![]() This material parallels other Briefs in the series, e.g., 21 March 1983, 27 July 1983, 25 Nov 1983, and 2 Jan 1985, and continuing into the 1990's and into 2004. There are many, as per Pletten's working full-time+ developing every evidence for seeking his reinstatement, and recording his position, for anticipated use in the EEOC forum, which TACOM was obstructing. These violations include but are not limited to: More in the series will be posted as scanned. The volume is enormous, takes some time. |
UNITED STATES OF AMERICA
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
LEROY J. PLETTEN | ) | 15 APR 1983 | ||
) | ||||
) | Docket No. 03 83 0055 | |||
) | ||||
DEPARTMENT OF THE ARMY | ) | |||
____________________________ | ) |
BRIEF
Pages |
Introduction | 1 -2 |
Medical Background Data | 3 - 11 |
Examples of the Body-Wide Spectrum of Diseases Associated with Smoking | 12 - 32 |
Legal Principle for Resolution | 33 |
Odd Smoker Behavior: Accidents | 34-36 |
Odd Smoker Behavior: Fires | 37 - 41 |
How Smoking Causes Brain Damage and Insanity | 42 - 54 |
Projection: The Odd Smoker View of Nonsmokers | 55 - 56 |
Smoker Lying | 57 |
In-Depth Data on Smoker Insanity | 58 - 69 |
Smoker Mental Illness in Legal Context | 70 -77 |
Criminal Aspects: Introduction | 78 - 80 |
Criminal Aspects: Current Data | 81 |
Smoker Alcoholism | 82 - 84 |
Criminal Aspects: Transition | 85 |
Criminal Aspects: Smoker "Ultimate Intent," "Depravity," "Universal Malice" | 86- 108 |
Criminal Aspects: Falsification | 109 - 111 |
Criminal Aspects: Extortion and Embezzlement | 112 - 114 |
Victim Rights: Taking Victims As They Come/Become | 115 - 119 |
Victim Rights: On Not Retreating | 120 - 129 |
Victim Rights: Constitutional Aspect | 130 - 132 |
Victim Rights: Police Power Aspects | 133 -140 |
Victim Rights: Liability of the Insane | 141 -147 |
Victim Rights: Nuisance Aspects | 148 -149 |
Victim Rights: Negligence Aspects | 150 |
Victim Rights: Malpractice Aspects in Safety Context | 151 - 158 |
EEO Principles | 159 - 170 |
EEO Principles: Ill-Fitting | 171 |
Smoking Not in Employment: General | 172 - 181 |
Smoking Not in Employment: OPM Confirmation | 182 - 188 |
Agency Experience | 189 - 191 |
Adverse Action Guidance | 192 - 200 |
Smokers as Victims | 201 - 205 |
"Negative Defense" | 206 - 207 |
Legal Malpractice Principles | 208 - 211 |
Jurisdiction | 212 - 214 |
Estoppel | 215 - 216 |
Concluding Analysis | 217 - 229 |
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'Each of us is capable of coping with a large number of stimuli, invading our being through any of the senses. . . . we would be incapable of carrying on any of our daily activities if even one hundredth of all these available stimuli invaded us at once. So the mind must have a filter, which functions without our conscious thought, sorting stimuli and allowing only those which are relevant to the situation in hand to disturb consciousness. What happened to me . . . was a break-down of the filter, a hodgepodge of unrelated stimuli were distracting me . . .'”
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“1. Slow, insidious beginning of the illness.“2. Absence of precipitating factors or easily ascertainable psychological causes.
“3. Blunting of affect and marked schizoid type of personality.
“4. General attitude of defiance toward doctors and nurses.
“5. Attempt to blame others and exonerate oneself. This criterion is not always valid.
“6. Acceptance of one's illness or resignation to being sick. This trait belongs more properly to advanced stages of schizophrenia.”
