pletten continued to seek relief from the Army as to the working conditions presuming that such was his right under regulation [AR 385-10.3-5a. and b.] and his affirmative duty to his employer.
Mr. Pletten filed a grievance with the Department of the Army whose [USACARA] findings were reported on January 25, 1980 (See Agency's submission at Tab 3).
Essentially, the United States Army Civilian Appellate Review Office [USACARA] upheld Mr. Pletten's grievance and made several recommendations some of which were adopted and some of which were discarded by the Agency. The Army specifically chose not to eliminate smoking from Mr. Pletten's work areas.
Mr. Pletten continued to work at the Command until some time in 1980 when the Army [in violation of law and regulations] placed Mr. Pletten on an involuntary sick leave status [and forced annual leave and LWOP, see details]. The apparent basis for such action was a claim that Mr. Pletten's doctors had forbidden his continued employ absent a "smoke-free" work environment. Despite Mr. Pletten's protestations to the contrary and the admittedly contradictory nature of the medical evidence (See Deposition of Averhart at Tr. 50-51), the Army continued to deny Mr. Pletten the ability to return to work.
Finally, the Army began a series of steps calculated to remove Mr. Pletten from the service of the Agency. First, Ms. Averhart, by the direction of Ed Hoover, Chief of Civilian Personnel, applied for disability retirement on Mr. Pletten's behalf. Disability retirement is handled by the Office of
Personnel Management and upon receipt of the documentation submitted by the Tank Command summarily rejected Mr. Pletten's application. The conclusion of the Office of Personnel Management that Mr. Pletten was not disabled was in consonance with virtually every medical opinion offered concerning Mr. Pletten from a period beginning in 1979 and continuing until the present.
Not satisfied with the results from the Office of Personnel Management, the Agency directed Ms. Averhart to proceed with removal on the basis of [non-existing] medical disqualification (See Agency Exhibit 17). The proposed notice of removal was phrased entirely in conclusionary terms and did not present a factual basis for removal.
After receiving testimony from Dr. Francis Holt, it became obvious that the conclusions of the proposing official as well as the deciding official were based upon medical information last updated in March of 1981 (See Deposition of Holt at Tr. 31).
Despite the fact that Mr. Pletten had been ordered to undergo a fitness for duty examination with a psychiatrist (See Deposition of Dr. Schwartz, supra), the Command, in this most important decision, did not see fit to direct additional testing with regard to Mr. Pletten's condition.
Moreover, the Agency neglected and/or refused to forward additional information regarding the air content of Mr. Pletten's work place to his physicians so as to update their evaluations.
The Agency has provided the Appellant with no regulatory guidance as to what constitutes medical
|Ed. Note: Due process includes the right to notice, and to reply, prior to decision. Even slaves had a right to proper notice of charges! Josephine, a slave v State of Mississippi, 39 Miss (10 Geo) 613, 647 (1861): The right to a properly drafted statement of charges is “a substantial right . . . and not a mere question of form or proceeding.” It is extraordinary, shocking to conscience, to refuse a tenured employee that constitutional right to due process.
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”).
This is so despite Congress, to protect the public by precluding agencies from doing unjust, discriminatory, unreasoned, or reprisal terminations of employees, having required agencies to state in writing the basis for even proposing an ouster 30 days in advance. 5 USC § 7513.(b). A notice must:
a. comply with 5 CFR § 752.404(f) by stating all reasons including ex parte contacts. Sullivan v Navy, 720 F2d 1266, 1273-4 (CA Fed, 1983); SEC v Chenery, 332 US 194; 67 S Ct 1575; 91 L Ed 1995 (1947) ("judge the propriety of action solely by the grounds invoked"; not by “counsel's post hoc rationalizations"; but only by what is “given");
b. say more than conclusion, Mulligan v Andrews, 93 US App DC 375, 377; 211 F2d 28, 30 (1954);
c. enable more than “general denials,” Deak v Pace, 88 US App DC 50, 52; 185 F2d 997, 999 (1950);
d. list witnesses and say “the names . . . places . . . dates” of alleged acts, Money v Anderson, 93 US App DC 130, 134; 208 F2d 34, 38 (1953). Examples include being:
(i) “lengthy and detailed,” Baughman v Green, 97 US App DC 150; 229 F2d 331 (1956);
(ii) “numerous examples of specific errors,” Long v Air Force, 683 F2d 301 (CA 9, 1982);
(iii) “item by item,” Mandel v Nouse and TACOM, 509 F2d 1031, 1032 (CA 6) cert den 422 US 1008; 95 S Ct 2630; 45 L Ed 2d 671 (1975). 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 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 me such specificity, thus precluded me replying.
