To MSPB-Chicago 2 April 1982

(pp 1-5)

Prohibited Personnel Practices

Violation of Regulation 
29 CFR § 1613.701 etc.The required “reasonable accommodation” presupposes compliance with basic rules. Local [TACOM] employees deny any hazard or violation [exists] and thus [they] refuse to begin regular rule enforcement. As the process has not starred, local [TACOM] employees also refuse to begin “reasonable accommodation.”

For example, AR 1-8 requires that the environment “not endanger . . . cause discomfort or unreasonable annoyance.” The environment does these things to the extent [TACOM] management refuses to let me return to duty, but it refuses to halt the endangerment and discomfort the regulation prohibits.

[TACOM] Management refuses to implement the “unqualified and absolute” safety duty specified by OSHA [29 USC § 651 - § 678] in Nat’l Rlty & C. Co., Inc. v. OSHRC [160 U.S. App. DC 133], 489 F.2d 1257 (1973). Compliance with OSHA (or 5 USC § 7902) would undoubtedly preclude need for superimposing “reasonable accommodation” on top of the “unqualified and absolute” duty. Achieving a non-endangering, non-discomforting environment would likewise undoubtedly preclude need for superimposing the “reasonable accommodation” duty on top. However, achieving them would most assuredly provide a sound basis for then beginning the “reasonable accommodation” process.

The local [TACOM] employees involved also refuse to enforce other rules such as on courtesy, littering, loafing, efficiency, property control, etc. Enforcement of any one rule would resolve the situation. The local property control regulation, TACOM-R 190-4 is based on the same police power authority as was upheld in Austin v. Tennessee, 179 US 343 (1900). The rule forbids any habit-forming drug without a valid doctor’s prescription. It also limits personal effects to non-dangerous items. Even if personal effects were allowed to be dangerous, such would not allow personal reasons to be a basis for adverse action against a victim such as myself harmed by such personal effects.

No reason has ever been provided for the refusal to (a) enforce the pertinent rules and (b) begin reasonable accommodation. Even if there are reasons (and there are none, or they would have been articulated––although untimely), there is no cause for adverse action until after any alleged reasons are stated and opportunity to reply provided. Cf. 5 CFR § 752 and advance notice [5 USC § 7513(b)] requirements.

As made clear in cases such as State of Missouri ex rel. Gaines v. Canada, 305 US 337 (1938); Brown v. U.S., 256 US 335 (1921); and Sleeper v. Sandown, 52 N.H. 244 (1872), movement in safety is extensive and not limited to one room. Cf. OSHA cases and 5 USC § 7902. Reasonable accommodation superimposed on top of these basic legal facts will assuredly allow immediate return to duty in safe conditions.

Page 6 of 80 pages.Affiant's initials _________

(pp 7-9)

Prohibited Personnel Practices

Unconstitutional Local Acts

Equal Protection

Refusal to let me return to duty to verify whether AR 1-8 is being complied with as per guidance of 25 Jan 80 USACARA Report, p 14, on “personal determination.” It is not lawful to refuse a person the right to take a test, Gurmankin v. Costanzo, 556 F.2d 184 [14 Fair Empl. Prac. Cas. 1359, 14 Empl. Prac. Dec. ¶ 7519, 1 A.D. Cases 20 (3d Cir, 1977)].

Refusal to allow right to work in safe conditions in work area where I am called to be. See Brown v. U.S., 256 US 335 [41 S.Ct. 501; 65 L.Ed. 961] (1921); Yick Wo v. Hopkins, 118 US 256 [6 S.Ct. 1064; 30 L.Ed. 220] (1886); Truax v. Raich, 239 US 33 [36 S.Ct. 7; 60 L.Ed. 131; LRA 1916D, 543; Ann Cas 1917B, 283] (1915); Sleeper v. Sandown, 52 N.H. 244 (1872) [Prof. Alfred Blumrosen, et al, “Injunctions Against Occupational Hazards: The Right to Work Under Safe Conditions,” 64 Cal. Law Rev. [#3] 702 (May 1976)].

Insistence on use of tradition, that excused absence is traditionally only for all hazards except smoking, when tradition is not a lawful reason, Shelley v. Kraemer, 334 US 1 [68 S. Ct. 836; 92 L. Ed. 1161] (1948); Browder v. Gayle, 142 F. Supp. 707 ([M.D. Alab.] 1956) [cert. den. 352 US 903 (1956)].

Insistence on segregating me instead of acting on the rights of all nonsmokers as cited in the 25 Jan 80 Report, p. 11, and of handicappers sensitive to tobacco smoke, Missouri ex rel. Gaines v. Canada, 305 US 337 [59 S.Ct. 232; 83 L.Ed. 208] (1938); Hairston v. Drosick, 423 F. Supp. 180 (S.D.W. Va. 1976).

