Certiorari to the Sixth Circuit in the
Case of Pletten v MSPB, Army and Marsh.
Petitioner's whistleblowing verified and compounded by his win had angered mutinous local management rule-violators. They were using and enabling others use of, a dangerous toxic delivery agent illegal under federal law since 1905 and illegal in Michigan since 1909, illegal for many reasons. Note the government's own publication on the "reputation" of such users. Local agency management, in violation of directives from the agency head and others, retaliated against the whistleblower. They suspended, firing, and retired him, at age 33-34. They did all three violations as they really, really wanted him gone! Next, to obstruct review of what they were doing, they defied EEOC case processing orders. And they ex parte arranged for fraud, fabrication, falsification by judges and others. As was foreseeable, people have died as a result of the rule of law not being obeyed. Additional details are in the Petition. |
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____________________________________ IN THE
LEROY J. PLETTEN, PETITIONER vs. MERIT SYSTEMS PROTECTION BOARD,
RESPONDENTS
PETITION FOR WRIT OF CERTIORARI
PETTION FOR WRIT OF CERTIORARI
A. May a court fail to abide by administrative review orders issued by the Equal Employment Opportunity Commission? B. Where conditions precedent / administrative actions, including review ordered by the Equal Employment Opportunity Commission have not occurred, is there jurisdiction to adjudicate merits before the administrative actions and review have occurred? C. Is there jurisdiction to decide employment issues (such as qualifications, qualified handicapped person, and accommodation) notwithstanding absence of conditions precedent including notice, existence, and publication, in a not-in-employment matter? D. Where conditions precedent / administrative acts including review ordered by Equal Employment Opportunity Commission have not occurred, is there jurisdiction to adjudicate merits of issues other than those to be raised in administrative review? E. May spurious findings of fact, whether or not arising from the lack of conditions precedent / administrative acts and review, be utilized in decisions by federal courts? F. Are spurious findings made apart from the record indicative of bias and prejudice? G. May federal personnel decisions be made by non-impartial persons? H. Where conditions precedent / administrative acts including review ordered by Equal Employment Opportunity Commission have not occurred, should liability for consequences rest upon the party responsible for same?
The opinion by the Court of Appeals (Table, 908 F.2d 973) is in Appendix A, pages 1a-15a. The dismissal by the district court for the Eastern District of Michigan, Southern Division, is in Appendix C, 17a. Its bench opinion is in Appendix D, 18a-19a. A related dismissal by said district court is in Appendix E, 20a. The order by said district court denying plaintiff's motion for summary judgment is in Appendix F, 21a. Its order granting defendants' motion for summary judgment is in Appendix G, 22a-23a. Its order granting defendant JOHN O. Marsh, Jr.'s motion to dismiss is in Appendix H, 24a-25a. Its order granting defendant's motion to strike plaintiff's counsel's affidavit in support of his motion for summary judgment is in Appendix I, 26a- 27a. Its order striking plaintiff's jury demand is in Appendix J, 28a. Its bench opinion is in Appendix K, 29a-31a. The decisions by the Equal Employment Opportunity Commission (EEOC) ordering administrative review to begin are in Appendix T, 51a-66a, and Q, 40a-46a. Initial [anti-whistleblower] decisions by the Michigan Employment Security Commission (MESC) are in Appendix AA, 82a and Z, 80a-81a. The [pro-whistleblower] decision by the MESC Referee reversing them is in Appendix Y, 74a-79a; and denying [the Army's request for] rehearing, in Appendix V, 69a-70a. The MESC decision implementing the Referee's [pro-whistleblower] decision is in Appendix W, 71a. Appellate decisions by the Michigan Employment Security Board of Review are in Appendix S, 49a-50a, and R, 47a-48a. Actions by the Department of the Army are in [Appendices] DD, 87a; CC, 85a-86a; BB, 83a-84a; X, 72a-73a; U, 67a-68a; M, 33a-34a; and L, 32a. Notices by the - Office of Personnel Management are in Appendix P, 38a-39a; and B, 16a; - Office of Management and Budget, in Appendix O, 36a-37a; and by the - Department of Labor, in Appendix N, 35a. In the absence of administrative processing and decisions wherein it would otherwise appear, background material is in Appendices EE, 88a-95a; FF, 96a-102a; HH, 107a-108a; II, 109a-110a; JJ, 111a-112a; and KK, 113a-115a. The trial court's orders were entered 13 December 1988, 25 October 1988, and 24 February 1988. Jurisdiction is an issue herein. Pursuant to the right to sue letters from the Equal Employment Opportunity Commission, Appendix T, 51a-66a, and Appendix Q, 40a-46a, establishing a lack of administrative actions and review, thus a lack of counseling for informed choice by me, continuing from February 1980 - present, all of which are condition precedent to case commencement and jurisdiction by courts to adjudicate merits, the questions presented herein arise. The opinion by the Court of Appeals for the Sixth Circuit was filed on 13 July 1990. Appendix A, 1a-15a. The jurisdiction of this Court is invoked pursuant to 28 U.S.C. 1254(1). CONSTITUTIONAL PROVISIONS INVOLVED U.S. Constitution, Amendment I: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances." U.S. Constitution, Amendment V: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy or life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty. or property. without due process of law; nor shall private property be taken for public use, without just compensation. (Emphasis added to pertinent clause) FEDERAL STATUTORY PROVISIONS INVOLVED 5 U.S.C. 552. (a)(1)(C) - (D): "(a)(1) Each agency shall separately state and currently publish in the Federal Register for the guidance of the public- (C) rules of procedure, descriptions of forms available or the places at which forms may be obtained, and instructions as to the scope and contents of all papers, reports, or examinations; (D) substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretation of general applicability formulated and adopted by the agency; "Except to the extent that a person has actual and timely notice of the terms thereof, a person may not in any manner be required to resort to, or be adversely affected by, a matter required to be published in the Federal Register and not so published." "(b) Any person who has authority to take, direct others to take, recommend, or approve any personnel action shall not, with respect to such authority-- (6) grant any preference or advantage not authorized by law, rule, or regulation to any employee or applicant for employment (including defining the scope or manner of competition or the requirements for any position) for the purpose of improving or injuring the prospects of any particular person for employment." "(a) Under regulations prescribed by the Office of Personnel Management, an agency may take an action covered by this subchapter against an employee only for such cause as will promote the efficiency of the service." "(b) An employee against whom an action is proposed is entitled to-- (1) at least 30 days' advance written notice, unless there is reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment may be imposed, stating the specific reasons for the proposed action." "(d) The head of each agency shall develop and support organized safety promotion to reduce accidents and injuries among employees of his agency, encourage safe practices, and eliminate work hazards and health risks." "Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding." "The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith." "(a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." "(B) Subject to the second sentence of this subparagraph, the term 'handicapped individual' means, for purposes of subchapters IV and V of this chapter, any person who (i) bas a physical or mental impairment which substantially limits one or more of such person's major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment. For purposes of sections 793 and 794 of this title as such sections relate to employment, such term does not include any individual who is an alcoholic or drug abuser whose current use of alcohol or drugs prevents such individual from performing the duties of the job in question or whose employment, by reason of such current alcohol or drug abuse, would constitute a direct threat to property or the safety of others." MICHIGAN STATUTORY PROVISIONS INVOLVED M.C.L. 421.28(1)(c): "(c) The individual is able and available to perform suitable full time work of a character which the individual is qualified to perform by past experience or training, and of a character generally similar to work for which the individual has previously received wages, and the individual is available for such work, full time, either at a locality at which the individual earned wages for insured work during his or her base period or at a locality where it is found by the commission that such work is available." "Any person who shall, either orally or by a written or printed communication, maliciously threaten to accuse another of any crime or offense, or shall orally or by any written or printed communication, maliciously threaten any injury to the person or property or mother, father, husband, wife or child of another with intent thereby to extort money or any pecuniary advantage whatever, or with intent to compel the person so threatened to do or refrain from doing any act against his will. shall be guilty of a felony, punishable by imprisonment in the state prison not more than twenty [20] years or by a fine of not more than ten thousand [10,000] dollars." (Emphasis added to pertinent clause) REGULATORY PROVISIONS INVOLVED "Decision. After considering the employee's retirement file, the Associate Director either approves or disapproves the application. The Associate Director's decision shall be in writing and a copy shall be given to the employee and to the agency concerned. The decision shall set forth the Associate Director's findings and conclusions and shall inform the employee and the agency of the right to request reconsideration by the Associate Director." "An agency shall retain an employee in an active duty status until it receives the initial decision of the Associate Director for Compensation on an agency application for disability retirement, except that the agency on the basis of medical evidence, may place an employee on leave with his/her consent, or without his/her consent when the circumstances are such that his/her retention in an active duty status may result in damage to Government property, or may be detrimental to the interests of the Government, or injurious to the employee, his/her fellow workers, or the general public. If the leave account of the employee is or becomes exhausted, any suspension or involuntary leave without pay shall be effected in accordance with applicable laws, Executive orders, and regulations. "An aggrieved person may initially file a mixed case complaint with an agency, pursuant to this part, or (s)he may file a mixed case appeal directly with the MSPB, pursuant to 5 CFR 1201.151, but not both. An agency shall inform every employee who is the subject of an action which is appealable to the MSPB and who has raised the issue of discrimination either orally or in writing, during the processing of the action, of his/her right to file a mixed case complaint, if the employee believes the action to be based, in whole or in part, on discrimination, or to file a mixed case appeal with the MSPB. The person shall be advised that (s)he may not initially file both and that whichever is filed first (the mixed case complaint or the appeal) shall be considered an election to proceed in that forum. For the purposes of this subsection, filing of a mixed case complaint occurs when the complaint is filed with an appropriate agency official, in accordance with § 1613.214 (a)(3) of Subpart B of this part." "(a) 'Handicapped person' is defined for this subpart as one who: (1) Has a physical or mental impairment which substantially limits one or more of such person's major life activities, (2) has a record of such an impairment, or (3) is regarded as having such an impairment." "(f) 'Qualified handicapped person' means with respect to employment, a handicapped person who, with or without reasonable accommodation, can perform the essential functions of the position in question without endangering the health and safety of the individual or others and who, depending upon the type of appointing authority being used: (1) Meets the experience and/or education requirements (which may include passing a written test) of the position in question, (2) meets the criteria for appointment under one of the special appointing authorities for handicapped persons." "(a) An agency shall make reasonable accommodation to the known physical or mental limitations of a qualified handicapped applicant or employee unless the agency can demonstrate that the accommodation would impose an undue hardship on the operation of its program." "Applicability and scope. The provisions of this part apply to the Office of the Secretary of Defense, the Military Departments, the Organization of the Joint Chiefs of Staff, the Defense Agencies, and the Army-Air Force Exchange System. This part applies to all DoD occupied facili- ties. It does not cancel or supersede other instructions where smoking is controlled because of fire, explosive, or other safety considerations." "203.3 Background. The Surgeon General of the United States has determined that the smoking of tobacco can constitute a hazard to health. DoD recognizes the right of individuals working or visiting in DoD occupied buildings to an environment reasonably free of contaminants. DoD also recognizes the right of individuals to smoke in such buildings, provided such action does not endanger life or property, cause discomfort or unreasonable annoyance to nonsmokers, or infringe upon their rights." "2. General. a. The Surgeon General of the United States Public Health Service has determined that the smoking of tobacco can constitute a hazard to health. DA recognizes the right of individuals working in DA occupied buildings to an environment reasonably free of contamination. DA also recognizes the right of individuals to smoke in such buildings, provided such action does not endanger life or property, cause discomfort or unreasonable annoyance to nonsmokers, or infringe upon their rights." "b. The provisions are also applicable to DA elements occupying Federal Government owned and leased space which is assigned by GSA, and space obtained on use permit, or normal rental or rent free basis. In such cases, the Department policy will apply within the confines of the assigned space over which DA has exclusive custody and control. It does not cancel or supersede other instructions where smoking is controlled because of fire, explosive, or other safety considerations." "3-5. Reports of unsafe or unhealthful conditions. a. Reports of unsafe or unhealthful conditions by Army personnel are important in detecting hazards that cause accidents. Such reports will be handled at the operating level to ensure prompt, efficient processing. However, provision will be made as outlined below for personnel to bring such complaints directly to installation level, bypassing intermediate commands or supervisory elements." name="pxxvii385b">Army Regulation 385-10.3-5b.: "Commanders will publicize all channels for reporting unsafe or unhealthful conditions, emphasizing personnel responsibility for making such reports. Personnel will be directed to use the available means in this order of priority: (1) Oral reports directly to the supervisor. (2) Reports through operational channels where established. (3) Reports through a special reporting system designated the Army Hazard Reporting System." Army Regulation 600-63.4-1.a.: "a. Smoking tobacco harms readiness by impairing physical fitness and by increasing illness, absenteeism, premature death, and health care costs. Readiness will be enhanced by establishing the standard of a smoke-free environment that supports abstinence from and discourages use of tobacco." Army Regulation 600-63.4-1.d.: "d. This policy does not cancel or supersede other instructions that control smoking because of fire, explosive, or other safety considerations." "14-27. Definition. A temporary non-pay status and absence from duty during regularly scheduled work hours granted/approved at the employee's request." TACOM Regulation 600-5.14-28.a: "a. Supervisors may not direct the use of leave without pay (LWOP). Leave without pay may be charged only upon an employee's request or consent. However, such consent is understood when an employee applies for and is granted another type of leave where leave balance(s) are insufficient to cover. The only exception is when the commander authorizes excused absence for reasons beyond management control and an employee is not eligible for excused absence. (See "Excused Absence," page 23)." TACOM Regulation 600-5.14-28.d: "d. Leave without pay will be granted only when there is reasonable assurance of return to duty after the absence."
