The installation has not shown a business necessity for tobacco smoke and does not intend to make such a showing, for the reason that no such showing is possible.
| Page 6 of _______ pages. | | Affiant's initials _________ |
Examples of Where Smokers Are Dangerous
Barns/Stables: Eaton v. Lancaster, 10 A. 449 (1887)
In Interest of Helman, 327 A.2d 163 (1974)
Meredith v. Ringling Bros. Barnum & BaileyCombined Shows, Inc., 321 F.2d 107 (1963)
Hospitals: McDonough v. Sears, Roebuck & Co., 33 A.2d 861 (1943)
Evans v. Newark-Wayne Community Hosp., Inc., 35 App.Div.2d 1071 (1970)
Granger v. Deaconess Hospital of Grand Forks, 138 N.W.2d 443 (1965)
Rum River Lumber Co. v. State, 282 N.W.2d 882 (1979)
Vessels: Petition of Republic of France, 171 F.Supp. 497 (1959)
Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956 (1953)
United States Lighterage Corp. v. Patterson Lighterage &Towing Corp., 45 F.Supp. 754 (1942), aff'd, 142 P.2d 197 (1944)
Service Stations: Secor v. Penn Service Garage, 117 A.2d 12 (1955)
Wood v. Saunders, 238 N.Y.S. 571 (1930)Rushing v. Texas Co., 154 S.E. 1 (1930)
Jefferson v. Derbyshire Farmers, 2 K.B. 281 (1921)[Jefferson v Derbyshire Farmers, Ltd, [1920] All Eng 129;2 KB 281; 13 ALR 997 (3 Feb 1921)]
Dye v. Rule, 28 P.2d 758 (1934)
Fields: Vincennes Steel Corp. v. Gibson, 106 S.W.2d 173 (1937)
Palmer v. Keene Forestry Ass'n, 112 A. 798 (1921)
McKinney v. Bland, 112 P.2d 798 (1941)
Public Accommodations/Transportation: State v. Heidenhain, 7 So. 621 (1890)
Jones v. Eastern Greyhound Lines, Inc., 288 N.Y.S. 523 (1936)
Kerr v. Hudson Hotel Co., 37 So.2d 630 (1948)
Tyson v. Plymouth Country Club, 57 Montg. (Pa.) 140 (1941)
Allen v. Posternock, 163 A. 336 (1932)
"Sensitive" Surroundings: Commonwealth v. Hughes, 364 A.2d 306 (1976)
McAfee v. Travis Gas Corp., 153 S.W.2d 442 (1941)
DeMirjian v. Ideal Heating Corp., 278 P.2d 114 (1955)
Mack v. Hugger Bros. Constr. Co., 10 Tenn.App. 402 (1929)
Feeney v. Standard Oil Co., 209 P. 85 (1922)
Century Ins. Co. v. Northern Ireland Transport Board, 1 All Eng 491 (1942)
Bluestein v. Scoparino, 100 N.Y.S.2d 577 (1950)
Storage Sites: George v. Bekins Van & Storage Co., 205 P.2d 1037 (1949)
Maloney Tank Mfg. Co. v. Mid-Continent Petroleum Corp., 49 F.2d 146 (1931)
Streets/Roads: Commonwealth v. Thompson, 53 Mass. 231 (1847)
Giles v. Southeastern Motor Truck Lines, 173 S.W.2d 990 (1943)
Arthur v. Santa Monica Dairy Co., 6 Cal. Rptr. 808 (I960)
Offices: Puffin v. General Electric Co.. 43 A.2d 746 (1945)
Petrie v. Crucible Steel Co. of America, 166 N.Y.S.2d 780 (1957)
Shimp v. N.J. Bell Telephone Co 368 A.2d 408 (1976)
Smith v. Westem Electric Co., 643 S.W.2d 10 (1982)
Hentzel v. Singer Co., 188 Cal.Rptr. 159 (1982)
| Page 7 of _______ pages. | | Affiant's initials _________ |
"Smoking and working don't mix." Flammable materials and smokers also have a problem. Dzikowska v. Superior Steel Co., 259 Pa. 578, 103 A. 351 (1918), indicates "that his clothing was more or less saturated with oil. He stepped out of the shipping room and went into a box car, supposedly in order to smoke, as he said afterwards that in striking a match upon his trousers the burlap apron caught fire. . . . directly afterward he ran out of the car all aflame, and was so badly burned that his death resulted in a few days."
Rish v. Iowa Portland Cement Co., 186 Iowa 443, 170 N.W. 533 (1919) concerned "the explosion of a dynamite cap" and "the striking of the match for the purpose of lighting a cigarette." The cause produced the effect: the effect resulted from the cause.
Lovallo v. American Brass Co., 112 Conn. 635, 153 A. 783 (1931), indicates that "The clothing of the deceased . . . was thus oily and greasy as a result . . . The burlap bags themselves were of very inflammable material. . . . the deceased . . . undertook to light his pipe. The match which he struck, ignited his greasy and oily clothing, particularly the burlap bag he was wearing as an apron. The fire . . . spread more rapidly because of the oil and grease on these portions of his clothing."
Maloney Tank Mfg. Co. v. Mid-Continent Petroleum Corp., 49 F.2d 146 (1931) involved "a battery of oil tanks . . . one of the workmen stopped in his work to light a cigarette, and threw the match on the ground. The ground was oil-soaked, and a fire ensued which destroyed the tanks and the oil therein."
McAfee v. Travis Gas Corp., 137 Tex. 314, 153 S.W.2d 442 (1941), indicates that a "gas line was in bad condition, and had been leaking gas from openings therein for many months." Mr. McAfee "went with" smoker Joe "Woods to where the pipe line was leaking and was in the act of pointing out such leaks to Woods when Woods struck a match on the sole of his shoe to light a cigarette. The blaze from the match ignited the escaping gas, causing an explosion. As a result of such explosion McAfee was injured."
Secor v. Penn Service Garage, 19 N.J. 315, 117 A.2d 12 (1955), discusses a smoker's behavior after "the gasoline overflowed and splashed onto his right sleeve and left trouser leg" in the process of "filling a customer's gas tank." A witness "testified that . . . Secor, saying 'he wasn't afraid of that stuff,' took a book of matches out, lit one with his right hand, put it close to his left leg, and instantaneously was in flames."
Wood v. Saunders, 228 App. Div. 69, 238 N.Y.S. 571 (1930), also involves "having the gasoline tank of the car filled." Smoker Thorne "flipped his lighted cigarette across the driver's seat, over the open tank. . . . An explosion followed, and flames shot upward from the tank. Thorne pulled out the nozzle in such a way that he splashed flaming gasoline on the infant plaintiff, who . . . suffered extremely painful injuries, for which he has recovered a verdict against the defendant."
| Page 8 of _______ pages. | | Affiant's initials _________ |
COMPARISON OF REPORTS
FMCS Arbitration Case 61K - 26042
22 January 1982
Arbitrator Berkeley
USACARA Grievance Case 05-80-001-G
25 January 1982
Examiner Kennedy
| "Smoking shall be prohibited on the work area of the entire fifth floor of the . . . Building, and shall be posted accordingly."