Insistence that I or my doctor must accept the current endangering environment or else––an all or nothing approach––of a perfect solution or nothing, Buchanan v. Warley, 245 US 60 [38 S.Ct. 16, 62 L.Ed. 149] (1917); Bartels v. Biernat, 427 F. Supp. 226 (E.D. Wis. 1977); Swick v. Aetna Portland Cement Co., 147 Mich. 454 [111 NW 110] (1907).

Violations are “readily apparent” including for those “similarly situated” while there is insistence on “too much deliberation” and no speed at all, including the clear (in substance) cancellation of all my EEO cases,     Goss v. Bd. of Education of Knoxville, 373 US 683 [83 S.Ct. 1405, 10 L.Ed.2d 632] (1963);   Rogers v. Paul, 328 US 198 [86 S.Ct. 358; 15 L.Ed.2d 265] (1965);   Griffin v. City School Bd. of Prince Edward County, 377 US 218 [84 S.Ct. 1226, 12 L.Ed.2d 256] (1964).

Insistence that involuntary smoking is an essential part of successful job performance when involuntary smoking is in fact no part at all of the job or of any job requirement whatsoever, Griggs v. Duke Power Co., 401 US 424 [91 S.Ct. 849; 28 L.Ed.2d 158] (1971); Shimp v. N. J. Bell Telephone Co. [145 N J Super 516], 368 A. 2d 408 (1976).

Use of aphorisms such as “unfit for duty” instead of actually conducting a proper analysis and noting that tradition is not a proper substitute for rules, and that no action can be for an obviously medically impossible duration, by use of ex parte communications as a stratagem to circumvent policies such as AR 1-8 to preclude endangerment from occurring, much less causing long-term sick leave, Snead v. Stringer [454 U.S. 988; 102 S. Ct. 535], 70 L.Ed.2d 402 (dissent); Clements v. Logan [454 U.S. 1304; 102 S.Ct. 284], 70 L.Ed.2d 461 (1981); Mattox v. U.S., 156 US 237 [15 S Ct 337; 39 L Ed 409] (1895); Phelps Dodge Corporation v. N.L.R.B., 313 US 177 [61 S.Ct. 845, 85 L.Ed. 1271] (1941).

Personal reasons and smoker private conduct used as basis for adverse action without notice or opportunity to reply, Knotts v. U.S. [128 Ct.Cl. 489], 121 F. Supp. 630 (1954); Shelley v. Kraemer, 334 US 1 [68 S. Ct. 836; 92 L. Ed. 1161] (1948); Elchibegoff v. U.S., 106 Ct. Cl. 541 (1946); Money v. Anderson [93 US App DC 130], 208 F.2d 34 (1953); Matter of Rabideau [102 Wis.2d 16], 306 N.W.2d 1 (1981).

Due Process

Refusal of a hearing for so long is obvious. Also see Linn, “Uncle Sam Doesn’t Want You: Entering the Federal Stronghold of Employment Discrimination against Handicapped Individuals,” 27 De Paul Law Rev 1047 (1978).

Page 10 of 80 pages.Affiant's initials _________

Multiple Violations in the Adverse Actions

Smoking is personal behavior. Mr. [Edward] Hoover, a smoker, has ridiculed AR 1-8 and the 25 Jan 80 USACARA Report in my favor. In a case involving his personal interests so directly and strongly, each was an insensitive and indeed, knowingly provocative, behavior that should have been avoided. Cf. Offutt v. U.S., 348 US 11 (1954). The [abuse] is especially clear considering the 23 Feb 82 EEOC assesment of the wrongdoing in the late 1979 - early 1980 period. Mr. Hoover's behavior in removing me for an improper reason (personal desire to smoke) is yet another example of wrongdoing in that period. An independent reviewing official analyzing that period used the past tense each time he referred to my employment with TACOM. It is significant that the analysis of the July 1979 - February 1980 period was conducted by that independent reviewing official in the March - September 1981 time period. Already my employment with TACOM was obviously in the past tense.

Other independent analysts also have noted aspects of the local pattern. MESC provided me unemployment benefits for January - November 1981. See Decision B81 09032, 30 July 1981, rehearing denied, 2 September 1981. It is clear that Mr. Hoover decided to remove me once I won the 25 Jan 80 USACARA Report at the time “When the agency failed to abide by the arbitration, appellant filed even more EEO complaints,” an analysis from the EEOC decision 23 Feb 82, p. 2. Placing me on sick leave for a medically impossible duration was a way of achieving my removal in substance. Thus, EEOC noted that “The record indicates that as early as February, 1980, appellant was denied EEO counseling and prevented from filing further complaints.” In [TACOM] management's mind, I was already fired. They had not accommodated me [the term to avoid saying rule enforcement] as an employee; they clearly saw no reason to accommodate me [obey the rules] as (in substance) an ex-employee. [They dealt with the class action aspect by ousting me, to imtimidate coworkers].

