When safety whistleblowers are fired from the government for doing their job, truthfully reporting hazards or related activity, the public is harmed, not just the worker. Some function of the government that ought to be done, is left undone. See a recent Texas example in the funeral industry. Worse, many times, coworkers become afraid to act in the subject matter re which they saw their colleague fired.
As Devine and Aplin, "Whistleblower Protection—The Gap Between the Law and Reality," 31 Howard Law Journal 223 (1988), show, becoming a whistleblower can be the end to a federal employee's career, family, health, and normal life circumstances. And, "the threat of being fired is equal to the threat of most minor and some not so minor criminal sanctions," Herzbrun v Milwaukee County, 338 F Supp 736, 738 (ED Wis, 1972).
The UAW Solidarity, September 1998 cleaner air article, "Breathing Easy: How UAW Worked With A Company To Clean Up Air in Kenosha Engine Plant," pp 18-19 (September 1999), showing the worker with the respirator brought back memories for me. At TACOM, manager of the Warren Tank Plant, Michigan, the air was also extremely unclean. This violated the common law duty to provide "fresh and pure air," violated OSHA 29 CFR § 1910.1000, and violated other clean air rules. It also violated Michigan law MCL § 750.27, MSA § 28.216, and the Army's own regulations 32 CFR 203 and AR 1-8. Many people complained, including in the agency newspaper.
Court cases such as Todd v Brown & Williamson Tobacco Corp, 924 F Supp 59 (WD La, 9 May 1996), admit that tobacco dangerousness is obvious. Perez v Brown & Williamson Tobacco Corp, 967 F Supp 920 (SD Texas, 4 June 1997), said tobacco is inherently dangerous and so known. The case of Banzhaf v Federal Communications Commission, 132 US App DC 14, 29; 405 F2d 1082, 1097 (1968) cert den 396 US 842 (1969) upheld the concept of cigarettes' deleteriousness:
"The danger cigarettes . . . pose to health is, among others, a danger to life itself . . . a danger inherent in the normal use of the product, not one merely associated with its abuse or dependent on intervening fortuitous events. It threatens a substantial body of the population, not merely a peculiarly susceptible fringe group."
Instead of obeying, TACOM forthwith fired me. As my supervisor opposed firing me, and gave me awards, management could file no charges against me, just acted in an arbitrary and capricious manner, and said, 'get out!'
A worker was killed at the Tank Plant. That was shortly after I was fired, as other workers were too intimidated by the firing of myself to dare to speak up effectively. This was during the anti-worker Reagan-Bush era.
Pro-Pure Air |
Safety laws are written in both general terms (words against jeopardizing safety) and in numeric terms, quantities of toxic chemcials shall not exceed X amount, in essence, a speed limit, a quantity limit. Employers must obey both the general words and the specific numerics. The employer was found guilty of noncompliance when a Detroit-area worker was killed on the job as a result. That case title is International Union, UAW v General Dynamics Land Systems Division, 259 US App DC 369; 815 F2d 1570 (1987) cert den 484 US 976; 108 S Ct 485; 98 L Ed 2d 484 (1987). But the decision did not help the killed worker. The employer knew it could kill with near-impunity as people such as myself were fired, and the others, intimidated.
The Occupational Safety and Health Act of 1970, 29 USC § 651 - § 678 forbids hazards. Rules such as 29 CFR § 1910.1000 provide specific examples of hazards such as carbon monoxide (limit of 50 parts per million).
Civil service workers are too terrified to enforce OSHA clean air rules. Unions bear the brunt of getting clean air for workers. Unions helped create OSHA in 1970, but the enforcers, civil servants like me, after seeing what happens to whistleblowers like me, are too terrified to enforce the law in a meaningful way.
Obstructing justice intimidates federal safety workers, so they too know they can be fired and denied redress, thus destroying their career and family too.
The case file is thousands of pages. Here are highlights. Essentially, I blew the whistle on law and regulatory violations. My allegations were upheld by an investigator. The agency retaliated, fired me without filing charges of any misconduct. The efficiency of the federal service, and worker safety, is not promoted by such firings!
No employee fired without charges being filed against him, has ever failed to win his job back in such circumstances, as the advance notice law, 5 USC § 7513.(b) is so clear, notice must be in writing 30 days PRIOR to the ouster!
The agency fired me without 30 days notice, violating 5 USC § 7513.(b). This was unequal treatment, disparate treatment, not done to others. It was done to intimidate coworkers from doing their job on the subject. That violates efficiency of the federal service, vs promoting it. I immediately sought review pursuant to the Equal Employment Opportunity Commission (EEOC) system pursuant to 29 CFR § 1613.
The agency was afraid of EEOC's known integrity. An EEOC official, Administrative Judge Henry Perez, Jr. (Detroit Office), by letter notified the agency that he had observed the firing; and the agency knew that he had observed this without the agency having first issued me the prerequisite 30 days notice, violating 5 USC § 7513.(b) whjich requires 30 days ADVANCE notice with opportunity to reply.