Note the long line of case law that proper 30 days advance notice of charges must be given for an ouster to be upheld, e.g., Hart v U.S., 148 Ct Cl 10, 16-17; 284 F2d 682, 686-687 (1960); Smith v Dept of Interior, 9 MSPR 342 (1981); Heikken v D.O.T., 18 MSPR 439 (1983); Van Skiver v Postal Service, 25 MSPR 66 (1984); Woodall v FERC, 28 MSPR 192 (1985); Miyai v D.O.T., 32 MSPR 15, 20 (1986); Cleveland Bd of Ed v Loudermill, 470 US 532; 105 S Ct 1467; 64 L Ed.2d 494 (1985); Thomas v General Svcs Admin, 756 F2d 86, 89-90 (CA Fed, 1985); Mercer v Dept. of Health & Human Svcs, 772 F2d 856 (CA Fed, 1985); Pittman v Army and MSPB, 832 F2d 598 (CA Fed, 1987); Childers v Air Force, 36 MSPR 486 (1988); Bivens v Dept of Navy, 38 MSPR 67 (1988); and Brown v Dept of Navy, 49 MSPR 277 (1991); and Comptroller decisions, e.g., 38 Comp Gen 203; 39 Comp Gen 154; and 41 Comp Gen 774, cited in FPM Supp 752-1, S1-6c(4)(c) - (d) (4 Feb 1972).
The bottom line is, showing how exceptional and extraordinary is what TACOM did, and wants to be allowed to get away with, nobody ousted without 5 USC § 7513.(b) notice fails to win! Why exception here? Answer: the pattern of reprisals against whistleblowers) that MSPB cites.
"The proof of the pattern or practice supports an inference that any particular decision, during the period in which the policy was in force, was made in pursuit of that policy.” Teamsters v U.S., 431 US 324, 362; 97 S Ct 1843, 1868; 52 L Ed 2d 396, 431 (1977).
The goal is justice, balancing finality and the public interest in reaching what ultimately appears to be “the right result.” Anderson v Dept of Transp, FAA, 46 MSPR 341 (1990). Here, an ouster without notice of charges, without providing specifics to which to reply before the “decision to terminate” is made (verified at Exhibits 5, 12, 17), is clearly NOT “the right result."
All others' precedents show otherwise: that any other federal employee ousted without notice, without due process of law, in short, remains “on the rolls.” Sullivan v Navy, 720 F2d 1266, 1273-4 (CA Fed, 1983) (employee fired without notice remains “on the rolls").
Federal law 5 USC § 552.(a)(l)(C) - (D) makes publication of a qualification requirement “jurisdictional," Hotch v U.S., 212 F2d 280 (1954); Bowen v City of New York, 476 US 467; 106 S Ct 2022; 90 L Ed
2d 462 (1986). Others have had actions taken against them canceled when there was no notice of a qualification requirement or other rule. See Morton v Ruiz, 415 US 199, 231; 94 S Ct 1055, 1072; 39 L Ed 2d 270 (1974); W. G. Cosby Transfer & Storage Corp v Dept of Army, 480 F2d 498, 503 (CA 4, 1973) (Army has done this violation before); Onweiler v U.S., 432 F Supp 1226, 1229 (D ID, 1977); Berends v Butz, 357 F Supp 143, 154-158 (D Minn, 1973); Anderson v Butz, 550 F2d 459 (CA 9, 1977); Dean v Butz, 428 F Supp 477, 480 (D HAW, 28 Feb 1977); St. Elizabeth Hospital v U.S., 558 F2d 8, 13-14 (CA 9, 1977); Aiken v Obledo, 442 F Supp 628, 654 (D ED Cal, 1977); Historic Green Springs, Inc v Bergland, 497 F Supp 839, 854-857 (D ED Va, 1980); Vigil v Andrus, 667 F2d 931, 936-939 (CA 10, 1982). Others similarly situated are not treated like me, an inequity.
TACOM disqualifying whistleblower 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).
See also numerous criteria including on conforming to the Agency's own Table of Peanlties, cited by
McLeod v Department of the Army, 714 F2d 918 (CA 9, 1983). Here, the Army did not even pretend its action related to any known Penalty in its Table of Penalties. Indeed, none of the many criteria of McLeod were adhered to by the Army.