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[Ed. Note: Referring to there being no advance notice of charges, with such allegations as were made, made retroactively, apart from the rule of law, obstructing justice by preventing normal response] |
Ed. Note: Foreseeablity is not by the smoker's victim such as a fellow employee, but as a matter of law, holding the employer responsible. See precedents such as McAfee v Travis Gas Corp, 137 Tex 314; 153 SW2d 442 (1941); and Shipley v City of Johnson City, 620 SW2d 500 (Tenn App, 1981). As a matter of law, employers are required to foresee the behavior of those whom they hire. The better approach is to not hire such foreseeably dangerous people. |
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"'To an admittedly uncertain but nevertheless sufficient extent, 'dangerousness' must be considered identifiable . . . and although not a 'disease' as that term is commonly used, may affect third persons in much the same sense as a disease may be communicable.'"Courts do not engage in weird and disjointed tirades against the victims, unlike MSPB; courts restrain themselves to rational analyses of the law and facts, and focus on the duty to halt harm.
"The discharge of this duty may require . . . one or more . . . steps . . . it may call for him to warn the intended victim of the danger, to notify the police, or to take whatever other steps . . . ."There is no "undue hardship" as a matter of law; the accommodation process has not started, because the "only" method for review has not started, but was rejected by MSPB; so local mutes remained mute.
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When deciding officials are mentally ill, symptoms such as disorientation for time, and disconnected, malassociated, and impoverished "reasoning" are foreseeable. That is, data on mental illness is an efficient predictor of the behaviors. Hallucinations are predictable or foreseeable; delusions are likewise foreseeable.
The bizarre issuances from MSPB and local offenders display multiple symptoms of mental disorder. Claims of actions taken appear, but are disconnected from each other, from the rules, from reality, and from the matters giving rise to the appeals. When "real derangement" exists, such is foreseeable. Insanity is an efficient predictor. The severe and "real derangement" displays foreseeable effects, such as disconnection from AR 1-8. AR 1-8 forbids endangerment, because smokers lack the mental capacity and willingness voluntarily to not endanger people. They have a pattern of refusing; hence, AR 1-8 became necessary. When severe and "real derangement" exists, disconnection from multiple rules is foreseeable. Insane smokers are disconnected from AR 1-8, and also from other rules as well. For example, they are disconnected from sick leave rules such as 5 CFR 630.401. See the ASH brief, 6 Oct 80, pp. 11-12.
When deciding officials are insane, their delusions and hallucinations result in different conclusions at different times and in different cases. Sometimes the process is "not relevant" and need not start (23 Jul 80 issuance [by Martin Baumgaertner]). Other times, it is already completed (18 Jul 81 [6 MSPB 626, 7 MSPR 13, by Ronald P. Wertheim and Ersa H. Poston, decision reversed as wrong on both facts and law and remanded by EEOC 8 April 1983, Docket 03.81.0087, 83 FEOR 3046]). In mental disorder, what is predictable is that symptoms of confusion, disconnection, malassociation, etc. are foreseeable, and will occur. The exact nature of the insane behaviors, of course, varies. For example, in alcoholic hallucinations, different animals can be hallucinated from time to time, and from person to person. Thus, an overall pattern of symptoms becomes evident.
For example, the claims of "in the environment" are part of the pattern of mental disorders. 5 CFR 630.401 does not envision such. When a person "is physically able to perform" the "job" duties, but the "environment" is out of order, sick leave is not appropriate. Excused absence is the proper status. This is particularly so for "a nonnecessary toxic substance," words borrowed from Shimp v. N. J. Bell Telephone Co. [145 N J Super 516], 368 A.2d 408 at 411 (1976). But even if tobacco smoke were other than "nonnecessary" (which has not been shown, since the compliance process has not yet started), "All preventable forms and instances of hazardous conduct must . . . be entirely excluded from the workplace," Nat'l Rlty. & C. Co., Inc. v. OSHRC [160 US App DC 133], 489 F.2d 1257 (1973). Cf. the federal safety law, 5 USC 7902.
However, and additionally, smokers display further malassociation and impoverished "reasoning" in even using the word "environment." The situation arises from the presence of insane smokers. It is the insane smokerswho are the cause of the situation. It is essential that words pertinent to causation be used, lest meanings of words be obscured, with resultant disconnection from reality. Emphasis on the word "environment" reflects malassociation of cause and effect. Civil service rules such as FPM Suppl. 752-1 envision that insane individuals will not be employed or retained. Causation arises from the disregard of such rules. Solution does not involve "sick leave" as the rules do not contemplate such a response in lieu of compliance with guidance against reckless retention of insane individuals.
