Brief to MSPB, 29 July 1982, in Continued Effort to Secure Notification of Specificity and of Rights to Review of the TACOM Decision to Terminate, Retaliating Against Pletten's Whistleblowing.
See also other Briefs in the series, e.g., 21 March 1983, 27 July 1983, 25 Nov 1983, and 2 Jan 1985, 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.
More in the series will be posted as scanned. The volume is enormous, takes some time.

UNITED STATES OF AMERICA
Merit Systems Protection Board?
29 July 1982
TABLE OF CONTENTS
Pages
Part 12 - 8
Concluding Analysis and Request for Relief88 - 90


Page 1 of 90 pages.Affiant's initials _________
Tobacco as a factor in mental illness has been recognized for some time. Dr. [Matthew] Woods in 1899 called attention to the fact that smoking “causes insanity.” The ICD-9-CM and the DSM-III [1980] continue the recognition of smoking as related to mental illness. Dr. Tennant [1981] and others have noted the link with alcoholism, another drug related behavior disturbance harmful to self and others. Dr. Kellog [1922] cited [100% correlation] data on smoker dementia praecox (schizophrenia). Data on schizophrenia [thus] provides insight into the smoker behavior directed against nonsmokers such as me.

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

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

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

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

Page 2 of 90 pages.Affiant's initials _________


(pp 3-6)
Dr. Woods observed [by 1899] that smoking “causes insanity.” The DSM-III cites tobacco organic mental disorder. The ICD-9-CM notes tobacco use disorder. Dr. Kellogg discussed dementia praecox (schizophrenia). Information on schizophrenia provides insight on the pattern of smoker behavior directed against me. In the book Psychology for Better Living, 5th edition [New York: John Wiley], 1965, Lyle Tussing, Ph.D., notes at 356 that “the most common symptom of this disorder is the emotional apathy and indifference in the patient with respect to other individuals.” Smokers have no capacity to care that they endanger or discomfort others; that [psychiatric fact] helps explain the otherwise incomprehensible insistence that they [personally] “cannot” provide a safe environment, or that it is an “undue hardship.”

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

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

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

Page 7 of 29? pages.Affiant's initials _________
The condition of tobacco organic mental disorder is cited in the organic mental disorders section of the DSM-III. Data on brain dysfunction provides insight of a general nature. Organic mental disorders have various causes, including self-inflicted causes. A general explanation on organic mental disorders shows the context to provide greater insight into the smoker pathology that is the matter of concern in the case at bar.

At 361 [of Psychology for Better Living, 5th ed (New York: John Wiley, 1965)], Dr. [Lyle] Tussing states “that there are a number of mental cases that are referred to as organic, which means that a part of the brain has been affected physically. This may be due to an infections disease such as syphilis, which destroys nerve tissue. Injuries to the head may cause personality disturbances and psychotic behavior. The brain may also have been affected by toxins, such as alcohol [and tobacco].”

The book Psychology [(Boston: Allyn & Bacon, 1961)] by authors [Allen D.] Calvin, et al., at 432 states, “When the cerebral cortex is damaged, certain symptoms arise directly from the fact of damage. There may be a tendency toward distractability and disorganization . . . an apparent lack of awareness of his defect [anosognosia]; the patient does not perceive his handicap as particularly worthy of notice. These are general consequences of cerebral injury; damage in various areas of the brain may produce symptoms of a particular type. If, for example, the parieto-temporal area, the region above and forward from the ear, is injured, a disturbance of language, called aphasia, often results.”

The book Introduction to Psychology [New York: Harcourt, Brace & World, 1962], 3rd edition, by [Earnest R.] Hilgard, states at 526, “There are in addition to these reactions many kinds of mental disturbance associated with known organic changes in the brain or nervous system: disorders associated with alcoholism, syphilis, acute infections, tumors, gunshot wounds.” The 4th edition [1967], p. 537, adds “head injuries, epilepsy, and cerebral arteriosclerosis (hardening of the arteries).”

Calvin et al. at 433 indicate, “Lessened ability to adjust that stems from brain injury is present in organic psychoses, states that resemble other psychoses with the additional feature that symptoms of brain injury complicate the patterns. The brain can be damaged in ways other than gross physical insult; drugs [e.g., nicotine] also alter its functioning and produce marked behavioral changes. . . . Brain injury . . . permanently impairs functioning and return to completely normal behavior is not to be expected.” P. 435 discusses “patients whose symptoms followed the pattern of paresis, or general paralysis. Its earliest phase is marked by symptoms resembling brain damage. Patients have poor control of impulses, are irritable, restless, and disorganized, and memory for recent events is badly impaired. As the disorder continues, coordinated activity, like speech and locomotion, become disorganized. The deterioration of behavior increases with time; seizures occur, orientation and memory fail, and death finally intervenes. Delusions of grandeur are common, and many paretics develop delusions of persecution, fall into depressions, or show other psychotic patterns. . . . When cases of paresis are discovered, medical treatment arrests the progress of the disease, but damage to brain tissue inflicted by the spirochetes of syphilis cannot be reversed.”