Per Hanifan v U.S., 173 Ct Cl 1053; 354 F2d 358, 364 (1965), "The rule has been firmly established in pay cases 'that lawful administrative action depriving claimant of a procedural right voids the action and leaves the plaintiff to his money otherwise due, until (at the least) proper procedural steps are completed [citiations omitted] . . . . These references [cited by the agency] do not mean that the agency's action is fully effective to separate the employee for all purposes; as is often the case in judicial proceedings, an appeal or application for review by the Commission suspends the final operative effect of the intial decision. It follows that an employee who has been deprived of a procedural right by the Commission [board] must be regarded as not yet lawfully removed and thus entitled to his pay otherwise due."
disqualification [and contrary to qualification rules]. Accordingly, Appellant is faced with the unenviable task of arguing his cause without a clear understanding of the burden placed upon him and the Agency.
In an attempt to summarize the testimony for the presiding official, Appellant will list the names of each witness presented and attempt to highlight the portions of testimony that are pertinent.
Mr. Kator was Mr. Pletten's Supervisor and immediate superior. Within his deposition testimony, Mr. Kator revealed that although Mr. Pletten had complained of his condition in early 1979, the Command's Chief Medical Officer did not disqualify him medically until well into 1980, several months later (Tr. at 11).
Mr. Kator also stated that while he was aware of Mr. Pletten's sensitivity to cigarette smoke, he did not direct people to abate their smoking in his presence (Tr. at 16).
Kator claimed that he and the Command were making "every effort" to accommodate Mr. Pletten although his later testimony indicates that only two suggestions were made to alleviate Mr. Pletten's difficulties. (Tr. at 18)
Mr. Kator further testified that he was not given training as to OSHA or general health requirements (Tr. at 21) nor was he given any guidance by higher command as to smoking within the installation. (Tr. at 22)
He further commented that he had
|Ed. Note: This refers to the fact that the "decison to terminate" was made without providing a 30 days notice with specificity, notwithstaniding such a notice being mandatory pursuant to federal law 5 USC § 7513.(b), as detailed supra. Cf. Brown v. Gaston County Dyeing Machine Co., 457 F.2d 1377 (1972). At 1382, “In United States v. Bethlehem Steel Corp., 446 F.2d 652, 655 (2nd Cir. 1971), the court identified the lack of ‘fixed or reasonably objective standards and procedures . . .’ as a discriminatory practice.” At 1383, “The proof discloses no objective standards based on education, experience, ability, length of service, reliability, or aptitude to account for the preferential treatment . . . . Cf. United States v. Jacksonville Terminal Co., 451 F.2d 418, 449 (5th Cir. 1971).”|
not received training as to any smoking regulations (Tr. at 37).
It was Mr. Kator who had recommended to Mr. Pletten that he seek a ban of smoking at the Agency's installation (Tr. at 30).
It was also Mr. Kator who neglected and/or chose not to formally advise other personnel with regard to smoking decorum. Rather, Mr. Kator chose to inform individuals of Mr. Pletten's medical problems on an individual basis despite having received no clearance from Mr. Pletten to discuss his personal matters in specific (Tr. at 39-40).
Finally, Mr. Kator testified that only one air study was done in the work area and that no follow-up studies occurred. (Tr. at 44) He also stated that the original studies did not take into account changes in air flow caused by fans and other ancillary circulation devices. (Tr. at 46)
Perhaps most telling, however, was Mr. Kator's admission that it was within his power to ban smoking in his work area but that he declined to do so. (Tr. at 53)
Mr. Kator was a smoker himself during that period of time but has since succeeded in breaking his habit.
Mr. Pletten was referred to Dr. Schwartz by the Personnel Office for a psychiatric fitness-for-duty examination. Dr. Schwartz determined that Mr. Pletten was healthy and that he had no psychiatric deficiencies. Dr. Schwartz did note that it was not normal for individuals to attempt to "make a case" of
someone solely on the basis of their dislike for cigarette smoke. (Tr. at 5) In addition, Dr. Schwartz indicated that subsequent to his examination and report, he received no feedback whatsoever from the Agency. (Tr. at 9)
Mr. Pletten's testimony underscores the contentions he had been making for the past three years. He has steadfastly contended that he is able and willing to work (Tr. at 16).
Mr. Pletten complained that although the Agency had attempted to move him to various locations within the Personnel Office, they had refused, or neglected to control smoking in his immediate location. (Tr. at 33)
Mr. Pletten further presented evidence [from OPM] identified in the record as Appellant's Exhibit 6 that
The Office of Personnel Management [OPM] also indicated, parenthetically, that the Agency had failed to show reasonable accommodation.
Mr. Pletten also testified that the Agency had refused to permit him to file grievances and, indeed, had refused to process his grievances. (Tr. at 41, 71)
A review of Appellant's Exhibit #9 verifies Mr. Pletten's statements. That document was a decision by the Equal Opportunity Employment Commission which found (at Page 2) that
|"the Agency has not established the presence of a medical condition which has caused a deficiency in service".|
Further, the Commission
|"as early as February 1980, Appellant (Pletten) was denied EEO counseling and prevented from filing further complaints".|
indicated that the Agency had failed to provide the Commission with several complaint files despite directives of the Commission to produce those materials. Id.
