Chronological

1 Kator FR 4/23 11:47 am	2 Benacquista* FR 4/23 12:48 pm
3 Averhart* FR 4/23 2:44 pm	4 Lang* MO 4/26/ 8:20 am
5 Bertram MO 4/26 9:45 am	6 O'Connor* MO 4/26 11:30
7 Braun MO 4/26 11:55 am	8 Peters MO 4/26 2:00 pm
9 Dollberg MO 4/26 3:20 pm	10 Hoover* WE 4/28 9:00 am
11 Shirock* WE 4/28 12:15 pm	12 Pletten WE 5/19 1:10 pm
13 Stallings* WE 5/19 3:45 pm	14 Dubin TH 5/20 10:30 am
15 Schwartz FR 5/20 4:45 pm	16 Holt* FR 5/20 5:45 pm

Testimony would foreseeably, and did, show multiple reversible errors TACOM had made in punishing Pletten for blowing the whistle on its unlawful use of ventilation data to contradict the massive medical evidence, the rule of law, and the AR 1-8 criteria. It would foreseeably show TACOM deciding to terminate him (without 5 USC § 7513.(b) advance notice) simultaneously with the 15 Feb 1980 claim of pretended compliance with the USACARA Report Pletten had won overruling TACOM. Local EEOC official Henry Perez, Jr., had been processing Pletten's class action on behalf of endangered co-workers, and so observed the firing in mid-case! Numerous violations were found, which include: ex parte communications [Benacquista-Decker, OPM-Averhart, Averhart-Hoover, Hoover-Stallings, Braun-AMC, Holt-AMC, Stallings-Bacon-OPM via ex parte correspondence TACOM did not provide Pletten, in violation of principles cited in case law such as Sullivan v Navy, 720 F2d 1266 (CA Fed, 1983)] lack of notice of specifics decision made prior to earlier TACOM claims [Supervisor Averhart's confession] contradictions among witnesses refusal to acknowledge TACOM's own rules disregard of Michigan and federal law violation of agency and federal rules disregard of the job description disregard of actual job requirements of record disregard of Pletten's good record of awards disregard of the USACARA Report overruling TACOM's violating AR 1-8 [Gen. Stallings' confession; Dollberg's confession; Hygienist Braun's recommendations] Non-consideration of Pletten's position Extortion to force Pletten to alter anticipated testimony Retroactivity in decision-making process Regularly non-complying ventilation system Disregarding preclusive MESC decisions July 1981-June 1982 in Pletten's favor Refusing to obey federal regulation 5 CFR § 831.1206 on the mandatory duty to retain on the rolls until OPM Associate Director for Compensation decision--a decision which OPM continues to refuse to issue, the TACOM position is so far out of line, that OPM refuses to dignify it with a response Disregarding the interim Oct 1981 OPM decision in Pletten's favor Refusing to follow precedent and Federal Personnel Manual guidance (Supp. 752-1, § S1-6c(4)(d) on returning employees (here, Pletten) to duty on receipt of said interim decision

1. Deposition of Jeremiah H. Kator,
Whistleblower's Supervisor
(Smoker; Supporter of the Army No-Smoking Rule,
the USACARA Report, and Whistleblower)

1 Southfield, Michigan 2 Friday, April 23, 1982 3 11:47 a.m. 4 P R O C E E D I N G S 5    MR. COHEN: Mr. Kator, my name is Steven 6      Cohen and I am the attorney for Mr. Pletten in this 7      action before the Merit Systems Protection Board. 8      Pursuant to an agreement between the Agency 9      and myself on behalf of Mr. Pletten we have agreed to take 10      these depositions in lieu of making you go to trial in 11      Chicago. It seems that they now schedule things 12      only in the home base of the MSPB and, as such, we are 13      holding the depositions here. 14      The testimony you give here, even with 15      objections, even if counsel and I should object, will be 16      the only testimony necessary for you to give and you will 17      not be called again to trial. Do you understand that? 18      THE WITNESS: Yes. 19      MR. COHEN: If I ask you a question you 20      don't understand or if my opponent should ask you a ques- 21      tion you don't understand, ask both of us to clarify this. 22      I believe that is a concise statement of 23      our agreement, Ms. Bacon. Ed. Note: Coerced in view of TACOM refusing to notify Pletten of his appeal rights, and having refused him access to the Equal Employment Opportunity Commission review forum, in violation of law. 24      MS. BACON: Yes. 25      MR. COHEN: I believe it is your witness -Kator -3- 1 A    first. 2          MS. BACON: Yes, it is. 3     Let the record show that my name is Emily 4     Sevald Bacon and I am representing the Agency in this 5          matter. 6          The Agency calls Jeremiah H. Kator as 7          its first witness. 8 J E R E M I A H     H.     K A T O R    9 being first duly sworn, was examined and testified on 10 his oath as follows:    11 EXAMINATION 12    BY MS. BACON: 13 Q      Mr. Kator, what is your present position? 14 A      I am a Position Classification Specialist with the Army 15      Corps of Engineers in Washington, D.C. 16 Q     What was your position prior to your taking your present 17      one? 18      I was Chief of Position and Pay Management Branch in the 19      Personnel Office at the Tank Automotive Command in Warren, 20      Michigan. 21 Q     Can you remember the approximate dates that you occupied 22      that position at TACOM? 23 A      I arrived at TARCOM in February, 1978, and my transfer 24      was effective in June of 1980 from TARCOM to Washington. 25 Q     Were you in the position of Chief of Position and Pay -Kator -4- (pp 5-10) 1 work area?   2 A Yes, he did.   3 Q I would ask you if you could identify this document?   4 A Yes, I recall this document.   5 Q What is that document, please?   6 A It is the report of the hygienist [Edwin Braun] subsequent to his 7 [alleged mid-1979] survey of the area.   8 MS. BACON: I would move for submission 9 of this document.   10 MR. COHEN: Let me ask Mr. Kator some 11 questions.   12 MS. BACON: Yes.   13 VOIR DIRE EXAMINATION   14 BY MR. COHEN: 15 Q Mr. Kator, this was sent to you; is that correct? 16 A Yes, it was.   17 Q And you have no knowledge with particularity of the 18 contents of it other than that you received it?   19 A Excuse me, I don't understand the question.   20 Q Let me understand, did you compose the work that made 21 Q up the contents of this disposition form or are you just 22 Q the recipient of it?   23 A I am the recipient of this. 24 Q So you don't have any personal knowledge as to the 25 contents of it other than what is represented to you? -Kator -11- (pp 12-15) 1 identification.)   2 DIRECT EXAMINATION   3 BY MS. BACON (Continuing): 4 Q Did you instruct or make it known to your employees of 5 Mr. Pletten's sensitivity to cigarette smoke and that he 6 had objections to same?   7 A Yes, I did.   8 Q Did you tell your employees not to smoke in Mr. Pletten's 9 office?   10 A I don't recall having specifically said it in those words 11 but everyone in the area was aware of Mr. Pletten's 12 condition and aware of my feelings that they should not 13 smoke in his presence.   14 Q Did you allow smoking when you had branch meetings, for 15 instance?   16 A No, I did not.   17 Q Did you offer Mr. Pletten anything other than this office 18 that you offered him based on Mr. Braun's air content 19 study?   20 A Yes. There was another area within our branch 21 responsibility in which there were, as I recall, either 22 three or four desks and people working in our branch. I 23 offered Mr. Pletten space in that room. As a matter of 24 fact, the most distant space adjacent to some windows, 25 assuring that none of the people in that room would be -Kator -16- 1 smokers. He declined to accept that offer.   2 Q Why did he decline to accept that offer?   3 MR. COHEN: Objection. It calls for a 4 conclusion as to Mr. Pletten's state of mind.   5 Q (By Ms. Bacon) What did Mr. Pletten state to you of the 6 reasons why he --   7 Q MR. COHEN: Objection, leading. No 8 foundation.   9 MS. BACON: Objection noted. 10 Q (By Ms. Bacon) Go ahead.   11 A Upon offering him that second move to the room I just 12 identified Mr. Pletten declined, indicating that he felt 13 I was being discriminatory and singling him out to be 14 moved to a remote area simply because of his physical 15 aversion to smoking.   16 Q Did Mr. Pletten ever indicate to you what was amenable 17 to him?   18 A What was amenable to him? I --   19 MR. COHEN: Objection as to relevance and 20 materiality.   21 MS. BACON: Noted.   22 A THE WITNESS: Mr. Pletten had requested [as per AR 1-8] 23 that smoking be banned at various times and in various 24 dimensions throughout the branch, throughout the personnel 25 office, throughout the building, and throughout the -Kator -17- 1 Command. I do not recall in relation to that specific 2 instance what the relief he sought was or may have been.   3 Q Were you present when Mr. Pletten was originally placed 4 on [retroactive, involuntary] sick leave status [without 5 USC § 7513.(b) notice]?   5 A Was I present? 6 No. During that period of time -- and I 7 don't know that precise time -- I was in Washington, D. C. 8 on a temporary assignment; from sometime in the month of 9 January through the end of the month of May. 10 I know that the occasion that you cite 11 was during that period of time.   12 Q So other than your attempting to work out a place for 13 him to work that would be amenable to him did you ever 14 then have any other dealings with Mr. Pletten?   15 A Would you please clarify that? Obviously, I had many 16 dealings with Mr. Pletten.   17 Q Yes, sir. 18 Did you ever have any dealings with him 19 concerning trying to accommodate him in his objections 20 to smoking?   21 Q Did I make any other efforts?   22 Q I don't recall any specific efforts. I 23 was certainly aware of his condition and was making every 24 effort to accommodate him. Ed. Note: The actual truth was, Kator had been told to stop his pro-AR 1-8 position. Moving a nonsmoker around, as distinct from compliance for the workforce at large, was rejected by USACARA as not complying with the AR 1-8 criteria. Note the rehearsed corrupt questioning style, diverting attention off the rules, onto the whistleblower! Note diversions onto alleged 'sensitivity' and 'accommodation,' not on the rules' intent and criteria of protecting the entire work force from smoking. 'Accommodation' was never an issue, but rather, getting the rules enforced. The 'accommodation' issue was invented long after Kator had left. The fabrication was an after-the-fact development via ex parte arrangements between TACOM and MSPB, hence Kator's unawareness. He was merely coached to use the term.   25 MS. BACON: I have no further questions. -Kator -18- 1 CROSS-EXAMINATION   2 BY MR. COHEN:   3 Q Mr. Kator, I am going to ask you to go back over some 4 ground. 5 You are now a Position Classification 6 Specialist?   7 A That's correct.   8 Q And that is with the Army Corps of Engineers?   9 A That's correct.   10 Q Now, you testified earlier that that is what Mr. Pletten 11 did?   12 A That's correct.   13 Q Is it the same job?   14 A No, it is not.   15 Q Well, is it a higher classification that you are in now?   16 A Yes.   17 Q What level of classification are you at?   18 Q A GS-14.   19 Q How long have you been with the government?   20 A My total service, including military time, is approxi- 21 mately 18 1/2 years.   22 Q How much military time, just so we will know?   23 A Seventeen months.   24 Q With regard to your position at TACOM, you were only there 25 for a period of a little under two years; is that correct? -Kator -19- 1 A I believe it was a little over two years.   2 Q A little over. I am sorry. 3 What did you do in your position as a Classification -- 4 I'm sorry, let's go back. 5 What was your actual position at TACOM?   6 A Supervisory Position Classification Specialist Branch 7 Chief in the Personnel Office.   8 A What does that mean? What did you do? Who did you 9 supervise?   10 A The Position Classification Specialists and clerical 11 support personnel in that branch.   12 A About how many people were in the branch?   13 A It varied between 7 to perhaps 12 to 13 over the period 14 of time.   15 A Could you clasify that as a medium-level supervisor then, 16 your position?   17 A I would consider that a first-line or first-level 18 supervisor.   19 A And your responsibility was to each of those individuals, 20 is that correct? And to the Command, of course; is that 21 correct?   22 A Yes.   23 Q I'm sorry, Command first. 