Page 8 of 29? pages.Affiant's initials _________


(pp 9-10)
Examples of Similarities in Disturbances

tobacco organic mental disorderSmoking “causes insanity”—Woods
craving for tobacco
indifference
irritability
a cause of mental decay
anxiety
diminishes mental capacity
difficulty concentrating
listless
restlessness
irritable
headache
callous to others' requests
drowsiness
often leads to drink
gastrointestinal disturbances

paresisTobaccoism--Kellogg
poor control of impulses
weak memory
irritable
impulsive ideas
restless
depression
disorganized
sleeplessness
memory impaired
ill-humor
deterioration of behavior
loss of self control
delusions of grandeur
aphasia
delusions of persecution
neuralgia
depression
difficulties in speaking
and writing
neurasthenic symptoms

schizophrenia
emotional apathy and indifference in the patient with respect
to other individuals
a certain lack of harmony, integration, and coordination between
emotional and rational or intellectual activities
gradual mental deterioration
hallucinations common
clarity of thought is lost
apparent inappropriateness of reactions
indifference
lack of judgment and foresight
seem feeble-minded
senseless and illogical thought processes
delusions
withdraws from reality
rationalizations and projections
fantasy world
word salad

alcohol intoxication
maladaptive behavioral effects
slurred speech
incoordination
unsteady gait
nystagmus
flushed face
mood change
irritability
loquacity
impaired attention

Page 11 of ___29?____ pages.Affiant's initials _________


(pp 12-14)

Prohibited Personnel Practices

Violation of Regulations

CPR 771/FPM 771A grievance report is to be implemented once USACARA makes recommendations, unless the local Command asks permission of Headquarters otherwise. [See Army Regulation CPR 700.771, and Spann v Army, Gen. McKenna, et al., 615 F2d 137 (CA 3, 1980).]   Local [TACOM] officials have acted in bad faith by pretending acceptance while denouncing the Report. As the local Command [TACOM] did not appeal the 25 Jan 80 Report, res judicata precludes disregard. The time limits for appeal have also expired. Yet [TACOM] management objects to the Report. Examples of USACARA statements objected to by local [TACOM] officials are the following:

 
P. 6:“. . . smoking will be permitted only if ventilation is adequate to remove smoke from a work area and provide an environment that is healthful.” (under scoring provided by the Examiner)

 
P. 6:“‘Army Regulation 1-8 does give officials the authority to ban smoking in areas under their jurisdiction . . . .’” The Examiner also called local [TACOM] attention to AR 600-20.2-1.

 
P. 7:“Mr. Pletten has established that, insofar as he personally is concerned, smoke does constitute a safety hazard to him." (This precludes charging sick leave.)

 
P. 9:“. . . the [TACOM] reply that the [TACOM] Commander has no authority to act appears to be not wholly accurate.”

 
P. 10:“. . . the smoking of tobacco can constitute a hazard to health . . . an equitable balance between the rights of nonsmokers and those of smokers . . . cannot be accomplished by relocating one nonsmoker. . . . No evidence was offered to indicate that the Command [TACOM] had considered the rights of all nonsmokers.”

 
P. 12:“Thus, it is clear that the rights of smokers exist only insofar as discomfort or unreasonable annoyance is not caused to nonsmokers. . . . whether or not an individual is discomforted by smoke is a personal determination to be made by that individual.”

 
P. 13:“The Commander is not as devoid of authority as [TACOM Chief of Staff] COL Thomas’ letter indicates.”

 
P. 14:“The Commander has the authority . . . to ban all smoking or take whatever action is necessary to control smoking in areas under his jurisdiction . . . .”

 
P. 14:“That the Commander initiate an air content study . . . .”

 
P. 15:“That the Commander take further action necessary . . . Ventilation in Mr. Pletten’s immediate work area to be evaluated periodically.”

Officials who have expressed disagreement with some or all of the above include but are not limited to John Benacquista, Evelyn Bertram, Francis Holt, Archie Grimmett, Edward Hoover, Frank Ortisi, Emily Bacon, Carma Averhart, David Stallings, Edwin Braun, Robert Shirock, Charles Phillips, Constantine Thomas, James Best, etc. [thereafter aided and abetted by MSPB, DoJ, etc.].

The purpose of such disagreement is to evade compliance, use tradition instead of rules, continue to over accommodate smoking, refuse implementation of the “unqualified and absolute” safety duty, insist on medical clearances instead of “personal determination,” insist correction “cannot” occur or is an “undue hardship,” etc.

Page 15 of 90 pages.Affiant's initials _________
Multiple Violations in the Adverse Actions

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

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

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

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

Page 16 of 90 pages.Affiant's initials _________


(p 17)

Prohibited Personnel Practices

5 USC § 2302 specifies prohibited personnel practices including but not limited to violations committed in this case. Example 6 has been violated in numerous ways. Example 6 prohibits grating unauthorized preferences or advantages intending to harm or improve “the prospects of any particular person for employment.” The prohibition includes altering “the requirements for any position.”