(P. 24)
| "The Commander has the authority . . . to ban all smoking." (P. 14)
| "It is clear that the Grievant has not, in fact, been sufficiently accommodated." (P. 18)
| "The rights of smokers exist only insofar as discomfort or unreasonable annoyance is not caused . . . he is caused discomfort by smoke." (P. 12)
| "A single employee could eliminate smoking within an entire open work area." (P. 17)
| "Smoking does constitute a safety hazard to him . . . The regulation provides that smoking will be permitted in common work areas only if ventilation is adequate to remove smoke. . . ." (P. 7)
| "Indeed no employee need be relocated on account of his or her smoking/non-smoking . . . , which could well represent a cost savings over the current patch-work system." (P. 22)
| "An equitable balance . . . cannot be accomplished by relocating one nonsmoker. . . . The other nonsrookers also have rights . . . No evidence was offered to indicate that the Command had considered the rights of all nonsmokers." (P. 11)
| "Ours is a society in which few rights indeed are absolute, and smokers are often subject to restrictions in airplanes, hospitals and schoolrooms, to name but a few instances." (Pp. 22-23)
| "Smoking will be permitted . . . only if . . . healthful. . . the rights of smokers exist only insofar as discomfort or unreasonable annoyance is not caused . . . ." (Pp. 7, 12)
| "Medical documentation of an employee's adverse reaction to smoke is clearly not required." (P. 20)
| Grievant "has established that smoking does constitute a safety hazard to him." (P. 7)
| "A single . . . could eliminate smoking within an entire . . . area, regardless of the size . . . or the nunber of people working in it." (P. 17)
| "Smoking is banned in the area where the computers are located." (P. 10)
| "It is clear that the Grievant has not in fact, been sufficiently accommodated." (P. 17)
| "An equitable balance . . . cannot be accomplished by relocating one nonsnoker." (P. 11)
| "Medical documentation . . . is clearly not required." (P. 20)
| "Smoking is banned in the area where the computers are located." (P. 10)
| | | | | | | | | | |
| Page 9 of _______ pages. | | Affiant's initials _________ |
COMPARISON OF REPORTS
Examiner KennedyArbitrator Berkeley
| "Whether or not an individual is discomforted by smoke is a personal determination to be made by that individual." (P. 12)
| "It is clear that the guidelines envision a personal standard." (P. 20)
| "The Commander is not as devoid of authority as COL Thomas' letter indicates." (P. 13) "The Commander has the authority . . . to ban all smoking . . . ." (P. 14)
| "Consider two prior arbitration decisions on the smoking issue . . . the first case . . . Interestingly enough, it was the position of the Agency that it had to prohibit smoking pursuant to the regulations . . . apparently considered alternatives to the prohibition but found none." (P. l6)
| "It is clear that the rights of smokers exist only insofar as discomfort or unreasonable annoyance is not caused to nonsmokers." (P. 12)
| "A single employee could eliminate smoking within an entire open work area, regardless of the size of the area or the number of people working in it." (P. 17)
| "The position of the Command appears to be based on the premise that the recommendation of ten cubic feet of fresh air per minute per person is met." (P. 13)
| "The Agency's contention that the air quality tests demonstrated that the standard was net . . . is not valid . . . if met it will not rebut an employee's statement that smoke in the air in his or her workplace is damaging his or her health." (P. 1)
| "Whether or not an individual is discomforted by smoke is a personal determination to be made by that individual." (P. 12)
| "Medical documentation of an employee's adverse reaction to smoke is clearly not required. That the Grievant gathered these documents should not be held against him. (P. 20)
| "The regulations, as written, do not require an absolute ban on smoking . . . The Commander has the authority, however, to ban all smoking." (P. 14)
| "It must be noted that the guidelines do not envision an environmen totally free of smoke and its contamination . . . yet . . . does provide for the prohibition of smoking." (P. 5)
| "Smoking is banned in the area where the computers are located." (P. 10)
| "The Agency has no difficulty or reluctance in prohibiting smoking where it interferes with sensitive data processing equipment and here the interference caused by smoking is with human life, something far acre precious." (Pp. 14-15)
| "Smoking does constitute a safety hazard to" Grievant. (P. 7)
| "It is clear that the Grievant has not, in fact, been sufficiently accommodated." (P. 16)
| | | | | | | | | |
| Page 10 of _______ pages. | | Affiant's initials _________ |
PMCS Arbitration Case 81K - 26042 provides insight on the pertinent principles governing smoking. The employer has a regulation to "prohibit smoking if an employee objects in writing to tobacco smoke in the immediate work area on the basis that it is having an adverse effect on his or her health," p. 3 of the Report. AR 1-8 is even more pro-nonsmoker than that; under AR 1-8, "it is clear that the rights of smokers exist only insofar as discomfort or unreasonable annoyance is not caused to nonsmokers," p. 12 of the 25 Jan 80 USACARA Report. Those "subjective" criteria provide additional grounds for nonsmoker freedom of choice to ban forced smoking, not merely "adverse effect on . . . health." AR 1-8 provides for protection prior to the initiation of "adverse effect," i.e., against even pro-hazardous and pre-sickness situations. AR 1-8 also does not specify or require non-smoker objection "in writing." Verbal objection is adequate; see the USACARA reference as adequate evidence on the matter—what I simply "declared" and "advised," p. 12.
The Arbitration noted that the employer's rule cited only "a minimum rate of 5 cubic feet per minute (cfm) of fresh air per person" as what was "recommended" to achieve the regulatory goals. The AR 1-8 guidance is for 10. Both employers specify that such cfm guidance is only "As. a general rule." See the Arbitrator's Report, p. 6, and the USACARA Report, p. 8. The Arbitrator noted at p. 20 that "it is clear that the guidelines envision a personal standard and the 5 cfm standard is at best only a guide and does not control in determining whether or not smoking should be prohibited." USACARA had analyzed the rule at issue in the same vein, "whether or not an individual ie discomforted by smoke is a personal determination to be made by that individual." Both rules make "clear that the guidelines envision a personal standard."
In the arbitration case, the full authority to ban all smoking was obvious and not even a matter of debate. Indeed, at 16, the case referred to a prior situation when "Interestingly enough, it was the position of the Agency that it had to prohibit smoking . . . ." The USACARA Report, p. 14, noted that "The Commander has the authority . . . to ban all smoking." The installation is required "to take whatever action is necessary" to achieve the regulatory goals. At p. 6, the Report by USACARA cited AR 600-20.2-1 showing the full authority involved, "It is Army policy that each individual in the chain of command is delegated sufficient authority to accomplish assigned tasks and responsibilities." That "sufficient authority" includes authority to achieve compliance with rules, for example, that "discomfort or unreasonable annoyance is not caused to nonsmokers" in accordance with "a personal determination to be made by that individual" nonsmoker, p. 12. The USACARA Report at 14 referred to the "affirmative action" duty to achieve the goals, and said "If such affirmative action has been taken at TARCOM, it is not evident . . . ." It still is "not evident." The Arbitrator confirmed that "It is clear that the Grievant has not, in fact, been sufficiently accommodated . . . ." Such inaction violates "the guidelines" which "envision a personal standard."
| Page 11 of _______ pages. | | Affiant's initials _________ |
FMCS Arbitration Case 61K - 26042 provides insight on the pertinent principles governing smoking. The employer therein, like the installation, alleged that supposed "air quality tests demonstrated that the standard was met." The Arbitrator, like USACARA, noted that the employer claim "is not valid," p. 19. Other factors must be taken into account. "Thus," it is clear that the guidelines envision a personal standard and the . . . cfm standard is at best only a guide and does not control in determining whether or not smoking should be prohibited," p. 20. USACARA said likewise at p. 12, "whether or not an individual is discomforted by smoke is a personal determination to be made by that individual." "Thus, it is clear that the rights of smokers exist only insofar as discomfort or unreasonable annoyance is not caused to nonsmokers."