TACOM, says the U.S. Equal Employment Opportunity Commission ("EEOC"), "as early as February, 1980 . . . denied [me] EEO counseling and prevented [me] from filing [EEO] complaints" (App. T, 53a); and Counseling is condition precedent to review, including judicial review, of EEO matters. This case concerns the lack of (a) conditions precedent for TACOM's conduct, and (b) conditions precedent for review. TACOM issued me favorable ratings, awards, promotions, and appreciation for my good performance of my job. 1 Praise and recognition of my good performance is from both within and without my assigned organization. App. EE, 88a-95a. TACOM has an Employee Recognition Program for employees with
low use of sick
leave. Praise of my attendance record, and my never using sick leave, came from many TACOM officials. App. EE, 88a-95a. I took my duties seriously. Personnel officials must set a sterling example of integrity, good behavior and compliance with rules so as to have the credibility to deal with others' violations. I did. We in personnel must know a law as basic as 5 U.S.C. 7902(d), which says to “encourage safe practices, and eliminate work hazards and health risks.” Army Regulation ("AR") 385-10.3-5a. and b. has words “emphasizing personnel responsibility for making . . . reports" "of unsafe or unhealthful conditions.” TACOM employees were endangered. 1
TACOM's own Dr. Francis J. Holt admits why TACOM employees were endangered. He admits against interest TACOM's bad ventilation system and the resultant hazard to all: “. . . mechanical failures happen all the time." (Deposition, page 25). The universal malice3 conduct injured
my co-worker Evelyn Bertram. She filed a workers compensation claim,4 Matter of Bertram, Case A9-190131 (1977), which was approved. To avoid reprisal, she did not ask halt of the hazard [smoker conduct that had injured her].
I took my job duty set by AR 385-10. 3-5.a. and b. seriously: in 1979, I "blew the whistle" on the universal malice hazardous [smoker] conduct.5 Army investigated TACOM and told it to obey 32 C.F.R. 203.3 / AR 1-8.2a conditions precedent (precluding smoking being permitted when it endangers others) as
5 As accommodation relates to matters in "employment," 29 C.F.R. 1613.702(f), which smoking behavior is not in, I did not label my whistleblowing an "accommodation" matter. Neither I, nor any personnel worker, find smoking to be in employment / "an accommodation" matter. mandated by 5 U.S.C. 7902(d) ("eliminate work hazards and health risks"). App. BB, 83a, is TACOM acceptance [of the Army investigation of TACOM], mandatory pursuant to Spann v. McKenna, 615 F.2d 137 (3rd Cir. 1980). In reality, TACOM did not obey. EEOC confirms at App. T, 53a. Col. Benacquista against interest admits undermining his own [acceptance] order: "All he had to do was to say, 'I agree that this [TACOM jobsite] is reasonably free of contaminants.'" (4/23/82 Dep. p. 62). "All" I "had to do was to" change my anticipated testimony, or be put on enforced leave, fired, retired. "All he [I] had to do was to" lie, deny the extant hazardous conduct; I'd still be at TACOM. Same is extortion. M.C.L. 750.213 [MSA § 28.410]; People v. Atcher, 65 Mich.App. 734 [238 NW2d 389] (1975).
TACOM addicts, in reaction to my job duty whistleblowing about their hazardous conduct, began a pattern of reprisal and discrimination described by EEOC. App. T, 53a and (57a. The pattern includes: (a) denial of EEO counseling and refusal to process my review requests after February 1980, i.e., refusal to let administrative processing begin; (b) treating my whistleblowing as a medical condition. E. E. Hoover, who was not impartial (his own [smoking] conduct [mental disorder] was at issue) applied [in retaliation for my exposing this] to retire me at age 34; and (c) placing me on retroactive leave without pay ("LWOP"). App. X, 72a-73a. TACOM Regulations 600-5.14-27 and 28.a. preclude enforced LWOP. 5 C.F.R. 831.1206 (1980) mandates retention in "active duty status until . . . the initial decision of the Associate Director for Compensation" pursuant to 5 C.F.R. 831.1204(b) (1980). No such decision has been made. As this condition precedent for LWOP is lacking, once administrative review begins, an EEO counselor will find that TACOM must retain me in "active duty status." No "30 days' advance written notice" was issued citing a medical qualification by which to do "medical disqualification." TACOM did it anyway. App. U, 68a, Item 30. There is no such requirement. App. P, 39a; O, 36a; N, 35a; and B, 16a. Lack of this condition precedent, set by 5 U.S.C. 7513 (b), is (a) undisputed, and (b) "a jurisdictional point," Hotch v. U.S., 212 F.2d 280, 281 (9th Cir. 1954). TACOM provided no data on choice of a "forum." 29 C.F.R.1613.403. Such data is condition precedent to my making an informed "forum" choice. Absent "forum" choice data, I sought EEO counseling [step one of the multi-step EEOC review process]. Continuing TACOM's pattern since Feb. 1980, TACOM "denied [me] EEO counseling" on the removal. TACOM did no counselor interview; no counselor report; no complaint investigation; no offer of hearing; no hearing; i.e., none of the review that others receive. As I was and am eager, ready, willing and able to do the whole job (more than just the "essential functions," and as my record shows, better than peers, App. EE, 88a-95a, I sought and won unemployment compensation pursuant to Michigan M.C.L. 421.28 (1)(c). 6 Apps. Y, 74a-79a; and W, 7 la. TACOM appeals lost. Apps. V, 69a-70a; S, 49a-50a; and R, 47a-48a. 7 I repeatedly return to work See Bevan v. N. Y. St. T. R. Sys., 74 Misc. 2d 443 [345 NYS2d 921] (1973), a parallel non-requirement case. As that employee continued to return to work, as he met all actual job requirements of record, so do I.
7 When administrative review begins, I will seek res judicata effect for these decisions pursuant to Polk v. Yellow Freight Sys., Inc., 801 F.2d 190, 192-3 (6th Cir. 1986), as would now be in effect but for TACOM fear of, and refusal to do, the EEOC-ordered review. Under the circumstances each of which "divests the removal . . . of legality, leaving the employee on [the] rolls of the employing agency and entitled to his pay," Sullivan v. Dep't. of Navy, 720 F.2d 1266, 1274 (Fed. Cir. 1983). The pattern of misconduct here in described arises because federal agencies ". . . go well beyond merely defeating a whistleblower . . . prove to others that no one is safe . . . make the most outrageous charges possible . . . A soft-spoken, self-effacing individual will be branded a loud-mouthed ego-maniac . . . for purposes of teaching others a lesson, the more obvious the inconsistency [with truth and law] the better . . . ." Thomas M. Devine, Donald G. Aplin, "Whistleblower Protection--The Gap Between the Law and Reality," 31 Howard Law J. [#2] 223, 226 ([Winter] 1988). At 231-2, they report that a now federal appeals judge [Alex Kozinski] taught "a course for federal managers on how to fire employees without [review] . . . how to avoid conceding first amendment violations and still fire whistleblower . . . for exposing . . . safety violations." With this training from a now appeals judge, agency misdeeds would be tailored:
That is what was taught, and what we find. TACOM Col. John J. Benacquista says: "if you looked at them closely it's quite obvious in there that what the doctor was saying was that the environment in his [my] present work space was not reasonably free of contaminants." (Dep. p. 24). He told the truth -- against interest in view of the [extortion] charge against him (page 6 above) which could have led him to misrepresent what was said [by the doctors]. Smoking is a "specific disease," "one of our most serious diseases," "spreading infection," App. FF, 96a, a universal malice hazard, "a danger to life itself." "It threatens a substantial body of the population." App. FF, 99a. It causes the hazard Col. Benacquista cites, as a major symptom of the disease smoking is a propensity to repeatedly violate safety rules. App. FF, 98a, 102a. Being a nonsmoker (as I am) is not a disease, not a medical condition. The court rulings below [filled with spurious findings] obscure that fact. It is smoking that is the disease at issue. A smoker is a person with: "medical findings which . . . would make him a hazard to himself or others." (Standard Form 78). [Ed. Note: This proviso against negligent hiring is easily followed. The law already long precluded hiring anyone with such "medical findings." Had this criterion been adhered to, the 13 Washington, D.C. Navy Yard deaths on 16 September 2013 would have been prevented, as the perpetrator would not have been hired in the first place.] Congress in 5 U.S.C. 7902(d) says to "encourage safe practices, and eliminate work hazards and health risks." 8 Congress does not say to exempt smokers. The decisions below turn the law
A. THIS CASE PRESENTS THE IMPORTANT FEDERAL QUESTION OF ENFORCEABILITY OF DECISIONS OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. The U.S. General Accounting Office ("GAO"), repeatedly finds the EEO system has widespread inadequacies, e.g., lack of counseling, timeliness, solid investigations, and follow-up system to assure that agencies do obey EEOC orders when an employee has so good a case as to overcome the obstacles and obtain an EEOC [processing] order. GAO says EEOC even fails to act timely, if at all, on previous GAO findings. The GAO Reports include: "The Equal Employment Opportunity Commission Has Made Limited Progress in Eliminating Employment Discrimination," HRD-76-147 (28 September 1976) "Age Discrimination and Other Equal Employment Opportunity Issues in the Federal Work Force," Letter B-205303 (20 November 1981) This case arises from that context. EEOC twice ordered administrative review. App. T, 51a-66a, and Q, 40a-46a. TACOM refuses to obey. Without 5 U.S.C. 7513(b)(1) notice, to punish me for my [AR 385-10] job duty pro-rule [first Amendment freedom of] expression, TACOM put me on enforced leave, fired me, and retired me, each act predicated upon the prior act. 9 TACOM had made me a Crime Prevention Officer. App. DD, 87a. Anti-whistleblower teaching (pp. 10-11 above) says to tailor attack to the
whistleblower's background.
TACOM did [tailor reprisal to my background], resorting to extortion, p. 6. TACOM refuses to obey EEOC's two orders to begin review. 10 It said 30 days. Compounding system inadequacies, the court denied jurisdiction to enforce the EEOC orders, App. E, 20a, the subject of my petition (89-7594) for certiorari. Since then, the court changed position. It has now summarily overturned the
"flight [from review] has probative value to guilt . . . United States v. Crisp (7th Cir. 1970), 435 F.2d 354. This is the general rule followed in the criminal law. 29 Am. Jur. 2d Evidence secs. 278-80 . . . (1967)." Wangerin v. State, 73 Wis.2d 427, 243 N.W.2d 448, 453 (1976). TACOM refuses to do as it was ordered to do. Why? to prevent resolution of the underlying extortion (p. 6). Extortioners refuse "to process grievances." U. S. v. Russo, 708 F.2d 209, 212 (6th Cir. 1983). EEOC orders (Apps. T and Q, 43a) to review the "different incidents several months apart." App. A, 13a-15a. TACOM has not let processing begin on my evidence (on sex/race discrimination) on the incidents. Other courts enforce, not overrule, EEOC orders., e.g., the Eleventh Circuit: "the applicable federal regulations and case law . . . require that the district courts enforce final EEOC decisions favorable to federal employees when requested to do so." Moore v. Devine, 780 F.2d 1559, 1560 (11th Cir. 1986). The District of Columbia Circuit Court of Appeals allows coming "to court seeking interlocutory supervision of the administrative processing of his discrimination claims . . . to force investigation." Anthony v. Bowen, 270 U.S. App.D.C. 246, 250, 848 F.2d 1278, 1282 (1988). The Sixth Circuit itself admits that "a federal employee can request a federal court to enforce a favorable EEOC order." Haskins v. Department of Army, 808 F.2d 1192, 1199 (6th Cir.), cert. den., 484 U.S. 815 (1987). EEOC decisions use a stronger word ("mandatory") than "request." App. T, 58a; and Q, 45a. Though the agency could have sought reopening within "time limitations" cited, App. T, 61a, it made no request. So it was sua sponte of the Sixth Circuit to overturn the EEOC orders. App. A, 13a-15. As that different reaction (a sua sponte summary reversal instead of either compliance or enforcement) so markedly at variance from what EEOC said and from what other circuits say shows a conflict with EEOC and/or between circuits, this Court should grant this petition to be enabled to resolve this important nation - wide issue of compliance with EEOC orders. Causing compliance to be done as of the date it would have been done but for refusal will induce agencies to obey EEOC order voluntarily, reduce need for resort to court enforcement requests, and so promote judicial economy. B. THIS CASE PRESENTS THE IMPORTANT FEDERAL QUESTION OF JURISDICTION OF COURTS TO DECIDE MERITS BEFORE THE CONDITIONS PRECEDENT ADMINISTRATIVE PROCESSING HAS OCCURRED EEOC found my access to administrative review ceased February 1980. App. T, 53a. That finding is both res judicata and the law of the case. Lack of administrative action has a deep consequence. The court concedes this is a mixed case. App. A, 10a. 29 C.F.R. 1613.403 requires agencies to "inform every employee who is the subject of an action which is appealable to the MSPB and who has raised the issue of discrimination orally or in writing . . . of his/her right to file a mixed case complaint . . . or . . . appeal . . . whichever is filed first shall be considered an election to proceed in that forum." TACOM "placed [me] on leave without pay on December 14, 1980," App. A, 2a; App. X, 72a-73a, Items 12, 13, and 14, effected retroactively. Item 35. TACOM removed me 22 January 1982. App. U, 67a-68a, Items 12 and 13 with under ten days notice. Item 35. The significance is, this occurred after [the review access cut-off] February 1980. 11 "To decide the case we need look no further than the maxim that no man may take advantage of his own wrong."Glus v. Brooklyn Eastern District Terminal, 359 U.S. 231, 232 [79 S Ct 760, 762; 3 L Ed 2d 770, 772] (1959). Deciding my case in disregard of EEOC's processing orders does "take
advantage of [TACOM's] own wrong." Others receive [the 29 CFR § 1613 EEO process starting with] counseling. 12 TACOM is treating me differently. Courts cannot attain jurisdiction to decide merits of my situation when "accomplished through the violation of a controlling regulation," Piccone v. U.S., 186 Ct. Cl. 752, 762, 407 F.2d 866, 871 (1969), relying on Service v. Dulles, 354 U.S. 363 (1957). Compliance with the "mandatory" EEOC processing orders has not occurred. Judicial review on the merits "is suspended until the condition is performed . . . . performance of the condition must precede the execution [merits decision] . . .'till then . . . there is only an expecta-tion . . . pendente conditione nondum debetur, sed spes est debitum iri.'" City of New Orleans v. Tex. & P. Ry. Co., 171 U.S. 312, 333, 18 S.Ct. 875, 883, 43 L.Ed. 178, 186 (1898).____________________________ 12 Courts take judicial notice of counselor reports. Suarez v. Chmn.of Bd. of Directors of FDIC, 692 F.Supp. 43, 46-47 (D.P.R. 1988). Not citing [by the CA 6 decision] any confirms that counseling has not occurred. The condition precedent doctrine does apply to cases, 13 e.g., in a matter that "is a condition precedent to commencing the action. That condition not having been met, the action was never commenced. The petition could not be amended after the condition was met. A pleading in an action never commenced cannot be amended." Siemering v. Siemering, 95 Wis.2d 111, 115 [288 NW2d 881, 883] (1980). "A pleading in an action never commenced cannot be amended" [or decided]. Absent [the multiple] conditions [precedent herein cited], the court decisions below "never commenced." This Court should take this opportunity to affirm that courts should not adjudicate cases "never commenced." Deciding only "commenced" cases will promote judicial
economy.