Examples of the violations of the cited clause include but are not limited to:

(a) inventing a non-existent qualification standard from which to disqualify me. [See OPM verifications 30 Jan 1984 and 2 June 1989.] TACOM has invented a requirement requiring me to choose to smoke.   Synonyms for the non-existent requirement include but are not limited to requiring me to accept being endangered, discomforted, and/or unreasonably annoyed; to stop seeking rule enforcement; to disregard the past misconduct and reprisal; etc. The Command [TACOM] insists I must accept smoke as though it were a condition of employment. My request for hazard pay under 5 CFR § 550.I is ridiculed. Yet, tobacco smoke is not a condition of employment, and is certainly not a part of the duties of a Position Classification Specialist, GS-12. When my co-worker Evelyn Bertram filed OWCP Case A9-190131 based on tobacco-induced injury, her supervisor admitted that “She is not exposed to fumes, chemicals, or other irritants as a condition of her work.” The 25 Jan 80 USACARA Report had addressed and relieved my concern that such a “condition” or “requirement” would be invented to use against me; my concern arose from the initial medical statement concerning me––“Patient is unable to work within 25 feet of people who are smoking”––issued by Dr. Pollak 11 May 1979. At p. 9, the 25 Jan 80 Report noted this, “Furthermore, suitability and qualification standards established with respect to federal employment do not identify the personal habit/choice to smoke or not smoke tobacco as germane.” Shimp v. N. J. Bell Telephone Co. [145 N. J. Super. 516], 368 A. 2d 408 at 411 (1976), had said likewise, calling smoke “a nonnecessary toxic substance.” Such is in line with the numerous Court decisions in worker compensation cases filed by smokers, i.e., that smoking is “personal.”

(b) trying to get me to leave TACOM “voluntarily”––by pressuring me to seek to induce the equivalent of, or an actual, involuntary resignation. A pattern of such efforts is alluded to in the 28 March 1980 DF by [supervisor] Carma Averhart, and the 29 April 1980 letter by [TACOM attorney] Emily Bacon. Ms. Averhart complained that “Mr. Pletten continued to report for duty . . . refuses to request leave” from which it is clear there would be no return. Because I refused to resign or “request leave,” and unlike Mrs. Bertram, demanded rule enforcement assertively and effectively (with USACARA), the Command [TACOM] chose to get rid of me by forced leave. Ms. Bacon admitted that “the action here being appealed was one which was brought about by Mr. Pletten.” Indeed––for I refused to stop seeking rule enforcement, and refused to go away voluntarily.

(c) TACOM grants preferences to smokers in opposition to AR 1-8.   AR 1-8 precludes smoking from harming non-smokers’ prospects for employment by being endangered, etc., by smoking. TACOM intentionally and knowingly allows endangerment, in full awareness that foreseeable harm and endangerment will result. The harm is foreseeable based on the available evidence of an overwhelming nature, including but not limited to AR 1-8, the many smoker-filed compensation cases, the smoker-filed product liability cases, the cases filed by non-smokers for unemployment compensation and other relief, and last but not least, the many reports of the U.S. Surgeon General. The preferences include disregard of rules on courtesy, smoking, safety, health,   alcoholism,   mental illness,   littering, loafing, endangering self and others, etc.

Page 18 of 90 pages.Affiant's initials _________


(pp 19-28)

Data on schizophrenia and other psychoses provides insight into the assertions and behavior of culpable government employees. The 9 Apr 80 letter from EEOC official Henry Perez, Jr. noted “the agency's decision to terminate” me and concerning which I had appealed to [EEO, then to] MSPB. However, MSPB employees reviewing my appeal of “the agency's decision to terminate” me “do not respond to and are not motivated by normal stimuli.” One of the “normal stimuli” to which they did not respond is 5 CFR 1201.3 guidance on MSPB jurisdiction which includes review of adverse actions. The 23 Jul 80 MSPB decision [by MSPB Presiding Official Baumgaertner] shows “marked deviation from normal human behavior” in not only refusing to “ever consider the merits of appellant's allegations” on “the agency's decision to terminate” me, but also citing “other avenues for redress.” MSPB is the avenue for redress of adverse actions; the p. 3 reference reflects listlessness, difficulty concentrating on the duty to review, irritability at my appeal, indifference to reality and human considerations, and some sort of fantasy world of altered MSPB jurisdiction. The 23 Jul 80 decision is clearly callous.

The 23 Jul 80 pretense of no jurisdiction to review the adverse action of “the agency's decision to terminate” me is, of course, delusional. It is based on the underlying delusion that reasonable accommodation and rule enforcement “is not relevant.”

Ed. Note: MSPB's anti-rule-of-law behavior defies decades of case law, e.g., 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).
Note the rule of law on person unable “to appreciate the wrongfulness of his [her] conduct,” and “to conform his [her] conduct to the requirements of the law.”—People v Matulonis, 115 Mich App 263; 320 NW2d 238 (1982)

The [MSPB] decision expressly refused to consider accommodation under AR 1-8 such as the "recommendation of ways the agency had to accommodate appellant" by complying with AR 1-8 which “the agency failed to abide by.” EEOC on 23 Feb 82 noted the local violations along those lines. The 23 Jul 80 MSPB decision reflects the odd kind of behavior when “the patient withdraws from reality into a world of his own.”

Ref. Ernest R. Hilgard, Introduction to Psychology, 3rd ed (New York: Harcourt, Brace & World, 1962), p 525.

With such people, one tragic effect is that “Their indifference, their lack of judgment and foresight make them seem feeble-minded rather than psychotic. Generally, they are rather inadequate persons who seem run-down, and rarely, if ever regain interest in normal life.”

Ref. Lyle Tussing, Ph.D., Psychology for Better Living, 5th ed (New York: John Wiley, 1965), p 357.