Even if a particular cfm standard is met, USACARA noted at 13, "The fact that it was stated 'as a general rule" indicates that there might be a variance." The Arbitrator at 19 quoted relative to a cfm standard that "if met it will not rebut an employee's statement that smoke in the air in his or her workplace is damaging his or her health. As a result, meeting this standard will not preempt a ban on smoking in the workplace." AR 1-8 allows for and specifies no smoking for more reasons than merely adverse effects on health; it includes other reasons as well that nonsmokers might cite, such as mere "subjective" discomfort or unreasonable annoyance.
The Arbitrator said, at p. 20, "In a similar vein, medical documentation of an employee's adverse reaction to smoke is clearly not required." USACARA at p. 12 referred to the same concept by emphasizing "personal determination to be made by that individual." A doctor is not "that individual." A medical statement is limited to being only "further" evidence, but clearly subordinate to the "personal determination," which is all that is necessary for causing compliance to begin. The Arbitrator noted "That the Grievant gathered these documents should not be considered against him and while there may have been some confusion . . ." it is evident that the Arbitrator made clear that "these documents should not be considered against him." In my case, the medical documents are clearly and wrongly being "considered against" me, despite my long standing rebuttal of doing that.
The Arbitrator rejected the employer claims about the alleged attempts at accommodation that had supposedly been made. At 18, the decision stated, "It is clear that the Grievant has not, in fact, been sufficiently accommodated, no matter the extent or good faith of previous Agency efforts in this regard." Attempts do not count! Rules contemplate doing, not attempting. The USACARA Report at 12 made the same point that, regardless of what supposedly was done, it was still true that "Mr. Pletten . . . is caused discomfort by smoke.' "Mr. Pletten has established that . . . smoking does constitute a safety hazard to him," at 7, regardless of what was supposedly done by the installation. The Arbitrator at 20 noted that the protective terms "must be given their broadest meaning and application. To not do so would vitiate the very purpose of the entire non-smoking program." In my case, the installation cites the violations (the endangerment, discomfort, etc.) as the basis for ousting me. The Arbitrator's words at 21 are insightful, "In sum, to accept the Agency's interpretation would open a door to complete abrogation of this policy which would be illogical in the extreme."
| Page 12 of _______ pages. | | Affiant's initials _________ |
When smokers endanger themselves or others, as the various court cases by and about smokers show, and when the installation condones like behavior, that is granting a "preference or advantage not authorized by law, rule, or regulation" in violation of 5 USC 2302. Endangering self or others (as smokers tend to do) is forbidden under rules such as FPM Suppl. 752-1, 5 USC 7902, AR 1-8, etc. The installation disregard of the 25 Jan 60 Report saying to comply with AR 1-8 has been ignored. My rights under various civil service laws and rules and under Army policy are thus violated; clearly, "irreparable injury should be presumed from the very fact that the statute has been violated." U.S. v. Hayes Int'l Corp., 415 F.2d 1038 (5th Cir. 1969).
The agency has failed to properly balance the harm to me vs. no demonstrated harm to the agency of having to comply with its own rules. Balancing is critical, and has long been recognized in court, as in, for example, Conway v. O'Brien, 111 F.2d 611 (2d Cir. 1940). AR 1-8 mandates an "equitable balance" so that nobody will be made sick by smoke, and so that nobody will be endangered, discomforted, or unreasonably annoyed. AR 1-8 not only forbids making nonsmokers sick, it forbids even pre-sick leave results. Preventable harm is to be prevented and courts have long made this clear, as long ago as the case of Heaven v. Ponder, 11 Q.B.D. 503 (1883).
The duty is to protect the right to remain at work in safe conditions, as OSHA and 5 USC 7902 provide; cf. 64 Cal. Law Rev 702 (1976). The even more basic right to work (at all) has been recognized in cases such as Yick Wo v. Hopkins, 118 US 356 (1886), and Truax v. Raich, 239 US 33 (1915). The FPM recognizes the same concept. See FPM Suppl. 752-1. S5-4c(l)(e), "in view of the objective of keeping the employee in an active duty status in his regular position whenever practicable, it is good practice for an agency to use the alternative which most nearly approximates active status or otherwise causes the employee the least possible loss." The installation ignores that rule, and refuses to even cooperate in efforts to eliminate the hazard, and resolve the overall situation. The duty is especially clear considering the "irreparable injury" that the installation is causing.
The installation behavior is clearly arbitrary and capricious in that reasons for its actions of not complying with the rules and the 25 Jan 80 Report are not stated. The fact an employee such as me may react to arbitrary and capricious behavior is foreseeable. It is unacceptable for the installation to focus only on the reaction, and seek to divert attention away from its own role as the cause. The agency reaction is, in causing "irreparable injury" to which a reaction is foreseeable, whimsical, arbitrary, capricious, and evidencing that "no standards govern" which does indeed "cross the line" into misconduct. The alleged "difficulty in formulating remedy" is the result of "too much deliberation" and not enough speed and good faith. Shelley v. Kraemer, 334 US 1 (1948), makes clear that "private conduct" such as of smokers harming.nonsmokers such as me is not entitled to government protection; yet that is what the installation is doing by subterfuge. It refuses to enforce rules, then criticizes me for doing as trained when a violation becomes apparent. It says go"elsewhere" for assistance, though saying to go "elsewhere" is not a lawful response, Missouri ex rel. Gaines v. Canada, 305 US 337 (1938). Also see Browder v. Gayle, 142 F.Supp. 707. cert. denied, 352 US 903 (1956), for other court rejection of going elsewhere, and rejection of protection of "private conduct" from which a minority needed protection.
| Page 13 of _______ pages. | | Affiant's initials _________ |
The employer refuses to provide reasonably safe conditions; it also refuses to provide "an environment reasonably free of contamination . . . to . . . not endanger life or property, cause discomfort or unreasonable annoyance to nonsmokers, or infringe upon their rights." The OSHA safety duty is, of course, "unqualified and absolute," Nat'l Realty & C. Co. v. OSHRC, 489 F.2d 1257 (1973). "A workplace cannot be just 'reasonably free' of a hazard." To the employer, the duty is "unreasonable," hence an "undue hardship." (The claim is false, as without "business necessity," there can be no "undue hardship.") Even if the duty is "unreasonable" as the employer insists, AR 1-8 nevertheless forbids smoking; nonsmokers are entitled to display "unreasonable annoyance" and prevail. The AR 1-8 synonym for the "unqualified and absolute" safety duty is clear.
5 USC 7902 is stricter than the "unqualified and absolute" OSHA, if such be conceivable. Cf. FPM Suppl. 532-1, S8-7a. When the employer ignores the law, such is a prohibited personnel practice under 5 USC 2302; no agency shall "grant any preference or advantage not authorized by law, rule, or regulation . . . ."