C. THE DECISION BELOW CONFLICTS WITH THE HOLDINGS OF THIS COURT IN Morton v. Ruiz, 415 U.S. 199 (1974) AND Bowen v. City of New York, 476 U.S. 467 (1986). "Workmen are not employed to smoke." MTM Corp. y. Mid-Cont. Petroleum Corp., 49 F.2d 146, 150 (10th Cir. 1931). [Federal] Standard Form 78, Certificate of Medical Examination, which we in [federal] personnel [work] use to avoid reckless selection/retention, 34 A.L.R.2d 372 (1954), precludes hiring an applicant (e.g., a smoker / drug user) with any him a hazard to himself or others." Smokers do not meet this hiring criterion, a well established fact alluded to in Austin v. State, 101 Tenn. 563, 566-7 [48 SW 305; 70 Am St Rep 703 (1898) [aff'd 179 US 343 (1900)]. App. FF, 97a. So as a precluded factor, smoking cannot be used to measure a nonsmoker's job performance, handicap or accommodation, all of which "relate to employment." 29 U.S.C. 706(7)(B). [Ed. Note: The duty to avoid negligent hiring is easily complied with. The law already long precluded hiring anyone with "medical findings which . . . would make him a hazard to himself or others," quoted from the federal applicant analysis form, Standard Form 78.] Bowen v. City of New York, 476 U.S. 467 [106 S Ct 2022; 90 L Ed 2d 462] (1986) rejects secret eligibility rules. Morton v. Ruiz, 415 U.S. 199 [94 S Ct 1055; 39 L Ed 2d 270] (1974) uses 5 U.S.C. 552.(a)(1) to invalidate an unpublished qualification standard. Here, the premature [CA 6] court decision 14 relies on - secret tobacco qualification requirement - secret job description requirement, and - secret proof smoking is in employment. None of these exist. Smoking is not in employment. 20 A.L.R.3d 893 [1968]. Nothing of record puts smoking "in employment": no law, no
regulation, no job description, no qualification standard. Apps. P, 39a; O, 36a; N, 35a; and B, 16a. (If it [smoking] were [indeed] required [as a
qualification], I need not meet it; see [qualifications]waiver [for the very same job at issue!]: App. CC, 86a, Item 30). Army does not say
smoking has any trait [characteristic, feature] that brings it into "employment." Its [the Army's own] Proclamation calls it [smoking conduct] a behavior "to eliminate." App. M, 33a. Smoking is not job "essential functions," and will not be found in any job description, once "individualized inquiry" on job description requirements begins. Hall, 857 F.2d, 1078-9.
Though adjudicating a matter "with respect to employment," 29 C.F.R. 1613.702(f), the courts below never assert smoking is in it. App. G, 22a-23a; App. K, 29a-31a; and App. A, 6a. The absence is conspicuous and is plain error. Case law (which the courts below departed from) has a long record that it "apparently follows the rule of the English courts that the act of smoking in itself is not in the course of the employment, but . . . the employer will be liable for damages caused by smoking . . . liable despite the care he has taken to prevent smoking . . ." George v. Bekins Van & Storage Co., 33 Cal.2d 834, 841, 205 P.2d 1037, 1042 (1949). The government won a case on the same point, getting the First Circuit to rule against smoking being in employment. In Merritt v. United States, 332 F.2d 397, 398-9 (1st Cir. 1964), "A sergeant . . . negligently set fire to the house by smoking in bed . . . Plaintiff . . . contends that . . . was in the scope of his employment. We would need persuasive authority to show that . . . ." Of course, there wasn't (and still isn't) any such "persuasive authority." "Cigarette smoke . . . is not a natural by-product of . . . business. Plaintiff works in an office. The tools of her trade are pens, pencils . . . a telephone. There is no necessity to fill the air with tobacco smoke in order to carry on . . . business . . . It is evident that [I am] confronted with a [behavior / gateway drug use of] a nonnecessary toxic substance," Shimp v. New Jersey Bell Telephone Co., 145 N.J. Super. 516, 523-4, 368 A.2d 406, 411 (1976). Smoking is not in employment, so no requirement to tolerate smoking is found in selection criteria, tests, background investigations, performance prediction material, promotion criteria, etc. These are personnel basics. U.S. v. City of Chicago, 549 F.2d 415, 429-434 (7th Cir.) cert denied, 434 U.S. 875 (1977). 15 If there were a direct accusation saying I fail to meet the non-requirement, which there is not [as there was no 5 USC § 7513 notice of charges, whether misconduct, malperformance, or anything], that [my not
meeting the non-requirement not in employment] "can never prevent
performance of the job,"
Montgomery Ward v. Bureau of Labor, 280 Or.
163, 166 [570 P2d 76; 16 FEP 80] (1977). Absence of existence and
publication is "a jurisdictional point,"
Hotch,
212 F.2d 281. 16 Respondents' "complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all of the other facts immaterial." App. A, 5a. When [29 CFR § 1613 EEO] administrative review begins, a counselor will find I have no handicap so need no accommodation to do my 'essential functions." As my work record shows, App. EE, 88a-95a, I do my essential functions / duties well, better than my peers. App. EE, 9la and 95a. Other personnel workers are complained about; I receive praise. I need no accommodation [for all the reasons cited herein and to be cited once administrative review begins] as [for example] the matter is not in employment. Your Morton and Bowen [precedents] show that both existence and publication are conditions precedent to an alleged disqualification, here one (at App. U, 68a, Item 30) used to
assert an unreasonable "accommodation" need. There is no tobacco qualification requirement to "relate to employment" by which to disqualify me. Black's Law Dictionary (5th ed. 1979) defines "employment" at page 471 in words including the following: "occupation, profession, trade, post or business . . . Includes the doing of the work and a reasonable margin of time and space required." Smoking is not "required," is not in employment, so cannot be a factor for a 'qualified handicapped person" determination nor for removal. One falls, both fall. Refuting one, refutes both. Even if there were a tobacco qualification standard (there is not), Morton, 415 U.S., 231, says: "the agency must, at a minimum, let the standard be generally known so as to assure that it is being applied consistently and so as to avoid both the reality and the appearance of arbitrary denial." In Morton, 415 U.S., 232, you say: "determination of eligibility cannot be made on an ad hoc basis." 17 You say why in Norton, 415 U.S., 232: "to avoid the inherently arbitrary
Administrative review will find glaring inconsistency. Army repeatedly gave me awards for superb performance of duties on the same job for which it both (a) issued me a qualifications waiver (App. CC, 86a, Item 30) of actual requirements and (b) disqualified me in relation to a non-requirement (App. U, 68a, Item 30). "The command of the Administrative Procedure Act [5 U.S.C. § 500 et seq. (1946)] is not a mere formality. [People] are entitled to have notice of the standards." Berends v. Butz, 357 F.Supp. 143, 155 (D.Minn. 1973). This is not Army's first offense of non-compliance with 5 U.S.C. 552.(a)(1). [See prior violation cited in] W. G. Cosby Transfer & Storage
Corp. v. [Army Secretary] Froehlke, 480 F.2d 498 (4th Cir. 1973).
But here, a "qualified handicapped person" determination is made apart from
—any published factor in employment, and
—any showing of duties purportedly to be accommodated. (There is no showing of such duties as there was no 5 U.S.C. 7513 (b)(1) advance notice on point.)
You say in Morton, 415 U.S., at 235:
When administrative review begins, a counselor will find I have the
education and experience to qualify to do the job's essential functions, did
them for years, and TACOM issued me recognition and awards for doing
so. App. EE, 88a-95a.
A counselor will find that many Army personnel took the time,
sua sponte, to
put in writing my faithful attention to duty, dedication, diligence,
responsiveness, positive attitude, cooperation, efficiency, and superior
performance.
In personnel work, we hire and fire employees; we increase and
reduce employee pay, etc. Though personnel work is "a very difficult
functional area," App. EE, 91a, officials complained about other personnel
workers, but not about me. Their sua sponte praise is worthy of great
weight.
TACOM and I had a good relationship for years--till the time of
the extortion, the events of pages 6-7 herein, and all they led to. In this
context, let us note the standards for "qualified handicapped person" and
"accommodation" in depth.
As the body of case law shows smoking is not in employment, and
"qualified handicapped person" is for "with respect to employment," 29 C.F.R.1613.702(f), the term is not reachable.
Three definitions of "Handicapped person" are in 29 U.S.C. 706(7)(B) and 29 C.F.R.1613.702(a). Definition one is:
"Has a physical or mental impairment which substantially
limits one or more of such person's major life activities."
When administrative review begins, a counselor will find I have no
"impairment" that "limits" any of my "major life activities." App. EE,
88a-95a. TACOM's own Dr. Francis Holt admits against interest:
"And there's a hazard for all these other people. Isn't that
also true? Yes. Yes.
Have you been asked --
People smoking in their vicinity is hazardous to them.
Have you been asked for medical disqualification for any of
those other people [named]?
No." (Holt's 5/21/82 Dep. p. 42.) 18 Definition two of 29 U.S.C. 706(7)(B)
and 29 C.F.R. 1613.702(a) is: "Has a record of such an impairment." When review begins, a counselor will find the "record" shows no "such an impairment," only good performance. App. EE, 88a-95a. Definition three of 29 U.S.C. 706(7) (B) and 29 C.F.R.1613.702(a) is, "is regarded as having such an impairment." When review begins, a counselor will find the record shows I was not so "regarded,' App. EE, 88a-95a; and my supervisor Carma Averhart said when asked: "Did you consider Mr. Pletten handicapped? When review begins, a counselor will find I have the education and experience to qualify to do, and do well, all duties/essential functions of the job; was one of few praised, App. EE, 88a-95a, i.e., am a qualified person with a record of doing the job functions better than peers. "What usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not," Texas & Pac. By. v. Behymer, 189 U.S. 468, 470 [23 S Ct 622, 623; 47 L Ed 903] (1903). I am a qualified person. Period. By the standard (is the matter of
smoking in employment? -- No), spurious issues of "qualified
handicapped person" and accommodation are not reachable, not relevant.
The court decisions at App. K, 29a-31a; G, 22a-23a; and A, 4a-9a, in
discussing such issues, are dicta. 19
Mine is the normal situation in assessing qualifications. Every day in personnel we see people who are qualified to do jobs. Qualified is the key word. I am qualified. I have no handicap. 20 Accommodation is for people who genuinely need it. Many people
in the federal service and nation actually have such a need. I am not one
with such need.