A tragic consequence of dealings with such “inadequate persons” is harm to those around them and who come in contact with them. In my case, the harm has been to me and to my career, as well as the harm of impaired efficiency for my installation by the loss of my duty time. Loss of efficiency caused by smoking is also prohibited by AR 1-8; that prohibition is also being ignored.

Reference in the 23 Jul 80 MSPB decision to “other avenues” is delusional in another way. It is based on the fantasy world idea that insane smokers who refuse to enforce rules would consent to having their deranged behavior reviewed. Smokers are a danger to themselves and others; insane people who are dangerous are to be restrained by force if necessary.

Ref. Jacobs v Michigan Mental Health Dept, 88 Mich App 503; 276 NW2d 627 (1979).

Having mentally ill people investigate themselves when they refuse to honor the first investigation (25 Jan 80) is senseless and reflects indifference to reality. The fact of "the agency's decision to terminate" me instead of implement that Report put MSPB on notice of the absurdity of the reference to “other avenues.” Indeed, malicious smokers went to extremes to prevent action to “ever consider the merits,” as the 23 Feb 82 EEOC decision noted. Veal v. Califano, 610 F.2d 495 at 498 ([CA 8] 1979), provides insight pertinent to the MSPB remark on “other avenues,” “this statement is most likely the rationalization of a sick individual.”

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(pp 30-42)
The DSM-III and ICD-9 cite tobacco dependence. The 1980 Transactions of the Society of Actuaries shows smoker deaths from mental illness at a rate higher than that of nonsmokers. Smoking “causes insanity” as Dr. Woods noted in 1899. Dr. Kelloggs's book on Tobaccoism or How Tobacco Kills cites smoker dementia praecox (schizophrenia). Insight on schizophrenia is provided by authors Allen D. Calvin, et al., in their 1961 book Psychology [(Boston: Allyn & Bacon, 1961)]. At 430, the authors indicate that “The commonest of psychoses, and by all means the state involving the greatest deviation in thinking, contact with reality, emotion, and overt behavior, is schizophrenia.”

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

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

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

Page 6 of ___29____ pages.Affiant's initials _________
Dr. Woods observed [by 1899] that smoking “causes insanity.” The DSM-III cites tobacco organic mental disorder. The ICD-9-CM notes tobacco use disorder. Dr. Kellogg discussed dementia praecox (schizophrenia). Information on schizophrenia provides insight on the pattern of smoker behavior directed against me. In the book Psychology for Better Living, 5th edition [New York: John Wiley], 1965, Lyle Tussing, Ph.D., notes at 356 that “the most common symptom of this disorder is the emotional apathy and indifference in the patient with respect to other individuals.” Smokers have no capacity to care that they endanger or discomfort others; that [psychiatric fact] helps explain the otherwise incomprehensible insistence that they [personally] “cannot” provide a safe environment, or that it is an “undue hardship.”

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

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

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

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The condition of tobacco organic mental disorder is cited in the organic mental disorders section of the DSM-III. Data on brain dysfunction provides insight of a general nature. Organic mental disorders have various causes, including self-inflicted causes. A general explanation on organic mental disorders shows the context to provide greater insight into the smoker pathology that is the matter of concern in the case at bar.

At 361 [of Psychology for Better Living, 5th ed (New York: John Wiley, 1965)], Dr. [Lyle] Tussing states “that there are a number of mental cases that are referred to as organic, which means that a part of the brain has been affected physically. This may be due to an infections disease such as syphilis, which destroys nerve tissue. Injuries to the head may cause personality disturbances and psychotic behavior. The brain may also have been affected by toxins, such as alcohol [and tobacco].”

The book Psychology [(Boston: Allyn & Bacon, 1961)] by authors [Allen D.] Calvin, et al., at 432 states, “When the cerebral cortex is damaged, certain symptoms arise directly from the fact of damage. There may be a tendency toward distractability and disorganization . . . an apparent lack of awareness of his defect [anosognosia]; the patient does not perceive his handicap as particularly worthy of notice. These are general consequences of cerebral injury; damage in various areas of the brain may produce symptoms of a particular type. If, for example, the parieto-temporal area, the region above and forward from the ear, is injured, a disturbance of language, called aphasia, often results.”

The book Introduction to Psychology [New York: Harcourt, Brace & World, 1962], 3rd edition, by [Earnest R.] Hilgard, states at 526, “There are in addition to these reactions many kinds of mental disturbance associated with known organic changes in the brain or nervous system: disorders associated with alcoholism, syphilis, acute infections, tumors, gunshot wounds.” The 4th edition [1967], p. 537, adds “head injuries, epilepsy, and cerebral arteriosclerosis (hardening of the arteries).”

Calvin et al. at 433 indicate, “Lessened ability to adjust that stems from brain injury is present in organic psychoses, states that resemble other psychoses with the additional feature that symptoms of brain injury complicate the patterns. The brain can be damaged in ways other than gross physical insult; drugs [e.g., nicotine] also alter its functioning and produce marked behavioral changes. . . . Brain injury . . . permanently impairs functioning and return to completely normal behavior is not to be expected.” P. 435 discusses “patients whose symptoms followed the pattern of paresis, or general paralysis. Its earliest phase is marked by symptoms resembling brain damage. Patients have poor control of impulses, are irritable, restless, and disorganized, and memory for recent events is badly impaired. As the disorder continues, coordinated activity, like speech and locomotion, become disorganized. The deterioration of behavior increases with time; seizures occur, orientation and memory fail, and death finally intervenes. Delusions of grandeur are common, and many paretics develop delusions of persecution, fall into depressions, or show other psychotic patterns. . . . When cases of paresis are discovered, medical treatment arrests the progress of the disease, but damage to brain tissue inflicted by the spirochetes of syphilis cannot be reversed.”