24 What are the things that you had to do as 25 a supervisor? Were you given courses instructing you -Kator -20- 1 what to do as a supervisor?   2 A I have had such courses, yes. I was not given any 3 specifically while in this assignment.   4 Q I presume those included management courses with regard 5 to occupational safety and health?   6 A I don't recall any specific block of time on any of those 7 courses that related to OSHA, no.   8 Q Did you receive any training from the government as to 9 handicapped employees?   10 A Yes, I did.   11 Q What kind of course was that?   12 A Well, I attended a 2-week course in San Antonio that was 13 provided by the Drug and Alcohol Abuse portion of the 14 federal government or the people responsible for that 15 program, at which time we talked of various handicaps, 16 including drug and alcohol abuse. 17 I recall having specifically heard people 18 speak on the subject of the treatment of handicapped 19 personnel. Ed. Note: 29 U.S.C. 706(7)(B) forbids hiring drug abusers such as smokers when they "constitute a direct threat to property or the safety of others." The civil service hiring form, Standard Form 78, Certificate of Medical Examination, precludes hiring persons such as smokers with "medical findings which . . . would make him a hazard to himself or others." This is standard hiring practice, avoiding negligent hiring. The Army's USAARL Report No. 86-13, "Smoking and Soldier Performance: A Literature Review" (1986), page 149 says, "[I]f the military somehow could restrict enlistments to nonsmokers, there would be far fewer discipline, alcoholism, and drug abuse problems in the Army and other services."   20 Q Did they include smoking in any of the discussions of 21 drug and alcohol abuse? 22 If you can recall.   23 A I don't recall.   24 Q Did you ever have any specific guidance with regard to 25 regulations on smoking within the Command? -Kator -21- 1 A Would you repeat that?   2 Q Did you have any specific guidance from higher Command 3 authority with regard to regulations concerning smoking?   4 A I was aware of the guidance provided by higher Command 5 regarding smoking.   6 Q In what fashion were you aware?   7 A Mr. Pletten made me aware of all the regulations.   8 A Did your superiors at any time make you aware?   9 A I don't recall their ever having made me aware, other 10 than referring to those documents.   11 A Did they ever send around any guidelines to you prior to 12 the Pletten incident -- where you first started dealing 13 with Mr. Pletten -- that told you about regulations?   14 A I don't recall any, no.   15 A After Mr. Pletten first became known to you as to his 16 condition who, if anybody, of the Command group did you 17 consult with?   18 A Would you define Command group?   19 Q Well, let's phrase it this way. 20 A Did you speak to anybody within the Tank 21 Command above your level of supervision?   22 A Yes, indeed.   23 A Who did you speak with?   24 A Mr. Hoover, who at that time was the Deputy Personnel 25 Officer; also, Mr. Grimmett, who was the Personnel Office -Kator -22- (pp 23-29) 1 MR. COHEN: He can refresh his memory 2 from the documents if he would like. They are in the 3 record.   4 THE WITNESS: If the document is there. 5 I don't know that the document is there.   6 Q MS. BACON: The document is there.   7 Q THE WITNESS: Okay, yes. The subject of 8 the 25 feet was the major issue at that point in time. 9 Mr. Pletten and I and others in the area 10 were trying to see if in fact 25 feet was a prohibitive 11 distance within the confines of our office. We could not 12 find any area where anyone would not be within 25 feet 13 of smokers. And of course that also included areas 14 outside of our branch.   15 Q (By Mr. Cohen) All right. 16 Did you recommend to Mr. Pletten that he 17 write a note to the Civilian Personnel Office regarding 18 a ban on smoking?   19 Q As I recall, I did.   20 Q And did you have a discussion with Mr. Pletten in that 21 regard?   22 Q I'm sure I did. I don't recall the content of it.   23 Q Did you expect that that would resolve the matter? 24 I mean, what was your intention of having 25 him write such a note? -Kator -30- (pp 31-35) 1 discuss the matter?   2 A No.   3 Q What were you saying -- well, I don't want to pry into 4 your personal business. 5 Were you seeing Dr. Holt personally for 6 your condition?   7 A Yes.   8 Q And you didn't see anybody else at the health service?   9 A Yes, I did.   10 Q Oh, you did. Besides him?   11 A Yes.   12 Q All right. Is Dr. Holt the only medical officer at that 13 facility?   14 A Is he the only medical officer?   15 Q Is he the only doctor there?   16 A As far as I know. He was at that time. I don't recall 17 of another one.   18 Q When you were going through all this -- and I know as a 19 supervisor regarding one thing, which is Position 20 Classification, there are a hundred or so regulations 21 that you are concerned with in a passing nature -- did 22 you familiarize yourself with AR 1-8, Army Regulation 1-8?   23 A I don't know that number regulation. I might know its 24 content but not by that number.   25 A Well, I am talking about the smoking regulation for the -Kator -36- 1 Army.   2 Q Am I familiar with its contents now or was I at that 3 time?   4 Q Were you at that time?   5 Q Mr. Pletten provided me with copies of the various 6 regulations regarding the higher echelon requirements for 7 smoking in nonsmoking areas, yes.   8 Q Were you familiar with it before Mr. Pletten provided it 9 to you?   10 Q I don't recall that I was. No, I was not.   11 Q Okay. And the Command had never given you any training 12 in that regard?   13 Q No, they had not. Ed. Note: No training was provided anyone at TACOM on the matter, as per the rampant insubordination against AR 1-8. Col. Benacquista explicitly admitted not agreeing with AR 1-8, TR at 25. 14 Q Once you were aware of it did you also inquire as to the 15 OSHA requirements? That is the Office of Safety and 16 Health Administration.   17 Q Did I personally inquire? No.   18 Q You did not?   19 Q No.   20 Q Did any of the people like Mr. Hoover or Mr. Grimmett or 21 Colonel Phillips direct you to inquire?   22 Q No.   23 Q Did they give you any guidance at all as to how to deal 24 with Mr. Pletten?   25 Q I recall many discussions that could have constituted -Kator -37- 1 advice, yes.   2 Q What were the contents of those discussions, if you 3 recall?   4 A I don't recall specifically.   5 Q Did you ever finally come to any conclusions with regard 6 to smoking in your general area in your branch; any 7 directives for the members of the branch in general?   8 A I don't recall that I put anything in writing to the 9 members of the branch, no.   10 A I ask you this because I recall you discussing with 11 Messrs. Hoover, Grimmett, and Phillips the issue of 12 Mr. Pletten personally. 13 You testified earlier that you discussed 14 him personally as well as things in general. 15 And I note by the disposition forms that 16 you decided to take some action with regard to Mr. Plett 17 Did you also decide to take some action 18 with regard to everybody else?   19 A No.   20 Q Why not?   21 A No one else seemed to have the problem.   22 Q You didn't ask everybody else if they had a problem, did 23 you?   24 A I said they seemed not to have a problem. No one made 25 me aware of a problem. -Kator -38- 1 But you didn't ask them either?   2 A I don't recall if I did or did not.   3 A Now, when you advised people of Mr. Pletten's problem 4 generally, -- you said earlier that they were not to smoke 5 in his presence -- did you tell them specifically what 6 "in his presence" meant?   7 A No, I did not.   8 A Well, you had a directive that at least on its face says 9 25 feet, which you were not sure one way or another if 10 you could implement. Did you attempt to have people 11 implement the 25-foot limitation?   12 A Yes, in the sense that they were aware of it. I didn't 13 provide them a tape measure or go into detail as to how 14 far 25 feet may be.   15 A No.   16 A Or if smokers were walking in his direction that they 17 needed to do something to correct it. 18 But everyone in the branch was aware of 19 the content of the note that alluded to the 25-foot 20 separation requirement.   21 A How were they aware of Mr. Pletten's personal physical 22 matters?   23 A They were aware of the note. That was all I could make 24 them aware of.   25 A What note is that? -Kator -39- 1 A The note that said that Mr. Pletten was unable to work 2 within 25 feet of people who were smoking.   3 Q Isn't that a doctor's note written and directed to you?   4 A Directed to me?   5 Q Well, Mr. Pletten provided it to you, didn't he?   6 A He did. The doctor did not provide it to me.   7 Q But that is a personal matter regarding Mr. Pletten, is 8 it not? It is a doctor's note concerning Mr. Pletten's 9 condition?   10 A Yes, it is.   11 A And Mr. Pletten allowed you to be privy to that medical 12 information?   13 A He did.   14 A And you made other people aware of Mr. Pletten's medical 15 condition as defined by his doctor?   16 A I did.   17 A Specifically regarding the 25 feet?   18 A I did.   19 A Did you direct them to attempt to give 25 feet distance 20 to Mr. Pletten?   21 A I did not so direct.   22 A You said, "Don't smoke in his presence." What did you 23 mean by that?   24 A I meant don't smoke in his presence, when they are 25 immediately in Mr. Pletten's presence. -Kator -40- (pp 41-43) 1 whether that was the word processing room or where it was.   2 Q Okay, so there are two moves now. 3 Now, Mr. Braun had done a study of the area 4 where he was originally sitting next to the window; is 5 that correct?   6 A Yes.   7 Q Did you alert Mr. Braun that he had been moved another 8 time?   9 A No.   10 Q Did you ask for a follow-up with regard to his recommenda- 11 tion?   12 A Did I ask Mr. Braun for a follow-up?   13 Q Yes.   14 A No.   15 Q Weren't you concerned that the move would cause 16 Mr. Pletten problems?   17 A The move into the semiprivate room?   18 Q Yes.   19 A That was to alleviate his problem.   20 Q That was the first one. How about the second move?   21 A I am confused regarding which is number one and which is 22 number two.   23 Q Well, you tell me then. You tell me which we will 24 classify as one and --   25 Q You just reminded me of a move that I had even forgotten -Kator -44- 1 about, so I can't remember the details.   2 Q Well, all right, Let me ask you this. 3 Did the determination by Mr. Braun indicate 4 from the face of the record, that he was to be moved 5 closer to the three rows of ceiling air supply?   6 Q Right.   7 Q Subsequent to that he was moved, is that correct?   8 A That is correct, to my knowledge.   9 Q And he was moved to a semiprivate office?   10 A That's correct.   11 Q And again after that he was moved to another office, as 12 we have just remembered?   13 A No, not after that. That was prior to as I recall.   14 Q Would that be prior to Mr. Braun's disposition form?   15 A Having forgotten that move totally and you had to remind 16 me, I don't recall which came first.   17 Q Was there a part of the office that was more susceptible 18 to -- was there a part of the office that was less 19 circulatory, let's say, where the air was a little 20 heavier?   21 A Gee, I really am unaware of that. I don't know. 22 Mr. Braun I don't think spoke to that. Excepting that in 23 his studies he talked of the window area as being that 24 where the smoke was being drawn [out].   25 Q Is building 230 air conditioned? -Kator -45- 1 Excuse me?   2 Q Is building 230 air conditioned or was it at the time you 3 were there?   4 A If it was it was not working because it was awfully warm.   5 Q I agree with you. I have been in building 230 and I agree 6 with you that if it is air conditioned it doesn't work 7 very well.   8 Were there fans in the branch?   9 A Yes.   10 Q Were they used frequently?   11 A I don't know what frequently means.   12 Q Like when it was hot.   13 A I didn't like the fans because they would have a tendency 14 to blow the papers on my desk. I didn't have a fan 15 directly in my office.   16 Q When the fans were in use did it occur to you or does it 17 occur to you now that the air pattern of the office may 18 have changed from what Mr. Braun saw?   19 A I don't know what Mr. Braun saw. I don't recall him 20 having addressed the subject of the fans. I know there 21 were fans in the room.   22 Q And the fans were there to circulate air I presume?   