To competent professionals, a hazard is obvious. Harm in the hazard which goes away when out of the hazard is obvious. Ignoring the vast medical evidence, the other cases, the existence of multiple rules controlling smoking, the many court cases, etc., is reflective of malpractice. Data of that nature is the normal way of showing a hazard; cf. 64 Cal. Law Rev. 702 at 715 (1976). Employer disregard for the evidence cannot be considered "reasonable." AR 1-8 expressly regulates "personal" behavior; employer denunciations of the concept of regulating "personal" behavior reflect insubordination.
The Courts have long recognized that "an employer is bound to furnish his employee with a reasonably safe place in which to work," in cases such as Decatur v. Chas. H. Tompkins Co., 25 F.2d 526 at 527 (1928), and Fitzpatrick v. Fowler, 168 F.2d 172 (1948). The employer is clearly derelict in its duty. The employer is not only not taking its duty seriously; it is intentionally refusing to do its duty. The 25 Jan 80 USACARA Report is simply not implemented. In EEO cases, if management refuses to do what is won, the employee can receive the benefit of resumption of processing of the case. A grievance decision is "final," so management refusal of action is clearly intolerable.
Employees are often fearful to seek safe conditions even though the right to freedom from reprisal is guaranteed. See 64 Cal. Law Rev 702 at 713 (1976), note 52, "In reality, the vulnerability of the employee to retaliation by the employer may deter many individual actions." The untrue and malicious claims that I am unique—despite the overwhelming medical data to the contrary—are but the tip of the iceberg in the "vulnerability" that is revealed by the multiple reprisals and retaliations committed by management. Refusing to implement the 25 Jan 80 USACARA Report is just one example among many.
| Page 14 of _______ pages. | | Affiant's initials _________ |
Safety guidance shows a recurring theme or pattern. For example, in 5 U.S.C. 7902, the phrase, "eliminate work hazards and health risks," is used. National Rlty. & C. Co., Inc. v. O.S.H.R.C., 489 F.2d 1257 (CADC, 1973), says, the safety "adjective is unqualified and absolute: A workplace cannot be just 'reasonably free' of a hazard, or merely as free as the average workplace in the industry. . . . All preventable forms and instances of hazardous conduct must . . . be entirely excluded from the workplace." American Smelting &. R. Co. v. O.S.H.R.C., 501 F.2d 504 at 515 (CA 8, 1974), rejected what "would not prevent a likelihood of harm to employees." AR 1-8 uses phrases such as "provide a healthful environment," "remove smoke," "not endanger," "safety considerations," "equitable balance" to achieve the "implementing or enforcing," etc.
Dr. Francis Holt of the installation, prior to his worsened condition evident 24 March 1980, and thereafter, understood that the installation was in violation of that guidance. The hazard had not been "entirely excluded." The ventilation did not "remove smoke." Etc. The installation violations were evident, and installation officials realized that USACARA would note them. In addition, the aspects such as discomfort and unreasonable annoyance were additional requirements above and beyond the duty not to "endanger" people from "a likelihood of harm." Under the personal standard envisoned by AR 1-8, corrective action even prior to "the likelihood of harm" is required. The installation was so far in violation that actual endangerment was extant. Installation officials knew that USACARA would confirm what I had "established," "Mr. Pletten has established that, insofar as he personally is concerned, smoking does constitute a safety hazard to him," p. 7 of the USACARA Report.
In his 22 Jan 80 notice, Dr. Holt recognized what was needed to comply with the multiple cited legal statements. While he had deteriorated somewhat by 29 Feb 1980, he still displayed some such understanding. Not until 24 March 1980 did his condition deteriorate to the point that he no longer displayed comprehension of what he had previously known. As a matter of time orientation, however, the opposition such as the "derogatory references" cited in the Nov 1979 EEO case referenced in the 23 Feb 1982 EEOC letter show that, prior to the deterioration evident 24 March 1980 and thereafter, local officials were cognizant of their violations, and had embarked on a pattern of misconduct including "derogatory references" to serve a discrediting purpose, and leading up to the "decision to terminate" me noted by Mr. Perez on 9 April 1980. It is evident from what happened prior to the 25 Jan 1980 USACARA Report, local officials were aware of what was necessary for compliance with AR 1-8, but that they had decided in advance not to comply with guidance for correction. As a medical person, it is evident that management officials locally had awareness from Dr. Holt on what was needed prior to the 22 Jan 1980 notice from him. As a medical person, Dr. Holt would have known what was necessary for compliance, and would have let local officials know.
The legal brief submitted in the case of Shimp v. New Jersey Bell Telephone Co., 368 A.2d 408 (1976), shows the duty to have "knowledge" of "dangers" and to "inform" oneself. Considering the existence of the court precedents, in addition to AR 1-8, it is clear that local hostility to compliance with the "knowledge" is the cause of this case, and the misconduct prior to the 25 Jan 1980 Report.
| Page 15 of _______ pages. | | Affiant's initials _________ |
The article, "Polonium-210: A Volatile Radioelement in Cigarettes," by E. P. Radford, Jr., and V. R. Hunt, in Science, Vol. 143(3603), pp. 247-249, 17 January 1964, provides insight. At 248, "The radiation hazard from Po210 arises primarily because polonium is known to be completely volatile above 500 C, or well below the temperature of a burning cigarette. In addition, polonium binds rapidly and strongly to surfaces, and hence attaches readily to smoke particles. Finally, its intermediate half-life of 138 days assures ample time for translocation of particles to the bronchi to take place."
"After inhalation, ciliary action causes the insoluble radioactive particles to accumulate at the bifurcation of segmental bronchi, a common site of origin of bronchogenic carcinomas," data from "Radioactivity in Cigarette Smoke," by T. H. Winters, and J. R. DiFranza, in The New Engl. J. of Med., Vol. 306(6), pp. 364-365, 11 Feb 1982.
In the 17 Jan 1964 article, supra, at 248, there is discussion of "The radiation dose delivered by local concentrations of polonium . . . it is likely from our . . . measurements of polonium in the bronchial epithelium of lungs of smokers, that these local doses may range from several hundred rem to more than 1000 rem, in the case of an individual smoking two packs a day over a 25-year period. For example, in a 73-year old male who died of cardiac failure, who had smoked 'one or more' packs of cigarettes per day for many years, the polonium content in the epithelium of a secondary bifurcation of the right lower lobe was 0.033 pc/cm2, compared with 0.003 gc/cm2 in the right main stem bronchus. . . . a level of 0.033 pc/cm2 would give a dose of 165 rem in 25 years. This figure is a minimum value even for this region of epithelium, and higher values could also be present in heavier smokers. . . . These results suggest that the polonium content of the soft tissues of the body may be significantly elevated in smokers."