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Pages 9-10 of 90 pages.Affiant's initials _________
Examples of Similarities in Disturbances

tobacco organic mental disorderSmoking “causes insanity”—Woods
craving for tobacco
indifference
irritability
a cause of mental decay
anxiety
diminishes mental capacity
difficulty concentrating
listless
restlessness
irritable
headache
callous to others' requests
drowsiness
often leads to drink
gastrointestinal disturbances

paresisTobaccoism--Kellogg
poor control of impulses
weak memory
irritable
impulsive ideas
restless
depression
disorganized
sleeplessness
memory impaired
ill-humor
deterioration of behavior
loss of self control
delusions of grandeur
aphasia
delusions of persecution
neuralgia
depression
difficulties in speaking
and writing
neurasthenic symptoms

schizophrenia
emotional apathy and indifference in the patient with respect
to other individuals
a certain lack of harmony, integration, and coordination between
emotional and rational or intellectual activities
gradual mental deterioration
hallucinations common
clarity of thought is lost
apparent inappropriateness of reactions
indifference
lack of judgment and foresight
seem feeble-minded
senseless and illogical thought processes
delusions
withdraws from reality
rationalizations and projections
fantasy world
word salad

alcohol intoxication
maladaptive behavioral effects
slurred speech
incoordination
unsteady gait
nystagmus
flushed face
mood change
irritability
loquacity
impaired attention

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Pages 12-42 of 90 pages.Affiant's initials _________

Tarasoff v. Regents of U. of California [17 Cal 3d 425], 131 Cal. Rptr. 14, 551 P.2d 334 ([July] 1976), provides insight.
"When a doctor or a psychotherapist, in the exercise of his professional skill and knowledge, determines, or should determine, that a warning is essential to avert danger arising from the medical or psychological condition of his patient, he incurs a legal obligation to give that warning."
In this case, Dr. Holt refuses to warn management of the danger; he pretends such action is "not" his "province." He refuses to examine smokers who cause endangerment to determine if they are suffering any of the known smoker mental illnesses; he refuses to take preventive steps such as confining them or declaring them unfit for duty. He fails to initiate action to have them declared "not ready, willing and able to work." Indeed, he perpetrates a double wrong. He refuses to act even when other doctors call his attention to the need to act. He ignores the duty to act, even when USACARA called such duty to the attention of all, on 25 Jan 80. Dr. Holt ignores AR 1-8 and rules such as the FPM Suppl. 752-1 guidance against posing a danger to self or others—a rule smokers routinely break. Even worse, he has engaged in reprisal against me.

[The article by Prof. Alfred Blumrosen, et al, "Injunctions Against Occupational Hazards: The Right to Work Under Safe Conditions"] 64 Cal. Law Rev. [#3] 702 at 707 ([May] 1976) uses the phrase "fits comfortably within existing principles of equity" to describe application of new guidance with old concepts. A physician can be held responsible for negligently failing to diagnose tuberculosis when family members were thereby placed at risk, Hoffmann v. Blackmon, 241 So.2d 752 (Fla. App. 1970). Dr. Holt has cleared taken no steps to diagnose conditions such as smoker schizophrenia, tobacco dependence, delusions of grandeur, tobacco organic mental disorder withdrawal syndrome, paranoia, etc.

It is wrong for a doctor toIt is clearly wrong to give management wrong data that the rules are being complied with, that smoking is not a hazard, that no employees have a smoker mental disorder, that ill effects of smoking do not spread to others, [while not saying] that ambient smoke can aggravate and trigger asthma episodes, that ambient smoke can initiate disease such as lung cancer, that ambient tobacco smoke can be fatal to certain individuals, that the sensitivity to tobacco smoke is common, that tobacco smoke can change healthy non-smokers to sick, that smokers are dangerous to themselves, that smokers have higher suicide and mental disorder and auto accident death rates, etc., etc. Obviously, the AR 1-8 goals are not being complied with; and the installation physician has not been willing to say that. He has, instead, repeatedly claimed the opposite. As a physician, he knows better. Ignorance is not an excuse. Scienter is not an excuse; it is an offense. Scienter is not an excuse; it is a violation.

Even if smoker mental disorders were "confidential," the duty to society is paramount. See Simonsen v. Swenson [104 Neb 224], 177 N.W. 831 [9 ALR 1250] (Neb. 1920). The rights of healthy people have priority. That is the AR 1-8 philosophy. Smokers are not allowed to make people ill.