23 A I would assume so.   24 Q Because the circulation was bad in the office?   25 A I think it would be more related to the heat rather than -Kator -46- (pp 47-48) 1       directive to me to solve the problem. 2 Q      In your discussions with Mr. Pletten about compliance in 3      making things better for him did you have any troubles 4      with Mr. Pletten? Was he abusive at any time to you? 5 A     I don't recall any instance where he was abusive to me, 6      no. 7 Q      How would you classify Mr. Pletten's actions; those of 8      concern or what? 9 A     His actions with regard to what? 10 Q      His own behalf. His dealings with you. 11      How did he present himself? 12     Let's ask it this way. Was he a good 13       employee? 14     Technically, yes. Absolutely. 15 Q     Nontechnically, generally, was he a good employee? 16 A     Well, that covers a wide span. I would say that 17       Mr. Pletten was very capable and very conscientious. I 18       had no difficulties with his work product. 19 Q     That implies you had difficulties with other areas. 20       Did you have any problems with Mr. Pletten? 21       We are here talking about a problem with Mr. Pletten. 22       Obviously there was this problem if you wish to define it 23       as a problem. 24 Q     I don't. But let's assume that you do. 25       Aside from the smoking incident and -Kator -49- 1 circumstances were there any other problems that you had 2 with Mr. Pletten?   3 A No.   4 Q So other than this problem about where to put him with 5 regard to smoke, then you could say generally you had 6 absolutely no problem with Mr. Pletten? Other than this 7 smoking circumstance?   8 MS. BACON: Don't put words in the 9 witness' mouth.   10 MR. COHEN: I am on cross-examination. I 11 can lead him.   12 A THE WITNESS: Well, you say absolutely no 13 problems. I don't understand.   14 Q (By Mr. Cohen) Well, you clarify it.   15 Q I don't remember any other problems but I am not here to 16 say that I had absolutely no other problems either. I 17 just don't recall any.   18 Q Would you recommend Mr. Pletten to somebody else for a 19 position?   20 A I would recommend Mr. Pletten for a position as a 21 classification specialist because of his technical 22 capability. Yes, indeed.   23 Q Is there any reason you wouldn't recommend him?   24 A No.   25 Q Did you give an in-grade increase [for quality work] to him during the time -Kator -50- 1 A period that this occurred?   2 A Did I give him one?   3 Q Yes.   4 A It's not up to me as a supervisor to give him one.   5 Q Did you recommend that he get one?   6 A Those are an automatic and you would have to take the 7 initiative to keep him from getting one and I did not do 8 that. So, obviously, he must have received one. Ed. Note: Kator misremembers. In fact, the decision is up to the supervisor; increases for quality work are not automatic. The supervisor does more than “recommend.” He decides. Federal laws, e.g., 5 USC § 4304, and federal regulations, e.g., 5 CFR § 531.404(a), cover the subject and elaborate pertinent principles. They “require a rating of record of at least Level 3 (Fully Successful or equivalent) as the basis for the acceptable level of competence determination.” TACOM's regulations on performance standards (TACOM-R 600-5.16) and in-grade pay increases (TACOM-R 600-5.22) set requirements. Supervisors must affirmatively (a) certify employee work quality as above mere “satisfactory,” (b) warrants a pay increase, and (c) is of “acceptable level of competence” for same. See example step-rates chart. See also federal regulation Federal Personnel Manual Supplement 831-1, Subchapter 10, Part 2.(f) for the meaning of such a pay increase. 9 Q And you would have [affirmatively] signed an in-grade [pay increase]?   10 A I would have signed it, yes.   11 Q Do you think during the time period you were dealing with 12 Mr. Pletten that he appeared at any time to you to be 13 disabled from working [the TACOM story!]?   14 A Did he appear to be?   15 Q Yes.   16 A No. Ed. Note: Wherefore, pursuant to Pletten's clear, unrestricted ability to work, MESC awarded Pletten unemployment compensation, against all TACOM's several appeals. 17 Q Did he [Pletten] inform you [Kator] that he was ill, other than the 18 incidents with smoking and a request to be kept away?   19 A Restate that.   20 Q Let me rephrase the question. 21 Did he have an asthma attack [episode] while on the 22 job?   23 A Not to my knowledge.   24 Q Did anybody ever have to call medical authorities to 25 come to his aid while he was there? -Kator -51- 1 I don't recall that having happened, no.   2 If that had happened you would have been made aware of 3 it as chief, wouldn't you?   4 If I had been there, yes.   5 When you say you implemented the recommendation by 6 Mr. Braun by moving him, if you had moved the office 7 subsequent to removing Mr. Pletten---well, let me ask 8 you this way. 9 Did you move the office over to the other 10 side subsequent to Mr. Braun's recommendation?   11 Did I move the office? 12 Was the office moved?   13 I am trying to figure out what went first 14 and I agree with you that two moves are hazy. I am trying 15 to figure out what went first.   16 A Okay. I can tell you to my best recollection the 17 sequence of moves. 18 When I came to TARCOM the branch [in Bldg. 230] was 19 situated almost in the center of that large room. And 20 subsequent to that we were granted space across the hall 21 so our function, our branch, was moved up to the west end 22 of that room near the personnel officers' space. So 23 everyone in the branch moved up to that end. [Move #1].   24 A Now subsequent to that this discussion came 25 up regarding the 25 feet [May 1979] and the study by Mr. Braun, at -Kator -52- 1 which time Mr. Pletten was moved into the semiprivate 2 office. That did come subsequent to the movement of the 3 entire branch.   4 Q And you didn't direct any studies and you don't know of 5 any other studies that were done as to the area?   6 A I don't know of any others, that's right.   7 Q Did anybody ask you for a smoke-free environment for 8 Mr. Pletten?   9 A Did anyone other than Mr. Pletten?   10 Q Did Mr. Pletten ask you for a smoke-free environment?   11 Q I recall that term. I don't know the origin of it but 12 I know that was a point of discussion, that the environ- 13 ment should be smoke free.   14 Q Did Mr. Pletten forward that to you?   15 A I don't remember how it came about.   16 Q Is it possible to make that area smoke free?   17 A Is it possible to make any area smoke free?   18 Q Well, let me ask you. 19 Could you have ordered, in your authority 20 as supervisor, that everybody stop smoking, including 21 yourself?   22 A Could I have ordered the employees that worked for me?   23 Q Yes.   24 A Yes, I had that authority in my opinion.   25 Q Did you talk about exercising that authority with anybody -Kator -53- 1 A    Yes. 2 Q    With who? 3 A    With Mr. Pletten, with Mr. Hoover, and, I don't recall, 4          but I think Mr. Grimmett as well. 5 Q    Did the term smoke free originate with Dr. Holt to your 6       recollection? If that would help you refresh your memory. 7 A    As I recall it may well have, yes. 8 Q      In other words it may not have been Mr. Pletten, it may 9           have been Dr. Holt? 10 A    May have been. 11             MR. COHEN: We can ask Dr. Holt. 12            MS. BACON: Yes. 13            MR. COHEN: I don't have any further 14             questions. 15             Your witness. 16             MS. BACON: I don't have any further 17             questions for you either, Mr. Kator. 18             I realize you are pressed for time and I 19             would not wish to hold you any further. 20             MR. COHEN: Neither would I and I would like 21             to thank you. 22                                           - - -                         (12:40 p.m.) 23 24 25                                                 [Kator deposition concluded] -Kator -54- [Click here for .pdf Full Text.]

2. Deposition of Col. John J. Benacquista,
TACOM Chief-of-Staff
(Smoker; Exortion to Get Pletten to Cease
and Desist Whistleblowing on TACOM Violations,
MI Symptoms Noted As Evident)

1 Southfield, Michigan 2 Friday, April 23, 1982 3 12:48 p.m. 4 P R O C E E D I N G S    5 J O H N     J.     B EN A C Q U I S T A    6 being first duly sworn, was examined and testified on 7 her oath as follows:    8 DIRECT EXAMINATION 9    BY MS. BACON: 10 Q    Colonel Benacquista, what is your position at the 11      present time? 12 A    At the present time I am Deputy Commander of the Army 13      Logistics Center at Fort Lee, Virginia. 14 Q    What was your position prior to the one you presently hold? 15 A    Prior to that I was at the Tank-Automotive Command; 16      first as Chief of Staff, from about December of 1979 17      until October of 1980, and then Acting Deputy Commander 18      for Readiness, from October of 1980 until April of 1981. 19      Then I was on a special assignment for the Commanding 20      General for about two months and then I left Detroit in 21      June of 1981. 22 Q What were your responsibilities as Chief of Staff? 23 A    The Chief of Staff is responsible to the Commanding 24      General for the proper operation of his staff; its 25      coordination; its activity. One of the duties was the -Benacquista -3- 1 handling of grievances and EEO complaints and acting for 2 the Command in those matters.   3 Q Are you acquainted with the appellant in this case, 4 Mr. Pletten?   5 A Yes.   6 Q How did you become acquainted with Mr. Pletten?   7 A Through matters of grievances which had started before I 8 arrived as Chief of Staff. I would say that within the 9 first 30 to 60 days, which would have been February or 10 January of 1980, was my first association with these 11 complaints.   12 Q Did you have an occasion to meet with Mr. Pletten 13 personally?   14 A Yes. I did.   15 Q Do you remember what the subject matter of the grievances 16 was or the discussions that you had with him?   17 A There were a variety. Generally they all centered around 18 the request that smoking be banned in the buildings of 19 the Tank Automotive Command. Ed. Note: This is rehearsed distortion, to cover up his extortion. Actual underlying subject: seeking compliance with the USACARA Report as per AR 1-8. 20 Q How were his grievances resolved to the best of your 21 recollection?   22 A I don't know that they were resolved at all or not 23 totally. We would go through the normal grievance 24 procedure at the Command and if that was unsatisfactory 25 the case would be referred to the U.S. Army Civilian -Benacquista -4- 1 Appellant Review Activity -- I think that was the title 2 of it -- for an independent evaluation and then it would 3 come back to us with recommendations for us to either 4 accept or reject.   5 Q When USACARA would come back with recommendations and, if 6 you accepted them, what happened to the grievance then?   7 A It is my understanding that if we accepted those recom- 8 mendations then that particular grievance was closed. It 9 was a completed action.   10 Q Did you accept the recommendations that USACARA made for 11 the most part?   12 A To my knowledge we accepted all of the recommendations. 13 I don't recall exactly how many I was involved in but I 14 don't recall having rejected any.   15 Q Did you deal with Mr. Pletten only concerning his 16 grievances?   17 A Well, no. The grievances were one matter. There were other 18 matters that were involved regarding questions and things 19 that were happening that were not directly related to a 20 grievance. But they were all indirectly related to 21 grievances.   22 Q After Mr. Pletten was placed on sick leave in March of 23 1980 [per extortion] did you have any contact with him either in person 24 or in writing?   25 A In writing a number of times, responding to certain paper -Benacquista -5- (pp 6-11) 1 what we would get after that was some statement that 2 described that kind of an environment where he could be 3 allowed to come back to work.   4 Q To your knowledge did Mr. Pletten bring in a doctor's 5 note indicating that he could work in something other 6 than a smoke-free work environment?   