This Court as long ago as 1903 said standard." Behymer, 189 U.S., 470. Because it is vital for people who actually do need accommodation that courts stick to the standards for deciding such matters, this Supreme Court should grant certiorari to emphasize the importance of abiding by the actual standards for deciding "qualified handicapped person" status and accommodation. Disregard of 5 U.S.C. 552 (a)(1) is recurring despite your rulings. A pattern of [government and lower court] disrespect for basic principles in the glaring manner shown, provides you basis to [correct them and] reaffirm the law. You are respectfully requested to grant this petition and put a stop to the pattern of disregard. D. THIS CASE PRESENTS THE IMPORTANT FEDERAL QUESTION WHETHER A CASE MAY BE ADJUDICATED ON ISSUES OTHER THAN TO BE RAISED IN ADMINISTRATIVE REVIEWWhen administrative review begins, I shall raise issues other than "qualified handicapped person" and "accommodation" [the spurious confabulations the lower courts were ex parte suborned to fixate upon] The following are examples [of what my real issues will be]: (1) Sex and race discrimination as TACOM treats me differently than my peers, e.g., Evelyn Bertram, etc. "Comparison with a single employee is sufficient to meet [my] burden of proof (see McDonald v. Santa Fe Trail Transportation Co. (1976), 427 U.S. 273, 96 S.Ct. 2574, 49 L. Ed. 2d 493), so long as the conduct engaged in is of comparable seriousness." Clark Oil & Refining Corp. v. Golden, 114 Ill.App.3d 300, 448 N.E.2d 958, 964 (1983). My work record shows only good conduct and performance better than peers. App. EE, 88a-95a. There was no "statement or citation of the written regulations that [I] was said to have violated [and] a detailed statement of the facts relating [same]," Boilermakers v. Hardeman, 401 U.S. 233, 245 [91 S Ct 609, 617; 28 L Ed 2d 10, 21] (1971). When review begins, a counselor will find no misconduct, no performance deficiency, no 5 U.S.C. 7513(b)(1) "advance written notice" alleging any; so will find sex and race discrimination vis-a-vis others: my better than equal performance and conduct. (2) Sex and race discrimination re the lack of a 5 U.S.C. 7513(b)(1) "advance written notice." TACOM experience is that some 30 day notices it issues make charges not later upheld. But TACOM never ousted an employee without advance notice/charges (conduct/performance or both). Charges are required, advance charges. Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532 [105 S Ct 1467; 64 L Ed 2d 494] (1985). When review begins, a counselor will find sex and race discrimination vis-a-vis others: others receive notice/charge(s.) (3) Sex and race discrimination re TACOM refusal to obey (a) TACOM Regs. 600-5.14-27 and 28.a against enforced leave without pay; and (b) 5 C.F.R. 831.1206 (1980) re of the Associate Director for Compensation" pursuant to 5 C.F.R. 831.1204(b) (1980), whose decision has not yet been issued. When review begins, a counselor will find sex and race discrimination vis-a-vis others; these rules are obeyed for others. (4) Sex and race discrimination re TACOM refusal to have long ago dealt with this case at counselor level. When administrative review begins, a counselor will find sex and race discrimination, i.e., that others (a) receive counseling, and (b) sooner than years after-the-fact. (5) Sex and race discrimination re TACOM reprisals against me for my AR 385-10.3-5a. and b. job duty freedom of expression. Rankin v. McPherson, 483 U.S. 378, 384 [107 S.Ct. 2891, 97 L.Ed.2d 315] (1987), on Amend. I balances non-job duty freedom of speech and employer interest in efficiency and discipline. A counselor will find the agency and I have an identity of interest. I do the same as other personnel workers do: quote and support the employer's own writings and rules (even if offenders disagree). 21 Texas v. Johnson, 491 U.S. _[397]_, 109 S.Ct. 2533, 2545, 105
L.Ed.2d 342, 360, again rejects acts to "prescribe what shall be orthodox."
A counselor will find that underlying this case is that at TACOM, it is not
"orthodox" to express the hazard and smoking's role in discipline,
alcoholism, and drug abuse. TACOM's Col. Benacquista gives the addict [hostile] view of law: "It doesn't make sense to have a Command getting involved in the personal habits of its employees" (Dep. p. 25) 22 Addicts' judgment is impaired, App. FF, 96a, so feel compliance is unreasonable. When administrative review begins, a counselor will find sex and race discrimi-
nation basis that others are not "placed" on enforced leave or removed due to their [job duty / freedom of] expression on personnel safety issues. 23 When courts adjudicate cases before the administrative review [i.e., before they have heard the case, before it is ripe for decision] can be, and here are, on matters other than to be raised in the administrative review. This Supreme Court should take this opportunity to affirm that courts cannot adjudicate EEO cases before administrative processing on actual issues to be raised.
E. THIS CASE RAISES THE IMPORTANT FEDERAL QUESTION OF THE USE OF SPURIOUS FINDINGS OF FACT. This Supreme Court does "enforce constitutional liberties even when denied through spurious findings of fact in a state court" (citation omitted). Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U.S. 287, 299 [61 S Ct 552; 85 L Ed 836] (1941).
(1) A spurious finding says leave without pay (LWOP) was "because TACOM was unable to 'reasonably accommodate' plaintiff's medical condition." App. A, 2a. The document (App. X, 72a-73a, Item 30) says no such reason. Item 14 ("Civil Service or Other Legal Authority") is blank.
(a) The spuriousness avoids saying the LWOP was retroactive, not issued till 4 Aug. 1981. App. X, 63a, item 35. (b) The "December 14, 1980" date is spurious. App. A, 2a. James Beeler, TACOM Chief, Civilian Pay Section, responsible for pay accuracy, cites my "Last Day of Pay - 9 March 1981." App. L, 32a. (c) Calling it "leave" is spurious. I did not request leave. TACOM Regs. 600-5.14-27 and 28.a preclude being "placed" on "leave without pay." (d) Calling it "leave without pay" at App. A, 2a, is spurious. The statutory precise correct word is "suspension." The term used evades allowing review, imposed without 5 U.S.C. 7513(b)(1) notice. (e) It is spurious to connote "accommodation." The district court found: "the new policy is not one of accommodation . . ." App. K, 31a. The [CA 6] spurious finding contradicts that. (f) Compliance with 5 U.S.C. 7902(d) on universal malice hazardous conduct is not accommodation. TACOM disobeys 5 U.S.C. 7902(d), accommodating smokers (a distinct issue other than accommodating me). Col. Benacquista admits: "All he had to do was to say, 'I agree that this [TACOM job site] is reasonably free of contaminants [notwithstanding the hazard to all].'" (4/23/82 Dep. p. 62). Accommodation had not [yet even] been considered on 4/23/82, much less, before, in December 1980. Extortion, not compliance with 5 U.S.C. 7902(d), not accommodation, was "the sequence leading up to, I guess, the time when the suspension came about --" (Benacquista, Dep., p. 47). My supervisor Carma Averhart had not "really thought about defining reasonable accommodation." (4/23/82 Dep., p. 73). (2) A spurious finding of fact says "TACOM offered appellant a smoke-free private office." App. A, 2a. EEOC lists [my] "requests," e.g., "a smoke-free office to work in." App. T, 52a. [EEOC honestly admits, finds, that] I "failed to obtain" same. App. T, 53a. TACOM did extortion, p. 6 above, NOT an offer. (3) It is a spurious finding to say "according to plaintiff's physicians," "plaintiff required" "work environment totally free from tobacco smoke." App. A, 2a. [TACOM Chief of Staff] Col. [John J.]Benacquista shows that is spurious: "if you looked at them closely it's quite obvious in there that what the doctor was saying was that the environment in his [my] present work space was not reasonably free of contaminants." (Dep. p. 24). For a doctor to repeat Army's own hazard findings does not repeal 5 C. F. R. 831.1206 (1980) and TACOM Reg. 600-5, Secs. 14-27, 14-28.a / d.; each precludes enforced leave. No treating physician ever says repeating Army hazard findings means I should be "placed" on leave. (a) Smoking is not "environment," but behavior, conduct, "personal habits" (Col. Benacquista, Dep. p. 25). Such words show it is not in "the requirements for any position," 5 U.S.C. 2302 (b) (6), nor published as such, [contrary to the] 5 U.S.C. 552(a)(1) [publication requirement]. (b) Doctors do not "require" [fellow] workers to behave safely; Congress does. 5 U.S.C. 7902(d) says "eliminate work hazards and health risks." Smoking poses "grave health risks," Roysdon v. R. J. Reynolds Tobacco Co., 849 F.2d 230, 236 (6th Cir. 1988). Congress says "eliminate" same at "work." (4) A spurious claim says "on his own" I did regulation "research." App. A, 2a. Researching rules is personnel work, done for years, without even having to reach the AR 385-10.3-5a. and b. duty. (5) It is spurious to omit AR 1-8.2.a and 32 C.F.R. 203.3 conditions precedent for smoking to occur "in any given DA facility." App. A, 3a. Smoking shall not "endanger life or property, cause discomfort or unreasonable annoyance to nonsmokers, or infringe upon their rights." The hazard is clear. App. FF, 96a-102a; App. M, 33a-34a. [Army] Secretary Marsh says "Tobacco usage impairs . . . critical military skills . . . a substantial threat to the well-being of our Army, and we must take immediate steps to eliminate its usage." In the "given DA facility" (TACOM), its own witness, Dr. Francis Holt, admitted: ". . . mechanical failures happen all the time." (Dep., page 25). Yes. Yes. In the "given DA facility," the conditions precedent to permit smoking are absent. It is spurious to omit that fact. (6) It is spurious to omit the reason at App. A, 4a, for my writing to various potential helps. TACOM, as EEOC found, "as early as February, 1980 . . . denied [me] EEO counseling and prevented [me] from filing [EEO] complaints." (App. T, 53a). Considering the danger to my coworkers, it would be disloyalty to them for me to not seek initiation of administrative review. (7) App. A, 4a, spuriously says: "Plaintiff's sole claim throughout is that he is a 'qualified handicapped individual' by statute." (a) I deny that by repeatedly showing no requirement, no matter in employment, no duties needing accommodation. My work record shows superb performance, better than my peers. App. EE, 88a"95a. (b) Judicial examples of what has been done arise from safety law, not accommodation. App. GG, 103a-106a. (c) No smoker discharge case alleges accommodation. Apps. HH, 107a-108a; and II, 109a-110a. My personnel background (including discharging others) refutes the idea a safety matter is [a] "qualified handicapped person' matter. The idea is absurd. (d) A.L.R.s and Supreme Court cases on smoking never cite it as a "qualified handicapped individual" matter! Apps. JJ, 111a-112a; and KK, 113a-115a. The accusation [that "Plaintiff's sole claim throughout is that he is a 'qualified handicapped individual' by statute"] departs far from the body of law, and far from my personnel background. (8) App. A, 6a, spuriously says "the Tank Command establishment . . . in and of itself was quite large." [The truth is] It is in Macomb County, one of the smallest counties in Michigan. TACOM is about 1/5 of 1% the size of the county. (9) It is spurious to say this claim: "appellant's job took him to all parts of the Tank Command establishment." App. A, 6a. (Also 8a). It did not, and could not. The Personnel Directorate has 2 parts, a military and a civilian part, each handling its percent of workers. I am in only 1 of the 2 parts, the civilian part. It has 5 parts. I am in only 1 of the 5. With co-workers, each of us has a percentage share of work. I admit doing better quality work. But I never had 100% quantity of the "establishment." Such a disproportionate work share would have led to complaint! (10) It is spurious to say I have "undisputed medical need for absolutely pure air." App. A, 8a. Col. Benacquista shows that [CA 6 judges' claim] is spurious: "if you looked at them closely it's quite obvious in there that what the doctor was saying was that the environment in his [my] present work space was not reasonably free of contaminants." (Dep. p. 24). (11) Considering Col. Benacquista's admission, against interest in view of the [extortion] charge against him (page 6, above, which could have led him to misrepresent what the doctors said as the court does), it is spurious to say they required so much "that no reasonable accommodation would be possible." App. A, 8a. 5 U.S.C. 7902(d) says "eliminate." As it [the law] requires more than what was said, it is not only "possible" to bring TACOM up to that level of compliance, it is mandatory. Analysis: Spurious findings are "ante-dated [fabricated claims] to make them appear . . . genuine," as in the unprofessional [attorney] conduct case of In re Ryman, 394 Mich.167, 176 [232 NW2d 178] (1975). Against such antedating, tantamount to forgery of retroactive reasons, the "legal system [and Mr. Pletten] is virtually defenseless,'" Matter of Grimes, 414 Mich. 483, 494 [326 NW2d 380] (1982). "An [employee] is unfairly deprived of an opportunity to cross-examine or to present rebuttal evidence and testimony when [he] learns the exact nature of [claims] only after the [decision]," National Rlty, 160 U.S.App.D.C., 143, 489 F.2d, 1267. Saying TACOM claims are "undisputed" shows there was no 5 U.S.C. 7513(b)(1) notice of them for me to reply to. That is fraud. "'Fraud which . . . prevents [me] from presenting an available defense lis] a proper ground for equitable relief against the judgment,'" New York Life Ins. Co. v. Nashville Trust Co., 200 Tenn. 513, 519 [292 SW2d 749] (1956). That [decision] relied on Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238 [64 S Ct 997; 88 L Ed 1250] (1944). TACOM's claims won't be "undisputed" once TACOM issues a 5 U.S.C. 7513(b) notice. I will dispute vigorously. Anti-whistleblower teaching says to tailor attack (false assertions) to the whistleblower's background. The prevalence is notorious (I am not the only victim). 31 Howard Law Journal 223 (1988). As a federal appeals judge [Alex Kozinski] is accused therein, as I am victim of the method of attack described therein, and as Sixth Circuit judges are following in the said pattern, integrity of the judiciary to uphold due process and fair review is at stake. Judicial integrity is a vital matter unquestionably worthy of your attention. It would promote judicial economy to grant this petition, thus obviate need for more litigation to seek equitable relief. Please cause administrative review to begin. When it begins, a counselor will see the spurious nature of the cited App. A assertions. Same will not be testified to, will not be repeated under oath [as the claims are perjurious]. It is bad policy for a federal court to do what Meadowmoor Dairies, 312 U.S., 299 [61 S Ct 552; 85 L Ed 836 (1941)], shows unacceptable by state courts. This Court should grant certiorari and "enforce constitutional liberties even when denied through spurious findings of fact." Meadowmoor Dairies, 312 U.S., 299. F. THIS CASE RAISES THE IMPORTANT FEDERAL QUESTION OF NON-IMPARTIALITY IN TERMS OF USE OF THE RECORD Part E. is incorporated by reference. There was no 5 U.S.C. 7513(b)(1) "advance written notice" of the matters therein, no "statement or citation of the written regulations that [I] was said to have violated [and] a detailed statement of the facts relating [same]," Boilermakers, 401 U.S., 245, no showing of any duties undone (needing accommodation). App. EE. The courts below made findings outside the official record, a 5 U.S.C. 7513(b)(1) "notice" [of charges]. Making assertions outside the record evidence system (here, the advance notice system) is "indicating personal bias and prejudice," P.R.I. v. C.R.I., 430 F.2d 85, 89 (7th Cir. 1970). The judges should have disqualified themselves. 