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(pp 44-45)

Sleeper v. Sandown, 52 N.H. 244 (1872), shows the error in the pretense that providing a safe environment need not be done, “cannot” be done, and/or is an “undue hardship.” Such claims are invalid as a matter ot lap. At best, they are matters of fact in the official situation. As “private conduct,” having no privilege, Shelley v. Kraemer, 334 US 1 [68 S Ct 836; 92 L Ed 1161] (1948), there is no privilege, and it is to be overturned. Enforcing law is a fundamental function of government, Kelley v. Johnson, 425 US 238 [96 S Ct 1440; 47 L Ed 2d 708] (1976). A fundamental purpose is not an “undue hardship.” Duty is another fundamental principle. See Heaven v. Pender, 11 Q.B.D. 503 (1883), “. . . whenever one person is by circumstances placed in such a position with regard to another . . . and if he did not use ordinary care and skill in his own conduct . . . he would cause danger or injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger.”

The Heaven v. Pender case uses words similar to AR 1-8 on the matter of protecting life and property from smoking. The safety duty is “unqualified and absolute.” Yet [TACOM] management refuses to take any measures to resolve the danger, pretending that the use of even “ordinary care and skill” is an “undue hardship.” Studying a couple of irrelevant TLV’s and disregarding the synergistic aspects which AR 1-8 includes in its scope is certainly not “ordinary care and skill.” Until [TACOM] management begins to fulfill that process, the “reasonable accommodation” process (which presupposes that regular rul enforcement processes have been completed) has clearly not begun. Cf. Payton v. U.S., 636 F.2d 132 (5th. Cir. 1981), relative to right to expect vigorous regular enforcement and protection efforts as an initial duty.

The Surgeon General and others have made clear the overwhelming enormity of the danger of tobacco poisoning. There is no known safe level, and it is the most important health issue of our time. Prudence dictates that nonsmokers avoid exposure to second hand smoke to the extent possible. AR 1-8 sets the standard of care––no endangerment. [TACOM’s] Dr. [Francis J.] Holt’s behavior does not conform to that standard of care.

The Department of Health and Human Services publishes NIH Publication No. 80-568, Science and Cancer, Third Revision 1980. P. 48 states “This cancer epidemic is related to two factors. The major one, amounting for over 70 percent of the increase in the United States, is cigarette smoking, with other forms of tobacco having a lesser role. . . The identification of cigarette smoke as a major cause of lung cancer and other lung diseases ranks as one of the major scientific discoveries of this century, equivalent to the 19th century discovery of water pollution as a cause of many gastrointestinal diseases such as typhoid.” Rejection of such data is tantamount to insistence that the earth is flat. Cf. the Detroit Free Press, 12 April 1982, p. 12A, “The flat earth people have more company than we know of,” rejecting a foolish defense of smoking. While TACOM officials such as Messrs. Shirock, Braun, and sometimes Holt are evidently willing to bear a crackpot label by their impassioned defense of the safety of smoking, MSPB avoidance of saying the TACOM environment is safe is clear. An MSPB finding on that point is conspicuous by its absence. [These statements are pre-bribery awareness.]

It is not legal to harm or poison people. Cf. State v. Giles, 183 Neb. 296, 159 N.W.2d 826 (1968), and People v. Carmichael, 5 Mich. 10, 71 Am. Dec. 769) (1858). These cases enforce fundamental principles. Tobacco is far more dangerous than the substance [lye] cited in Tatum v. U.S. [71 App.D.C. 393], 110 F.2d 555 (D.C. Cir. 1940). Tobacco is being used as a weapon to keep me off-post. It is being used as a dangerous weapon. Had AR 1-8 been enforced in a timely manner, such would still be the case for other persons even if not for me. But now, the principle applies––take the victim as he comes. Cf. Brown v. U.S., 256 US 335 [41 S Ct 501; 65 LEd 961] (1921), for defense rights against an immediate threat.

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(pp 47-71)

Local [TACOM] personnel have engaged in a continuing pattern of falsifications to obstruct and interfere with action to “ever consider the merits of appellant's allegations.” The [TACOM] misconduct “went so far as to utilize erroneous information” as part of the [TACOM] pattern “to restrict and/or deny appellant the right to file EEO complaints and seek counseling.” [EEOC decision words, Dockets 01800273 et al.] The pattern included use of false and misleading data sent by TACOM to MSPB. One of the many examples of clearly false statements is found in the 14 May 1980 letter by Ms. Bacon to [MSPB’s] Mr. [Martin] Baumgaertner. She falsely alleged that “The agency has processed and will continue to process all of Mr. Pletten's actions brought under government regulations.”

The claim is, of course, false, EEOC noted the pattern of [TACOM] inaction and interference in its 23 Feb 82 decision [Dockets 01800273 et al.]. The claim was false; as “intention is in law deducible from the act itself [People v Carmichael, 5 Mich 10, 17; 71 Am Dec 769 (1858)],” it was intentional. As “the agency's decision to terminate” [EEOC’s Henry Perez’s words] me had already been made and effected unlawfully, local [TACOM] officials considered me already fired. As far was they were concerned, I was no longer a government employee, hence no obligation “to process . . . actions brought under government regulations.” Thus, the 14 May 80 letter admitted that “Mr. Pletten may not return to his work environment. . . .” The very purpose of the 14 May 80 letter was to obstruct and prevent action to “ever consider the merits.”

