|Brief to MSPB, 29 July 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.
UNITED STATES OF AMERICA
Merit Systems Protection Board?
|29 July 1982|
||Part 1||2 - 8
||Concluding Analysis and Request for Relief||88 - 90
|Page 1 of 90 pages.||Affiant's initials _________|
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|Page 7 of 29? pages.||Affiant's initials _________|
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|tobacco organic mental disorder||Smoking “causes insanity”—Woods
|Page 11 of ___29?____ pages.||Affiant's initials _________|
Violation of Regulations
|CPR 771/FPM 771||A grievance report is to be implemented once USACARA makes recommendations, unless the local Command asks permission of Headquarters otherwise. [See Army Regulation CPR 700.771, and Spann v Army, Gen. McKenna, et al., 615 F2d 137 (CA 3, 1980).] Local [TACOM] officials have acted in bad faith by pretending acceptance while denouncing the Report. As the local Command [TACOM] did not appeal the 25 Jan 80 Report, res judicata precludes disregard. The time limits for appeal have also expired. Yet [TACOM] management objects to the Report. Examples of USACARA statements objected to by local [TACOM] officials are the following:|
|P. 6:||“. . . smoking will be permitted only if ventilation is adequate to remove smoke from a work area and provide an environment that is healthful.” (under scoring provided by the Examiner)|
|P. 6:||“‘Army Regulation 1-8 does give officials the authority to ban smoking in areas under their jurisdiction . . . .’” The Examiner also called local [TACOM] attention to AR 600-20.2-1.|
|P. 7:||“Mr. Pletten has established that, insofar as he personally is concerned, smoke does constitute a safety hazard to him." (This precludes charging sick leave.)|
|P. 9:||“. . . the [TACOM] reply that the [TACOM] Commander has no authority to act appears to be not wholly accurate.”|
|P. 10:||“. . . the smoking of tobacco can constitute a hazard to health . . . an equitable balance between the rights of nonsmokers and those of smokers . . . cannot be accomplished by relocating one nonsmoker. . . . No evidence was offered to indicate that the Command [TACOM] had considered the rights of all nonsmokers.”|
|P. 12:||“Thus, it is clear that the rights of smokers exist only insofar as discomfort or unreasonable annoyance is not caused to nonsmokers. . . . whether or not an individual is discomforted by smoke is a personal determination to be made by that individual.”|
|P. 13:||“The Commander is not as devoid of authority as [TACOM Chief of Staff] COL Thomas’ letter indicates.”|
|P. 14:||“The Commander has the authority . . . to ban all smoking or take whatever action is necessary to control smoking in areas under his jurisdiction . . . .”|
|P. 14:||“That the Commander initiate an air content study . . . .”|
|P. 15:||“That the Commander take further action necessary . . . Ventilation in Mr. Pletten’s immediate work area to be evaluated periodically.”|
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|Page 18 of 90 pages.||Affiant's initials _________|
|Ed. Note: MSPB's anti-rule-of-law behavior defies decades of case law, e.g., Service v Dulles, 354 US 363; 77 S Ct 1152; 1 L Ed 2d 1403 (1957); Watson v Dept of Army, 142 Ct Cl 749; 162 F Supp 755 (1958); Vitarelli v Seaton, 359 US 535, 539-40; 79 S Ct 968, 972; 3 L Ed 2d 1012 (1959); Piccone v U.S., 186 Ct Cl 752; 407 F2d 866, 871 (1969); U.S. v Nixon, 418 US 683, 695-96; 94 S Ct 3090, 3100-02; 41 L Ed 2d 1039 (1974).
Note the rule of law on person unable “to appreciate the wrongfulness of his [her] conduct,” and “to conform his [her] conduct to the requirements of the law.”—People v Matulonis, 115 Mich App 263; 320 NW2d 238 (1982)
The [MSPB] decision expressly refused to consider accommodation under AR 1-8 such as the "recommendation of ways the agency had to accommodate appellant" by complying with AR 1-8 which “the agency failed to abide by.” EEOC on 23 Feb 82 noted the local violations along those lines. The 23 Jul 80 MSPB decision reflects the odd kind of behavior when “the patient withdraws from reality into a world of his own.”
|Ref. Ernest R. Hilgard, Introduction to Psychology, 3rd ed (New York: Harcourt, Brace & World, 1962), p 525.|
With such people, one tragic effect is that “Their indifference, their lack of judgment and foresight make them seem feeble-minded rather than psychotic. Generally, they are rather inadequate persons who seem run-down, and rarely, if ever regain interest in normal life.”
|Ref. Lyle Tussing, Ph.D., Psychology for Better Living, 5th ed (New York: John Wiley, 1965), p 357.|
A tragic consequence of dealings with such “inadequate persons” is harm to those around them and who come in contact with them. In my case, the harm has been to me and to my career, as well as the harm of impaired efficiency for my installation by the loss of my duty time. Loss of efficiency caused by smoking is also prohibited by AR 1-8; that prohibition is also being ignored.
|Ref. Jacobs v Michigan Mental Health Dept, 88 Mich App 503; 276 NW2d 627 (1979).|
Having mentally ill people investigate themselves when they refuse to honor the first investigation (25 Jan 80) is senseless and reflects indifference to reality. The fact of "the agency's decision to terminate" me instead of implement that Report put MSPB on notice of the absurdity of the reference to “other avenues.” Indeed, malicious smokers went to extremes to prevent action to “ever consider the merits,” as the 23 Feb 82 EEOC decision noted. Veal v. Califano, 610 F.2d 495 at 498 ([CA 8] 1979), provides insight pertinent to the MSPB remark on “other avenues,” “this statement is most likely the rationalization of a sick individual.”
|Page 29 of 90 pages.||Affiant's initials _________|
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|Pages 9-10 of 90 pages.||Affiant's initials _________|
|tobacco organic mental disorder||Smoking “causes insanity”—Woods
|Page 11 of ___29____ pages.||Affiant's initials _________|
|Pages 12-42 of 90 pages.||Affiant's initials _________|
"When a doctor or a psychotherapist, in the exercise of his professional skill and knowledge, determines, or should determine, that a warning is essential to avert danger arising from the medical or psychological condition of his patient, he incurs a legal obligation to give that warning."In this case, Dr. Holt refuses to warn management of the danger; he pretends such action is "not" his "province." He refuses to examine smokers who cause endangerment to determine if they are suffering any of the known smoker mental illnesses; he refuses to take preventive steps such as confining them or declaring them unfit for duty. He fails to initiate action to have them declared "not ready, willing and able to work." Indeed, he perpetrates a double wrong. He refuses to act even when other doctors call his attention to the need to act. He ignores the duty to act, even when USACARA called such duty to the attention of all, on 25 Jan 80. Dr. Holt ignores AR 1-8 and rules such as the FPM Suppl. 752-1 guidance against posing a danger to self or others—a rule smokers routinely break. Even worse, he has engaged in reprisal against me.
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[These statements are pre-bribery awareness.]
|Page 90 of 90 pages.||Affiant's initials _________|