28 U.S.C. 455(a). As impartiality is vital, this Court is respectfully requested to grant this petition to resolve this matter. G. THIS CASE PROVIDES THIS COURT WITH AN OPPORTUNITY TO REITERATE THE DUTY OF IMPARTIALITY. Addicts misrepresent my pro-rule job duty [freedom of] expression [aka whistleblowing] as asking accommodation of myself, not as [what it is, the] halt of [the banned] accommodation for them. 29 U.S.C. 706(7)(B). No secret law says pro-rule expression = accommodation. Morton, 415 U.S. 199. Talking for rules is personnel workers' job. Non-addicts obey rules; addicts do ad hominem attacks. Smoking is the disease, App. PP, 96a-102a, not nonsmoking. Addicts are not impartial so misrepresent who has the "medical condition" to accommodate. "'A fair trial in a fair tribunal is a basic requirement of due process.' . . . Chief Justice Marshall in 1 Burr's Trial 416 (1807) [distinguishes] light impressions which may fairly be supposed to yield to the testimony [from] 'these strong and deep impressions, which will close the mind against the testimony that may be offered in opposition to them; which will combat that testimony and resist its force, do constitute a sufficient objection to him.'" U.S. v. Blanton, 719 F.2d 815, 830, n. 3 (6th Cir. 1983). Drug addiction [e.g., smoking] is a closed mind, a formed opinion to use a drug despite even voluminous evidence. TACOM drug [tobacco] users "identify offense to self with obstruction to law." Offutt v. U.S., 348 U.S.11, 13 [75 S Ct 11; 99 L Ed 11] (1954). Treating my [385-10.3-5 job duty freedom of] expression as "offense to self," as their judgment is impaired, App. FF, 96a, TACOM addicts [smokers] cite no "medical condition" for placing me on enforced leave (retroactively). App. X, 72a, Item 14. TACOM's own Dr. Francis Holt says: "Medically disqualified? We have people with asthma who work at TACOM for years. That wouldn't disqualify him from working" (Holt Dep. p. 10). A counselor will find that said others similarly situated were not put on LWOP nor accused in "medical condition" or accommodation terms [i.e., singling me out as I raised the safety issue]. Non-impartiality invokes Offutt as S.B.C. v. Chenery, 332 U.S. 194, 196 (1947), says review "must judge the propriety of [agency] action solely by the grounds invoked by the agency." [Here, the lower Court did otherwise even though] TACOM addicts gave no reason [for the agency action]. Note addict view of law (Col. Benacquista Dep., p. 25) "It doesn't make sense to have a Command getting involved in the personal habits of its employees" combined with the refusal to implement the [rules and the] 2/15/80 order (App. BB, 83a-84a) [to obey them] as EEOC found (App. T, 53a) and the refusal to do administrative review: a pattern: "The proof of the pattern or practice supports an inference that any particular decision, during the period in which the [non-compliance] policy was in force, was made in pursuit of that policy." Teamsters v. U.S., 431 U.S. 324, 362 [97 S Ct 1843, 1868; 52 L Ed 2d 396, 431] (1977). Addict views are strong, deep, resistant to change, not impartial, and permeate all the ad hominem decisions. This Court should grant certiorari and reiterate the duty of impartiality. H. THIS CASE PRESENTS THE IMPORTANT FEDERAL QUESTION WHETHER A CASE MAY BE TREATED AS THOUGH COMPLETED BEFORE IT HAS COMMENCED "as early as February, 1980 . . . denied [me] EEO counseling and prevented [me] from filing [EEO] complaints" (App. T, 53a). TACOM is responsible for the lack of counseling that is condition precedent to later steps in the [EEO 29 CFR § 1613 administrative processing] sequence: counselor interview, counselor report, complaint investigation, offer of hearing, hearing, etc. TACOM has not done "the order in which they must necessarily follow each other in the progress of performance." City of New Orleans, 171 U.S., 334 [18 S Ct 875; 43 L Ed. 178], i.e., the pre-judicial review sequence of processing actions. "The point of the above tactics is to overwhelm the whistleblower." 31 Howard Law Journal 223, 227. These tactics have a societal cost: "In 1980, 19 percent [of employees] who witnessed significant misconduct cited fear of reprisal as the reason for remaining silent. By 1983, the figure was 37 percent--what the board called 'a significant increase in fear of reprisals'" 31 Howard Law Journal 223, 230.
"Just over one minute into flight, the space shuttle 'Challenger' exploded into a raging fireball . . . . Congress voted to protect whistleblowers to facilitate communication of key information to those who can avert disaster." Rep. Patricia Schroeder, "Special Focus: Whistleblowers and the Public Interest," "Introduction," 4 Antioch Law Journal 1 (Summer 1986). A worker was killed here [at TACOM], People v. Gen. Dyn. Land Sys., 435 Mich. 860, a case that may soon reach this Court. Others' cases result when whistleblowers are reprisal victims. Safety (why "Congress voted to protect whistleblowers") prevents cases from happening that result from lack of safety. Protecting whistleblowers saves lives and promotes judicial economy. TACOM's violation pattern is worse than a mere contract violation. But contract law provides insight. There, "'the party who is guilty of the first breach is generally the one upon whom rests all the liability for nonperformance.'"Buckman v. Hill Military Academy, 190 Or. 194, 223 P.2d 172, 174 (1950). "[N]o man may take advantage of his own wrong," Glus, 359 U.S., 232 [79 S Ct 760, 762; 3 L Ed 2d 770, 772]. TACOM is "the party . . . guilty of the first breach." The "point of [TACOM] tactics is to overwhelm the whistleblower." If it did 'overwhelm" me (the [crime] victim, p. 6 above) by its victim - bashing, please put all the liability on TACOM. This Court should grant this petition and affirm that victim-bashing is not acceptable; i.e., that due to the public interest in protecting whistleblowers, a case cannot be treated as completed when the overwhelmed whistleblower has not received administrative review. Please send a message that liability is put on those doing the overwhelming, not on the overwhelmed victim. Smoking is a disease, a gateway to other drug use. It is bad policy to assert dealing with it is "accommodation." The evidence smoking is not in employment is so one-sided, unanimously stated by other courts, that the ruling below is outside the body of law. To be competitive, society needs (a) its workers on the rolls, not ousted for non-impartial personal desires of gateway drug users, and (b) its resources used in production, not drug wars being undermined by gateway drug users. EEOC twice ordered administrative review to begin. This case presents issues of conditions precedent, enforcement of EEOC orders, of not disregarding EEOC orders years after the time limit for the agency to request reopening, of court jurisdiction, secret law, freedom of expression, premature judicial decision before administrative review, spurious findings, and lack of impartiality. For these reasons, I respectfully request that this Court grant certiorari, adjudicate controlling jurisdictional and conditions precedent issues, declare the cases "not commenced," and remand with directions to begin administrative review.
APPENDIX
Nos. 88-1467, 89-1086
UNITED STATES COURT OF APPEALS
BEFORE: KENNEDY and RYAN, Circuit Judges; and SMITH, District Judge*. SMITH, District Judge. Appellant Leroy Pletten appeals within this consolidated appeal the district court's grant of summary judgment for the defendants in his appeal of a Merit Systems Protection Board decision and, the district court's grant of defendant's motion to dismiss plaintiffs complaint regarding his Equal Employment Opportunity Commission claims.
-2a- -15a- APPENDIX B United States
Mr. Leroy J. Pletten 8401 - 18 Mile Road, #29 Sterling Heights, Michigan 48078-3099 Dear Mr. Pletten: This is in reply to your Freedom of Information request dated May 26, 1989, concerning smoking requirements in the Federal work place. The Office of Personnel Management has no documents relating to your inquiry.
APPENDIX C
APPENDIX D
-19a- APPENDIX E
APPENDIX F
-22a- -31a- APPENDIX L STATEMENT
APPENDIX M DEPARTMENT OF THE ARMY
17 April 1986 PROCLAMATION The readiness and well being of Total Army members and their families challenge us to deal with the problem of tobacco use. Medical evidence shows overwhelmingly that the use of tobacco products adversely impacts on the health and readiness of our force. Tobacco usage impairs such critical military skills as night vision, hand-eye coordination, and resistance to cold weather injuries. Moreover, it increases susceptibility to disease. It has become a substantial threat to the well-being of our Army, and we must take immediate steps to eliminate its usage. Every Army member is charged to make this goal a reality. All of us have a clear responsibility in making this happen. As part of the Army Tobacco Cessation Action Plan, we will encourage smokers to quit through a program of education, information, and assistance. We will also safeguard the health of smokers and nonsmokers alike by limiting the areas in which smoking will be permitted. Finally, we will check on all forms of tobacco usage from time to time to determine progress in meeting our goal. We believe this campaign is absolutely essential to maintain the health and readiness of our Army Ours is a profession unique in many respects, requiring physical fitness and stamina to get the job done. Each of us must be ready physically to endure the strains of a crisis. Additionally, caring leadership dictates that we demonstrate a sincere, unambiguous concern for the health and safety of those entrusted to our care.
-35a- APPENDIX N U.S. Department of Labor
April 16 1986 Mr. Leroy J. Pletten
Dear Mr. Pletten: The Secretary has asked me to reply to your Freedom o£ Information Act request of April 1, 1986. My office is unaware of any qualification standards that require the ability to smoke, tolerate smoking or avoid smoking. In addition, we are unaware of any forms asking for such information. Sincerely, /s/Larry K. Goodwin
APPENDIX O EXECUTIVE OFFICE OF THE PRESIDENT
Mr. Leroy J. Pletten
Dear Mr. Pletten: This is in response to your March 3, 1986 Freedom of Information Act request for a copy of any qualification requirements that require smoking, tolerating, or avoiding smoking as a condition of Federal employment, and any forms asking for this information from applicants or employees. The Office of Management and Budget (OMB) is unaware of any qualification standards in use that require the ability to smoke, tolerate smoking, or avoid smoking. We are also unaware of the existence of any forms that ask for this information. The Paperwork Reduction Act of 1980 requires agencies of the executive branch to submit to OMB for review all collections of information imposed on 10 or more members of the public. Information collections approved or currently under review by OMB are available for public viewing in our docket library. There are some 6,450 forms in the library. There is no compilation of these information collections that address your request. However, you are free to do a manual search of the information collection in the docket library. The docket library is located in Room 3201 of the New Executive Office Building, 17th and Pennsylvania Avenue, NW., Washington, D.C.; it is open from 9 am to 5:30 pm Monday through Friday. It is advisable to call at 202-395-6880 before you come so arrangements can be made for you to be cleared into the building. I hope this information will be of help to you.
APPENDIX P United States
Mr. Leroy J. Pletten
Dear Mr. Pletten: This is in reply to your Freedom of Information request dated December 12, 1983, and received in this office on January 23, 1984. A copy of your letter was forwarded to this office for reply to those items pertaining to qualification requirements since this office has responsibility for the development of qualifications standards. Specifically, you requested a copy of any and all qualification requirements issued by OPM that require smoking as a condition of Federal employment. You asked that this include qualification requirements in Handbook X-118 as well as any OPM may have issued or may be using that are not a part of the X-118 system. You also requested that if there are no such requirements that we so state. This office is not aware of any qualifications standards issued or in use by OPM that require the ability to smoke. As a consequence, we cannot fill your request for copies of such material.
APPENDIX Q EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
On July 2, 1982, Leroy Pletten (hereinafter referred to as appellant) filed a request with the Equal Employment Opportunity Commission to reopen and reconsider its decision in Leroy Pletten v. Army, Appeal No. 01801850 dated May 18, 1981. EEOC Regulation 29 C.F.R. Section 1613.235 sets forth the criteria for reopening a previous decision of this Commission. Under the Regulation, the Commissioners may, in their discretion, reopen and reconsider any previous decision if the party requesting reopening and reconsideration submits written evidence or argument which tends to meet one or more of the regulatory criteria. The Commission has carefully reviewed appellant's request to reopen its decision and the entire appellate record. Based on this review, the Commission finds that appellant's request does establish one of the regulatory criteria of Section 1613.235. In Docket No. 01801850, the Commission affirmed the agency's rejection of appellant's complaint because it contained identical allegations raised in a previous complaint. Appellant argues that this finding was an erroneous interpretation of fact and that his complaint should be processed. A review of the appellate file shows that the agency's final decision concerns a complaint filed by appellant on July 11, 1980 in which he alleges that the agency had discriminated against him because of his handicap. According to the counselor's report, the agency had taken certain action to accommodate appellant's condition in February 1980, which he believed to have been inadequate. This allegation was the main thrust of his complaint. The only synopsis of appellant's earlier complaint filed in June, 1980 was revealed in the EEO counselor's report. The counselor indicated that there appellant was complaining about the agency's failure to accommodate his handicap and its action in December, 1979, declaring him unfit and sending him home. The agency's final decision states that this prior complaint was at this time accepted for processing and being investigated. On appeal appellant asserts that the instant complaint although grounded upon the same basis of discrimination, i.e. physical handicap, concerned a separate incident and should have been accepted for processing. The Commission takes administrative notice of our decision issued February 23, 1982, which includes Docket Nos 01800273, 01810321, 01810322, 01810323, 01810324, 01810555, 01810887, 01811012 and 01812239. Our decision reversed all of these cases on procedural grounds finding that the agency erred in refusing and failing to process appellant's complaints. Under the applicable EEOC Regulation 29 C.F.R. Section 1613.215, an agency may only reject those allegations in a complaint which set forth identical matters contained in a previous complaint filed by the same complainant which is pending in the agency or has been decided by the agency. While the same type of discrimination was being alleged by appellant in his complaints, the record shows that the complaints resulted from different incidents several months apart. The Commission therefore finds that the agency erred in rejecting appellant's complaint filed July 11, 1980. The agency's final decision is hereby reversed and the case remanded for investigacion in accordance with the applicable EEOC Regulations. The agency may consolidate this case to the extent it is possible with the other complaints referred to above pending before the agency. Based upon a review of the record and in light of appellant's request to reopen and reconsider our previous decision in Docket No. 01801850, it is thedecision of this Commission to accept appellant's request to reopen. Furthermore, the Commission finds that our previous decision erroneously affirmed the agency's rejection of appellant's complaint and is, by virtue of this decision, reversing the agency's final decision in this matter. The case is remanded to the agency for further processing as discussed herein. Under EEOC Regulations, compliance with the Commission's corrective action is mandatory. The agency must report to the Commission, within thirty (30) calendar days of receipt of the decision, that corrective action has been taken. The agency's report should be forwarded to the Compliance Officer, Office of Review and Appeals, Equal Employment Opportunity Commission, 2401 E Street, N.W., Washington, D.C. 20506. A copy of the report should be sent to the appellant. Pursuant to 29 C.F.R. Section 1613.282, the appellant is hereby notified that this decision is final and that appellant has the right to file a civil action on the Rehabilitation Act claim in the appropriate United States District Court within thirty (30) days of the receipt of this decision. If you choose to file a civil action, and you do not have, or are unable to obtain the services of a lawyer, you may also request the court to appoint a lawyer to represent you. In such circumstances as the court may deem just, the court may appoint a lawyer for you and may authorize the commencement of the action without the payment of fees, costs or security. Any such request must be made within the above referenced 30 day time limit and in such form and manner as the court may require.