7 A No.   8 MS. BACON: I have no further questions 9 at this time.   10 MR. COHEN: Thank you. 11 Colonel, it has been a long time since 12 we've met and I am glad to see you. 13 I have a number of questions about this 14 smoke-free term.   15 CROSS-EXAMINATION 16 BY MR. COHEN:   17 Q Who coined the phrase "smoke-free environment" to your 18 knowledge?   19 A To my knowledge it came either from Mr. Pletten or from 20 his doctor.   21 Q You are not sure which though?   22 No.   23 Q Is it possible that it came from Dr. Holt?   24 I don't know. I know it came up a number of times in 25 the grievances. -Benacquista -12- 1 Q Did you read any of the letters from Mr. Pletten's 2     doctors? 3 A Some I guess. I don't know if I saw—yes, I saw some 4     letters that were signed by doctors and some that were 5     signed by somebody else in the doctor's office without 6     the doctor's signature. 7 Q Did you ever see a doctor's letter that stated that 8     Mr. Pletten could only work in a smoke-free environment? 9 A I couldn't say here that those specific words were used, 10     only smoke free. 11 Q Is it possible that semantically the letters—I mean, 12     you don't recall the letters and I don't expect you to 13     after these numbers of months and years as passed. But 14     did you ever ask the doctors? As Chief of Staff did you 15     ever call the doctors and say, "Can the guy work without 16     it being smoke free" [Ed. Note: as he had so well 1969-1980]? 17 A No. 18 Q Why not? 19 Q I did not. 20 Q Did any of your staff? 21 A That was a matter really between Mr. Pletten and his 22     doctors. Not me. 23 Q But you [layman Benacquista] had made a determination that the doctors had 24     required a smoke-free environment; is that true? 25 A I had made that determination. I think that if you go -Benacquista -13- Ed. Note: Benacquista here admits his overruling the medical input, though knowing very well "what the doctor was saying," Dep p 24, as Evelyn Bertram said, T 18. Benacquista did the overruling to extort from Pletten an assertion contrary to fact, Dep p 62. It was notorious that smoking is not a job requirement! Note also Benacquista's confession of having suspended Pletten, at p 47. At that point, TACOM attorney Bacon interrupted to stop Benacquista repeatedly confessing to the unlawful activity, there, of the illegal suspension without 30 days notice as mandated by law, 5 USC § 7513.(b). (pp 14-23) I looked at closely—and I haven't looked at them for a 2     year—but if you looked at them closely it's quite 3     obvious in there that what the doctor was saying was 4     that the environment in his present work space was not 5     reasonably free of contaminants. Ed. Note: See Dep. p 62 for extortion context. Q 6 So you did see some of the doctors' statements? A 7 Yes. 8 Q What? 9 A Those letters which were provided. And the ones I saw 10     were generally provided as enclosures to a grievance. 11 Q Did you seek guidance from Dr. Holt? 12 A We did. 13 Q So the difference between Army Regulation 1-8 and that 14     type of environment and a smoke-free environment? 15 A Yes, I think so. I believe that the terminology 16     "reasonably free of contaminants" is a direct lift out 17     of AR 1-8. 18 Q And did you seek guidance from higher headquarters with 19     regard to this issue? A 20 I did not. Not specifically, no. 21 Q You mentioned that you discussed it with [Major] General [Oscar] Decker. 22     What was the nature of your contacts and 23     discussions with him? 24 A When you said higher authority I thought you meant 25     higher than the Command. -Benacquista -24- 1 Q No, that's true. No, I did, and you answered it 2     correctly I am sure. 3 Q The question is what was your relationship 4     with General Decker as to this issue? 5 A This was discussed on a regular basis several times in 6     what was called Command group meetings; generally every 7     evening somewhere between 5:00 and 7:00 at night where 8     we would discuss the day's actions. And those would be 9     discussed at that time. 10 Q And did he follow along with this as it was going on? 11 A Yes. All done ex parte, no notice provided to Pletten, denying him the right to reply. 12 Q Did he have you issue a directive for the entire Command 13     with regard to smoking? 14 A I don't believe so. 15 Q Did you ever issue a directive to the Command? 16 A A directive signed by me? 17 Q Or by anybody from the Command group? 18 Not to my knowledge, no. 19 Why not? 20 I didn't think it was necessary. 21     It doesn't make sense to have a Command 22     getting involved in the personal habits of its employees, 23     you know, as a Command policy letter [matter]. Ed. Note: This dissent, insubordination against the rule of law, deprives the employer, the U.S. government, the taxpayers, of "honest services," both his and victim's. By law, 18 USC §§ 1341, 1343, and 1346, mail fraud defrauding employer of "honest services" is illegal. The term “‘honest services’ can include ‘honest and impartial government.’”—U.S. v Brumley, 116 F3d 728, 731 (CA 5, 1997) cert den 522 US 1028; 118 S Ct 625; 139 L Ed 2d 606 (1997). “A [retaliator against whistleblowers] defendant may be prosecuted for deprivation of honest services [even] if he [the retaliator] has [not a single illegal intent but] a dual intent, i.e., if he is found to have intended both a lawful [as retaliators allege] and an unlawful purpose to some degree.”—U.S. v Woodward, 149 F3d 46, 71 (CA 1, 1998) cert den 525 US 1138; 119 S Ct 1026; 143 L Ed 2d 37 (1999). The Dept of Justice prosecutes others (e.g., civil servants, as in U.S. v James J. Smith, for such crimes, but as per DOJ policy and practice, it does not prosecute when the crime occurs by supervisors against whistleblowers. 24 Q Doesn't AR 1-8 require that you look at your Command with 25     regard to compliance with that regulation? -Benacquista -25- (pp 26-31) 1 sometimes when the United States Army will protect either 2 investments in material or items of concern to them, like 3 computers, to ban smoking so as to keep them viable; is 4 that correct?   5 In my personal opinion that's a pretty flaky argument. 6 You don't put computers out in the rain.   7 I can see what you are getting at because 8 Mr. Pletten has used it [per Shimp court precedent] a number of times in our 9 discussions. I really don't think that [precedent leading to AR 1-8] is relevant. I 10 really don't.   11 You see, the problem here, Colonel, is that we're before 12 a board and they determine what is relevant. You may be 13 right, but I would like an answer to the question.   14 Why don't you restate the question and I will try to 15 answer it as directly as I can.   16 Okay. Let me restate it. 17 The United States Army then takes actions 18 to ban smoking where it is a hazard to certain pieces of 19 material and certain sensitive machinery?   20 And people, yes.   21 And people?   22 In those environments. They don't allow smoking around 23 places where there are gasoline fumes, obviously.   24 If it bothered Mr. Pletten why was it inappropriate [to disallow smoking]? Did 25 they ever make a survey of the Command of any type to -Benacquista -32- (pp 33-46) 1 be a medical man and therefore would not be qualified— 2 MR. COHEN: Col. Benacquista is being 3     deposed and put on the record for the purposes of being 4     the Chief of Staff who makes decisions with regard to 5     action taken on personnel matters when they come to him 6     at a grievance chain level. 7 MS. BACON: That's correct. 8 MR. COHEN: The question of medical is 9     not at all involved it seems here, but interpreting the 10     written words of doctors who have never been spoken to 11     by anybody, which we will get to ourselves, Counselor, 12     when we depose these people. 13     But, I am asking him if he has a common 14     sense—he is an intelligent man and he has gotten to 15     a high rank in the Army, which you don't get to by 16     accident. I would think he would be able to tell me if 17     the two letters seem at odds. 18 Q (By Mr. Cohen) Colonel? 19 A First of all, I looked at them and there is better than 20     60 days difference between the two. The two letters I 21     would have seen with the matter in between of a lot of 22     grievances. 23     And as I recall, the sequence leading up to, 24     I guess, the time when the suspension came about— 25 MS. BACON: I would— Ed. Note: Interrupting, obstructing justice, to stop his confession of the illegal suspension without 30 days notice as mandated by law, 5 USC § 7513.(b). Note elsewhere the meaning of this confession of TACOM having suspended Pletten, after the two years of TACOM having denied it! obstructing Pletten's appeals. Benacquista would also admit overruling the doctors, Dep p. 13, contrary to "what the doctor was saying," Dep p 24. Benacquista did the overruling to extort from Pletten an assertion contrary to fact, Dep p 62. - Benacquista -47- (pp 48-61) 1 Q You said something to the effect that you 2     wouldn't direct a person to go back to work where he 3     thought there was a hazard, where that would be unsafe 4     for him. Q 5 Can you repeat what you said in that nature? 6 A If we are going to get into that I would like to go back 7     and hear what the whole line of questioning was. 8 Q Well, I'm not sure we can do that. 9     Well, let's go back—no, let's not. It's 10     quite a ways back. 11 Q We were talking previously about why you 12     didn't just order him back to work. Why wouldn't you say, 13     "Look, we've done all this work and you should go back 14     to work"? 15 Q     Why wouldn't you do that? 16 A His contention was that that was a hazard and that he 17     required a smoke-free environment. 18 A     We had acknowledged and transmitted a 19     number of times that the environment in the building was 20     considered reasonably free of contaminants, you know. 21     Why would I want to go around and tell 22     somebody, "You have got to go back in there"? That is 23     a personal judgment on his own part. The job was available. 24     All he [Pletten] had to do [to keep job] was to say, "I agree that this [TACOM] is 25     reasonably free of contaminants." Ed. Note: This was extortion as defined by Michigan law MCL § 750.213, MSA § 28.410, e.g., to pressure altered anticipated testimony, People v Atcher, 65 Mich App 734; 238 NW2d 389 (1975). To effect the extortion, Benacquista altered, overruled, the doctors' statements, Tr. at 13. Benacquista admits at p 25 that he opposed AR 1-8; and at p 24 that he knew what the doctor was really "saying." Benacquista's purpose in thus imposing the suspension, admitted at p 47, was to pressure Pletten, as per his work ethic and pay being embezzled, into withdrawing his request for compliance with the AR 1-8 criteria, and the USACARA Report. The extortion was in the context of Pletten having obtained in essence "class action" relief for fellow employees. Note the USACARA Report, p 11, favorable words inter alia, "An equitable balance . . . cannot be accomplished by relocating one nonsmoker. . . . The other nonsmokers also have rights . . . No evidence was offered to indicate that the Command had considered the rights of all nonsmokers." Considering others' rights applied the concept of Donahue v Stockton Gas & Elec, 6 Cal App 276; 92 P 196 (26 Aug 1907). This is a case of air pollution causing varying effects on individual victims, and though only one person complained, the pollution was banned as a public nuisance due to impacting a number of people, and specifying that additional successive cases could be brought as well. This concept is cited with approval in the pro-worker safety professional article by Alfred W. Blumrosen, et al., "Injunctions Against Occupational Hazards: The Right to Work Under Safe Conditions," 64 Calif Law Rev (#3) 702-731 at 714 n 54 (May 1976). Benacquista oppposed this concept, and Pletten was blowing the whistle on the disregard. Benacquista, by demanding that Pletten say the opposite of scientific fact, was demanding "junk science." Note a long line of anti-"junk science" case law: U.S. v Amaral, 488 F2d 1148 (CA 3, 1973) Richardson v Richardson v Richardson-Merrill, Inc, 273 US App DC 32; 857 F2d 823 (1988) Christophersen v Allied-Signal Corp, 939 F2d 1106 (CA 5, 1991) Brock v Merrell J. Dow Pharmaceuticals, Inc, 874 F2d 307 (CA 5, 1989) Daubert v Merrell Dow Pharmaceuticals, Inc, 509 US 579; 113 S Ct 2786; 125 L Ed 2d 469 (28 June 1993). Additionally, people