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It is clear that MSPB has overruled the evidence in order to declare me “not ready, willing and able to” do what “Workmen are not employed to” do. The refusal of local and MSPB offenders to cite a nexus between the thoughts underscores the wrongfulness of not providing an advance notice and opportunity to reply concerning “the agency's decision to terminate” me [as observed by EEOC’s Henry Perez, Jr.] so many years ago. When symptoms of mental disorder exist in local and MSPB issuances, legal principles are ignored. Local and MSPS allegations are fragmentary, disconnected, bizarre, disjointed, concrete but impoverished, and unresponsive to the evidence, among other failures.
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Palmer v. Keene Forestry Ass’n [80 NH 68], 112 A. 798 (1921)
Feeney v. Standard Oil Co. [58 Cal App 587], 209 P. 85 (1922) Keyser Canning Co. v. Klots Throwing Co. [94 W Va 346], 118 S.E. 521 [31 ALR 283] (1923) Maloney Tank Mfg. Co. v. Mid-Continent Petroleum Corporation, 49 F.2d 146 (1931) Allen v. Posternock [107 Pa Super 332], 163 A. 336 (1932) Triplett v. Western Public Service Co. [128 Neb 835], 260 N.W. 387 (1935) Jones v. Eastern Greyhound Lines, Inc. [159 Misc 662], 288 N.Y.S. 527 (1936) Vincennes Steel Corporation v. Gibson [194 Ark 58], 106 S.W.2d 173 (1937) Petition of Republic of France, 171 F. Supp. 497 (1959) Shimp v. New Jersey Bell Telephone Company [145 N J Super 516], 368 A.2d 408 (1976) |
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Ed. Note: These “like cattle, sitting around until someone tells them what to do next” symptoms continued among TACOM and MSPB officials (Hoover, Benacquista, Bacon, Baumgaertner, Wertheim, Poston, Russell, Ellingwood, et al.) until overruled by the Supreme Court and the Federal Circuit Court of Appeals, e.g., by Thomas v General Svcs Admin, 756 F2d 86, 89-90 (CA Fed, 1985); Cleveland Bd of Ed v Loudermill, 470 US 532; 105 S Ct 1467; 64 L Ed 2d 494 (1985); Mercer v Dept. of Health & Human Svcs, 772 F2d 856 (CA Fed, 1985); and Pittman v Army and MSPB, 832 F2d 598 (CA Fed, 1987).
An Army's own analyst would say: "The MSPB [erroneously] ruled that it had no jurisdiction [not for the correct 29 CFR § 1613.403 regulatory reason but on the pretext] that it had no jurisdiction over enforced leave cases because enforced leave was not an adverse action (this is no longer good law; after Valentine v. Department of Transportation, 31 M.S.P.B. 358 (1986), enforced leave is now an adverse action)," says Capt Scott D. Cooper, "Handling Tobacco-Related Discrimination Cases in the Federal Government," 118 Military Law Review 143, p 35 of 39, n 206 (Fall 1987). |
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Ed. Note: MSPB hatred for whistleblowers causes it to defy decades of case law concerning agency non-compliance with rules, case law obeyed for others. See precedents such as Service v Dulles, 354 US 363; 77 S Ct 1152; 1 L Ed 2d 1403 (1957); Watson v Dept of Army, 142 Ct Cl 749; 162 F Supp 755 (1958); Vitarelli v Seaton, 359 US 535, 539-40; 79 S Ct 968, 972; 3 L Ed 2d 1012 (1959); Piccone v U.S., 186 Ct Cl 752; 407 F2d 866, 871 (1969); U.S. v Nixon, 418 US 683, 695-96; 94 S Ct 3090, 3100-02; 41 L Ed 2d 1039 (1974). |
The MSPB behavior is in marked, and unfavorable, contrast to the 25 Jan 80 USACARA Report. Indeed, the MSPB behavior is in marked contrast to the behavior of a separate review agency, EEOC, whose 23 Feb 82 decision specified [at p 4] “further processing in accordance with this decision.” No doubt the installation would refuse to comply; but at least there was guidance. Installation representatives refuse to obey the rules; thus, it is foreseeable that they would refuse to obey a decision, as a decision is a mere creature of the rules, a subordinate creature.
Ed. Note: TACOM management, criminals, did indeed refuse to obey the 23 Feb 1982 EEOC order. No processing as ordered ever occurred [1982 - 2004]. |
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