Brief to MSPB, 22 January 1982, in Continued Effort to Secure Notification of Specificity and of Rights to Review of the TACOM Decision to Terminate, Retaliating Against Pletten's Whistleblowing.
See also other Briefs in the series, e.g., 21 March 1983, 27 July 1983, 25 Nov 1983, and 2 Jan 1985, as per Pletten's working full-time+ developing every evidence for seeking his reinstatement, and recording his position, for anticipated use in the EEOC forum, which TACOM was obstructing.
More in the series will be posted as scanned. The volume is enormous, takes some time.

Merit Systems Protection Board
22 Jan 1982
Part 12 - 8

(pp 1-6)

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

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

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

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

Page 7 of ___28__ pages.Affiant's initials _________

(pp 8-10)

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

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

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

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

Please arrange compliance with the criminal law.

Page 11 of ___28____ pages.Affiant's initials _________

5 CFR 752 evidences that federal employees are not supposed to endanger themselves, property, and others. When the government allows violations, it is not even being neutral, and it is clearly not meeting its duty under law. Even clever slogans such as “No Smoking—Oxygen in Use” are ineffective to control smokers. They are not effective signs in offices; and they are not effective for a reason. Smokers do not have a choice not to smoke; they have lost that important capability. They do not protect themselves; they refuse to protect others. That fact explains the MSPB [Wertheim, Poston, et al.] fabrication of actions taken; none had been; the lacking was clearly improper, so MSPB [Wertheim, Poston, et al.] invented claims.

Consider a smoker who has been warned several times in a hospital not to smoke under her oxygen tent. Consider even having removed all cigarettes and matches from the table. But consider the failure to have confiscated tobacco from the smoker's purse. Would a smoker nevertheless try to smoke even under such circumstances. When smokers kill themselves at hundreds of thousands per year, the answer is obvious. Of course a smoker would smoke in an oxygen tent. An example is cited in Evans v. Newark-Wayne Community Hospital, Inc., 35 App. Div.2d 1071 [316 NYS2d 447] (N.Y. 1970). Not every smoker burns himself to death smoking in a hospital. Sometimes the consequences are not fatal: There is only a fire. See Granger v. Deaconess Hospital of Grand Forks, 138 N.W.2d 443 (N.D. 1965).

Smokers refuse to protect themselves. They refuse to protect me. That explains why management refused "advising fellow workers and visitors not to smoke in appellant's presence," for example [citing a lie invented by Wertheim, Poston, et al.]. Smokers are not sufficiently rational to have done this. Indeed, even if it had been done—which it was not—it would be a significant question whether smokers would have the capacity to comply. When removing tobacoo is not enough, because smokers hide tobacco in purses, a mere ["advising" or] order would be inadequate. Enforcement of TACOM-R 190-4 on property control would be essential. Management officials who themselves smoke in my presence would also have to be controlled. My complaints of smoking in my presence were ignored; who will cause enforcement? Since [TACOM] personnel officials refuse enforcement, they now as of 24 Sep 81 are now so bold as to admit that my complaints such as on smoking in my presence were denied; relief was refused. Yet MSPB has given credit for [doing] what [TACOM] management now brazenly admits [refusing]. Management is clearly confident that MSPB is in its corner. It now [by ex parte means] feels free to deny that action was taken concerning smoking in my presence. MSPB wrongdoing on TACOM's behalf has emboldened TACOM to stonewall even more.

“Working and smoking don't mix” [says William A. Weis, Ph.D., C.P.A., “Profits up in Smoke,” 60 Personnel Journal (#3) 162-165 (March 1981)]. Consider the department store Santa Claus. On his first day of work, it was important to him to step out for a cigarette. He was not concentrating on the inferences to be drawn from wearing a beard. The smoker set fire to his false beard, Kaletha v. Hall Mercantile Co., 157 Minn. 290 (1923), 196 N.W. 261. Smokers hurt people. One smoker on a bus hurt a passenger with ashes from his pipe. Like TACOM and MSPB, the authority (the driver) who could have solved the problem, refused to do so. Like TACOM and MSPB, he chose to do nothing. See Jones v. Eastern Greyhound Lines, Inc., 159 Misc. 662 (1936), 288 N.Y.S. 523. Liability against dangerous smokers arises in a multitude of ways. Consider the situation of a country club that sold liquor to an underage nonmember. (Here is the alcohol link again.) A woman's dress was set on fire when the drinker lit a cigarette, Tyson v. Plymouth Country Club, 57 Montg. (Pa.) 140, 41 Pa. D & C. 116 (1941). Smokers are not capable of protecting themselves even when 90% of smokers reportedly want to stop smoking; they are clearly not capable of protecting others. MSPB was notified in May and August 1980 of smoker mental problems; MSPB chooses to take smokers' views as of greater weight nonetheless. It is not prudent for MSPB to go “perilously close to an area of proscribed conduct,” a valuable insight from Boyce Motor Lines, Inc. v. U.S., 342 US 337 at 340 [72 S Ct 329, 331; 96 L Ed 367] (1952).

Page 12 of ___28____ pages.Affiant's initials _________

(pp 13-28)