cannot lawfully "consent" to self-harm or harm to others. References: People v Gray, 224 Cal App 2d 76; 36 Cal Rptr 263 (1964) (rejecting consent when "great bodily harm" results) People v Samuels, 250 Cal App 2d 501; 58 Cal Rptr 439 (1967) cert den 390 US 1024; 88 S Ct 1404; 20 L Ed 2d 281 (rejecting consent by child, insane person, and when great bodily injury results) Taylor v State, 214 Md 156; 133 A2d 414; 65 ALR2d 740 (1957) (rejecting consent in cases of breach of public peace) Commonwealth v Collberg, 119 Mass 350; 1876 Mass LEXIS 30 (4 Jan 1876) (consent is void because it is against the law) Commonwealth v Farrell, 322 Mass 606; 78 NE2d 697 (12 April 1948) (sadistic burning-by-cigarette case, citing King v Donovan, 2 KB 498; 30 Cox CC 187 (CCA) (1934) rejecting consent where bodily harm is likely to result; "bodily harm" means any hurt or injury calculated to interfere with health or comfort, more than merely transient and trifling, but not requiring permanent effect) Wright v Starr, 42 Nev 441; 179 P 877; 6 ALR 981 (1919) (rejecting consent in cases of breach of public peace) State v Fransua, 85 NM 173; 510 P2d 106; 58 ALR3d 656 (NM App, 1973) (rejecting consent in cases of breach of public peace, whether or not individuals have so little regard for their own safety as to invite injury, as the public has a stronger and overriding interest in banning such acts) People ex rel Burke v Steinberg, 190 Misc 413; 73 NYS2d 475 (1947) (rejecting consent in cases of breach of public peace, or involving anything of the character of illegality, or injurious to the public also, and rejecting consent obtained by fraud, stupefaction, ignorance or incapacity of the harmed person, re consenting to injection of "vaccine" that was in fact nothing but water!) People v Lenti, 44 Misc 2d 118; 253 NYS2d 9 (1964) (rejecting consent to harm resulting in several weeks of hospitalization) State v Roby, 83 Vt 121; 74 A 638 (1909) (rejecting consent in cases of breach of public peace and dignity) Wiley v Carpenter, 64 Vt 212; 23 A 630 (1892) (rejecting consent in cases of breach of public peace and dignity) Banovitch v Commonwealth, 196 Va 210; 83 SE2d 369 (1954) (rejecting consent to harm during course of incompetent cancer treatment, consent invalid in cases of fraud, recklessness, breach of public peace and dignity) Van Vactor v State, 113 Ind 276; 15 NE 341; 1888 Ind LEXIS 34 (9 Feb 1888) (issue of a genuine alternative) State v Beck, 19 SCL 363 (1833) (issue of a genuine alternative) State v Lankford, 29 Del 594; 102 A 63 (1917) (rejecting consent obtained by not providing full advance disclosure, rejecting consent to cruel treatment, or infection by a loathsome disease) Commonwealth v Nickerson, 87 Mass 518; 1862 Mass LEXIS 422 (Nov 1862) (rejecting consent by a minor, age 9) Guarro v United States, 99 App DC 97; 237 F2d 578 (1956) (rejecting consent obtained by fraud) People v Kevorkian, 447 Mich 436; 527 NW2d 714 (1994) See also analysis 27 July 1983, in criminal personality and behavior context, pp 73-74,   p 104,   p 106,   p 219,   p 228,   p 231,   p 247,   p 249,   p 253,   p 333, and pp 397-398. - Benacquista -62- (pp 63-71) 1 the people selected to do those studies?   2 A Yes.   3 Q And specific locations of where the studies were done was 4 not discussed with you?   5 A I recall having given guidance that I wanted them taken 6 at a variety of places throughout the Command. So they 7 were taken at more than one location but I did not specify 8 exactly where they would be.   9 Q Who makes the determination of what reasonably free of 10 contaminants means? 11 I don't mean to be facetious by asking it 12 after all this.   13 A When the air content surveys were done by the 14 environmental hygienist or whatever, Mr. Braun. I don't 15 know. He is the technician and he is the one who made 16 the determination to refer to the [rjected by USACARA] standards and wrote 17 those up as a report [pretending compliance].   18 Q In other words, you have no independent knowledge of 19 what "reasonably smoke free" is?   20 A I wouldn't attempt to define it, no.   21 Q And you relied presumably upon the directives of your 22 subordinates in whether your Agency complied with 23 "reasonably smoke free"?   24 A Yes. Reasonably free of contaminants.   25 Q I'm sorry. Now I am doing it. -Benacquista -72- 1 I don't want to do it either but it seems to evoke all 2 kinds of different meanings.   3 Q Was a ban on smoking in the Command unreasonable? 4 In your estimation was it unreasonable?   5 Q I don't know if it was unreasonable or not. I think it 6 was unnecessary.   7 Q Why do you think that?   8 Q When the [faked] surveys show that the air outside is not 9 significantly different than on the inside, banning 10 smoking just doesn't seem to make any sense. If you 11 want to get the air on the inside cleaner than the 12 outside we would have to fiter all incoming air to make 13 a specialized environment within the building. That is 14 not reasonable.   Ed. Note: USACARA, p 14, had rejected this narrow-minded rigid 'only one solution' view, had cited the genuine alternatives as “less smoking or more ventilation.” The USACARA data are "stimuli," but TACOM management smokers were notoriously unresponsive, hence, insubordinate. Industrial Hygienist Braun had recommended an air conditioning solution (T. 34), but his recommendations were ignored! treated as never having occurred. TACOM Personnel Office and Legal Office had ex parte pre-arranged with MSPB to disregard such data.   15 Q Well, the question that follows from that is that there are 16 certain parts of the Command that are restricted from 17 smoking; correct?   18 Q Yes.   19 Q Conference rooms and other places would conceivably have 20 less of a smoke content than places where smoking is 21 permitted; is that true?   22 Q Yes. I would say yes, certain times.   Ed. Note: TACAM witness Col. Benacquista is alluding to the notorious fact that the TACOM ventilation system was not working; thus, that the "check-boarding" (limited action) TACOM was insisting on, was not working, was not protecting the work-force as a whole. "Checker-boarding" is notoriously ineffective, see Dept of Health, Educ and Welfare, Social Security Admin v AFGE Local 1923, 82-1 Lab Arb Awards (CCH) § 8206 (DC, 22 Jan 1982) Opinions of Attorney General 1987-1988, No. 6460, pp 167-171; 1987 Michigan Register 366 (25 Aug 1987) (placing nonsmokers "checkerboard style" does not achieve law compliance. Thus, "checker-boarding" had years before been ruled unconstitutional, in Alford v City of Newport News, 220 Va 584; 260 SE2d 241 (21 Nov 1979). Partial bans are unconstitutional as not in fact protective. TACOM Personnel Office and Legal Office had ex parte pre-arranged with MSPB to ignore TACOMer admissions, "confessions against interest," of its ventilation system inadequacies.   23 Q Certain times? I mean, why else would you ban smoking in 24 a room if not to keep it smoke free by comparison to other 25 areas? -Benacquista -73- (pp 74-78) 1 A     If I used that word [suspension, p 47] it was just a mixup of words because 2          it has been thrown around back and forth. It was nothing 3          other than error. 4          Sick leave, paid or nonpaid. And annual 5          leave was involved. 6                MR. COHEN: I have nothing further. 7                MS. BACON: I have nothing further either. 8                MR. COHEN: Colonel, thank you.                           [Benacquista deposition concluded] 9                                     * * * *                               2:31 p.m. -Benacquista -79- [Click here for .pdf Full Text.]

3. Deposition of Carma J. Averhart, TACOM Co-worker
(Smoker; Offered Promotion to
Aid and Abet Pletten's Firing;
MI Symptoms Noted As Evident)

1 Southfield, Michigan 2 Friday, April 23, 1982 3 2:44 p.m. 4 P R O C E E D I N G S    5 C A R M A     J.     A V E R H A R T    6 being first duly sworn, was examined and testified on 7 her oath as follows:    8 DIRECT EXAMINATION 9    BY MS. BACON: 10 Q    Ms. Averhart, what is your position? 11 A    I am presently Chief of Position and Pay Management 12        Branch. 13 Q    How long have you held that position? 14 A    For almost two years. Since July of 1980. 15 Q    What was your position prior to the present one you hold? 16 A    Before that I was a Position Classification Specialist 17         in the same branch. 18 Q    When did you first take that job? 19 A    I believe it was 1976. I came here in 1975. I had 20        another job in personnel for about nine months. 21 Q    Are you familiar with the appellant in this case, 22        Mr. Pletten? 23 A    Yes. 24 Q   How did you make Mr. Pletten's acquaintance? 25 A    Well, we both worked in civilian personnel when I first -Averhart -3- 1 came here, in different branches. Eventually we ended 2 up in the same branch.   3 Q In your position as Chief of the Position and Pay 4 Management Office was he one of your employees then?   5 Q Yes.   6 Q Are you familiar with his sensitivity and objection to 7 tobacco smoke?   8 A Yes.   9 Q How did you first become aware of his objections to 10 tobacco smoke?   11 A Well, I believe it was about 1979. Mr. Kator was the 12 Chief at that time and he notified the people in the 13 branch that Leroy was sensitive to tabocco smoke and 14 that we should not smoke in his presence.   15 Q You said you had worked there since 1976. Prior to 16 Mr. Kator informing you of his sensitivity -- prior to 17 that 1979 time -- had he ever indicated to you his 18 sensitivity to it?   19 A Not that I can remember.   20 Q Was Mr. Kator's direction followed to the best of your 21 knowledge?   22 A As far as I know, yes.   23 Q The case file at Tab 7 reflects that a letter was sent 24 dated 27 November 1981 — proposing Mr. Pletten's 25 separation for medical disqualification. -Averhart -4- 1 Q Do you recall sending Mr. Pletten that 2 letter?   3 A Yes.   4 Q Can you give us some background of the events which led 5 up to the drafting and signing of that letter?   6 A Well, we had been notified by Office of Personnel 7 Management that our application for Mr. Pletten's 8 disability retirement had been disapproved. 9 So, therefore, this letter was sent out.   10 Q What prompted your filing a disability retirement 11 application on his behalf?   12 A Well, Mr. Pletten had been on extended sick leave and 13 there didn't seem to be any likelihood that he would be 14 returning to work. Ed. Note: Involuntary leave, as per Col. Benacqusita (Tr. at 13) extortion to force Pletten to retract his request for compliance with AR 1-8 (Tr. at 62). USACARA had rejected TACOM's non-compliance with the AR 1-8 criteria. Benacquista wanted to force Pletten to not seek implementation. Note fixation on the whistleblower, not on the rules' intent of protecting the entire work force from smoking. Note the rehearsed perjury, pretending legitimate 'sick leave.' As per the Bevan precedent, Pletten repeatedly returned to duty, but was turned away. 15 Before we can separate him we have to try 16 everything possible and application for disability 17 retirement is one of the things that we do have to try.   18 Q After Mr. Pletten had been put on sick leave did he on 19 any occasion try to return back to duty?   20 A Yes.   21 Q I ask if you can identify this document?   22 A Yes, I prepared that.   23 MS. BACON: Okay. I move for the 17 submission of this memorandum to the record, dated 17 March 20, 1980, as Agency Exhibit 8. -Averhart -5- 1 (Agency Exhibit 8 marked for 2 identification.)   3 MS. BACON: Off the record, please.   4 (Off the record.) 5 (Back on the record.)   6 MR. COHEN: No objection.   7 Q (By Ms. Bacon) Did Mr. Pletten on any other occasion 8 attempt to return to work?   9 A Yes, he did.   10 Q I ask if you can identify this document?   11 A Yes, I prepared this also.   12 MS. BACON: I would move for the 13 submission of a memorandum for the record, dated 14 29 January 1981, as Agency Exhibit 9. 15 (Agency Exhibit 9 marked for 16 identification.)   17 MR. COHEN: I will object to the admission 18 of the document to the extent that it states as to 17 what Mrs. Jones informed her as being hearsay.   21 MS. BACON: Objection noted.   21 Q (By Ms. Bacon) Did you contact the dispensary after you 21 told Mr. Pletten to report there to be cleared for duty?   23 A Yes, I did. And I was advised that he had —   24 MR. COHEN: Objection.   