With regard to a letter in the Agency's evidence file from Dr. Salomon, dated November 1981, Mr. Pletten underscored the following statement:
|"Mr. Pletten should be returned to duty whenever Dr. Holt confirms the actual nature of the environment and its safety." (Tr. at 74)|
Mr. Pletten stated that it was his understanding that Dr. Holt had never confirmed the nature of the environment. (Tr. at 74)
Pletten continued by stating that he presumed that a hazard existed within the Command and that although he was more than willing to work under that hazard, he would continue to try and move the Command toward elimination of the hazard itself. (Tr. at 65, 75)
Mr. Pletten also clarified some of the circumstances surrounding the "accommodations" offered by the Agency. While Mr. Pletten was moved to a separate area, the area was not walled but merely partitioned thereby allowing smoke to enter his work area both over and under the partition. (Tr. at 77)
Pletten further testified that he was given no choice in many of the supposed accommodations but was merely directed to different areas for work. As an employee, Mr. Pletten testified that he obeyed. (Tr. at 77)
Perhaps the most telling of Mr. Pletten's testimony occurs at Page 65 of his deposition. Mr. Pletten argues that when a hazard arises, particularly one that has affected others, it is
the Command's duty to remove the hazard rather than remove the people suffering under the hazard. He feels that it is his duty to pursue the betterment of his work environment so as to protect not only himself but his co-workers.
Mr. Braun is the Industrial Hygienist at the Tank Command whose responsibility it was to study the environment in Mr. Pletten's work area and determine compliance with Army regulation. Mr. Braun testified that he employed OSHA standards and other testing devices so as to detect what he had determined were the main components of tobacco smoke. (Tr. at 5)
In documents presented by the Agency in its initial package, Mr. Braun had testified that all air studies were considered negative and that air flow was satisfactory (See Tab 4). Although Mr. Braun had concluded in June of 1980 that no health hazards had existed for Mr. Pletten in his work area, his report was prompted not by Mr. Pletten but rather by a complaint filed by a Ms. Mae L. Sweeney.
Mr. Braun nonetheless contended that Mr. Pletten was presented with no health hazard in his work area.
However, in his deposition Mr. Braun stated that air studies are not conducted on a regular basis (Tr. at 13). He further testified that although he had written that his conclusions encompassed safe readings for all hazardous gases, he had in fact only tested for two types of gases. (Tr. at 14) Mr. Braun also indicated that although
Building 230, where his tests were conducted consists of approximately 250,000 square feet, testing was only performed in two places. (Tr. at 16)
Upon cross-examination, Mr. Braun admitted that there are six different area heating and ventilating systems within the building and that some of them are outmoded. (Tr. at 17) Particularly, in the summer time, Mr. Braun stated that the building "is hell sometimes". (Tr. at 18) He stated that air may not circulate well in the summer and that to avoid the problem they have countless fans. (Tr. at 18)
Mr. Braun also admitted that there were times when the building's air circulation system did not work. (Tr. at 19) In response to questioning, Mr. Braun stated that the system was working perhaps 50% of the time. (Tr. at 19)
Mr. Braun continued by stating at Tr. 20, that there are now areas within the Command that are cleaner from an air evaluation standpoint than where Mr. Pletten worked before. In particular, Mr. Braun stated that these areas
Mr. Braun stated that the Government employees "clean rooms" and that smoking is banned for that purpose. (Tr. at 24) Mr. Braun testified that the installation within Mr. Pletten's work area had not been achieving regulatory air requirements outlined in AR 1-8 from between 10 to 30% of the time.
Mr. Braun testified that the general issues with regard to the synergistic effects of cigarette
|"have been identified for the Command, but I am not familiar with the fact that they have been identified to Mr. Pletten". Id.|
smoke on individuals is still being studied at higher headquarters (Tr. at 31). He also stated that a ban on smoking would solve Mr. Pletten's problems. (Tr. at 32) Perhaps most perplexing was the following colloquy:
Seemingly, Mr. Braun has debunked the Command position that the only accommodation to Mr. Pletten's condition was a ban on all smoking, Mr. Braun has presented a second alternative.
The most persuasive portion of Mr. Braun's testimony
|"Question: Will they ever be able to make the building where Mr. Pletten worked, into a topnotch air ventilation area, so it complies with the regulations? Is it physically possible to get that building to work properly?
Answer: Internally possible. Just add a few air conditioning coils; it would all be over. There would be no need for any further cases of this type if we had air conditioning in 230."