The merits which 14 May 80 letter opposed action to “ever consider” included the fact “the agency failed to abide by the” 25 Jan 80 [USACARA] “recommendation of ways the agency had to accommodate appellant” by implementing AR 1-8. The merits the 14 May 80 letter also opposed considering included “the agency's decision to terminate” me. One result of “the agency's decision to terminate” me was that “Mr. Pletten may not return.” When an individual “may not return,” there has been a “decision to terminate.” Installation rules do not allow non-employees to trespass. As a personnel specialist, I have been involved in enforcing that rule. Based on “the agency's decision to terminate” me and to oppose action to ''ever consider the merits,” I was “locked out.” The letter admitted that “Mr. Pletten may not return to his work environment,” but asserted that “Mr. Pletten has not been locked out of his office.” That contradiction confirms the fallacy of the view that the issue is limited to suspension. “The agency's decision to terminate” me without adhering to the [30 days] advance notice, specificity, and reply rules [e.g., 5 USC § 7513.(b)] shows that “Mr. Pletten may not return to his work environment,” which includes but is not limited to “his office.” When a person “may not return to his work environment” which includes his office, he has “been locked out of his office.” “Locked out” resulted from prior “decision to terminate.”

The 14 May 80 letter contained false assertions including but not limited to the false statement that “The agency has processed and will continue to process all of Mr. Pletten's actions brought under government regulations.” I concede that Mr. Baumgaertner was given false, intentionally false, data by local officials. However, Mr. Baumgaertner is not a clerk. He is not allowed to simply photocopy management claims, or otherwise rubber-stamp assertions. He is not allowed to be gullible. Notwithstanding the false nature of the local [TACOM] assertions, including the 14 May 80 letter, he should have taken action to “consider the merits.”

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(pp 73-80)
On 9 April 1980, Henry Perez, Jr., “advised that I am not now [April 1980] in a position to interfere with or disrupt the agency's decision to terminate you.” As a local EEOC representative, he was “not . . . in a position to” review the personal “decision to terminate” me, unless a formal EEO complaint were allowed to be processed by the local smokers. The 23 Feb 82 EEOC decision shows that local smokers used various improper tactics to interfere with and obstruct the [my] right to secure review [of] the late 1979 or early 1980 “decision to terminate” me. At 3 [EEOC said], "It is also clear the agency made some effort to limit his number of complaints, his right to file complaints and to seek EEO counseling. The agency, additionally, went so far as to utilize erroneous information or miscalculations upon which to base its rejection” of the cases, cases caused in part by “the agency's decision to terminate” me without regard to the advance notice and specificity rules.

The 23 Feb 82 EEOC decision also accurately noted that “In none of the appeals . . . did the agency ever consider the merits of appellant's allegations.” It is clear that smokers reacted as they did for the purpose of obstructing and preventing a finding that “the agency failed to abide by the” 25 Jan 80 USACARA Report, so “appellant filed even more EEO complaints,” in retaliation for which “the agency's decision to terminate” me came about by early 1980 (17 March) at the latest. Local smokers continued that pattern in dealing with MSPB. The insistence that MSPB lacked jurisdiction to review the merits of “the agency's decision to terminate” me by early 1980 is particularly reprehensible since MSPB jurisdiction expressly [5 CFR § 1201] covers adverse actions. EEOC noted [23 Feb 1982] that “The record indicates that as early as February, 1980, appellant was denied EEO counseling and prevented from filing further complaints,” p. 2 of the 23 Feb 82 decision. The “decision to terminate” followed immediately thereafter or in the same time frame.

The many reprisals and interferences are clear. Improperly rejecting cases is but one example. Refusing counseling is but one example. Using erroneous information, miscalculations, and other misrepresentations show other examples. The adverse action is another example. It is clear that local smokers do not consider themselves duty-bound to obey rules and laws. [Cf. People v Matulonis, 115 Mich App 263; 320 NW2d 238 (1982).] It is clear that local smokers do not consider themselves duty-bound to honor facts and evidence.

When smokers are willing to punish nonsmokers for seeking rule enforcement, it is clear that the “craving for tobacco” is intense. That intense “craving for tobacco” explains why local smokers refused compliance and “failed to abide by the” 25 Jan 80 Report. It is also clear why AR 1-8 strips management of the authority to decide nonsmoker endangerment, discomfort, etc., and why AR 1-8 envisions a personal standard [empowers nonsmokers to make the decision]. Smokers simply refuse to cooperate voluntarily. Indeed, smokers choose “to terminate” nonsmokers rather than comply. If smokers were allowed to decide, there would be no protection for nonsmokers. That fact explains why it is Army policy that AR 1-8 envisions a personal standard [empowers nonsmokers, the DoD and Army policy]—against which local smokers are so insubordinate.

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(p 82)

Escott v. BarChris Construction Corp., 283 F. Supp. 643 (S.D.N.Y. 1968), provides insight on the lack of “due diligence” by government officials in the situation. It is not acceptable to not read documents. Reliance on experts cannot legally be overdone. People with executive authority or responsible to know/resolve matters cannot ignore their duties when they have clear knowledge of facts. Relying on supposed experts who make mistakes is not acceptable. Failure to inquire sufficiently into matters is not acceptable. Officials with intimate knowledge of facts and normal ways of conducting business and official transactions are expect to investigate thoroughly, and especially, to comprehend and act upon materials that are readily available. Officials are responsible to notice errors, false or misleading statements, omissions of data, and other types of matters and business with which they are to be familiar. Failure to acquire knowledge is not acceptable. Signing documents without understanding what is being signed is not acceptable.