FPM Suppl. 752-1, S4-4a, commands “A notice must make it clear that it concerns only a proposed action and not a matter already decided (see Elchibegoff v. U.S.).” Claims about what “cannot” be done are not merely "proposed"; they are final and already decided [by TACOM]. (Indeed, they are made directly in defiance of the 25 Jan 80 USACARA Report.) Claims that [falsified] OSHA TLVs are to be used instead of AR 1-8 criteria are not merely “proposed”; they are clearly “already decided” even though the USACARA Report considered such [falsified] studies “no evidence” of compliance. Claims that are made so emphatically for such an extended duration are clearly “already decided.” The 28 March 1980 [ouster] letter from Mr. Hoover is the same in substance as the perfunctory notice given to Elchibegoff, cited at 106 Ct. Cl. 541 at 544 [1946].

Like that employee, I too have sought to obtain the specifics. Each level has given different reasons, none specifically. The words of pp. 558-559 come to mind: “Plaintiff asserts that his discharge was illegal and was in effect no discharge at all because the matter was determined without first setting out the charges in specific and definite form.” Here, no charges have ever been made. What claims of accommodation rule compliance] “were later made, they were made after the matter was determined.” Such behavior is wrong under civil service guidance [e.g., 5 USC § 7513 and 5 CFR § 752], and indeed, under guidance in all forums of due process. The Nat'l Rlty. & C. Co., Inc. v. OSHRC [160 US App DC 133], 489 F.2d 1257 at 1267 (1973) case shows an example of after-the-fact [agency] ideas. The Court rejected them since they “came too late in the proceedings. . . . unfairly deprived . . . when it [the accused] learns the exact nature [of specifics] . . . only after” the right time frame [notice letter]. An “empty record” is not acceptable. MSPB ignores such guidance. The Court language in Brennan v. OSHRC, 491 F.2d 1340 at 1343 ([CA 2] 1974) is insightful: Normal Court practices against retroactive invention of reasons “seems far better calcalated than the” MSPB's “to achieve the congressional goal” in requiring advance statement of reasons as a measure in dealing with federal employees.

Page 11 of ___80____ pages.Affiant's initials _________

Pages 18-19 of ___80____ pages.Affiant's initials _________

Elchibegoff v. U.S., 106 Ct. Cl. 541 (1946), petition for cert. dismissed, 329 US 694 (1946), provides insight. At 560, the Court noted that, “When all the facts of this case are taken into consideration it is difficult to find that there was a real compliance with the terms of the law and the rules.” My case is far more obvious. In my experience as a personnel specialist, the officials purporting to be acting for the government have committed more violations of laws and rules than in any situation of which I am aware. The Court noted that “The law was enacted for the protection of the employees and to assure a fair consideration of their rights. . . . To construe the . . . [alleged notice] letters as a compliance with the law when each of them contains the statement that the matter has already been determined is almost to make a mockery of the provisions of the [advance pre-decision notice] law.” In the case at bar, the multiple rules (safety, mental health, alcoholism, smoking, etc.) were made for the protection of the public and co-workers from dangerous co-workers. There is absolutely no provision for adverse action against the victim instead of resolving the situation by initiating rule enforcement [against the pereptrators causing hazardous conduct].

The many letters confirm that the decisions have long ago been made. Local officials for personal reasons have long ago determined to use [falsified] TLVs [contrary to Surgeon General data] instead of AR 1-8; to deny authority to enforce AR 1-8; to stonewall at every step; to refuse to process cases; to consider every reviewer wrong who supports my position, etc. MESC supports my ability to work; res judicata applies. EEOC on 23 Feb 82 noted that “. . . the agency failed to abide by the . . .” 25 Jan 80 USACARA Report. Invoking res judicata on that aspect “seems far better calculated . . . to achieve the congressional goal . . . .” My affirmed good health (ability to work) combined with the fact of the non-implementation of the 25 Jan 80 USACARA [Report] leave nothing of substance to bar immediate cancellation of the adverse action pattern up to and since l7 March 1980.

The Court in the Elchibegoff case at 561 noted that “it seems in going over the entire record that the plaintiff allowed no grass to grow under his feet. If there ever was a case in which a man was active in trying to secure his rights, the plaintiff was in this instance. He protested all over the place.” My efforts to secure compliance with the rules would be foreseeably effective, thus [TACOM] management [with ex parte arranged MSPB connivance] determined on a course of obstruction. The 23 Feb 82 EEOC decision shows one tip of that iceberg of obstruction. Management's guilty knowledge of the [disciplinary and criminal law] consequences of what would happen to them once reviewers noted their pattern of misconduct prompted them to embark upon a campaign of multiple savage reprisals, including but not limited to the long-term suspension tantamount to removal, the psychiatric examination [contrary to Standard Knapp v IAM, 50 LA 833 (1968) guidance], false claims to MSPB and others, disregard of the MSPB-asserted accommodations, etc., etc. By gross delays, miscalculations, and obstructions, management sought to exhaust me, long before I exhausted administrative channels. Halting all review on the merits would prolong administrative stages interminably. Their only hope was that I would give up, so their [illegal] use of their positions to defend their personal behavior would succeed by default.