(Tr. at 34)
Question: Is it prohibitive economically?
Answer: It is not prohibitive economically.
Question: Has it been discussed by Command?
Answer: Over and over and over again.
Question: And you keep on recommending it, I'm sure.
Answer: I'm sure I do." Id.
Page 35 and is restated here for the presiding official's perusal:
|"Question: Interestingly enough, I looked at your 2 October letter and it indicates the computer room is the only section that is a no-smoking area section from a fire prevention and classified protection viewpoint only, and that is why you didn't make studies there?
Question: First of all, I think it would be interesting if you took studies there and found it was the same as everywhere else. The question is: Why did they ban smoking in those areas and did you have anything to do with the ban?
Answer: I had nothing to do with it and they banned smoking in the area simply because of the fact it was an environmentally-controlled area as to the cooling effect and it was a recirculation fan that existed in that small room. We looked to maintain 50 percent humidity. If you allowed any outside air to come in, we would enhance the dilution factors and then it would not be environmentally controlled anymore, so that is why we banned smoking in the Keypunch Room, which was separate, and it was an
|administrative decision not made from the Department of Health necessarily.
Question: How long have you worked for the Command, 29 years?
Answer: No, no. Five years. Twenty-nine years in the business.
Question: Now all right. Mr. Braun, from your personal standpoint, based on your expertise, would it then seem that Command has made a decision to control smoking for the benefit of a machine where they will not ban smoking for the benefit of an individual?
Answer: Very definitely.
Question: Why would that be, why would they value a computer, if you have any ideas, more than the health of one individual and his ability to work?
Answer: It has nothing to do with health; it is humidity control. We are trying to control that area for 50 percent humidity, we don't get rusting on the computer contacts, so we treat the machine, in a sense, probably, a little better than our humans. That is probably very true.
Question: You find that puzzling?
Answer: I do.
Mr. Lang is the Facility Engineer at the Tank Command and allegedly conducted regular tests with regard to the air ventilation in Building 230 where Mr. Pletten was employed. Mr. Lang testified that all buildings complied with AR 1-8 despite statements made by Mr. Braun.
Although Mr. Lang testified that air studies are done on a regular basis, he could not recall the frequency of the tests and allowed as to their being performed "probably once or twice during winter months". (Tr. at 15) He continued to express confusion as to how often tests were done despite the fact that he was in charge of such tests and had been in his position for many years. (Tr. at 16)
He finally admitted that the air circulation varied between 8 and 10% despite the fact that AR 1-8 requires at least 10%. (Tr. at 19) He also stated that testing is performed in only four different places in a building of 250,000 square feet. (Tr. at 28)
Despite these tests being taken, Mr. Lang stated that there are no written reports so as to evidence the results. (Tr. at 30) In particular, Mr. Lang stated that specific records of readings from instruments are not kept. (Tr. at 34) This, despite the fact that Mr. Lang made
|Question: If it was your ship to run, sir, and I know it is not, would you run it in that fashion?
Answer: No, sir, I would put my personnel in a higher priority than machines." (Tr. 35-37)
reference to written statements authored by him in which he referred to numerical evaluations of recirculating air. (Tr. at 31)
Further, Mr. Lang stated that he had no familiarity with the USACARA report arising from Mr. Pletten's original grievance. Located at Tab 3, the Agency's submission, Section d. of the conclusions of that report indicated that
Mr. Lang testified that he had been a pack-per-day cigarette smoker and had since quit because smoking had become "a nuisance". (Tr. at 41).
General Stallings was the Deciding Official in Mr. Pletten's case. His decision was based wholly upon the [ex parte] advice of Mr. Hoover of the Personnel Office. He indicated that Mr. Hoover and he had talked concerning Mr. Pletten and that a recommendation was made that Mr. Pletten be separated
|"there is no evidence that an analysis of air content was made to show that Mr. Pletten's work area is reasonably free of toxic substances."|
In truth, testimony has shown [the opposite fact as verified by USACARA] that the Command had the power to ban smoking but
|"because we could not meet the environmental requirements". (Tr. at 4)|
|[Ed Note: without stating reasons, except to repeat the USACARA-rejected ones]|
chose not to meet the environmental requirements concerning Mr. Pletten.
The General [David W. Stallings] stated that he had never read AR 1-8. (Tr at 9)
He stated that he was completely unaware of Mr. Pletten's basic arguments. (Tr. at 11)
General Stallings further indicated that he was unaware of other smoking related problems at the
Command. (Tr. at 15)
He further stated that he had never considered banning smoking at the Command and did not see that as a thing that he would do. (Tr. at 17) He further stated that such a decision would be strictly made by Major General Oscar Decker. (Tr. at 19)
The General stated that he did not prepare the final removal letter. (Tr. at 20) He further indicated that he was not sure if he had all the doctors' notes and evidence prior to his making his decision. (Tr. at 21)
General Stallings indicated
Dr. Dubin had been an examining physician for Mr. Pletten [initially appointed by TACOM] with the most recent examination or update occurring in March of 1981.