The article, "Lead-210 and Polonium-210 in Tissues of Cigarette Smokers," by R. B. Holtzman, and F. H. Ilcewicz, in Science, Vol. 153, pp. 1259-60, 9 September 1966, indicates in addition, "in skeletal tissues, not only are the concentrations of 210Po greater in smokers than in nonsmokers, but in both skeletal and lung tissues of smokers the concentrations of 210Pb are also greater." Lead-210 "with a 21.4-year half-life, is also of interest." Duration-related data is cited at 1260, "It is of interest that subject 22 had a level about twice that of other smokers; this finding may reflect the fact that he had smoked to the day he died, whereas the others, by desisting about a year before death, had enabled some clearance of the 210Pb. . . . because of the tangible contribution of cigarette smoking to the skeletal dose, the incidence in smokers of diseases attributable to radiation (such as osteosarcoma and leukemia) deserves more than passing interest."
Clearly, "Volatilized, soluble 210Po . . . is cleared from the bronchial mucosa at the expense of the rest of the body . . . carried by the systemic circulation to every tissue and cell, causing mutations . . . and early death from a body-wide spectrum of diseases," words from R. T. Ravenholt, in "Radioactivity in Cigarette Smoke," in The New Engl. J. of Med., Vol. 307(5) at p. 312, 29 July 1982.
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The article, "Distribution of Polonium 210 in Pulmonary Tissues of Cigarette Smokers," by J. B. Little, E. P. Radford, Jr., H. L. McCombs, and V. R. Hunt, in The New Engl. J. of Med., Vol. 273(25), pp. 1343-1351. 16 December 1965. provides insight. At 1351, "The alpha-emitting radioactive isotope polonium 210 present in cigarette smoke was found in higher concentrations in lung parenchyma, peri-bronchial lymph nodes and bronchial epithelium of . . . persons currently smoking cigarettes than in those of . . . non-smokers." The studies covered "lung specimens" from "death and autopsy" or "surgical intervention," p. 1343. "All current smokers had smoked continuously for periods of at least twenty years, up to a maximum of ten days before death or surgery."
"Radioactivity in Cigarette Smoke," by T. H. Winters and J. R. Di Franza, in The New Engl. J. of Med., Vol. 306(6), pp. 364-365, 11 February 1982, indicates that "cells close to an alpha source receive high doses. . . . Alpha emitters in cigarette smoke result in appreciable radiation exposure to the bronchial epithelium of smokers and probably secondhand smokers." Also, "After inhalation, ciliary action causes the insoluble radioactive particles to accumulate at the bifurcation of segmental bronchi, a common site of origin of broncogenic carcinomas." Those "cells close to an alpha source receive high doses," for example, "a dose of 1000 rems." Winters and Di Franza thus conclude that "The detrimental effects of tobacco smoke have been considerably underestimated, making it less likely that chemical carcinogens alone are responsible for the observed incidence of tobacco-related carcinoma."
The article, "Environmental Radiation Hazards," by Alan Steinfeld, in American Family Physician, Vol. 22(4), pp. 95-99, October I980, indicates at 96 "guidelines for exposure. For occupationally exposed workers, the level is 5 rems (5,000 mrems) per year . . . . Members of the general public are permitted one-tenth of this amount, or 0.5 rem (500 mrems) per year." Cf. "a dose of 1000 rems," words from Winters and Di Franza. Steinfield indicates, at 98, "By comparison, the average annual dose to the U.S. population from nuclear reactors under normal operating conditions is 0.002 mrem per year. The dose rate at the boundary of a nuclear facility is legally limited to no more than 5 mrems per year."
The 1965 article by Little, et al., supra, indicates at 1348, "we believe that most of the Po 210 in smokers' lungs comes from . . . Po210 present in cigarette smoke." At 1349, "It is of interest that" a 1961 study "found the highest incidence of premalignant changes in the bronchial epithelium to occur at bifurcations." Also, "It is logical that Po210 deposition . . . should occur in epithelium from bifurcations, because at these points the flow must split . . . where the splitting takes place, a dead spot or eddy frequently occurs." "As previously pointed out" by prior studies, "high local concentrations within the epithelium would be by far the most important factor contributing to a significant radiation dose to bronchial tissues." At 1351, "By far the highest local concentrations of Po210 were found in bronchial epithelium from segmental bifurcations, and with continual exposure to the isotope, as experienced by smokers, the cumulative local radiation dose to these small regions of bronchial tissue may be quite high." Cf. 1982 data, supra, "a dose of 1000 rems."
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Data on radioactivity and tobacco provides insight. Some information is provided in The New England Journal of Medicine 307(5): 309-313. 29 July 1982. At 312, "the scientific and medical community as well as public-health officials should be more concerned with the detrimental effects of cigarette smoking. . . . Above all, one needs to consider that the carcinogenic potential of tobacco smoke is a composite effect of tumor initiators, tumor promoters or cocarcinogens, and organ-specific carcinogens." Polonnium-210 (210Po) is discussed at 313, "Smokers have higher levels of 210Po in the lungs, bone, blood, and urine." Moreover, "Higher levels of 210Po have been consistently found in smokers in the liver, kidneys, spleen, pancreas, and gonads."
At 310, "Measurements made with cigarette-smoke condensate demonstrate that although radium and thorium are also present in cigarette smoke, 99 per cent of the alpha activity is from 210Po." Also, "Measurements of the whole lungs of smokers and exsmokers show that the inhaled 210Po is retained in the lower lung." At 311, "The importance of proper assessment of the risk to cigarette smokers from radionuclides in the smoke cannot be overstated." At 312, there is data on "how 210Po and other mutagens from tobacco smoke cause malignant neoplasms, degenerative cardiovascular diseases, and other diseases throughout the bodies of smokers . . . Volatilized, soluble 210Po, produced at the burning temperature of cigarettes, is cleared from the bronchia mucosa at the expense of the rest of the body, being absorbed through the pulmonary circulation and carried by the systemic circulation to every tissue and cell, causing mutations of cellular genetic structures, deviation of cellular characteristics from their optimal normal state, accelerated aging, and early death from a body-—wide spectrum of diseases . . . ."
At 310, "cigarette filters have been shown to have no noticeable protective effect against 210Po inhalation."
At 310, there is data "that lead-210 (a beta-emitting precursor of 210Po) is highly concentrated on tobacco trichoroes and that trichome combustion in burning cigarettes produces insoluble, 210Pb-enriched particles in mainstream smoke. Thus, the high concentrations of 210Po observed . . . can be explained by the persistence of insoluble, 210Pb-enriched particles . . . and by the ingrowth of 210Po in these particles." P. 311 provides information concerning polonium-210 as "an extremely efficient carcinogen." "In one study a reduction in activity . . . of 210Po . . . about a 200-fold decrease—resulted in a decrease in the incidence of tumors from 61 per cent to 13 per cent . . . only a fourfold decrease."
At 312, "The proof of circulating mutagens from smoking is that 210Po and other mutagens can be recovered not only from tobacco smoke and bronchial mucosa but also from the blood and urine of smokers." At 313, "Continued smoking ensures the steady delivery . . . ." At 311, there is reference to data "yielding results far more foreboding than expected." Also, "we should not hesitate to disseminate the information already at hand . . . ." At 313, "Above all, one needs to consider that the carcinogenic potential of tobacco smoke is a composite effect. . . ." Data on radioactivity "is crucial to an understanding of the pathogenesis of smoking diseases."