“The record precludes any other reasonable conclusion than that no consideration whatever was given to plaintiff's answer and justifies a finding that it was not even seen by the personnel officer before the action was made final.” The violation in my case was even more gross than with Elchibegoff. He at least received a few days advance notice. The action against me was made retroactive. It is impossible to visualize a more clear situation wherein “the matter has already been determined.” Elchibegoff at least had a few days to dispute the matter before the already determined matter would be effective by its own terms. It is clear that [in my case] local [TACOM] employees acted for their personal reasons “without any real consideration for the rights of the plaintiff.”

Page 20 of 80 pages.Affiant's initials _________

Pages 21-22 of ___80____ pages.Affiant's initials _________

Yick Wo v. Hopkins, 118 US 356 [6 S. Ct. 1064; 30 L. Ed. 220; 1886 U.S. LEXIS 1938] (1886) provides insight into the situation. Governmental officials arbitrarily said that certain persons “cannot” work. No reason––they simply “cannot.” Here, MSPB [6 MSPB 626; 7 MSPR 13, by Ronald P. Wertheim, Ersa H. Poston], pretends that enforcement of rules, some of which are included in actions purportedly done, is “an undue hardship,” making this claim “at its arbitrary and unregulated discretion,” “and it can do so if” its false claim “is valid,––then it seems to us that there has been a wide departure from the principles that have heretofore been supposed to guard and protect the rights, property, and liberties of the American people. . . . Can a court be blind to what must be necessarily known to every intelligent person in the state?”

To the trained eye with experience in discipline cases, it is clear that the MSPB decision [6 MSPB 626; 7 MSPR 13, by Ronald P. Wertheim, Ersa H. Poston], contains intentionally false claims. To the trained eye, the decision is replete with clues. There are no dates for when the alleged actions occurred. There is no indication sufficient time passed to meet the standard the Army examiner cited in a separate case, “Whether or not an accommodation will be prove to be successful cannot be determined until tried,” and tried for a reasonable period of time.

The lack of specificity confirms that MSPB is aware of the falsities. MSPB is also aware its “findings of fact” can carry legal weight. A ban on smoking in at least the personnel office would have been reasonable and would look good in the record; but management had not done it, so the claim was simply invented [by Ronald P. Wertheim and Ersa H. Poston]. Such an action could easily be pinpointed in time had it happened, but no date is cited for the reason that, like the other allegations, it never happened. Among clues to the falsifications, the lack of specificity is a key. MSPB lack of good faith is thus evident, by pretending that actions were taken, when it should have ordered management to take such actions.

The MSPB reputation is not unknown to personnel people; the MSPB hand is evident in the fabrications [6 MSPB 626; 7 MSPR 13, by Ronald P. Wertheim, Ersa H. Poston]. However, as experienced in discipline, I generally find that people who lie tend to trip themselves up by careless acts. My copied requests for educational programs and adequate ventilation (copied out of the regulation [AR 1-8]) cannot be both done and “an undue hardship”! The ventilation either “does insure compliance with health standards” or it doesn't!

Providing false or misleading “collateral” as well as material information is a key. Of course, “the agency’s duty to accommodate is not unlimited.” But that duty presupposes compliance with the normal rules. Reference to “performance of the requested conditions” is a non sequitur from the preceding phrase, “appellant’s suggested accommodation.” Obeying AR 1-8 would moot the other requests. MSPB has also provided absolutely no linkage or rational nexus between “performance of the requested conditions” and my ability to work, for the obvious reason that there is none. The MSPB decision wobbles between incompetent and intentionally false.

MSPB is well aware of field conditions of personnel offices, despite the MSPB pretense otherwise. When an untrained Army doctor [Francis J. Holt] obsessed with smoking overrules the Grievance Examiner to make clear his continued insubordinate view that the Grievance Report “cannot” be implemented, that is the same position that was already rejected. Rejected management claims do not come before deciding officials with a momentum for respect; they come with a momentum for second rejection.

When management insists the same lack of authority as before, it is obvious the Grievance Report has not been implemented. Even de minimis MSPB competence would recognize that as a personnel management official, my case merely reflects the rules, and that management has repeatedly told me its disrespect for the Grievance Report.