25 MS. BACON: All right. The memorandum can -Averhart -6- 1 speak for itself.   2 Q (By Ms. Bacon) At Tab 7 again, your November 27th 3 letter, you indicate that an Agency filed disability 4 retirement application was disapproved by the Office of 5 Personnel Management. Were you involved in the filing 6 of that disability retirement application?   7 Q Well, yes. I initiated it. I didn't do the actual 8 processing but I requested that such an application be 9 filed.   10 Q What did you base that decision on?   11 A A combination of things. Mr. Pletten's physician had 12 indicated that he had to have a completely smoke-free 13 work environment. We had attempted to find such an 14 environment and we could not find one in our Command and 15 there did not appear to be any likelihood that he would 16 return to work unless such were provided. 17 So I had a job to get done and I needed 18 someone to do it.   19 Q You say that you attempted to find if there was someplace 20 on the installation that had the kind of environment that 21 his doctors advised he had to have; am I correct?   22 Q Yes.   23 Q Can you identify this document? In fact, these two 24 documents?   25 Q Yes. I prepared these for Mr. Hoover's signature. -Averhart -7- (pp 8-16) 1 (Off the record.) 2 (Back on the record.) 3 Q (By Ms. Bacon) Tab 8 of the Agency's response. I ask you 4    if you can identify that document? 5 A Yes. This was the notification we received from the 6    Office of Personnel Management. 7 Q To the best of your recollection, when did you receive that? 8 A I believe it was in October [1981]. Ed. Note: An ex parte communication NOT provided Pletten PREVIOUSLY, or even then, thus confirming preventing opportunity to reply PRIOR to the removal decision, a fact to be presented to EEOC once EEOC review occurs as allowed by TACOM for others. 9 Q What action did you take upon being notified that the 10    OPM action or that OPM in fact had disapproved the 11    Agency-filed disability application? 12 A I discussed it with [anti-USACARA] Mr. Hoover and decided to remove 13    Mr. Pletten for a medical disability. Ed. Note: An ex parte communication NOT provided Pletten PREVIOUSLY, or even then, thus confirming preventing opportunity to reply PRIOR to the removal decision, a fact to be presented to EEOC once EEOC review occurs as allowed by TACOM for others. Note that the removal decision was made PRIOR to notice to Pletten, establishing violation of the 5 USC 7513.(b) 30 days ADVANCE notice requirement for charges, so as to allow the employee opportunity to reply PRIOR to decision being made. Note further that REMOVAL is for employee misconduct, of which none was charged against Pletten. Both were smokers, biased, thus unconcerned with the violations, doubly so, having secured advance MSPB approval for all violations. Note that OPM continued opposing TACOM's bizarre and hostile reaction to OPM's support of Pletten's position, affirming ability to work at award-winning quality level, better than colleagues. See examples of continuing Briefs by Pletten applying for OPM action in support of directing Pletten's reinstatement [pursuant to FPM Supp 752-1, §S1-6c(4)(d)], and documenting the record with Pletten's position, to be provided EEOC once review of the removal would begin: 21 Mar 1983 29 Mar 1983 10 May 1985 10 Oct 1983 25 Nov 1983 2 Jan 1985 14 Q I ask if you can identify this document? 15 A Yes, I prepared that. 16   MS. BACON: I move for the submission as Agency 17    Exhibit 17, a DF entitled "Request for Separation Due to 18    Medical Disqualification," signed by Carma J. Averhart. 19    MR. COHEN: No objection. 20    (Agency Exhibit No. 17 marked 21    for identification.) Ed. Note: An ex parte communication NOT provided Pletten PREVIOUSLY, or even then, thus confirming preventing opportunity to reply PRIOR to the removal decision, a fact to be presented to EEOC once EEOC review occurs as allowed by TACOM for others. 22 Q (By Ms. Bacon) I think you have already testified to 23    this before but I would like to go through it again. 24    Why did you go through the disability 25    retirement application? -Averhart -17- (pp 18-24) 1 Q All the physicians' statements or just one of them?   2 A I don't know about all the statements. I've seen at 3 least two that said he required a totally smoke-free 4 work environment.   5 Q Do you have a file that indicates what you considered?   6 A Do I have a file of what?   7 Q Do you have a file that you used in considering 8 Mr. Pletten's case, that you kept?   9 A Yes, I have materials that Mr. Pletten supplied me from 10 his --   11 Q Do you have a case file called Leroy Pletten?   12 A No, I don't have a case file called Leroy Pletten. I 13 have information related to Mr. Pletten's case.   14 Q Where would that be kept?   15 A In my office.   16 Q Do you have that with you?   17 A No.   18 Q Do those documents differ from the ones before us?   19 A No.   20 Q Not at all?   21 A I have some notes to myself that we don't have here but 22 I don't know what kinds of information you're looking for. Ed. Note: Looking for (1) materials not provided, denying the right to know evidence being used, obstructing defense; and (2) ex parte contacts evidence. 23 MR. COHEN: Can we go off the record for 24 a minute?   25 (Off the record.) -Averhart -25- (pp 26-29) 1 taking these actions to separate Mr. Pletten? You only 2 wanted your job done?   3 A Mr. Pletten was already not there. Mr. Pletten has not 4 physically been there since I have been the supervisor.   5 Q But he hasn't been separated from the Federal Service yet, 6 has he?   7 A But I am saying that he was not physically there to do 8 the job.   9 Q Did you ask for a manpower increase in your bailiwick 10 there as Chief of the Branch?   11 A Let me explain something to you. We had five people 12 there to do the job. Mr. Pletten represented 1/5 of my 13 work force.   14 Q I understand.   15 A And when he left --   16 Q So you were understaffed?   17 A So I was grossly understaffed.   18 Q Did you make a request from your superior for an additional 19 person, notwithstanding Mr. Pletten's status?   20 A I always request additional people, continually.   21 Q Why?   22 A Because I need them to get the job done. Ed. Note: We see here that Col. Benacquista's extortion, Tr. at 62 (trying to extort from Pletten a withdrawal of his request for compliance with AR 1-8 criteria, and the USACARA Report), took priority over mission accomplishment. 23 Q You always need people? I mean, when you say "continually" 24 I --   25 A At that time we were more critically understaffed than at -Averhart -30- 1 any other time since I have been there, okay? So I 2 am continually asking for more people.   3 A When Mr. Pletten left [per said extortion] it was a significant 4 loss.   5 Q Mr. Pletten had been gone for a long period of time by 6 this time, hadn't he?   7 A Yes.   8 Q Let me understand. If Mr. Pletten were to be severed 9 from the Service and you were to be successful in this 10 action against him, would that promote your getting 11 another person into that position?   12 A If Mr. Pletten was not in a space, right. Then I could 13 hire someone else to take his place.   14 Q Am I to understand -- and maybe I am getting this wrong. 15 Am I to understand that the main thrust and reason this 16 is being done is to free up a space so you could hire 17 somebody?   18 A No. That is not the main thrust.   19 Q Why isn't it? It seems like it.   20 A The main thrust for me is to get my job done. 21 Mr. Pletten did not appear to be returning 22 to work and I don't understand the rationale for having 23 someone on the rolls who does not appear to be ever be 24 coming back. Ed. Note: As per his refusal to withdraw his rule compliance request, nor agree to alter anticipated testimony. See background on the forced leave, as per Col. Benacqusita (Tr. at 13) extortion to force Pletten to retract his request for compliance with AR 1-8 (Tr. at 62). The extortion had priority over mission accomplishment, whistleblowing is that much hated in the civil service. 25 Q Well, what does being on the rolls cost the government? -Averhart -31- 1 A I don't know.   2 Q Does it cost them anything to your knowledge?   3 A I don't know what it cost the government.   4 Q Were they paying Mr. Pletten?   5 A Mr. Pletten was in a sick leave status so he was entitled 6 to use all of his sick leave. Ed. Note: Actually, Pletten's leave was being embezzled as per Col. Benacquista's extortion [Tr. at 62] so pervasive herein.   7 Q And did you check to see if he had used all of his sick 8 leave? [Ed. Note: meaning, 'Was it all embezzled?']   9 A Yes.   10 Q Had he?   11 A He finally used it all by -- I am not sure of the date -- 12 December of 1980 or somewhere around there.   13 Q December of 1980 and here we are in 1982; are we not?   14 A Yes, we are.   15 Q Okay. And it was an extended period of time between the 16 time he no longer had sick leave until the time you 17 started the administrative actions, wasn't it?   18 A I don't know which administrative action you mean.   19 Q Well, let's talk about the application for disability 20 retirement. When was that made?   21 A I can't remember all the dates.   22 Q Well, let's see.   23 A April of 1981.   24 Q April of 1981. It's almost a year ago, isn't it?   25 A Yes. -Averhart -32- 1 Q So it has been a year ago that you applied for the 2 disability retirement for Mr. Pletten. I mean. I don't 3 understand why it took that long a period of time. 4 Do you understand the thrust of my question 5 Ms. Averhart?   6 A I guess not.   7 Q All right. You knew for a year that he was not getting 8 sick leave -- excuse me. You knew since December of 9 1980 until April of 1981 that he was not getting any sick 10 leave, correct?   11 A Yes.   12 Q Was he receiving any other remuneration from the Federal 13 Government at that point?   14 A I don't know.   15 Q Did you check?   16 A I don't know what other remuneration he might be entitled 17 to. He was out of sick leave and he was out of his 18 annual leave. And those are the only two things that I 19 would really be able to find out about. Ed. Note: The idea of stopping the extortion, and restoring his pay status did not even occur to this hardened criminal. 20 Q Did the Pay Office tell you that he was receiving anything? 21 Did you ask Mr. Hoover? I'm sorry, let me 22 ask it this way. Did you ask Ed Hoover if he was getting 23 any moneys at all from the government?   24 A I don't know what other moneys you are talking about. I 25 think he is entitled to sick leave and annual leave. And -Averhart -33- 1 he used those.   2 Q And you testified that he had used all those.   3 A That's right.   4 Q Does that get replenished?   5 A No, it does not.   6 Q All right. Then he had used up all his entitlements?   7 A The ones that I was aware of, yes.   8 Q Did you ask if there was anything else he was getting?   9 A No.   10 Q No, you didn't. Can we presume that Mr. Pletten was 11 receiving not dime one from the Federal Government, from 12 what you just testified?   13 A I don't know what Mr. Pletten was receiving.   14 Q But based on your investigation you didn't think he was 15 getting anything?   16 A I wasn't investigating to see what kind of money 17 Mr. Pletten was getting.   18 Q You obviously went to the point where you knew whether 19 he had annual leave or sick leave.   20 A That's right, because I am responsible for managing that 21 for the employees in my branch. And if an employee is 22 on extensive leave I should know about that. I should 23 know how their leave balances are.   24 Q And all this being the case, if he wasn't costing the 25 Government anything by just being on the rolls, would -Averhart -34- 1 his being on the rolls have been the sole preventative 2 for your getting another person into his position?   3 A No.   4 Q Could you have gotten an additional person in your branch 5 even with Mr. Pletten on the rolls?   6 A Possibly.   7 Q Possibly. You seem hesitant. 8 Why would it be possible as opposed to 9 definite?   10 A Well, I just can't remember all the details about when 11 things happened. 12 Yes, I could have gotten someone. I could 13 have justified it by Mr. Pletten's not being there, okay?   14 Q All right. Did you attempt to do so?   15 A Yes.   16 Q Do you have documents to support that?   17 A Probably not.   18 Q Did you write something to somebody saying. "I've got this 19 guy who is out forever [re extortion] and I need somebody"?   