It was in large part [due] only to Dr. Dubin's letters that the Agency based its claim of medical disqualification. Dr. Dubin's testimony is clear with regard to Mr. Pletten's health and ability to work. At Page 5 of his deposition, Dr. Dubin states
- that he had never talked with Mr. Pletten personally
[Ed. note: despite Pletten's "Open Door" requests to meet, requestes refused in retaliation against Pletten's prior proceedings activity, see e.g., EEOC v Board, 957 F2d 424 (CA 7, 1992) and EEOC v General Motors Corp, 826 F Supp 1122 (D ND Ill, 1993) (summary)] and
- that he relied upon his subordinate to establish compliance with regulations. (Tr. at 23-24)
Dr. Dubin went on to state that Mr. Pletten was capable of returning to work at the present time. The confusion over Dr. Dubin's prior communications is best settled by the transcript at Pages 5 through 7:
|"Mr. Pletten is totally capable of working, so I do not consider him to be in any manner disabled." Id.|
|The last couple of questions I have pertain to some letters that you had written which are included in the agency response under Tab 2B. Let me show you this document. It is a letter written by you dated January 7th, 1980. In particular you say in that letter that
|we have observed Leroy Pletten this date and find him to be suffering from reversible obstructive airway disease. We find that he is quite capable of returning to work and will be taking medications on an around-the-clock basis for adequate control of his asthma.|
This is your opinion as of this date also, is it not?
Answer: Yes, it is.
Question: Assuming that he does take his medication?
Answer: That's correct.
Question: Doctor, let me show you another letter under the same agency response, under Tab 2D. It is a letter dated March 24th. It is your letter on your letterhead, and it starts off by saying,
You go on to say at the end of this letter that
I would like to compare that letter against a subsequent document. I don't know; I believe this may be off the back of a prescription form that you made for Mr. Pletten dated 1-20-81. This is the agency response under Tab 2D, as well, when you say:
Doctor, the thing I would like to clear up here is that there seems to be slight inconsistency in those statements in that you state that Mr. Pletten should work in a smoke-free environment but that he is capable of returning to work. This may be somewhat repetitious of what I have asked you earlier, but let me, just for the sake of clarification, ask it again: It is your opinion that Mr. Pletten should work in a smoke-free
|"To Whom It May Concern: "There is not and has not been any medical reason for denying Mr. Pletten's ability to work and for denying him an environment reasonably free of contamination."|
|environment, is it not?
Answer: That is correct.
Question: But is it not also your opinion that everyone should work in a smoke-free environment?
Answer: That is correct.
Question: Absent ideal circumstances where we could make the air totally free of contaminants, including tobacco smoke, it is your opinion, sir, that Mr. Pletten is capable, as of this date, of returning to work?
Answer: That is correct." (Tr. 5-7)
Dr. Dubin specifically identified the dichotomy found in his prior communications. That is, a person may be able to work in an environment that is not smoke-free but it is still the duty of his physician to recommend as clean an environment as possible for all his patients.
Ms. Averhart was Mr. Pletten's co-worker at the time he was originally removed from his workstation in 1980. She has since been promoted to the position formerly held by Mr. Kator. In Mr. Pletten's case, Ms. Averhart served as the Proposing Official.
She testified that "before we can separate him (Mr. Pletten), we have to try everything possible". (Tr. at 5) This statement was made in explanation of the disability retirement
application filed against Mr. Pletten's wishes. That being the case, however, it is clear that the Command did not try everything possible before moving for separation.
Ms. Averhart testified at Page 7 of her deposition that her decision was based primarily upon the belief that Mr. Pletten required a "completely smoke-free work environment". However, Ms. Averhart subsequently testified that she had not seen all of the physicians' statements regarding Mr. Pletten. (Tr. at 25)
She also testified that Mr. Pletten, although listed as an employee, was not receiving any remuneration and posed no financial drain to the Agency. (Tr. 30-35) Although Ms. Averhart had claimed that she needed additional personnel, she did not document any such request and had no explanation for her failure to do so. (Tr. at 35)
She testified that she did not have personal contact with the Command Medical Officer [Francis J. Holt] regarding the decision to remove Pletten but nonetheless relied on that officer's determination in proposing the removal. (Tr. at 39)
She also testified that she was unaware as to whether or not she could ban smoking in her work area. (Tr. at 43) This, despite the fact that Ms. Averhart had previously stated that she would try everything short of removal as a means to resolve the circumstance.