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AR 1-8 envisions a personal standard. The 25 Jan 80 USACARA Report said, in brief, "comply." AR 1-8 also specifies "affirmative action." "Affirmative action" is multi-faceted. It includes anticipating non-smoker personal determinations. It also includes anticipating and preventing endangering behavior by smokers. The AR 1-8 guidance is based upon well-established legal principles. Precedents show these aspects.
Sleeper v. Sandown, 52 N.H. 244 (1872), shows duty to anticipate safety needs concerning bridges. Higher ideation concepts involve anticipating behavior in future terms, a concept that, for example, can be impaired by brain damage. The court was able to grasp the concept; AR 1-8 does likewise. However, local offenders oppose the duty of compliance, even after notice. It is clear that they refuse to anticipate as well.
Maloney Tank Mfg. Co. v. Mid-Continent Petroleum Corp., 49 F.2d 146 at 150 (1931), provides information on "where the master sends out servants to do work, the nature of which is such that the master knows that damage is apt to occur if the servant smokes or strikes a match. In such a case the duty devolves upon the master to see to it that his servants exercise due care under the existing circumstances." When harm results, the victim is to receive damages.
In addition, cases such as Shimp v. New Jersey Bell Telephone Co., 368 A.2d 408 (1976), show that the victim can also receive the benefit of compulsory process to compel protection from future harm. The "due care" guidance provides relief of one type; another aspect of relief is preventive relief. AR 1-8 involves preventive relief. The refusal of compliance not only violates the regulation; the refusal also runs afoul of the principles of Spann v. McKenna, 615 F.2d 137 (1980), based on the disregard of the USACARA Report, That disregard is an additional violation, in addition to the underlying violation.
The precedents show that affirmative action is required even if there were no AR 1-8. Nonsmokers foreseeably would want protection. A trained person such as myself, handling rule enforcement for years, would foreseeably want protection, and would take effective measures to secure same (i.e., file a successful grievance after the refusal of requested compliance previously thereto).
Anticipating smoker behavior as dangerous is also foreseeable from nonsmokers. Nonsmokers read the news. The danger is discussed in the public domain. Such is part of the "experience" of the agency, a tool for use in accordance with Prewitt v. U.S. Postal Service, 662 F.2d 292 at 308 (1981), "The employer has greater knowledge" especially in this case, where the massive illnesses and sick time caused by smokers are an agency problem sufficient to cause issuance of AR 1-8. This is in addition to past problems with smoking, such as were alluded to in Austin v. State, 48 S.W. 305 (1898). Local offenders simply are mute in response to the evidence. They simply oppose the rules, and have no defense. When claims of safety are made, such odd assertions show disconnection not only from medical and other professional data, but also from public domain data. When people are mentally disconnected from reality, muteness is foreseeable. No input, no output.
Dangerous smoker behavior can be anticipated, based on cases such as Rum River Lumber Co. v. State, 282 N.W.2d 882 (1979); Commonwealth v. Hughes, 364 A.2d 306 (1976), and many others, as well as from AR 1-8.
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The dangers of tobacco smoke have long been known. Evidence was being recorded as long ago as the 1600's. Addictive aspects have been noted as long ago as 1527. Judicial notice was taken in the 1800's in America; and numerous cases have arisen since then. Data on the danger is evident repeatedly.
Pritchard v. Liggett & Myers Tobacco Co., 295 F.2d 292 (1961), indicates: "On the question of awareness of the danger, the plaintiff offered the testimony of several expert witnesses. Dr. Kremer testified that knowledge of the connection between smoking and epidermoid cancer was being disseminated many years prior to 1953. Dr. Kaunitz testified that he noted a relationship between heavy smoking and lung cancer as early as 1946, while Dr. Cameron said that literature on the relationship between smoking and lung cancer was available half a century ago. He himself became interested in the relationship in the mid 1930's. Dr. Overholt testified that he became suspicious that a connection existed between heavy smoking and lung cancer in the early 1940's . . . Dr. Levin started research on the relationship between smoking and lung cancer in 1939 after reading a German article dealing with the subject. In addition, there was evidence that in 1952 defendant conducted "tests admittedly to determine the effects of smoking Chesterfields on the nose, throat and accessory organs." The court also referred to "plaintiff's witnesses who testified as to causation. Each of the doctors testified that in his opinion plaintiff's cancer was caused by long continued smoking."
In a later proceeding, Pritchard v. Liggett & Myers Tobacco Co., 350 F.2d 479 (1965), the court noted, "There was ample evidence in the record from which the jury could have found, as it did, that the smoking of Chesterfields was a cause of the lung cancer, which was diagnosed and removed in 1953. This finding is not an issue on this appeal."
Green v. American Tobacco Co., 304 F.2d 70 (1962), indicates "that he had contracted cancer of the left lung" and that "the smoking of Lucky Strike cigarettes on the part of the decedent, Green" was "a proximate cause or one of the proximate causes of the development of cancer in his left lung." When a question was certified, at 154 So.2d 169 (1963), it was thus clear that "as found by the jury's response to interrogatories in the trial of the cause, that defendant's cigarettes caused plaintiff's fatal cancer." At 325 P.2d 673 (1963), it continued to be clear that "The jury did find that the smoking of Lucky Strike cigarettes on the part of the decedent, Green, was a proximate cause of the development of cancer in his left lung which caused his death." Five years later, at 391 F.2d 97 (1968), it was still clear "that plaintiff's decedent died of cancer and that smoking cigarettes was a cause thereof."
These events were in the time frame overlapped by the Surgeon Generals' Reports from 1964 and after on the hazard; the warning requirements set by Congress in 1965 and 1969, etc. The "'overwhelming evidence''" made it "reasonable . . . to assume that the detrimental effects of cigarette smoking on health are beyond controversy," Larus & Brother Co. v. F.C.C., 447 F.2d 876 (1971). Indeed, Dr. Cameron said that literature on the relationship . . . was available half a century ago," Pritchard, supra. The data from sources such as Dr. Matthew Woods and Dr. John H. Kellogg makes that fact well-established.
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The book, The Addicted Society, by Joel Fort, M.D., provides insight. At 88, this 1981 book indicates, "Tobacco cigarettes with their combination of nicotine, coal tars, carbon monoxide, and many other poisons are the only drug (combination) where use = abuse: i.e., where all ongoing use involves harmfulness or some degree of hard effects on the user. Notably, it is also the only drug where use in the presence of others is destructive to them as well as the user. . . . The 40 to 50 million American tobacco users each statistically shorten their life span one minute for each minute they smoke, irritate their throats and eyes and others', damage and dirty property, cause half our fires, and pollute the environment. About 400,000 of them die yearly from lung and other cancer, heart attacks, high blood pressure, emphysema, and fire." At 103-104 is cited the need "to protect nonsmokers of all ages from the violence of poison gas blown into their faces, throats, and lungs."
At 95, Dr. Fort refers to the concept-of "mental illness called Drug Dependence." Causes of such continued self-destructive behavior are also cited. At 96, "Drug abuse is also caused by the user's increasing physical dependence (addiction). Once that physiological process has developed, the drug abuse is perpetuated . . . to suppress or prevent withdrawal 'symptoms. . . . the person may be unable to cope. . . . Sociological theories such as retreatism, social failure, and deviance must be considered . . . ." At 94, Dr. Fort indicates, "Use of one drug has some causal relationship to the use of other drugs." Also, "Escapism is closely related. . . . Tension, stress, anger, fear, boredom and depression lead to attempts by many people to use drugs as . . . chemical solutions." At 95, "A low tolerance for frustration, a lack of self-esteem, anxiety, or depression are psychological—perhaps psychopathological—factors that are conducive to . . . use and abuse" of mind altering drugs. P. 88 had noted that "Tobacco cigarettes . . . use = abuse." At 16, "nicotine (tobacco)" does "produce undesirable effects on everyone who uses" it.