The lack of specificity in the MSPB decision [6 MSPB 626; 7 MSPR 13, by Ronald P. Wertheim, Ersa H. Poston], confirms awareness that the actions [alleged therein] have not been taken [as EEOC verified in Docket 03.81.0087, 83 FEOR 3046], and will not be, unless management is directed to do so.

Page 23 of 80 pages.Affiant's initials _________

Shelley v. Kraemer, 334 US 1 [68 S. Ct. 836; 92 L. Ed. 1161; 3 A.L.R.2d 441] (1948), makes clear that the 14th Amendment protects constitutional rights by itself since official actions (and allegedly official actions––management pretends that the personal desire to smoke somehow justifies forbidding me to work) by government officials and Courts are already within the scope of the 14th Amendment. This is true even when the 14th Amendment does not directly reach "private conduct" by itself. “Private conduct” is no longer merely “private conduct” when government officials act to shelter it, as installation [TACOM] and MSPB officials are intensely doing. In the employment situation, rules on courtesy, loafing, littering,   mental illness, alcoholism,   assault, fraud, embezzlement, falsification, smoking, etc. do reach “private conduct,” thereby allowing use of the 14th Amendment to control government officials when they refuse to enforce rules such as those. The Supreme Court is able to understand that

“the difference between judicial enforcement and nonenforcement of the restrictive covenants is the difference to petitioners between being denied rights of property available to other members of the community and being accorded full enjoyment of these rights on an equal footing.”

The difference between MSPB and local [TACOM] fabrications of actions and admitting truth is the difference between securing or not securing enforcement of the rules. The initial difference relates to the falsification that denies my clear ability to work. Once that falsification falls, the whole MSPB falsification [6 MSPB 626; 7 MSPR 13, Ronald P. Wertheim, Ersa H. Poston] falls. MSPB has clearly argued the [TACOM] management case so strongly even beyond the fabrications that management [TACOM] dares to invent, that management [TACOM] is not even willing to confirm what MSPB pretends.

In Shelley v. Kraemer, the Court concluded that “in granting judicial enforcement of” the wrong actions even when acceptable on a purely voluntary basis, such enforcement “denied petitioners the equal protection of the laws and . . . cannot stand.” MSPB has granted “enforcement” of endangering, discomforting, and unreasonably annoying conditions expressly forbidden; MSPB has granted “enforcement” of pretenses that I am somehow unable to work, without telling the installation [TACOM] to halt such endangering aspects. The MSPB action “cannot stand.”

AR 1-8 refers to protecting both “life” and “property.” Both have the right to be protected from tobacco smoke.   Banning smoking around property is obviously not “impossible” and not “an undue hardship.” The local [TACOM] and MSPB allegations are sheer fabrication and nonsense. Buchanan v. Warley, 245 US 60 [38 S. Ct. 16, 62 L. Ed. 149] (1917), noted:

“That there exists a serious and difficult problem arising from a feeling of race hostility which the law is powerless to control, and to which it must give a measure of consideration, may be freely admitted. But its solution cannot be promoted by depriving citizens of their constitutional rights and privileges.”

Even if smokers are so violently hostile to AR 1-8 that they insist on endangering, discomforting, and unreasonably annoying people (as the local [TACOM] and MSPB claims confirm by the stated inability to prevent unfitness for duty), that fact does not allow violating my rights. No matter how insane smokers may be, management must control them.

“‘An insane person is civilly liable for his torts,’” Barylski v. Paul, 38 Mich. App. 614 [196 NW2d 868] (1972). “‘The law looks to the person damaged by another and seeks to make him whole, without reference to the purpose or condition, mental or physical, of the person causing the damage. . . . The lunatic must bear the loss occasioned by his torts, as he bears his other misfortunes, and the burden of such loss may not be put upon others.’”

Even when smoking “causes insanity” that endangers, discomforts, and unreasonably annoys others, the management duty to enforce AR 1-8 is clear. Even when smoking   “causes insanity”   that endangers to the point of sick leave, the rules must be enforced. The Barylski v. Paul incident occurred without notices, without multiple notices, from the victim seeking to be protected. Management [TACOM] and MSPB refusal of my multiple requests for aid intensifies their culpability. ["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).]

Page 24 of 80 pages.Affiant's initials _________

Pages 25-36 of ___80____ pages.Affiant's initials _________

Army did not write a regulation saying, Smoking is allowed to endanger, discomfort, and unreasonably annoy nonsmokers. However, the installation [TACOM] and the MSPB have made clear that they feel that is the meaning of AR 1-8. The guidance that AR 1-8 in fact provides is “unqualified and absolute.” Any number of measures may and must be taken to achieve the criteria. The 25 Jan 80 Grievance Report in my favor by USACARA makes clear that there is no limit. None of the claims by MSPB 18 Jun 81 [6 MSPB 626; 7 MSPR 13, by Ronald P. Wertheim, Ersa H. Poston, etc.] on what the installation purportedly has done were true. But suppose all the MSPB claims were true. The test of whether the regulatory goals are met was simply ignored by MSPB. Instead, it used an irrelevant test, “reasonable accommodation.” Even then, it simply invented “undue hardship” ideas. MSPB acted on an empty record.