APPENDIX R STATE OF MICHIGAN
In the Matter of the Claim of
ORDER DENYING APPLICATION FOR REHEARING This case is before the Board of Review upon application of the employer for a rehearing by the Board in respect to its decision dated May 14, 1982. The Board of Review, having read and considered said application, and having reviewed the record in the matter, is of the opinion that said application should be denied. IT IS THEREFORE ORDERED that said application shall be and the same is hereby denied. MAILED AT DETROIT, MICHIGAN June 22, 1982 This order will become final unless a written appeal therefrom is RECEIVED by the clerk of the appropriate circuit court on or before
TO PROTECT YOUR RIGHTS YOU MUST BE ON TIME.
APPENDIX S STATE OF MICHIGAN
In the Matter of the Claim of
DECISION OF BOARD OF REVIEW This case is before the Board of Review on the appeal of the employer [TACOM] from a Referee's order denying a rehearing. The Board finds that the Referee did not abuse his discretion in issuing such order, and such order is hereby affirmed. A copy of said order issued on September 2, 1981 is attached hereto and by this reference made a part hereof. The Board, having reviewed the Referee's decision in the light of the evidence appearing in the record made prior to the employer's request for a rehearing, is of the opinion that said decision is in conformity with the law and facts and should be affirmed. A copy of said decision issued on July 30, 1981 is attached hereto and by this reference made a part hereof. The Referee's order denying the employer's request for rehearing is hereby affirmed. The Referee's decision is hereby affirmed. MAILED AT DETROIT, MICHIGAN May 14, 1982 Attachments This decision will become final unless a written request for rehearing or appeal to the appropriate circuit court is RECEIVED on or before June 3, 1982 TO PROTECT YOUR RIGHTS YOU MUST BE ON TIME. APPENDIX T EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
INTRODUCTION Leroy Pletten (hereinafter referred to as appellant) timely initiated appeals to the Equal Employment Opportunity Commission from the final decisions of the Department of Army (hereinafter referred to as agency) rendered in all the above reference appeals as indicated in the Appendix, concerning his allegations of discrimination based upon [perceived, non-job-related] physical handicap (asthma) in violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 701 et. seq and based upon reprisal in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq. These appeals are accepted in accordance with EEOC Order No. 960, as amended. Beginning in 1979, appellant filed a series of formal complaints of discrimination with the agency, alleging that actions of the agency discriminated against him on the basis of his handicapping condition [not enforcing / obeying its own pure air regulation, AR 1-8 issued pursuant to 32 CFR § 203] and in reprisal for filing EEO complaints. At the time of his first [whistleblowing to Safety Office] complaint, appellant was employed by the agency as a position classifer specialist, GS-12. [He never used sick leave.] In the summer of 1979, he was discovered to be suffering from acute asthma attacks brought on by contact with cigarette smoke. He made numerous requests of the agency to accommodate his handicap [NO, in reality, to enforce the above cited DOD and Army-incorporated pure air rules AR 1-8 and 32 CFR § 203], to include improving the [outmoded] ventilation system of his building, a smoke-free office to work in and prohibiting other employees from smoking within 25 feet of appellant. [His supervisor, Jeremiah Kator, agreed, but higher management forbad him to act.] When he [Pletten] failed to obtain the accommodations [enforcement actions] he believed to be necessary for his handicap [compliance with the above-cited rules], appellant sought EEO counseling and filed formal complaints. Simultaneously, he filed a labor grievance which was arbitrated in January, 1980 [in fact, adjudicated by the Army's own Civilian Appellate Review agency (USACARA)] with a recommendation of ways the agency had to accommodate appellant [enforce its own "pure air rights" rules]. When the agency failed to abide by the arbitration [USACARA Report], appellant filed even more EEO complaints. In none of the appeals pending before this Commission did the agency ever consider the merits of appellant's allegations. All of the complaints were rejected for the reasons stated in the Appendix. The record indicates that as early as February, 1980 [the "decision to terminate" time observed by EEOC's Henry Perez, Jr.], appellant was denied EEO counseling and prevented from filing further complaints. As indicated in the Appendix, the agency failed to provide this Commission with several complaint files and the only information concerning these complaints was supplied by appellant and must be accepted by this Commission as uncontradicted. EEOC Regulations 29 C.F.R. 1613.212 and .709(a) provide for the establishment by the agency for regulations for the acceptance and processing of complaints of discrimination based upon physical handicap and reprisal. The Regulations further provide that federal agencies upon the filing of such complaints must conduct an investigation into the allegations raised in the complaint, 29 C.F.R. 1613.216, conduct a hearing on those allegations, if desired by the complain[an]t, 29 C.F.R. 1613.217(b)(i) and render a decision thereon, 29 C.F.R. 1613.221(1). A review of the record in Docket No. 01800273 establishes that appellant filed a formal complaint of discrimination alleging that in an agency's publication derogatory references were made to his physical handicap. The appellant's complaint properly alleges a basis of discrimination reocognized by the Regulations. The agency improperly rejected appellant's complaint on the basis it did not come within the purview of the Regulations. The agency, therefore, must accept the complaint for investigation and decision thereon. In all of appellant's complaints, he asserts that the agency was discriminating against him as an asthmatic nonsmoker who could not tolerate smoke in his work environment and, moreover, that the agency failed to accommodate his handicap [enforce / obey the pertinent agency and other rules]. Under the applicable EEOC Regulations 29 C.F.R. 1613.214(a)(1)(ii) an agency may accept a complaint for processing only if the complainant has brought to the attention of an EEO counselor the matter thought to be discriminatory within 30 calendar days from the date of the alleged discrimination occurred. It is a well recognized equitable principle that this time limit must be extended if appellant alleges and can show a continuing pattern of discrimination. As the court in Laffey v. Northwest Airlines, 567 F.2d 429, 13 FEP Cases 1068 (D.C. Cir. 1976) notes " . . . where, as here, discrimination is not limited to isolated incidents but pervades a series or pattern of events which continue to within (the time period) of filing charges, the filing is timely."Id. , 13 FEP Cases at 1100. See also, Cedeck v. Hamiltonian Federal S&L Assn., 551 F.2d 1136, 14 FEP Cases 1571 (8th Cir. 1977); Clark v. Olinkraft, Inc., 556 F.2d 1219, 15 FEP Cases 377 (5th Cir. 1977);. and, Rich v. Martin Marietta Corp., 552 F.2d 333, 11 Fep (sic) Cases 211 (10th Cir. 1977). It is clear that appellant was alleging a continuing pattern of discrimination against him because of his handicap. It is also clear the agency made some effort to limit his number of complaints, his right to file complaints and to seek EEO counseling. The agency, additionally, went so far as to utilize erroneous information or miscalculations upon which to base its rejection. See Appendix, Docket Nos. 01810323, 01810321, 01810555 and 01810324. In view of the foregoing, this Commission must conclude the agency's rejection of all appellant's complaints were erroneous on the grounds given. In that it appears that appellant was alleging a continuing pattern of discrimination and in that some of the agency's rejection of his complaints were based on the wrong information and in that the record reveals that the agency attempted to restrict and/or deny appellant the right to file EEO complaints and seek counseling, the Commission holds that all the above references cases must be reversed and rescinded [remanded] (sic)for further processing in accordance with EEO Regulations 29 C.F.R. 1613.211 et seq. Based upon a review of the record, the decision of the Equal Employment Opportunity Commission is to reverse the final agency decisions in all the instant cases which rejected appellants' complaints for the reasons indicated and rescind (sic) said complaints for further processing in accordance with this decision. Upon reprocessing said complaints, the agency may consider the consolidation of all the instant cases. Under EEOC regulations, compliance with the Commission's corrective action is mandatory. The agency must report to the Commission, within thirty (30) calendar days of receipt of the decision, that corrective action has been taken. The agency's report should be forwarded to the Compliance Officer, Office of Review and Appeals, Equal Employment Opportunity Commission, 2401 E Street, N.W., Washington, D.C. 20506. A copy of the report should be sent to the appellant. If appellant has been represented by a member of the Bar, appellant shall be awarded attorney's fees under 29 C.F.R. § 1613.271(c). The attorney shall submit to the agency within twenty (20) days of receipt of this decision, the documentation required by 29 C.F.R. §1613. 271(c) (2). The agency shall process the claim within the time frames set forth in § 1613.271(c)(2). Pursuant to 29 C.F.R. §1613.282, the appellant is hereby notified that this decision is final and that he has the right to file a civil action on the Title VII claim in the appropriate U.S. District Court within thirty (30) days of the date of receipt of this decision. If you choose to file a civil action, and you do not have, or are unable to obtain the services of a lawyer, you may also request the court to appoint a lawyer to represent you. In such circumstances as the court may deem just, the court may appoint a lawyer for you and may authorize the commencement of the action without the payment of fees, costs or security. Any such request must be made within the above referenced 30 day time limit and in such form and manner as the court may require. The appellant and the agency are hereby notified that the Commissioners may, in their discretion, reopen and reconsider any previous decision when the party requesting reopening submits written argument or evidence which tends to establish that: 1. New and material evidence is available that was not readily available when the previous decision was issued; 2. The previous decision involves an erroneous interpretation of law or regulations or misapplication of established policy; or 3. The previous decision is of precedential nature involving a new or unreviewed policy consideration that may have effects beyond the actual case at hand or is otherwise of such an exceptional nature as to merit the personal attention of the Commissioners. This notice is in accord with 29 C.F.R. Section 1613.235. The agency's attention is directed to 29 C.F.R. Section 1613.235(b) for time limitations on agency requests to reopen.
APPENDIX APPEALS OF LEROY PLETTEN 1. EEOC DOCKET Number: 01800273 2/
Date of Final Agency Decision: 12/19/79 Date of Appeal: 12/26/79 Brief Description of Complaint: "Publication of article agency's newsletter" Reason for Agency's Rejection: "Not within purview" 2. EEOC DOCKET Number: 01810321
Date of Final Agency Decision: 11/06/80 Date of Appeal: 11/18/80 Brief Description of Complaint: "Misconduct by medical officer against appellant"
3. EEOC DOCKET Number: 01810322
Date of Final Agency Decision: 11/05/80 Date of Appeal: 11/18/80 Brief Description of Complaint: "Denial of telephone services" Reason for Agency's Rejection: "Untimely presented to EEO counselor 4/" 4. EEOC DOCKET Number: 01810323
Date of Final Agency Decision: 11/05/80 Date of Appeal: 11/18/80 Brief Description of Complaint: "Denial of medical aid in dispensary" Reason for Agency's Rejection: "Untimely presented to EEO counselor 4/" 5. EEOC DOCKET Number: 01810324
Date of Final Agency Decision: 11/05/80 Date of Appeal: 11/18/80
Reason for Agency's Rejection: "Untimely presented to EEO counselor 4/ 3/" 6. EEOC DOCKET Number: 01810555
Date of Final Agency Decision: 12/22/80 Date of Appeal: 1/9/81 Brief Description of Complaint: "Performance appraisals" Reason for Agency's Rejection: "Untimely presented to EEO counselor 6/" 7. EEOC DOCKET Number: 01810887
Date of Final Agency Decision: 1/16/81 Date of Appeal: 2/04/81 Brief Description of Complaint: "Appellant forced off base" Reason for Agency's Rejection: "Untimely presented to EEO counselor 5/ 8. EEOC DOCKET Number: 01811012
Date of Final Agency Decision: 4/2/81
Brief Description of Complaint: "Agency's failure to implement no smoking regulations" Reason for Agency's Rejection: "Untimely presented to EEO counselor 5/" 9. EEOC DOCKET Number: 01812239
Date of Final Agency Decision: 5/12/81 and 5/15/81 Date of Appeal: 5/19/81 Brief Description of Complaint: "Refusal by agency to accept complaint" Reason for Agency's Rejection: "Untimely presented to EEO counselor" 10. EEOC DOCKET Number: 018112239 1/ 2/
Date of Final Agency Decision: 5/12/81 and 5/15/81 Date of Appeal: 5/19/81 Brief Description of Complaint: "Refusal to provide EEO process to appellant"
11. EEOC DOCKET Number: 018112239 1/ 2/
Date of Final Agency Decision: 5/12/81 and 5/15/81 Date of Appeal: 5/19/81 Brief Description of Complaint: "Refusal to provide EEO Counseling" Reason for Agency's Rejection: "Untimely presented to EEO counselor 5/ "1/Complaints consolidated under this case number. 2/ No agency file ever received in this case 3/ No copy of final agency decision ever received in this case. 4/ Erroneous calculation by agency of thirty day period prior to counseling. 5/ Event giving rise to complaint occurred when agency refused to accept additional complaints from appellant. 6/ Final agency decision cites erroneous date of alleged discriminatory act on appellant's formal complaint." APPENDIX U
APPENDIX V DEPARTMENT OF LABOR
REFEREE: MICHAEL BALDWIN APPLICATION FOR REHEARING This matter came before the Referee upon application of the employer's attorney received on August 19, 1981, for a rehearing by the Referee in respect to the decision dated July 30, 1981, and the Referee having read and considered said application, and having reviewed the record in the matter, is of the opinion that said application should be denied. IT IS THEREFORE ORDERED that said application shall be and the same is hereby denied.