20 A No.   21 Q Why not?   22 A I just didn't.   23 Q You just didn't. Did you discuss it with Mr. Hoover?   24 A Yes. I discuss my staffing problems with Mr. Hoover.   25 Q And what did Mr. Hoover say? -Averhart -35- (pp 36-38) 1 letters for Mr. Pletten?   2 A No.   3 Q Why not?   4 A Because I rely on the Command medical officer to make 5 that kind of determination.   6 Q And to make that kind of contact?   7 Well, whoever. I don't make the contact with 8 Mr. Pletten's physicians.   9 Q Does anybody? Do you know?   10 A I have no idea.   11 Q I mean, in your position, aside from dealing with 12 management problems concerning Leroy Pletten, what is 13 it that your branch does?   14 A We are responsible for making sure that employees' 15 positions are accurately classified and that organiza- 16 tions are properly structured.   17 Q In order to do that don't you sometimes have to go do 18 the legwork yourself?   19 A We go out and visit the organizations, yes.   20 Q To make sure what they are telling you is accurate; is 21 that correct?   22 A Yes.   23 Q If there is a conflict in statements from somebody in 24 one of the organizations, you resolve the conflict?   25 A We try to get enough information, yes. -Averhart -39- (pp 40-41) 1 A Of smoke?   2 Q Cigarette smoke and the contents of cigarette smoke?   3 A The only definition I am aware of is what I would 4 consider an ordinary definition of cigarette smoke.   5 Q All right?   6 A When you smoke a cigarette it produces smoke.   7 But you didn't go into the details of any toxic nature 8 of the smoke?   9 A No. [Ed. Note: Blatantly disregarding the rules and criteria.]   10 Q Did you seek guidance from the medical staff with regard 11 to cigarette smoking?   12 A I don't know what kind of guidance you mean.   13 Q Did you ask them for information about cigarette smoking 14 and its effect on employees?   15 A No.   16 Q Did you take a poll or a survey of your employees to 17 determine if cigarette smoking bothered them [as per AR 1-8 criteria]?   18 A No.   19 Q Do you yourself smoke?   20 A Occasionally.   21 Q Occasionally. How long have you smoked for?   22 MS. BACON: Objection for the record as 23 irrelevant. Go ahead. Ed. Note: Actually, it is very relevant, as per impropriety of hiring smokers, as per their disproportionate misconduct record, federal law 29 USC § 706(7)(b), and the Standard Form 78 specification. 24 THE WITNESS: Oh, I don't know. Off and 25 on for a couple of years; three years, four years. I -Averhart -42- 1 don't know. I smoke very seldom.   2 Q If it bothers somebody I take it you put it out?   3 A Normally I would ask someone before I smoked if it would 4 bother them.   5 Q And if it did bother them what would you do?   6 A I wouldn't smoke. Ed. Note: Raises issue of such reaction being done for all, as per AR 1-8 criteria. 7 Q Did you have the power in your branch, the authority as 8 the Chief, to ban smoking in the branch?   9 A That would normally not be a branch level decision.   10 Q I had testimony from Mr. Kator, your predecessor, who 11 indicates [Tr. at 53] that he had such power. Do you still agree 12 with that?   13 A He could have had such power. But at the time I became 14 Chief, Leroy's cases had started and, at that time, I 15 would not have made a branch level decision like that.   16 Q Do you have the power now to ban smoking now that 17 Mr. Pletten is removed?   18 A I really don't know. I haven't thought about it in terms 19 of a power. Ed. Note: As per adherence to Col. Benacquista's extortion. This shows that the USACARA Report data was not even being considered; and the ultra-depravity and corruption of MSPB officials, habitual criminals, re their criminally false pretense that my position WAS considered! 20 Q Do you have any objections to banning smoking in the 21 branch?   22 A I don't have any reason to ban smoking in the branch 23 right now.   24 Q Presuming Mr. Pletten were reinstated, would you have any 25 problems banning smoking in the branch? -Averhart -43- (pp 44-47) 1 A I told him to get a doctor's statement.   2 Q Now that you had a clearer understanding that there was 3 other information why didn't you seek it?   4 A It didn't sound to me as if there was other information. 5 Leroy was saying the same thing he's been saying all 6 along.   7 Q Well, Leroy said that he had a doctor's clearance in 8 order to return to duty.   9 A No. Leroy said he didn't need a doctor's statement 10 since he wasn't sick. Ed. Note: Repeating the medical fact overruled by Col. Benacquista's extortion. 11 Q Your testimony here in Agency No. 9 says at paragraph 2, 12 sentence 2: 13 "He stated that he had a doctor's certif- 14 icate from 20 January, and that it cleared him for duty."   15 A I'm sorry, you're right. And I told him to take his 16 certificate to the dispensary. Ed. Note: Which he did, to no avail, as per Col. Benacquista's extortion. 17 Q Assuming that he did not, did you inquire further from 18 his doctors?   19 A No.   20 A Didn't you have a conflict as to what the circumstances 21 were with regard to his condition?   22 A No. It was my understanding that if Mr. Pletten was able 23 to return to work he knew the procedures. He knew that 24 he had to get a doctor's statement and that he had to be 25 cleared by the dispensary. Ed. Note: The real truth is, Col. Benacquista's extortion. TACOM Reg. 600-5.14 provides for employee self-clearances, and for 'excused absence' in hazard situations. -Averhart -48- (p 49) 1 do it.   2 Q You told me previously [p 5] what you had to do, and that is 3 overturn every last shread. Before we separate we have 4 to try "everything possible." And you have obviously 5 not done everything possible; isn't that correct?   6 A Well, I suppose it would depend on how you interpret 7 everything possible. I told Leroy specifically what he 8 had to do [withdraw request for AR 1-8 compliance] and he did not do it.   9 Q I ask you to look at Tab 2-D, plus a couple, at a 10 notation from Bruce Dubin, D.O. It is typed out at 11 the bottom. Are you familiar with that?   12 A I don't know if I've seen that or not.   13 Q You've never seen it?   14 A I don't recall seeing this.   15 Q Now that you've seen it, doesn't it do something to 16 your opinion as to whether he needed a reasonably free 17 area or an absolutely smoke-free area?   18 A It doesn't do anything to me because I had to rely on 19 the Command medical officer to say whether or not that 20 cleared him to return to duty.   21 Q But, Ms. Averhard, knowing now that that exist, wouldn't 22 it put some doubt in your mind as to whether he needed a 23 reasonably free or an absolutely smoke-free area?   24 A I don't know what he needs. His doctor says that he 25 needs a smoke-free environment. Ed. Note: Doctors had not said so. Col. Benacqusita had (Tr. at 13), to force Pletten to retract his request for compliance with AR 1-8 (Tr. at 62). Note fixation on the whistleblower, not on the rules' intent of protecting the entire work force from smoking. Note rehearsed perjury, pretending doctors had said, what Col. Benacquista alleged. -Averhart -50- 1 Q Doesn't it say, "an environment reasonably free of 2 contamination"?   3 A I don't know what his doctor means by reasonably free.   4 Q I understand that. But wouldn't that lead you to ques- 5 tion him as to what he meant by that?   6 A I would not question his doctor. I would ask him [Pletten] as I 7 asked him then to take that statement to the dispensary.   8 Q Which obviously got there because it is in the record 9 as supplied by the Agency.   10 In this circumstance would you -- you are 11 a pretty thorough woman in the business you do -- wouldn't 12 you contact the medical officer for the facility and ask?   13 A I don't assembly the package. They go to Disability 14 Retirement but I don't know everything that goes into 15 it or who is contacted.   16 Did you ask them if he was disabled?   17 Q Did I ask who if he was disabled?   18 Q The medical officer. Did you ask him, "Do you think I 19 should apply for his disability?"   20 Q No, I didn't ask him, "Do you think I should apply for 21 his disability".   22 Q Why not?   23 Q I didn't see that it was required.   24 Nothing is required necessarily but isn't it logical to 25 find out whether you have a chance before you do something? -Averhart -51- (pp 52-54) 1 A The Management-Employee Relations Branch.   2 Q I guess there are so many layers of command that I am 3 forever confused by that. 4 Why didn't you draft it?   5 A Because we rely on the Management-Employee Relations Branch 6 to provide technical advice on these kinds of actions.   7 Q The statement that "your personal physicians have 8 indicated that your condition requires an absolutely 9 smoke-free work environment, free of any smoke particu- 10 lates," you signed that statement, did you not?   11 A Yes.   12 Q In view of the evidence I have just shown you, are you 13 sure that that's true?   14 A I don't know. I don't know what that means, what 15 reasonable means. Based on my knowledge at the time of 16 this letter that was my understanding.   17 Q But now there is at least a question, is there not?   18 A I don't have a question because I don't know what it 19 means.   20 Q The document I have shown you -- it's also in the record 21 from Dr. Dubin — does not require absolutely smoke free. 22 It says "reasonably free of contaminants," does it not?   23 A Yes.   24 Q Would you feel more comfortable with this statement if 25 you have further information? This statement you have -Averhart -55- 1 signed?   2 A I'm not really that much into clarifying what Dr. Dubin 3 said. As I told you before, I would rely on our Command 4 medical officer to handle that portion of it.   5 Q I understand. But as an individual decision maker you 6 are the one who is putting your name to the end of this 7 man's career. Do you understand that?   8 A Yes.   9 Q Are you standing behind this statement you made on 10 November 27, 1981, when you signed that document?   11 A At the time I signed that document that was the best 12 information I had.   13 Q What about now?   14 A I don't have anything that contradicts it because I 15 don't know what Dr. Dubin means by reasonable.   16 Q And do you know if the medical staff contacted Dr. Dubin?   17 A I don't know.   18 Q When was it established the working conditions at TARCOM 19 -- excuse me, TACOM. T-A-C-O-M -- met OSHA requirements?   20 A I was advised of it by either the industrial hygienist 21 or the safety officer. I am not sure.   22 Q When were those studies taken?   23 A I don't remember.   24 Q So you don't have any independent knowledge of what they 25 have established? -Averhart -56- 1 A I have the information that they provided me. I did not 2 conduct the studies myself, if that's what you mean.   3 Q Did you read the studies?   4 A I read their report that said that we met the require- 5 ments.   6 Q How frequently were those reports done?   7 A I don't know.   8 Q Was there one report or two reports?   9 A I don't know.   10 Q You don't know?   11 A I don't know.   12 Q What are the OSHA requirements?   13 A I don't know.   14 Q You've told me that you have looked at the Department 15 of Army Requirements?   16 A I've looked at the Department of Army Regulation [1-8] that 17 you mentioned.   18 Q Yes. Did you ask for guidance as to what the requirements 19 are in interpreting that regulation?   20 A The regulation is relatively straightforward, if I 21 recall.   22 Q So you've stated [in letter] that it was established that you had 23 complied with OSHA requirements even though you don't 24 know what those requirements are? Ed. Note: Again testing to expose the rehearsed perjury. TACOM's attorney can be expected to become concerned! 25 MS. BACON: I object. She just stated -Averhart -57- (pp 58-59) 1 office applied." 2 Q Do you have it?   3 A Yes.   4 Q "You are requested to provide an updated 5 physician's statement concerning your current medical 6 status." 7 All right?   8 A Okay.   9 Q Now, in your letter of proposed removal you stated that 10 you had requested revised medical information, not 11 updated medical information.   12 Isn't there a difference between the two?   13 A I didn't draft this letter.   14 Q I know. Did you see the letter before you drafted the 15 proposal to remove?   