Wherefore the agency decided to obstruct my obtaining review in the EEOC forum. The agency is in Michigan. The agency therefore unlawfully forced the case to be heard against my will, and in violation of 29 CFR § 1613.403, in the corrupt Chicago Cook County system, specifically, the federal "Merit Systems Protection Board." (The Chicago MSPB office has jurisdiction over Michigan federal employee cases, when the federal employees voluntarily seek such review; and that was the pretext).
The Agency did not meet the condition precedent for claiming I am removed, a in 5 USC § 7513.(b) 30 days advance written notice of charges. There has been no finding that such a notice exists, even though that is the key controlling fact that "necessarily renders all of the other facts immaterial." Celotex Corp v Catrett, 477 US 317, 323; 106 S Ct 2548; 91 L Ed 2d 265 (1986).
5 USC § 7513.(b) as elaborated in case law, makes clear that when an employee is purportedly removed without advance notice including specific examples, the employee remains on the rolls entitled to his pay and immediate reinstatement. Other workers receive the benefit of that law, at the Army and elsewhere, as numerous precedents show. That is because notice is a constitutional due process requirement, required by the Constitution as necessary to enable the recipient to reply, Cleveland Board of Education v Loudermill, 470 US 532; 105 S Ct 1487; 84 L Ed 2d 494 (1985).
When an agency bungles a case, the agency must start over. This principle of law has been upheld all the way to the U.S. Supreme Court, so the Agency knows better. See Shelton v EEOC, 357 F Supp 3, 8 (D Wash, 1973) affirmed 416 US 976 (1974). The principle is so obvious (if you mess up, start over!!) that it is in the government's own regulations, e.g., Federal Personnel Manual 752, Subchapter 2-6, and 5 CFR § 752.404(f).
Since 1980, of course, there has been, in addition, significant "intervening change in the legal atmosphere that it renders the bar of collateral estoppel [purported prior review] inapplicable in this case," a concept from Texaco Inc v U.S., 217 Ct Cl 416; 579 F2d 614 (1978), cited in Wilson v Turnage, 791 F2d 157 (CA Fed, 1986), also a federal employee case. One major bit of new evidence is that the department of Justice has reversed position, from its former hostile attitude. See the press release announcing its lawsuit against tobacco companies, at http://www.usdoj.gov/opa/pr/1999/September/428civ.htm and citing in turn, the URL's, http://www.usdoj.gov/civil/cases/complain.pdf (for the lawsuit) and http://www.usdoj.gov/civil/cases/appendix.pdf (for the appendix).
Due process case law shows that if an employee is removed without the condition precedent advance notice having been issued, the employee remains on the rolls entitled to pay and immediate reinstatement. Others receive the benefit of that condition precedent requirement: Money v Anderson, 93 US App DC 130, 134; 208 F2d 34, 38 (1953); Deak v Pace, 88 US App DC 50, 52; 185 F2d 997, 999 (1950), Mulligan v Andrews, 93 US App DC 375, 377; 211 F2d 28, 30 (1954); Smith v Dept of Interior, 9 MSPR 342 (1981); Sullivan v Dept of Navy, 720 F2d 1266, 1274 (CA Fed, 1983); Mercer v DHHS, 772 F2d 856, 858 (CA Fed, 1985); Pittman v Dept of Army, 832 F2d 598 (CA Fed, 1987), etc. Indeed, notice is more than a condition precedent, it is a constitutional due process requirement, required by the Constitution as necessary to enable a person to reply, Cleveland Bd of Educ v Loudermill, 470 US 532; 105 S Ct 1487; 84 L Ed 2d 494 (1985).
(a) comply with 5 CFR 752.404(f) by stating all reasons including ex parte contacts. Sullivan v Navy, 720 F2d 1266, 1273-4 (Fed Cir 1983).
(b) say more than a 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) with "numerous examples of specific errors," Long v Air Force, 683 F2d 301 (CA 9, 1982); and
(iii) "item by item," Mandel v Nouse, 509 F2d 1031, 1032 (CA 6) cert den 422 US 1008; 95 S Ct 2630; 45 L Ed 2d 671 (1975).
In addition, others have had actions taken against them canceled when there was no notice of a qualification requirement or other rule violation by them. When there is in fact no qualification requirement, as here, none for tobacco smoke, that is a jurisdictional matter serving as an absolute bar to the action, Morton v Ruiz, 415 US 199, 231; 94 S Ct 1055, 1072; 39 L Ed 2d 270 (1974); Hotch v U.S., 212 F2d 280, 281 (CA 9, 1954); W. G. Cosby Transfer & Storage Corp v Dept of Army, 480 F2d 498, 503 (CA 4, 1973) (Army has a pattern of law violations); and Onweiler v U.S., 432 F Supp 1226, 1229 (D Idaho, 1977). . Others similarly situated receive the benefit of this jurisdictional principle. Not doing so for me is disparate treatment.