A proper decision would simply note that endangerment is evident; therefore, the agency action involves non-compliance with its own rules.

A proper decision would simply note that a medically impossible duration is involved; therefore, the action is clearly a suspension, without any of the required advance notice and reply rights.

A proper decision would simply note that the installation [TACOM] has not provided specific facts to support its claims. Re studies––what items, when, by whom, what equipment, what standards, how are they relevant, why did the Examiner 25 Jan 80 disagree, what relevance to AR 1-8, what relevance to FPM Suppl. 752-1 [5 CFR § 752], etc. There are not specifics for the claims. Moreover, considering the inadequacies of TACOM behavior, it is clear that there was not compliance from the [November 1977] time of issuance of AR 1-8 until at least years later, if at all. And considering smoker mental disorders and alcoholism, it is not realistic to think that compliance suddenly began to happen once management decided that getting rid of me would be an easy way out. I ask questions that local officials do not want asked. They do not want a hearing.

Michigan law provides pertinent insight. Michigan courts take note of Prosser, Torts (4th ed.), Section 105, pp. 885-886, summarized as follows:

“1. A false representation made by the defendant. In the ordinary case, this representation must be one of fact. 2. Knowledge or belief on the part of the defendant that the representation is false—or, what is regarded as equivalent, that he has not a sufficient basis of information to make it. This element often is given the technical name of ‘scienter.’”

The elements of fraudulent misrepresentation go on to provide more data. In Cormack v. Am. Underwriters Corp, 94 Mich. App. 379, 288 N.W.2d 634, the Prosser “definition is supported by Michigan case law. See, Graham v. Myers, 333 Mich. 111, 52 N.W.2d 621 (1952), Michael v. Jones, 333 Mich. 476, 53 N.W.2d 342 (1952) . . . Rose v. Wertheimer, 11 Mich.App. 401, 161 N.W.2d 406 (1968).”

The 18 Jun 81 MSPB decision [6 MSPB 626; 7 MSPR 13, by Ronald P. Wertheim, Ersa H. Poston, etc.] admits only “some analysis.” Based on that, MSPB did not even bother looking for reprisal, when it should have been obvious to MSPB that only reprisal (personal reasons for smoking) causes the situation. MSPB alleges “reasonable attempts to accommodate” without regard for mandatory regulatory guidance. AR 1-8 does not say “attempt” to achieve the goals. It says—do it. This is the Army we are talking about. “Attempts” to obey rules are not listed. AR 1-8 does not say “attempts” to “take affirmative action,” “Full cooperation,” “be controlled in accordance with,” etc. The word “will” appears quite often in AR 1-8; the word “attempts” is an MSPB invention. MSPB does not just act on an empty record; it defies what evidence it did allow into the record. “Smoking will be permitted only if” goals are met.

MSPB knows better. That is why, on page 4, it did not stop with citing the guidance by the doctor on achieving the regulatory goals against endangerment, etc., but dredged up a stale grievance, closed but not implemented. The doctor stuck to the goals; I had provided motivating data on consequences of prior non-compliance.

Page 37 of 80 pages.Affiant's initials _________

Pages 38-56 of ___80____ pages.Affiant's initials _________

Dr. Woods observed [by 1899] that smoking “causes insanity.” The DSM-III cites tobacco organic mental disorder. The ICD-9-CM notes tobacco use disorder. Dr. Kellogg discussed dementia praecox (schizophrenia). Information on schizophrenia provides insight on the pattern of smoker behavior directed against me. In the book Psychology for Better Living, 5th edition [New York: John Wiley], 1965, Lyle Tussing, Ph.D., notes at 356 that “the most common symptom of this disorder is the emotional apathy and indifference in the patient with respect to other individuals.” Smokers have no capacity to care that they endanger or discomfort others; that [psychiatric fact] helps explain the otherwise incomprehensible insistence that they [personally] “cannot” provide a safe environment, or that it is an “undue hardship.”

Dr. Tussing indicates that “The second noticeable characteristic of the behavior of schizophrenics is a certain lack of harmony, integration, and coordination between their emotional and rational or intellectual activities.” That fact can provide insight into the [TACOM smoker] use of [falsified, altered, lowered] TLVs vs. AR 1-8 criteria; insistence the environment is safe while claiming it is not safe enough to let me return; placing data in both the completed and “undue hardship” categories simultaneously; etc. Dr. Tussing notes that “The third symptom that seems to characterize all schizophrenic patients is a gradual mental deterioration.” That [psychiatric fact] helps show why the reprisal pattern has intensified. That [psychiatric fact] helps show why TACOM and MSPB assertions become more and more strange and farther and farther from reality.