Disregard of these simple, common sense principles is evident through out the government behavior. [TACOM] Dr. [Francis J.] Holt's notes of 24 and 25 Mar [19]80 to the present reflect his opposition to rule enforcement, his inexplicable view that recommending a healthful environment is not his “province,” his insistence on declaring me unfit for duty in advance, his opposition to preventive measures, his disregard of the 25 Jan [19]80 USACARA Report and of AR 1-8, his pretense that smoking may be safe, his disregard of the phony and incompetent TLV studies allegedly performed under OSHA “standards” not demonstrably relevant, reprisal and opposition to my effort to secure a safe environment as the installation is obligated to provide, etc.

The wrong data by [TACOM] Mr. [Edward E.] Hoover from the 28 Mar [19]80 and 18 Apr [19]80 letters to the present reflect like misconduct. As the alleged personnel officer, he ought to be setting an example of compliance with a personnel channels USACARA Grievance Report; instead he denounces it. [TACOM Legal Office’s] Ms. [Emily Sevald] Bacon's letters and statements from 29 Apr [19]80 to the present also reflect the like pattern of disregard of facts. As a lawyer, she is particularly responsible to know the law and rules. She is also supposed to familiarize herself with the pertinent facts. The evidence shows that such has not happened, even from her initial letter (29 Apr [19]80), when she misrepresented my presence as the “threat,” and not the presence of the tobacco smoke. Ms. [Carma J.] Averhart from 20 Mar [19]80 to the present has been involved in the like pattern of disregard of facts. Failure to familiarize herself with the pertinent facts is clear.

MSPB wrongdoing from 23 Jul [19]80 [and thereafter] is also obvious. When a person is endangered, the hazard is to be eliminated, not the victim. [“An employer has a duty to prevent and suppress hazardous conduct by employees” even going beyond what “the average workplace” does, National Realty. & Const. Co, Inc. v Occ. Safety & Health Rev Comm’n, 160 US App DC 133; 489 F2d 1257, 1266; 1 O.S.H. Cas.(BNA) 1422 (1973); and FPM Suppl. 532-1, S8-7, employer to do “elimination or reduction to the lowest level possible of all hazards . . . .”] Yet [MSPB’s] Mr. [Martin] Baumgaertner wrongfully attempted to evade his legal duty by using the “threat” synonym, to evade use of the AR 1-8 word “endanger.” Mr. [Ronald P.] Wertheim brazenly ignored the evidence, to invent claims contrary to the evidence [6 MSPB 626; 7 MSPR 13, falsity noted by EEOC, Docket 03.81.0087, 83 FEOR 3046]. Mr. [Stephen] Manrose did likewise. Due diligence and taking normal measures to acquire familiarity with the facts was not done; indeed, my requests for proper action by them—a hearing—were brutally and summarily denied. Such misconduct is not mere negligence; it is far worse.

Culpability is obvious. The only questions that remain, pertain to the nature of the penalties to be imposed against the various culpable personnel.

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(pp 84-89)

“The Federal Government shall become a model employer of handicapped individuals,” 29 CFR § 1613.707. “As the nation's largest employers the Federal Government has a special obligation to set an example for all employers by providing a safe and healthful working environment for its employees,” Executive Order 11807. The safety duty is “unqualified and absolute” and “above all other considerations save those making attainment of this ‘benefit’ unattainable.”

At the installation, there is “not . . . any mechanism . . . to resolve . . . unsafe working conditions.” When I attempted to “resolve” them, the result was “the agency's decision to terminate” me. The adverse action occurred even though the fact “That the Grievant gathered these documents” such as the 25 Jan 80 “recommendation of ways the agency had to” “resolve . . . unsafe working conditions” and implement the personal standard envisioned by AR 1-8 “should not be held against him.” MSPB employees such as Messrs. [Martin] Baumgaertner and [Ronald] Wertheim falsely claimed that MSPB lacked jurisdiction, even though the purpose Congress had in mind for MSPB is resolution of adverse actions. Delusional statements were made by MSPB employees. Ex parte activities prohibited by the rules were routinely engaged in. MSPB incompetence and mismanagement at all levels is obvious. MSPB is not capable of accomplishing even simple administrative functions such as prompt assignment of a docket number on receipt of a case. Such ineptness is a clue to the much larger mismanagement of MSPB, mismanagement and negligence which produces system discrimination in addition to the personal discrimination generated by malicious or disturbed officials. The MSPB lackings include:

––No mechanism for compliance with time limits.

––No mechanism for compliance with guidance against prohibited ex parte communications.

––No mechanism for detecting delusions in decisions prior to issuance.

––No mechanism for detecting falsifications in decisions prior to issuance.

––No mechanism for trained medical review of decisions having medical implications.

––No mechanism for trained engineering review of decisions having engineering implications.

––No mechanism for identifying and promptly overturning agency adverse actions effected in gross violation of rules,
e.g., no opportunity to reply, lack of specificity, no advance notice, and the like.

––No mechanism for providing a hearing of specified under the MSPB guidance.

––No mechanism for “some analysis of the merits of the agency action” as “necessary to determine the threshold jurisdictional issue.”

––No mechanism “to seek out and remedy violations when they occur.”

––No mechanism or “measures that will insure that violations will not occur.”

[These statements are pre-bribery awareness.]

Page 90 of 90 pages.Affiant's initials _________