Ms. Averhart stated that she had never seen a notation from Dr. Dubin previously submitted by the Agency at Tab 2-d which seemingly cleared Mr. Pletten for duty. (Tr. at 50)
Ms. Averhart qualified the statements made in her proposed notice of
removal by stating that at the time she signed the document, the contents were the best information she had. (Tr. 55-57)
Ms. Averhart testified that she had prepared none of the documents for removal and in fact admitted that her proposal letter had not included a reference to the January 20, 1981 statement by Dr. Dubin. (Tr. at 61)
She testified that her impression that the Command could not provide an environment suitable to Mr. Pletten was derived [ex parte] from Mr. Hoover. (Tr. at 70)
Her testimony essentially pinpointed the absence of personal investigation and generally referenced the decision-making of others. It is nonetheless true, however, that Ms. Averhart was the proposing official.
Ms. Bertram was the Personnel Specialist who prepared the documents leading up to Mr. Pletten's removal. She, herself, had been the victim of a smoke-related injury. She had filed a Worker's Compensation claim [#A9-190131 (Dec 1977)] and had been successful in receiving Worker's Compensation benefits [for same].
Her testimony is seriously disjointed and it is almost impossible to particularize parts of the
transcript for review. However, at Page 18 Ms. Bertram was asked why Mr.
Pletten could not have been kept on the work rolls without a separation action. Her response was
"what could that accomplish?"
Ms. Bertram testified that she had no actual knowledge as to his prognosis
(Tr. at 19) and that the
doctors' letters regarding Mr. Pletten did not actually state that he could not work. (Tr. at 23)
With regard to her own smoking-related injury, Ms. Bertram described the absolute indifference of her supervisor to her complaint. (Tr. at 33)
Ms. Bertram's testimony, although lengthy, indicates a clear lack of investigation and information and the Presiding Official is urged to review that testimony with specific care.
JOHN DOLLBERG, WILLIAM O'CONNOR; ERNEST PETERS, JR.; JOHN BENAQUISTA; ROBERT SHIROCK:
The testimony of these individuals was essentially unremarkable and for brevity sake has been excluded from individual review herein.
Edward Hoover is the Civilian Personnel Officer for the Agency.
Mr. Hoover testified that a reasonable accommodation of Mr. Pletten's circumstances was required under the rules and regulations of the Agency. (Tr. at 13-14)
He stated that all of his decisions were based on the safety determinations of other officers within the Agency. (Tr. at 15)
He also testified that Dr. Holt, the Chief Medical Officer for the Command, had never made a comprehensive or complete medical determination with regard to Mr. Pletten. (Tr. at 17)
Mr. Hoover was not informed of Mr. Braun's statements with regard to the quality of air in the Command. (Tr. at 22) Mr. Hoover testified that he had in part
recommended a psychiatric fitness-for-duty test for Mr. Pletten although Dr. Holt's subsequent testimony contradicts him (Tr. at 26).
Mr. Hoover, however, also testified that while he suggested a fitness-for-duty examination for psychiatric purposes be conducted, he did not make a similar recommendation with regard to smoke-related physical problems of Mr. Pletten. (Tr. at 29)
Mr. Hoover also allowed that he was not familiar with Dr. Dubin's January 20, 1981 note concerning Mr. Pletten's physical status. (Tr. at 30)
Mr. Hoover testified that he had not contacted higher headquarters with regard to smoking regulations and regulatory requirements. (Tr. at 52)
Dr. Francis Holt is the Chief Medical Officer for the Agency. His testimony in large part clarifies the case for the Appellant and, as such, will not be summarized.
Many of the highlights of Dr. Holt's testimony include the lack of specificity in preparing the case against Mr. Pletten. It includes an admission on the part of the Agency that communication was not up to standards and that information regarding Mr. Pletten was not updated and clarified. In particular, Dr. Holt stated that
Perhaps most pointedly, in responding to a question regarding Mr. Pletten's overall
|"I wasn't asked to make a determination in 1982 about whether or not Mr. Pletten was disqualified. I wasn't asked to make a recommendation." (Tr. at 18)|
circumstances, Dr. Holt stated:
The transcript of Dr. Holt's testimony specifically defines Appellant's case and categorizes the deficiencies of the Agency in making its claim for removal. The testimony of Dr. Holt is dispositive of the Agency's action against Appellant Pletten and summarizes the sad status of preparation surrounding this lengthy and involved litigation.