16 A I really can't remember. [Ed. Note: A typical smoker symptom.]   17 Q I mean, you didn't draft the proposal to remove, did you?   18 A No. I said that already.   19 Q All right. And that was by somebody in the Personnel 20 Branch?   21 A Management-Employee Relations Branch.   22 Q Mrs. Bertram?   23 A Right.   24 Q Mrs. Bertram probably did it. Do you agree that there 25 is a difference between revised medical information in -Averhart -60- 1 the November 27 removal and updated information?   2 A They are different words, yes.   3 Q Mr. Pletten had already provided a revised physician 4 statement of January 20, 1981, had he not? The one that 5 I have shown you from Dr. Dubin.   6 A Yes.   7 Q This isn't at all referenced is it?   8 A Are you talking about a letter from January?   9 A Yes.   10 A Right. It's not referenced in this [my] letter from November.   11 Q And you say in the next line, 12 "Inasmuch as nothing was received from 13 you by the due date of 10 November there is no basis for 14 returning you to duty at this installation." 15 Is that correct? That is in the letter, 16 isn't it?   17 A Where were you? I'm sorry.   18 Q Paragraph 3, sentence 2. 19 "Inasmuch as nothing was received from 20 you . . ."   21 A Yes.   22 Q So the reference to that January 20 letter may have 23 changed the whole complexion of this letter, might it not 24 have?   25 A Well, when I read this it says that they were asking for -Averhart -61- (pp 62-69) 1 exactly remember what it was but the record will have 2 to speak for itself as to what his testimony was.   3 Q (By Mr. Cohen) Well, if I were to tell you that 4 Col. Benacquista said that he had the authority to ban 5 smoking but has chosen not to and that [Tr. at 24-25] he didn't feel 6 it was necessary — I think those are almost his exact 7 words — then this statement would be incorrect; is that 8 true?   9 A It was my understanding that the Command could not provide 10 Mr. Pletten a smoke-free work environment.   11 Q By those words "smoke-free work environment," what did 12 you understand that to mean?   13 A Free of smoke.   14 Q Is that just cigarette smoke or all smoke or what?   15 A Smoke free means free of all smoke to my understanding, 16 particularly tobacco smoke.   17 Q Did you inquire as to whether the Command could ban 18 tobacco smoke?   19 A I was under the impression that the Command could not 20 provide the environment that Mr. Pletten's physician 21 said he required. [Ed. Note: As per Col. Benacquista's extortion.]   22 Q Who fed you with that impression?   23 A Pardon?   24 Q How did you arrive at that impression?   25 A In [ex parte] discussions with Mr. Hoover. -Averhart -70- 1 Q So Mr. Hoover would more properly have drafted the 2 letter? He would be the one who had the personal 3 knowledge in this area; would he not?   4 A I don't know what his personal knowledge is. You asked 5 me where I got the information.   6 Q He asked you where you got the information?   7 A You asked me where I got the information.   8 Q Were there other alternatives to separation from Federal 9 Service suggested?   10 A We had exhausted the other alternatives, which were to 11 provide Mr. Pletten with sufficient time to recover, if 12 that's what he was going to do or to have a change in 13 his condition or have him return to work and nothing had 14 happened along those lines.   15 Q Did you seek a prognosis from his doctors?   16 A I asked him to provide a doctor's statement, yes. 17 You told me you weren't involved in the preliminary 18 stuff, only when it got down to your concern over your 19 own command and then you went to Mr. Hoover and said, 20 "I need more staffing."   21 Q Did you seek to establish a hazard-free 22 environment for Mr. Pletten within your branch?   23 A It was my understanding that it was Mr. Pletten's condi- 24 tion that was the problem. Our environment did meet 25 the requirements for a safe working environment. Ed. Note: This is rehearsed perjury, as per adherence to Col Benacquista's extortion. Averhart had never heard of AR 1-8 criteria, USACARA Report, OSHA rules on TTS emissions, pure air rights, now is suddenly an expert on them! TACOM in fact met none of the requirements! -Averhart -71- (p 72) 1 A Well, I don't believe the question was what can we 2     create but that it is what can we work with that [already] exists 3     here. Ed. Note: This verifies whistleblower Pletten's point all along, that the so-called "accommodation" process never began, was never even considered. Averhart's response pursuant to the TACOM party line (refusal to cease permitting smoking as per AR 1-8 criteria) derives from Benacquist'a extortion (Dep p 62) which nobody was allowed to overrule. Note also Averhart's tobacco addiction, mental disorder, and brain damage; so deranged as to be literally unable to comprehend that the whole idea of the common, federal, and state pure air rules, Army pure air regulations, etc., etc., etc., etc., ad infinitum, is to make, command, direct, force, compel, local Army commanders who otherwise deems themselves above the law, to change their local polluted atmospheres into non-polluted ones. In law, "what ought to be done is fixed by a standard . . . whether it usually is complied with or not." Texas & Pac Ry v Behymer, 189 US 468, 470; 23 S Ct 622, 623; 47 L Ed 903 (1903). Law is "designed to disrupt" nonconforming practice, U.S. v City of Los Angeles, 595 F2d 1386, 1391 (CA 9, 1979). A "practice" "not based upon any rule of law" must be reversed and rejected, Biafore v Baker, 119 Mich App 667; 326 NW2d 598 (1982); The T. J. Hooper, 60 F2d 737, 740 (CA 2, 1932). Due to Averhart'sbrain condition, she was unable to comprehend even simple concepts such as this. Once EEOC review begins, ANY EEOC adjudicator will INASTANTLY pick up on this, and observe that TACOM, having ordered Pletten off-post in a furious rage of anger that he had won the 25 Jan 1980 USACARA Report [see overview] telling TACOM to start disrupting its unlawful practice of cigarette smuggling and TTS emissions, had never begun compliance, had not even thought about it, and refused to speak with Pletten after having hysterically ordered him off-post. This fact is a fundamental reason Pletten wants EEOC forum review, not MSPB's. It is undisputed that MSPB policy and practice via its adjudicators and staff, is bribe-ridden, and brazenly disregards, spits on and refuses to acknowledge TACOM confessions against interest. Note the New York City Commission to Investigate Alleged Police Corruption, the Knapp Commission Report on Police Corruption (1972). [Context]. That Commission found that while not all police are corrupt, eg.g, bribed, those who are not, typically look the other way with respect to corrupt colleagues, so prosecutions are rare. The situation is worse at MSPB, a continuing criminal enterprise, as per its unanimous fixed policy and practice, such that no MSPB official takes action against colleagues' corruption, crimes, and racketeering. 4 Q Well, how do you define reasonable accommodation? 5 A I haven't really thought about defining reasonable 6     accommodation. 7 Q Do you know when that is used, when that term is used? 8 A I've heard the term. 9 Q Have you heard the term used in conjunction with 10     disability and/or disabled persons, handicaps? 11 A Yes. 12 Q Did you consider Mr. Pletten handicapped? 13 A I don't know. I don't really think of it in that sense. 14      He had a condition that said he couldn't work in our 15     office environment. 16 Q Were you aware that Mr. Pletten had made claims that he 17     was so handicapped? Ed. Note: a question testing for perjury, as Pletten had not made such claims. Instead of obeying the USACARA Report, TACOM immediately made its February 1980 decision to terminate Pletten, ordered him off-premises 17 March 1980 (mere weeks after the 15 Feb 1980 transittal of the 25 Jan 1980 USACARA Report) so ultra-fast he couldn't, even had he wanted to!! What Pletten had been doing, was seeking implementation of USACARA's Report, making clear his anticipated testimony of non-compliance, re which the extortion occurred, attempting to force change in, forestall, such anticipated testimony. Moreover, Pletten, an experienced personnel official, used the terminology of USACARA Report implementation. And as a 'Crime Prevention Officer, he used the terminology of pertinent criminal law precedents!! Neither involves using bizarre, unfamiliar 'handicapper' terminology. The status of being a non-smoker is not an abnormality! Thus that status does not seek, warrant, have any relevancy to, 'accommodation' terminology! 18 A Yes. Ed. Note: Note, pursuant to the TACOM-coaching-of-witnesses, her promptly committing the tested-for perjury. She had been a fellow co-worker, never had been an official to whom to address such matters. Pletten been forced off-post 17 March 1980. This was before she claimed management status. 19 Q And you still didn't think of it in those terms? 20 A You asked me if I thought of him as handicapped. 21 Q Yes. 22 A And I said that when I think of him I don't think, 23     "Mr. Pletten, handicapped." I knew him for many years 24     before this condition became known. 25 Q Even in view of his protestations that he is handicapped, Ed. Note: again testing for perjury, as per Pletten never having made such protestations. -Averhart -73- 1 you still don't think he's handicapped? 2 A I'm not saying I don't think he is handicapped. You 3     asked me if I thought of him as handicapped. 4     I think of him as Leroy Pletten. 5 Q The statements within the record indicate that—and 6     this is at Tab 14. I'm sorry, it's at Tab 13. It 7     indicates in "Agency Response to Issues"—and this is 8     the third paragraph from the bottom. It says: 9     "The grievance to which Mr. Pletten refers 10     relating to smoking, was resolved by a USACARA report 11     dated 25 January 1980. The Agency though not agreeing 12     with all the findings of fact accepted the recommendations 13     in said report, thereby bringing the grievance to an end." 14     First of all, did you read that report? 15 A I could have, I don't know. I'm not sure which report 16     this is. 17 Q Look at Tab 3 because that report is contained in Tab 3. 18     It is just a summary but a portion of it is in there. 19     Had you ever seen that before? 20 A Yes, I've seen it. 21 Q And if you will note the recommendations. Have you seen 22     those? 23 A Yes. I've seen them. 24 Q And you will note at "B" that it says that the Commander 25     take further action necessary to provide Mr. Pletten -Averhart -74- 1 with an immediate work area which is "reasonably free 2     of contamination." Do you recognize that? 3 A Yes. 4 Q And in view of Dr. Dubin's letter of January 20, 1981, 5     that seems to jog with that, does it not? 6 A Well, they both used the word "reasonably." 7 Q That's right. And they both used contamination, didn't 8     they? 9 A I don't remember about contamination. 10 Q My question then I guess, if you are familiar with this 11     and you have seen it before, is what didn't the Agency 12     agree with in terms of the findings of fact by the 13     report? 14 A I don't know. 15 Q Who would know? 16 A Mrs. Bertram. 17 Q Mrs. Bertram? 18 A Yes. 19 Q Well. I will get to her on Monday. 20 Did Mr. Pletten leave anything behind him 21     when he left? 22 A I don't know. 23 Q Personal papers or a calender pad or any property from 24     his desk? 25 A I don't know. If he did, he didn't let me know that he Ed. Note: since he had been forced off-post over two years before!! -Averhart -75- (pp 76-77) 1 Q     Do people ever recover from this 2      discomfort? I mean, do they ever change? 3 A     I don't know. You'd have to ask them. 4 Q    I mean, if somebody doesn't like cigarette smoke it's generally 5         the case that they don't change that dislike; isn't that 6        true? 7 A     I don't know. 8 Q    Can an environment be changed with regard to -- strike 9        that. 10                MR. COHEN: I have nothing further. 11                MS. BACON: Shall we close the record 12                                        then for today? 13                MR. COHEN: Yes.                           [Deposition concluded] 14                                     * * * *                               4:40 p.m. -Averhart -78- [Click here for .pdf Full Text.]