Dr. Tussing notes that “Hallucinations, particularly of hearing and vision, are fairly common during the early stages . . . disorganized experience . . . clarity of thought is lost in the confusion. His explanations for his behavior are frapnentary and have a dreamlike quality. Another aspect of schizophrenic behavior that is frequently mentioned is its apparent inappropriateness.” This [psychiatric fact] sheds insight into the varied [TACOM, MSPB, and court] explanations given from time to time as to the basis for not letting me work; inconsistency between thoughts in decision correspondence as though the author could not recall one idea to the next; delusions that studies under AR 1-8 criteria have occurred; etc. P. 357 continues “. . . schizophrenia is generally broken down in subgroups: simple, hebephrenic, catatonic, and paranoid. Any two or more of these may occur at the same time or successively in the same person. Such combinations are generally referred to as dementia praecox mixed. . . .” The change in assertions from time to time may be the product of such deteriorations or variations.

At 357, “Simple cases are marked by their apparent and long-lasting deterioration and scarcity of acute psychotic symptoms. 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.” The adverse effects of smoking on intelligence has long been noted. Smoker incapacity to comprehend that a smoky work environment can cause a development or worsening of health is obvions. Incapacity to comprehend that pre-17 Mar 80 events could lead to the post-17 Mar 80 events is also clear. MSPB displays clear unwillingness to consider such cause and effect aspects. Smokers rarely are capable of stopping smoking and thus normally remain hooked for life—“slow-motion suicide.” The “seem feeble-minded rather than psychotic” insight by Dr. Tussing is most illuminating. When a decision is merely arbitrary and capricious as not based upon reasons, such a thing can be committed by honest (but sane) error. Cf. McNutt v. Hills, 426 F. Supp. 990 ([D DC] 1977). A one-time error can happen. But here, the pattern for years and years raises deeper questions, Why are TACOM and MSPB assertions the way they are?

Page 57 of 80 pages.Affiant's initials _________

The DSM-III and ICD-9 cite tobacco dependence. The 1980 Transactions of the Society of Actuaries shows smoker deaths from mental illness at a rate higher than that of nonsmokers. Smoking “causes insanity” as Dr. Woods noted in 1899. Dr. Kelloggs's book on Tobaccoism or How Tobacco Kills cites smoker dementia praecox (schizophrenia). Insight on schizophrenia is provided by authors Allen D. Calvin, et al., in their 1961 book Psychology [(Boston: Allyn & Bacon, 1961)]. At 430, the authors indicate that “The commonest of psychoses, and by all means the state involving the greatest deviation in thinking, contact with reality, emotion, and overt behavior, is schizophrenia.”

The book continues, “In schizophrenia, reality orientation is especially weak; the patient lives in a world of fantasy.” Smokers fantasize that harm will not befall them; i.e., that they are somehow unique. People with delusions thus are clearly projecting uniqueness delusions they have by pretending that I am unique. At 430, the authors continue, “The schizophrenic patient seems to have reacted to a threatening reality by creating for himself a more comfortable make-believe world. The existence of this fantasy world is shown in delusions and hallucinations, both common in schizophrenia.” The “threatening reality” of tobacco-induced “slow-motion suicide” is cited by the many reports of the Surgeon General, the warning on each pack of cigarettes, and by the very existence of AR 1-8. In the fantasy world of schizophrenic delusions, the “more comfortable make-believe world” does not contain such threats. Such facts help shed light on the fact the decision materials from TACOM and MSPB officials do not even allude to such data. MSPB decisions do not even acknowledge the bare existence of AR 1-8. They certainly do not acknowledge the duties AR 1-8 prescribes. The AR 1-8 threat to the “make-believe world” is dismissed summarily [by] with assertions of “undue hardship.” The claim is an obvious “fantasy”; the 25 Jan 80 USACARA Report does not provide the slightest basis for belief that AR 1-8 goals constitute an “undue hardship.”

At 430, the Psychology authors note that “Lack of appropriate emotionality is also present—the patient weeps over trivialities and is unmoved by tragic events.” The lack of proportion is obvious in the TACOM and MSPB behavior. The documents focus on “trivialities” such as supposed requests made, while utterly ignoring the multiple regulatory duties. Trivia is made grossly disproportionate in the smoker fantasy world. At 430, “Thinking may be seriously disturbed, waking-thought processes resemble those in a dream or, it is hypothesized, those of an infant.” Smoking is not allowed to cause even so “subjective” a thing as mere “discomfort.” Yet smokers and decisions insist that AR 1-8 guidance is wrong; they disagree with it, and they demand I be declared unfit for duty in advance. The “threatening reality” of having to obey rules is too terrifying to them. The idea of providing a proper environment is declared an “undue hardship” or “cannot” be done for the sake of their “make-believe world.” At 430, the book notes that “Marked distortions of normal behavior appear in the form of odd stereoyped gestures and in disturbances of speech.” Smoking comprises a series “of odd stereotyped gestures.” The DSM-III notes such “highly overlearned” behavior.