The testimony of Dr. Holt sets forth much of the basis of
Appellant's claim. The Agency was ordered by a review panel (USACARA) to
implement air studies in the Command in response to the grievance of Leroy
Mr. Pletten's original grievance was upheld and rather than abide by
the ruling of their own Agency, the Agency proceeded upon a pattern and
practice which held as its ultimate relief the destruction of the career of
The [non-complying] air studies were presented as exoneration of the Agency's contentions. Only upon sworn testimony by Mr. Braun was it revealed that regulatory requirements regarding air quality had not been maintained.
The Agency claimed reasonable accommodation of Mr. Pletten's complaint. Yet,
testimony indicates that the compliance was hollow.
He was offered [what USACARA rejected] a separate work area ostensibly to eliminate smoke but in actuality was offered no barrier to the flow of the smoke. He was segregated, ridiculed
|"No, unfortunately I think there is a lack of justice in a situation like that. Yes."|
(Tr. at 21)
and held for psychiatric evaluation.
In short, the Agency made an all-out assault on the credibility of Leroy Pletten rather than face the issue of smoking within the Command and the hazard it presents to many employees. They sought to have him retired through the Office of Personnel Management without basis and without the permission of Mr. Pletten. When this ruse was not sustained, they turned their attentions to his removal.
The Agency's personnel specialists made sure that no one individual reviewed all documents or information. The bases for the medical disqualification of Mr. Pletten were well over a year old and still the subject of controversy as to actual meaning.
Testimony of the Command Medical Officer is clear as to the unwillingness of the Agency to thoroughly investigate Mr. Pletten's condition and his prognosis for "recovery". This, despite the fact that Mr. Pletten is not ill. He is ready and willing to return to work.
His doctors, although not recommending a smoke-filled environment to any individual, have said he can work.
The Command refuses to recognize a difference between ability to work and the necessity for the elimination of a hazard.
The key word for the Command has been "smoke-free". They have relied on [pretended] compliance with AR 1-8 as a cloak towards their actions in the Pletten matter.
However, testimony has shown that the cloak does not exist. The Command
- has not complied with its own regulations,
- has not properly investigated Mr. Pletten's
- has not investigated alternative means for accommodation of Mr. Pletten and
- perhaps, most clearly, has no intent to modify their infamous behavior so as to comport with their own rules.
It is Leroy Pletten's unfortunate circumstance to suffer not from asthma but from the closeminded and immoral intentions of his superiors. The true handicap in the Pletten case is the prejudice of the Command in favor of things that have been status quo.
If Mr. Pletten had presented a safety issue concerning flammable liquids, it would have been handled in an expeditious and professional manner. Mr. Pletten's circumstance dealt with tobacco smoke and air pollutants in general. Only because Mr. Pletten's complaint dealt with a widespread habit was it viewed as unusual or insurmountable. The nature of the health hazard identified by Mr. Pletten is no less dangerous than the presence of flammables.
The true danger is the unwillingness of the Agency to take direction as to a remedy once the hazard has been identified.
The USACARA report and the contradictory reports of its own personnel have not been enough to deter them from taking reprisal against Mr. Pletten and others in his position.
It is [due to TACOM refusing Pletten access to EEOC that] only through this Honorable Board that the proper administration of personnel matters within the Agency can be preserved.
Even if one were to assume the validity of the proposal to remove and the decision to remove as to their form and content,
|Ed. Note: Federal agencies are not allowed to violate their own regulations. Service v Dulles, 354 US 363; 77 S Ct 1152; 1 L Ed 2d 1403 (1957); Watson v Dept of the Army, 162 F Supp 755 (1958); Vitarelli v Seaton, 359 US 535, 539-40; 79 S Ct 968, 972; 3 L Ed 2d 1012 (1959); Piccone v U.S., 186 Ct Cl 752; 407 F2d 866, 871 (1969); and U.S. v Nixon, 418 US 683, 695-96, 94 S Ct 3090, 3100-02; 41 L Ed 2d 1039 (1974). “It is well settled that an agency is bound by the regulations it has promulgated, even though absent such regulations the agency could have exercised its authority to take the same actions on another basis, and that the agency must abide by its regulations as written until it rescinds or amends them.”|
the Agency has failed to establish cause for removal by a preponderance of the evidence.
If anything, the evidence identifies gross mismanagement by the Agency and a clear right for the Appellant to return to his former position.
WHEREFORE, Appellant prays this Honorable Board order his reinstatement, together with full back-pay and benefits, including attorney fees and costs so wrongfully incurred.
|COOPER & COHEN, P.C
|BY: Steven Z. Cohen|
|Steven Z. Cohen
|Attorneys for Appellant
|3000 Town Center, #1150
|Southfield, Michigan 48075
DATED: June 1, 1982