I sued in federal court to get review, specifically, EEOC review, of my appeal of being fired without notice, and without there even being jurisdiction to do the removal. Nobody, and no federal employee, has ever lost a case in such a circumstance (except me, at MSPB!). And my case would be even easier to win, due to the Perez letter citing observing the firing.
However, the sad state of judicial institutions made me the one and only exception. To prevent my appeal being heard, the agency committed fraud on the court, said I, age 34, applied to disability retire myself! retroactively, years after the firing, long after the one-year statute of limitations, contrary to all medical writings!! Got the court to agree to this in December 1989! Retroactive to December 1980. BEFORE The agency admits to ahving removed me! (Had there been such a thing, surely a removal notice would ahve cited it!!) And then they ignored it when my doctor wrote the court and said I did no such thing, I have no medical condition preventing me working!!
Others on "total disability" had to have significant medical data showing 100% inability to do the job! The civil service system provides no "partial disability" (1-99%). The rule was 100% disability necessary to qualify, anything less, application denied.)
However, "once corrupt, always corrupt" (meaning, no retraction even when caught) so I am on total disability at taxpayer expense! That does not promote efficiency of the service, but is contrary to it (the whole idea of course, behind illegally getting rid of a whistleblower. And my appeal of being fired illegally was never heard in the 29 CFR § 1613 system I want!! In addition, I sought review of the TACOM decision to even apply to force me onto disability. TACOM refuses to allow that request for review to be heard either!
This is not the only case of corruption leaving workers in the lurch. Additional data of this type can be found in the book by Samuel S. Epstein, M.D., The Politics of Cancer (San Francisco: Sierra Club Books, 1978). The difference is, I keep fighting to get review! Most give up.
Kenneth Starr, James Ryan, Roy C. Hayes, Jr., Maura Corrigan, Stephen Markman, and/or others in the Federalist Society, with its pre-Civil War Confederate-type views, became involved in my case. See the overview of tobacco lobbyists' connection to Kenneth Starr and the Federalist Society.
As Starr's conduct obstructing my getting EEOC review, violated federal and state law, I filed a complaint on the subject in January 1991 pursuant to this being discriminatory (others are not denied EEOC review on request). Investigation of that complaint is being obstructed as well. This is further obstruction of justice. Starr wants to force others to testify, but he doesn't do so in my case pending against him for now over eight years. But the fact that I have this case pending allows for my issues being raised.
Recently, I filed a petition to attempt to get an order to move the case forward in Washington, D.C. The text of that petition and copies of a couple papers from my voluminous case file are reproduced at the URL links indicated below.
|Appellant's 19 Nov 1976 Appointment|
Citing Violation of Due Process: NO NOTICE OF CHARGES
Being Obstructed 1991-1996: Citing Legal Principles With
Respect To Some of The Crimes Being Aided and Abetted
for Attorneys Being Violated And Attempting To Get
Review To Begin After Being Obstructed 1991-1996
Citing Starr's Apparent Coverup
of Falsehood In Another Case and
My Attempting to Get Review
To Begin After Being Obstructed 1991-1998
To Get Review To begin
To Agency Refusal to Allow Review on Merits
of Kenneth W. Starr and the Like
While decision is pending on whether to even allow review on the merits to begin, the petitioner will continue to post additional materials from the case file, including issues on the merits, as able.
Your assistance is requested. Please write to the President asking him to order a genuine investigation, and when he verifies that no notice of charges was issued me (unlike what is provided to others accused of genuine wrongdoing), to reinstate me.
"Removal" is defined as "A disciplinary separation action, other than for inefficiency or unacceptable performance . . . where the employee is at fault," according to Federal Personnel Manual Supplement 296-33, Subchapter 35, Glossary, page 35-11, pursuant to pre-identified (30 days prior) written notice of charges of violating conduct rules or performance standards, citing the rules, qualifications requirements, and/or performance standards involved as allegedly having been flagrantly and willfully violated, incidents, dates, witness names, etc., and typically citing prior corrective action (warnings, unsatisfactory ratings, reprimands, suspensions, etc.) having failed to secure improvement in performance and/or conduct.
You can easily verify the lack of notice. Cite the Freedom of Information Act, 5 USC § 552. Request a copy of the notice of charges (misconduct, malperformance, etc., warranting disciplinary removal) citing the rules, qualifications requirements, and/or performance standards involved, incidents, dates, witnesses, etc., all 30 days prior to ordering me off the premises. When you get a denial letter, or no response, you will have verified my claim. Of course, when there is no notice, legally the person is on the rolls. Analogy: when there is no divorce decree, there is no divorce, no matter how many years have transpired!
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