At 430, “The patient seems farthest from normal in hebephrenic schizophrenia. His symptoms include a slow and gradual deterioration of personality. The adult hebephrenic exhibits a great deal of silly behavior . . . Speech deteriorates to the point where it resembles a 'word salad.' Peculiar mannerisms develop, and hallucinations are common.” When decision correspondence contains thoughts strewn together without regard for consistency, the concept of “word salad” sheds insight. Difficulty speaking [aphasia] sheds light on why [TACOM smoker] management refuses to begin the process of reasonable accommodation for me. Uncommunicative smokers are being overaccommodated in their [tobacco-caused brain damage] handicap.

Page 58 of ___80____ pages.Affiant's initials _________

Tobacco as a factor in mental illness has been recognized for some time. Dr. [Matthew] Woods in 1899 called attention to the fact that smoking “causes insanity.” The ICD-9-CM and the DSM-III [1980] continue the recognition of smoking as related to mental illness. Dr. Tennant [1981] and others have noted the link with alcoholism, another drug related behavior disturbance harmful to self and others. Dr. Kellog [1922] cited [100% correlation] data on smoker dementia praecox (schizophrenia). Data on schizophrenia [thus] provides insight into the smoker behavior directed against nonsmokers such as me.

Insight on schizophrenia is provided in the book, Introduction to Psychology 3rd edition [New York: Harcourt, Brace & World, 1962], by Ernest R. Hilgard. At 525, the book states that “Schizophrenic reactions, by far the most common disorders among hospitalized mental patients, are so named because they represent a lack of harmony or split between aspects of personality functioning; (schizo derives from a Greek root meaning 'split or divided').” Such is “common” just as smoking has become common. The book continues, “The split is particularly noticeable between emotion and conduct . . . . Very often the patient withdraws from reality into a world of his own. The patient may have hallucinations . . . The disorder may manifest itself as early as childhood or late in life, though the most common time of incidence is in late adolescence and early adult life.“ Smokers retreat from the reality that smoking is harmful. They refuse to consider that the harm is both physical and mental. Their judgement is so severely impaired that they do not even recognize the impairment [anosognosia]. It thus is no surprise that they retaliate so savagely against me for citing the facts about their behavior. The “time of incidence” is also insightful—the same timeframe as smoking begins.

At 525, the book provides other illuminating data. “Paranoid reactions are characterized by persistent systematized delusions. Delusions differ from hallucinations in that they are false beliefs rather than false sense perceptions. The paranoid person may react entirely normally except when his delusions are touched upon . . . . Delusions often take the form of either delusions of grandeur (the patient believes he is Napoleon) or delusions of persecution (the patient has suffered at the hands of his enemies). Paranoid symptoms are common in some types of schizophrenia . . . The delusions of grandeur are elaborate rationalizations, and the delusions of persecution are clearly projections.”

The data on paranoid reactions is most insightful. The delusions are of a continuing thing, even for years, since they are “systematized.“ TACOM [smoker management] employees [e.g., Edward E. Hoover, John J. Benacquista, Francis J. Holt, Emily S. Bacon] thus insist I am unfit for duty in advance for years. Their paranoia arises from their obvious and stated belief that stopping endangerment and discomfort violates smokers' presumed “rights,” even though endangering and discomforting others is expressly disallowed by AR 1-8. Smoker delusions of grandeur involve their view that they can overrule grievance reports, laws, regulations, examining doctors, and everybody who disagrees with them. In a disturbed “world of his own,” each deciding smoker in a “systematized” way displays his own particular delusion or hallucination as his “world of his own” needs. Managers have delusions of grandeur [or paranoia] that they can pretend they have no authority to resolve the matter. Non-doctors [e.g., Hoover, Benacquista, MSPB and court adjudicators, etc.] have delusions of grandeur that they can disregard the examining physicians.

Delusions of persecution are evident when smokers insist that halting the endangerment or discomfort is an “undue hardship” or somehow “cannot” be done. Such claims “are elaborate rationalizations” or “projections” as the circumstances and a hearing can show. Since such claims are from a “world of his own,” clues to the disorganized thinking process are evident in the inconsistencies, double standards, refusals to consider evidence, actions contrary to evidence, non-responsive to input, disregrard of rules, etc. Placing claims in both the accomplished and “undue hardship” categories are other clues.

Page 59 of __80_____ pages.Affiant's initials _________

Pages 60-80 of ___80____ pages.Affiant's initials _________