At 27, "Nicotine is the only drug . . . where use is directly offensive and harmful to nonusers." Also, "nicotine, like alcohol, represents an enormous problem . . . Perhaps even stranger is the fact that most smokers do not act as if it is a serious health problem for them or those around them, despite the intermittent authoritative government reports of the past years. . . . It can produce vomiting, has an antidiuretic effect, increases blood pressure and heart rate, speeds up respiration, irritates the nose and throat . . . There is no known medical use of nicotine." At 28, nicotine is a poison "used as an insecticide. It is one of the most toxic of drugs, with 60 mg, (milligrams) the fatal dose for adults and, depending on body size, much less for children. Each cigarette contains 20 to 30 mg. of nicotine if eaten but only 6 to 8 mg. if smoked (15 to 40 mg. in a cigar). . . . There are more than 400,000 deaths a year in this country from cigarette smoking, with life shortened an average of 14 minutes for each cigarette smoked." At 54 are cited some of the physical consequences of smoking—"Coronary heart disease, emphysema, and cancers of the lung and larynx . . . of the mouth, esophagus, bladder, kidney, and pancreas . . . disabling illnesses of bronchitis, sinusitis, peptic ulcer, and arteriosclerotic vascular disease." At 88, "use = abuse." At 106, "Believe in and attempt cure/help/improvement with every cigarette smoker . . . ."
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The book, Cigarette Country: Tobacco in American History and Politics, 1971, by Susan Wagner, provides insight. At 25-26, information from 1798 is provided, from Dr. Benjamin Rush, "Tobacco was connected with liquor . . . 'One of the usual effects of snoaking and chewing is thirst. . . . A desire of course is excited for strong drinks, and these when taken between meals soon lead to intemperance and drunkenness.' But Dr. Rush also objected to tobacco on grounds that it had disastrous effects on the stomach, the nerves, and the oral cavity." At 30, ". . . such physicians as Dr. Joel Shew . . . attributed insanity, impotency, perverted sexuality, and cancer to chewing . . . . Dr. R. T. Trall warned that the struggle to quit would be hard: 'Ghosts and goblins, spooks and apparitions, haunt his brain; and snakes and serpents of all shapes, sizes, colors, forms and lengths . . . a disordered nervous system . . . ."
At 31, ". . . the Lancet, an English medical journal, in 1856-57 featured . . . fifty doctors expressed their views. A Dr. Hodgkin associated tobacco with the increase of crime. A Dr. Solly associated it with nervous paralysis and loss of intellectual capacity. And a Dr. Schneider wrote . . . that, 'so frequently is vision impaired by the constant use of tobacco . . . .'"
At 42, "In 1912, a Dr. Tidswell opined that 'the most common cause of female sterility is the abuse of tobacco by males . . . those countries which use most tobacco have the largest number of stillbirths." There was note of "a peculiar weakening of sight brought on by smoking." At 43, "'coffin nails" caused moral delinquency, mental deficiency, and many grave maladies. Tuberculosis and pneumonia were widely mentioned." At 47, "the addictive and schizophrenic aspects are evident in this remark of a smoker, "'It is a dirty, expensive, and unhygienic habit—to which I am devoted.'" Also, "the student government at Smith College voted to permit smoking on campus. (Subsequently, when a dormitory burned down, the smoking in Smithies' rooms was barred.)"
At 52, "advertising appeals to the consumer were largely emotional."
At 64, "The scientific study of tobacco and its effects on the body may be said to have begun in 1671, when the Italian biologist, Francesco Redi, published an account of the lethal effects of the 'oil of tobacco.'" At 67, "in the Lancet . . . One of the series of articles published in its 1857 symposium contended that 'Tobacco is said to act on the mind by producing inactivity thereof; inability to think; drowsiness; irritability . . . .'" At 68, "'On the respiratory organs, it acts by causing consumption, haemoptysis, and inflammatory condition of the mucous membrane of the larynx, trachea, and bronchae, ulceration of the larynx; short irritable cough; hurried breathing. The circulating organs are affected by irritable heart circulation.' The modern period of investigation into the question of smoking and health began about 1900, when an increase in what was by then recognized as cancer of the lungs was noted by vital statisticians. Their data are usually taken as the starting point . . . . Dr. Raymond Pearl, an eminent scientist and professor of biology at the Johns Hopkins Medical School in Baltimore, Maryland, came up with a very unfavorable comparison between the number of deaths among' smokers and nonsmokers. In a 1938 report . . . His tables also demonstrated that the reduction in longevity is proportional to the amount of tobacco used." At 69, "his findings were published in the March 4, 1938, issue of Science. Time magazine, which picked them up . . . During the 1930's, the increase in lung cancer became the subject of intensive investigation among medical people."
At 130, the 1964 Surgeon General's Report said, "'Cigarette smoking is causally related to lung cancer in men . . . .'" At 133, "In a speech . . . Surgeon General Terry said: 'the American people have been deceived and misled by cigarette advertising—and their health has been harmed as a consequence.'"
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Safety cases provide insight concerning the installation violations. National Rlty. & C. Co., Inc. v. Occ. Safety and Health Rev. Com'n, 489 F.2d 1257 (DC Cir. 1973), indicates at 1265, "A workplace cannot be just 'reasonably free' of a hazard, or merely as free as the average workplace in the industry. . . ." The safety "adjective is unqualified and absolute: A workplace cannot be just 'reasonably free' of a hazard . . . ." At 1266-1267, "All preventable forms and instances of hazardous conduct must, however, be entirely excluded from the workplace. . . ." AR 1-8 envisions a personal standard; as in Shimp v. New Jersey Bell Telephone Co., 368 A.2d 408 (1976), it is foreseeable that a nor.smoker will incorporate such words/quotations as his, in accordance with the personal standard envisioned by AR 1-8. Cf. the Social Security Administration PMCS Arbitration Case 81K - 26042, the USACARA Report, and Smith v. Western Electric Co., 643 S.W.2d 10 (1982).
Cases show that smoking is inherently dangerous; see Austin v. State, 48 S.W. 305 (1898), and Banzhaf v. F.C.C., 405 F.2d 1082 (1968). Fires are likewise inherently dangerous, Commonwealth v. Hughes, 364 A.2d 306 (1976). Whatever is done concerning a hazard must not merely disclose the hazard; complete and full compliance is required. See American Smelting & R. Co. v. O.S.H.R.C., 501 F.2d 504 at 515 (CA 8, 1974), a case wherein the alleged action "did not eliminate or even reduce the hazard; it merely disclosed it." .In this case, the installation physician has admitted the hazard, but refuses to do his duty. Instead, misconduct directed against me is supported by him, in violation of his responsibilities as a physician. His misconduct forms a significant part of the reason why the normal status for absence due to a hazard has been disregarded. Instead of excused absence pending correction, I have been singled out for disparate treatment. His behavior unlawfully repeals the leave status guidance; cf. American Zinc Co. v. Graham, 170 S.W. 138 (1915), concerning the wrongfulness of an employer effort tantamount to unlawfull repeal of a rule.