Mailed at Detroit, Michigan on SEP 02 1981 (Date) This decision will become final unless a written appeal to the Board of Review is received on or before SEP 02 1981 (Date) To be filed on time, an appeal to the Board of Review must be received by any office of the Commission or the Board on or before the above-indicated date. Information and/or forms for an appeal to the Board of Review may be obtained from the Board or from any Commission Office. The Act also permits an order or decision of the Referee to be appealed directly to the appropriate circuit court if all parties agree to do so by written stipulation filed with the Referee. APPENDIX W
APPENDIX X
DEPARTMENT OF LABOR
DECISION
REFEREE: MICHAEL BALDWIN
Hearing(s) held on July 20, 1981, in Sterling Heights, Michigan. The redetermination issued by the Commission on May 11, 1981, held the claimant ineligible for benefits in respect to the time period from November 30, 1980, through an "indefinite" period of time under Section 48 of the Act. An earlier determination was held affirmed. In essence, the claimant was held to be on a leave of the type recognized by Section 48 of the Act as rendering the individual not an unemployed individual within the meaning of the Michigan Employment Security Act. At the hearing held in Sterling Heights, Michigan, on July 20, 1981, the following persons appeared:
The claimant began working for the involved federal entity in August of 1969 and last performed work services for this employer on or about March 17, 1980. The application for unemployment benefits contained within the file [of] items submitted by the Commission to the Referee Division is indicated as being filed on January 2, 1981. Section 48 of the Act provides, in part, that "An individual shall not be deemed to be unemployed during any leave of absence from work granted by an employer either at the request of the individual or pursuant to an agreement with his duly authorized bargaining agent, or in accordance with law."The claimant's literal presentation was, in part, that there is no such employment condition [per TACOM Reg. 600-5.14] as a [forced] leave of absence that was recognized by the federal agency. However, the record does indicate that a federal agency does grant employees absences [they request] from work performance, under certain circumstances, while maintaining the employment relationship and anticipating a resumption of work service performance at a reasonably specific time in the future. Not all leaves of absence will render an individual not an unemployed individual within the meaning of Section 48 of the Act. There are only three recognized forms or initiating circumstances relative to leaves of absence that are pertinent. The claimant's testimony was clear that he did not request to be placed on a leave of absence or be removed from work service performance in respect to the time period under consideration. The claimant further stated that he was not of the view that he had a union or labor organization of which he was a member for bargaining purposes with the employer but that, in any event, he had made no request to anyone to act on the claimant's behalf in requesting a leave of absence. There is no indication that any leave of absence that may apply to the claimant was in accordance with the law relative to the pertinent subsection of the state statute. In terms of Section 48 of the Act, whether or not the claimant is on a leave of absence is somewhat moot under the circumstances as established in the record in that if the claimant is on a leave of absence, it is not of the type recognized in Section 48 of the Act as rendering an individual unentitled to receive unemployment benefits, i.e., a type that would cause the claimant not to be deemed an "unemployed" individual. The redetermination issued by the Commission on May 11, 1981, is hereby reversed. The provisions within Section 48 of the Act pertaining to leaves of absence of a certain type have no application in the instant matter. Further judgments in respect to this claim are left for future Commission consideration.
Mailed at DETROIT, MICHIGAN JULY 30, 1981 IMPORTANT TO PROTECT YOUR RIGHTS, YOU MUST BE ON TIME This decision will become final unless a party takes ONE of the following actions: (1) files a written appeal to the Board of Review, OR (2) files a written request for rehearing before the Referee, OR (3) files a direct appeal to Circuit Court. The appeal or request for rehearing must be RECEIVED on or before AUG 19 1981
APPENDIX Z DEPARTMENT OP LABOR
NOTICE OF DETERMINATION OR REDETERMINATION
[ ] DETERMINATION: [X] REDETERMINATION of
[X] CLAIMANT IS INELIGIBLE FOR BENEFITS
ISSUE(S) AND SECTION(S) OF THE MES ACT INVOLVED:
BASIS FOR (RE)DETERMINATION
leave due to sensitivity to smoke [illegal levels of toxic chemicals constituting a universal malice]. While on leave
the claimant is considered to be in active status and is ineligible for benefits per Sec. 48 of the MES Act. Redetermination affirmed. RIGHT OF PROTEST OR APPEAL: Any protest or appeal from this determination or redetermination must be filed in person or by mail and must be received within twenty (20) dates after date mailed or personally served, or if such 20th day is a Saturday, Sunday or legal holiday, by the next day which is neither a Saturday, Sunday nor legal holiday. (See reverse side for instructions). DATE PERSONALLY SERVED:
APPENDIX AA 1. Claim filed on 1/2/81 IS 2. Branch Office No. 23 3. Benefit Year: None THRU None
6. Blank 7. Blank 8. Blank 9. Blank 10. Blank 11. Blank 12. Blank 13. Inelig/Employed 11/30/80 thru Indefinite 14. Claimant is presently on a medical leave of absence due to his inability to work [being an extortion victim, see Col. Benacquista’s deposition]. While on leave claimant is considered to be an employed individual in accordance with Sect 48 of the Act.
APPENDIX BB DEPARTMENT OF THE ARMY
DRSTA-A
Mr. Leroy Pletten Position and Pay Management Branch Civilian Personnel Division Directorate for Personnel, Training Dear Mr. Pletten: 1. Transmitted herewith is the report of findings and recommendations regarding your grievance concerning tobacco smoking and its hazards to your health. 2. I have reviewed the Examiner's report and have accepted the recommendations. In regard thereto, I have directed the following: a. Air content studies of your work area will be conducted by an Industrial Hygienist. b. After analysis of the data, a determination will be made as to whether your immediate work area constitutes an environment which is reasonably free of contamination. If a determination is made that such an environment is present, periodic air content measurements will be taken to ascertain the stability of that environment. If a determination is made that such an environment is not present, further action will be taken, as required, in addition to the respirator previously provided to you. 3. This decision is final and binding and is not subject to further review within the Department of the Army. FOR THE COMMANDER:
-85a- APPENDIX CC
APPENDIX DD DEPARTMENT OF THE ARMY
SUBJECT: Appointment as Crime Prevention Officer Mr. Leroy J. Pletten
1. In accordance with the 8 November 1976 directive from the Chief of Staff, you are appointed as the DCP Crime Prevention Officer. 2. The instructions on your duties in this capacity have been provided you by separate correspondence. FOR THE COMMANDER:
APPENDIX EE SUMMARY OF CAREER 1969 - 1980 6/12/1967 Graduation from University of Minnesota 8/26/1969 Hired as Personnel Management Specialist, GS-7 11/6/1969 Letter of Appreciation from a serviced organization
11/26/1969 Civilian Personnel Director Fred R. Goss forwarded this:
9/6/1970 Promotion to Personnel Management Specialist, GS-9 9/19/1971 Promotion to Employee Relations Specialist, GS-11 1971 TACOM began the Employee Recognition Plan for employees 3/3/72 Letter of Appreciation on sick leave from Personnel Director
11/10/72 Letter of Appreciation from the director of a
3/5/73 Letter of Appreciation from Personnel Director Col. Donald E.
6/29/1973 Supervisor Verna L. Atkinson appointed me acting 1/28/1974 Suggestion Award ($185) 2/27/74 Letter of Appreciation from Civilian Personnel Director William S. Moyers for my having
6/23/1974 Promotion to Labor Management Relations Specialist,
9/1/74 Letter of Appreciation from Andrew Cook of a serviced
5/2/1975 Letter of Appreciation for me, addressed to Civilian Personnel
5/06/1975 Director Moyers forwarded to my supervisor the 5/2/75
6/3/75 Certificate of Achievement from Civilian Personnel Director
6/3/1975 Letter of Appreciation for my
7/21/75 Suggestion Award ($50) 4/9/76 Letter of Appreciation from Director Moyers for my having
8/12/1976 Assignment to explain the new sick leave analysis system to 9/08/1976 Assignment to advise managers on
11/10/76 Chosen Crime Prevention Officer. 4/5/1977 Official Commendation from Acting Civilian Personnel
4/10/77 Said award was accompanied by a quality pay increase [$681]. 4/19/77 Letter of appreciation from Civilian Personnel Director Archie
6/3/1977 Letter of Appreciation from Marie W. Milmine for a 9/18/1977 Reassignment to Position Classification Specialist, GS-12,
12/19/1977 Letter of Appreciation from James Thompson to Director
12/23/1977 Civilian Personnel Director Grimmett forwarded the
11/20/78 Letter of Appreciation from Col. Irving Monclova of a
2/20/79 Letter of appreciation from my supervisor Jeremiah H. Kator
2/20/79 Letter of appreciation from Personnel Director Col. Charles D.
3/16/79 Letter of appreciation from Jon Symon, Regional
3/1979 Director Grimmett forwarded it:
6/15/80 Pay raise ($823) issued to me by my supervisor J. H. Kator for
APPENDIX FF CITATIONS TO HAZARD/DRUGS
It lists tobacco chemicals on page 60 at levels in excess of safe limits (years later codified at 29 C.F.R. 1910.1000.Z), examples of which include:
William Pollin, M.D., then Director, U.S. National Institute on Drug Abuse (“NIDA”), in 1977 said why NIDA gave “increased priority to” smoking. There are
William Pollin's predecessor as NIDA Director, Robert L. DuPont, Jr., M.D. (1973 - 1977), in “Teenage drug use: Opportunities for the pediatrician,” 102 J. of Pediatrics (Issue 6) 1003-1007 (June 1983), says at pages 1004-1005:
So Army USAARL Report No. 86-13, “Smoking and Soldier Performance: A Literature Review” (1986), page 149, says:
Army Pamphlet 600-63-7, Fit to Win, ANTITOBACCO USE (1987), p. 14, says
Army Regulation 600-63.4-1a. (1987) summarizes Army experience on point:
APPENDIX GG JUDICIAL EXAMPLES OF WHAT TO DO 1. Austin v. State, 101 Tenn. 563, 566-7, 48 S.W. 305, 306 (1898) says that in
2. Dzikowska v. Superior Steel Co., 259 Pa. 578, 583, 103 A. 351, 352 (1918) says the
3. Canning Co. v. Throwing Co., 94 W.Va. 346, 361, 118 S.E. 521, 527 (1923) says he [the smoker employee]
4. Tiralongo v. Stanley Works, 104 Conn. 331, 332-3, 133 A. 98, 99 (1926) found that
5. Allen v. Posternock, 107 Pa.Super. 332, 334, 163 A. 336 (1932) says the employer
6. Bradford's Case, 319 Mass. 621, 622, 67 N.E.2d 149, 150 (1946) says “smoking was not permitted inside the building.” 7. In Albany Ins. Co. v. Holberg, 166 F.2d 311, 315 (8th Cir. 1948), the supervisor
8. George v. Bekins Van & Storage Co., 33 Cal.2d 834, 838, 205 P.2d 1037, 1041 (1949),
9. The Bluestein v. Scoparino, 277 App. Div. 534, 536-7, 100 N.Y.S.2d 577, 578-9 (1950), employer had
10. De Mirjian v. I. Htg. Corp., 129 Cal. App.2d 758, 761, 278 P.2d 114, 115 (1955) found
11. Petition of Republic of France, 171 F.Supp. 497, 508 (D.S.D.Tex. 1959) found
12. Boullier v. Samsan Co., 100 R.I. 676, 678, 219 A.2d 133, 134 (1966) found that
13. Commonwealth v. Hughes, 468 Pa. 502, 507, 364 A.2d 306, 308 (1976) says
14. Shimp v. New Jersey Bell Telephone Co., 145 N.J. Super. 516, 531, 368 A.2d 408, 416 (1976) found that
15. Dickerson v. Reeves, 588 S.W.2d 854, 855 (Tex.Civ.App. 1979) says the smoker
16. Swanson v. City of Tulsa, 633 P. 2d 1256, 1257 (Okl. Cr. 1981) found that
17. Smith v. W. Elec. Co., 643 S.W.2d 10, 12 (Mo.App., 1982), lists “the computer room (where smoking is prohibited).” 18. Grusendorf v. City of Oklahoma Cit, 816 F.2d 539, 540 (10th Cir. 1987) says he [the smoker employee]
19. Doughty v. Bd. of County Com'rs for County of Weld, 731 F.Supp. 423 (D.Colo. 1989) found “a county-wide ban on smoking in public buildings.” APPENDIX HH DISCHARGES OF SMOKERS
Baltic Metal Products Co v United Electrical, Radio and Machine Workers of America, 8 Lab Arb (BNA) 782 ([NY, 5 Nov] 1947) [two weeks] Curtiss-Wright Corp, Airplane Div v Int'l Union, United Automobile, Aircraft and Agricultural Implement Workers of American, 9 Lab Arb (BNA) 77 ([Ohio, 29 Nov] 1947) [one week] Gold-Tex Fabrics Corp, Mill Div v Textile Workers Union of America, Local 925, 32 Lab Arb (BNA) 103 ([SC, 24 Jan] 1959) [one month] Haskell Mfg Co, Inc v Int'l Union of Electrical, Radio and Machine Workers, 64-2 Lab Arb Awards (CCH) § 8647 ([Penn, 13 May] 1964) [thirty days] Columbus Show Case Co v Sheetmetal Workers Int'l Ass'n, 65-1 Lab Arb Awards (CCH) § 8347; 44 Lab Arb (BNA) 507 ([Ohio, 7 April] 1965) [two months] Welby Division of Elgin Nat'l Watch Co v United Packinghouse, Food and Allied Workers, 66-1 Lab Arb Awards (CCH) § 8105 ([Ill, 30 Dec] 1965) [30 days] The Columbus Showcase Co v Sheet Metal Workers Int'l Ass'n, 67-2 Lab Arb Awards (CCH) § 8577 ([Ohio, 23 Aug] 1967) [five weeks] The Pantasote Co v United Rubber, Cork, Linoleum and Plastic Workers of America, 68-1 Lab Arb Awards (CCH) § 8136 ([W Va, 4 Dec] 1967) [two months] Olin Mathieson Chemical Corp, Indiana Army Ammunition Plant v Int'l Chemical Workers Union, 68-2 Lab Arb Awards (CCH) § 8630; 51 Lab Arb (BNA) 97 ([Indiana, 3 July] 1968) [eleven months] The Bunting Co, Inc v Upholsterers' Int'l Union of North America, 73-2 Lab Arb Awards (CCH) 8503 ([21 Sep] 1973) [ninety days] American Synthetic Rubber Corp v United Cork, Rubber, Linoleum and Plastic Workers of America, 67 Lab Arb (BNA) 603 ([Ky, 5 Oct] 1976) [ten days] U.S. Industrial Chemicals Co v Int'l Union of Operating Engineers, 77-1 Lab Arb Awards (CCH) § 8084 ([Tuscola, 15 Jan] 1977) [4.5 months] Converters Ink v Chicago Ink Workers, 68 Lab Arb (BNA) 593 ([Ill, 17 March] 1977) ([six months, and saying "There are myriad 'no-smoking' disciplinary cases reported in the arbitration literature . . . One other dimension is lent to the case, however, entirely by the Company's able argument. That is the suggestion that the Grievant, being an habitual smoker [addict] quite possibly committed an involuntary act, and therefore indicated that he is intrinsically unsuitable for employment . . . The Union took up . . . this argument, and suggested that if it is valid, then the Company should not hire smokers in the first place or should discharge all smokers on the theory that they might create a hazard.") Olympic Stain, Inc (Division of Comerco, Inc) v General Drivers and Dockhands, 77-2 Lab Arb Awards (CCH) § 8383 ([Ky, 15 Aug] 1977) [six months] Bollin v Kingston, 89 App Div 2d 658; 453 NYS2d 113 ([8 July] 1982) [rule upheld, school bus driver suspended for reasons including smoking] Southwest Forest Industries, Inc v United Paperworkers Int'l Union, 84-2 Lab Arb Wards (CCH) § 8432 ([Missouri, 3 Aug] 1984) [four months] North Dakota Mill and Elevator Ass'n v American Federation of Grain Millers, 85-2 Lab Arb Awards (CCH) § 8566 ([ND, 1 Sep] 1985) [9 months] APPENDIX II DISCHARGES OF SMOKERS UPHELD Columbian Rope Co. and United Farm Equipment and Metal Workers, 7 Lab Arb (BNA) 450 (1947) Standard Oil Co. and Central States Petroleum Union, 19 Lab Arb (BNA) 795 (1952) Cit-Con Oil Corp. and Oil, Chem. & Allied Workers Int'l. Union, 30 Lab Arb (BNA) 252 (1958) U.S. Industrial Chem. Co. and Int'l. Union of Operating Engineers, 64-2 Lab Arb Awards (CCH) § 8481 (1964) Caraco Ship Supply and Amalgamated Meat Cutters and Butcher Workmen of No. Am., 64-3 Lab Arb Awards (CCH) § 8961 (1964) U.S. Powder Co., Division of Commercial Solvents Corp and Int'l. Union of Dist. 50, United Mine Workers of Am., 67-2 Lab Arb Awards (CCH) § 8454 (1967) Ward Furniture Manufacturing Co and United Furniture Workers of Am., 68-2 Lab Arb Awards (CCH) § 8702 (1968) Royce Chem. Co. and Oil, Chem. and Atomic Workers Int'l. Union, 70-1 Lab Arb Awards (CCH) § 8138 (1969) U.S. Plywood-Champion Papers, Inc, Del-Mar Industries Div. and Int'l. Woodworkers of Am., 70-1 Lab Arb Awards (CCH) § 8340 (1970)
A. E. Staley Manufacturing Co and Int'l. Un., Allied Industrial Workers of Am., 71-1 Lab Arb Awards (CCH) § 8203 (1971) Hercules Inc and Int'l. Chemical Workers, 74-2 Lab Arb Awards (CCH) § 8487 (1974) Illinois Fruit & Produce Corp and Int'l. Bro. of Teamsters, Chauffeurs, Warehousemen and Helpers of Am., 66 Lab Arb (BNA) 498 (1976) Wisconsin Steel Coal Mines of Int'l. Harvester Co and Progressive Mine Workers of Am., 76-2 Lab Arb Awards (CCH) § 8348 (1976) Gladieux Food Svc. and Int'l. Ass'n of Machinists and Aerospace Workers, 70 Lab Arb (BNA) 544 (1978) Bostik West, Division of USM Corp. and Oil, Chemical and Atomic Workers Int'l., 78-2 Lab Arb Awards (CCH) § 8545; 71 Lab Arb (BNA) 954 (1978) Consolidation Coal Co, R. R. Mine, Jones Run Portal and United Mine Workers, 82-2 Lab Arb Awards (CCH) § 8600 (1982) Olin Corp, McIntosh Plant and Int'l. Ass'n of Machinists, 83-2 Lab Arb Awards (CCH) § 8521; 81 Lab Arb (BNA) 644 (1983) Golden v Communication Tech. Corp, 36 E.P.D. 35,095 (ND Ga, 1985) Grusendorf v City of Oklahoma City, 816 F2d 539 (10th Cir. 1987) APPENDIX JJ 5 ALR 1521, Workmen's Compensation: Compensation to Workmen Injured Through Smoking (1920) 13 ALR 997, Liability of Master for Damage to Person or Property Due to Servant's Smoking (1921) 20 ALR 926, Constitutionality of Anti-Cigarette Legislation (1922) 33 ALR 1180, Smoking As Ground for Expulsion or Suspension of Pupil (1924) 80 ALR 2d 681, Liability of Manufacturer or Seller of Tobacco Product for Injury Caused Thereby (1961). 20 ALR 3d 893, Master's Liability for Injury to or Death of Person, or Damage to Property, Resulting from Fire Allegedly Caused by Servant's Smoking (1968) 46 ALR3d 1342, Licenses, Validity, Construction, and Application of State Statutes Forbidding Possession, Transportation, or Sale of Unstamped or Unlicensed Cigarettes or Other Tobacco Products (1972) 12 ALR 4th 629, Leaving or Refusing Employment Because of Allergic Reaction as Affecting Right to Unemployment Compensation (1982) 14 ALR 4th 1234, Right to Unemployment Compensation As affected by Employee's Refusal to Work in Areas Where Smoking Is Permitted (1982) 37 ALR 4th 480, Right of Employee to Injunction Preventing Employer From Exposing Employee to Tobacco Smoke in Workplace (1985) 55 ALR 4th 1238, Civil Liability for Tobacco Sales to Minors (1987) 63 ALR 4th 1021, Employer's Liability to Employee for Failure to Provide Work Environment Free from Tobacco Smoke (1988) 65 ALR 4th 1205, Validity, Construction, and Application of Nonsmoking Regulations (1988) 88 ALR Fed 833, Pre-Emptive Effect of OSHA, Sect. 19[b] Injunction (1988) APPENDIX JJ Lilienthal's Tobacco v. U.S., 97 US 237 (1878) Isaacs v. Jonas, 148 US 648 (1893) U.S. v. Isaacs, 148 US 654 (1893) Richmond & Alleghany Ry. Co v. Patterson Tobacco Co, 169 US 311 (1898) Gundling v. City of Chicago, 177 US 183 (9 April 1900) Austin v. Tennessee, 179 US 343 (1900) Cook v. Marshall County, 196 US 261 (1905) Hodge v. Muscatine County, 196 US 276 (1905) US v. American Tobacco Co, 221 US 106 (1911) Olson v. State, 245 US 676 (17 Oct 1917) People's Tobacco Co v. American Tobacco Co, 246 US 79 (1918) Nossaman v. State, 258 US 633; 42 S Ct 314; 66 L Ed 802 (1922) Beech-Nut Packing Co v. P. Lorillard Co, 273 US 629 (1927) Packer Corp v. State of Utah, 285 US 105 (1932) Musser v. Sheppard, 299 US 513 (1936) Townsend v. Yeomans, 301 US 441 (1937) Currin v. Wallace, 306 US 1 (1939) Mulford v. Smith, 307 US 38 (1939) American Tobacco Co v. U.S., 328 US 781 (1946) Flickinger v. Commonwealth of Pennsylvania, 340 US 843 (1950) Dalehite v. U.S., 346 US 15 (1953) Cooper v. R. J. Reynolds Tobacco Co, 358 US 875 (1958) Campbell v. Hussey, 368 US 297 (1961) U. S. v. Republic of France, 369 US 804 (1962) Lartique v. R. J. Reynolds Tobacco Co, 375 US 865 (1963) American Tobacco Co v. Green, 377 US 943 (1964) Liggett & Myers Tobacco Co v. Pritchard, 382 US 987 (1966) Liggett & Myers Tobacco Co v. Pritchard, 386 US 1009 (1967) Tobacco Institute, Inc, National Association of Broadcasters, and American Broadcasting Co v. Federal Communications Commission, 396 US 842 (1969) Green v. American Tobacco Co, 397 US 911 (1970). Capital Broadcasting Co v. Kleindienst, 405 US 1000 (1972) Albright v. R. J. Reynolds Tobacco Co, 416 US 951 (1974) Albright v. R. J. Reynolds Tobacco Co, 426 US 907 (1976) Gasper v. Louisiana Exposition & Stadium District, 439 US 1073 (1979) Federal Employees for Nonsmokers' Rights v. U.S., 444 US 926 (1979) Carson v. American Brands, Inc, 450 US 79 (1981) American Tobacco Co v. Patterson, 456 US 63 (1982) Diefenthal v. Civil Aeronautics Board, 459 US 1107 (1983) Brown & Williamson Tobacco Corp v. F. T. C., 465 US 1100 (1984) New Jersey v. T. L. O, 469 US 325 (1985) Chemehuevi Indian Tribe v. California State Board of Equalization, 474 US 9 (1985) R. J. Reynolds Tobacco Co v. Durham County, North Carolina, 479 US 130 (1986) Cipollone v. Liggett Group, Inc, 479 US 104 (1987) Liggett Group, Inc v. Cipollone, 484 US 976 (1987) |
With respect to the above Petition for Writ of Certiorari, the Solicitor General Reply Brief is online. Note its falsehoods and distortions, lying to the Supreme Court to obstruct justice. Note the obstruction of Pletten's whistleblowing on the Solicitor General falsehoods. The resultant Supreme Court decision is at 498 US 1053; 111 S Ct 768; 112 L Ed 2d 787; 59 USLW 3482 (14 January 1991). See also related |
| The book by court decision analyst Joel Tiffany, Treatise on the Unconstitutionality of American Slavery (Cleveland, Ohio: J. Calyer, 1849), p 49,
shows the U.S. Supreme Court as already then in 1849 recognized as the worst in the world as far as going outside the rule of law. Note the Supreme Court's permanent-policy purpose: to evade the actual words of the text of the U.S. Constitution (whatever words it happens to disagree with at any particular time), e.g., due process, the right to “due process of law,” e.g., notice of charges before finalized action can be taken against a person.
We all know that a person cannot even be detained more than briefly at, say, the local mall, without charges being pressed, pursuant to the constitutional right of "due process" and "habeas corpus." In Tiffany's era, it was slaves being denied these constitutional rights; in World War II, it was West Coast Japanese; currently it is whistleblowers. The targets of judicial venom vary, but U.S. judicial system hostility to due process for disfavored groups remains permanent. U.S. judges impose their personal views in rulings, as distinct from applying the rule of law. U.S. judges have a record of inventing whatever story they wish, i.e., they fabricate non-existent events. Their purpose is to masquerade and conceal their imposing their personal views vs the rule of law. Truly Tiffany's analysis of the U.S. judicial system as the worst in the civilized world remains correct. Please read his p 49, and the Ed. Note references cited. |