Rules are to obeyed whether one person, or numerous people, are involved. See DeMarco v. United States, 204 F.Supp. 290 (1962), "If no one else fainted and.fell, that is so much of loss fortunately saved to respondent . . . ." When a smoker is dangerous, the smoker is to be "put out," Keyser Canning Co. v. Klots Throwing Co., 118 S.E. 521 (1923), not the victim. Here, "the detrimental effects of cigarette smoking are beyond controversy," words from Larus & Brother Co. v. F.C.C., 447 F.2d 876 (1971). The right of minorities to work is well-established, Yick Wo v. Hopkins, 118 U.S. 356 (1886), and Truax v. Raich, 239 U.S. 33 (1915). Cases such as Spragg v. Campbell, 466 F.Supp. 658 (1979); Rum River Lumber Co. v. State, 282 N.W.2d 882 (1979); Keyser Canning, supra; Shimp, supra, etc., show methods of controlling dangerous smokers and alcoholics. In the civil service, the refusal to obey rules, for personal reasons such as smokers display, nonetheless, does not allow adverse action against nonsnokers such as me; cf. Knotts v. United States, 121 F.Supp. 630 (1954). That principle is particularly apt when an employee, such as me, has already won a favorable Grievance Report; cf. Spann v. McKenna, 615 F.2d 137 (1980). Considering the duty to eliminate hazards, American Textile Mfrs. Inst. v. Donovan, 452 U.S. 490 (1981), the local violations are intentional and deliberate, words borrowed from F. X. Messina Const. Corp. v. O.S.H.R.C., 505 F.2d 701 (1971).
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Cases such as Stehr v. State, 139 N.W. 676 (1913), and People v. Burden, 72 Cal.App.3d 603 (1977), provide insight on the underlying smoker intent directed against nonsmokers such as me. As an initial fact, AR 1-8 provides guidance against endangering nonsmokers. OSHA specifies a safe environment, as does 5 USC 7902. Various cases show the requirement for protecting nonsmokers; see for example, Shimp v. New Jersey Bell Telephone Co., 368 A.2d 408 (1976); Smith v. Western Electric Co., 643 S.W.2d 10 (1982); Commonwealth v. Hughes, 364 A.2d 306 (1976); etc. Protection from mentally ill and dangerous smokers is foreseeably needed also, Rum River Lumber Co. v. State, 282 N.W.2d 882 (1979). Smoking is inherently dangerous based on the combination of factors involved, the fire aspects, the poisonous chemical ingredients, etc. The legal concept of "universal malice" provides insight on the nature of the hazard, and confirms the malice of the false claims that harm from smoke is somehow "peculiar" or unique.
AR 1-8 and other rules have "charged" the installation "with the duty to see to it that" nonsmoker "life was not endangered," words borrowed from Stehr, supra, at 678. Also, "The real issue in the case was whether" installation officials "actually understood that" nonsmoker "life was . . . endangered," words from Burden, supra, at 287, juxtaposed with words from Stehr, supra.
Stehr, at 678, provides data that provides insight on the smoker intent, based on the endangerment that has been in process, for so many years, ". . . manslaughter if death or grievous bodily harm were not intended; and murder if there was an intent to inflict death or grievous bodily harm. To constitute murder, there must be means to relieve and willfulness in withholding relief." Also, "'to do an act willfully is to do it voluntarily.'" Such data is consistent with People v. Carmichael, 5 Mich. 10, 71 Am.Dec. 769 (1858). "Where an unlawful act is done, the law presumes it was done with an unlawful intent, and here the act of" endangering nonsmoker life "was unquestionably unlawful."
Smoking behavior involves premeditation in obtaining the requisite supplies and paraphernalia. Smoking behavior includes use of tobacco containing hazardous chemical ingredients, as well as use of fire, which is inherently dangerous, as Hughes, supra, notes. "Here the means used is held to be conclusive evidence of premeditation," words from People v. Wiley, 133 Cal.Rptr. 135, 554 P.2d 881 (1976). Also, "'Malice shall be implied when no considerable provocation appears or when all the circumstances . . . show an abandoned and malignant heart. All murder which shall be perpetrated by means of poison, or lying in wait, torture, or by another kind of wilful, deliberate and premeditated killing . . . shall be deemed murder of the first degree,'" words from 138. Smokers clearly consider my winning the 25 Jan 80 USACARA Report to be "considerable provocation," although as a matter of law (and fact), it is not even de minimis "provocation." Since smokers have been expressly "charged with the duty to see to it that" nonsmoker "life was not endangered," their refusal produced "the natural and probable consequence . . . . Malice is presumed," Nestlerode v. United States, 122 F.2d 56 at 59 (1941). Their "means" are "conclusive evidence of premeditation," words from Wiley, supra.
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Prohibited Personnel Practices
Violation of Regulation
29 CFR l6l3.701 etc.
| The required "reasonable acommodation" presupposes compliance with basic rules. Local employees deny any hazard or violation and thus refuse to begin regular rule enforcement. As that process has not started, local employees also refuse to begin "reasonable accommodation.
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| For example, AR 1-8 requires that the environment "not endanger . . . cause discomfort or unreasonable annoyance . . . . The environment does these things to the extent management refuses to let me return to duty, but refuses to halt the endangement and discomfort the regulation prohibits.
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| Management refuses to implement the "unqualified and absolute" duty specified by OSHA in Nat'l Rlty & C. Co., Inc. v. OSHRC, 489 F.2d 1257 (1973). Compliance with OSHA (or 5 USC 7902) would undoubtedly preclude need for superimposing "reasonable accommodation" on top of the "unqualified and absolute" duty. Achieving a non-endangering, non-discomforting environment would likewise undoubtedly preclude need for superimposing the "reasonable accommodation" duty on top. However, achieving them would most assuredly provide a sound basis for then beginning the "reasonable accommodation" process.
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| The local employees involved also refuse to enforce other rules such as on courtesy, littering, loafing, efficiency, property control, etc. Enforcement of any one rule would resolve the situation. The local property control regulation, TACOM-R 190-4 is based on the same police power authority as was upheld in Austin v. Tennessee, 179 US 343 (1900). The rule forbids any habit-forming drug without a valid doctor's prescription. It also limits personal effects to non-dangerous items. Even if personal effects were allowed to be dangerous, such would not allow personal reasons to be a basis for adverse action against a victim auch as myself harmed by such personal effects.
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| No reason has ever been provided for the refusal to (a) enforce the pertinent rules and (b) begin reasonable accommodation. Even if there are reasons (and there are none, or they would have been articulated—although untimely), there is no cause for adverse action until after any alleged reasons are stated and opportunity to reply provided. Cf. 5 CFR 752 and advance notice requirements.
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| As made clear in cases such as State of Missouri, ex rel. Gaines v. Canada, 305 US 337 (1938); Brown v. U.S,., 256 US 335 (1921), and Sleeper v. Sandown, 52 N.H. 244 (1872), movement in safety is extensive and not limited to one room. Cf. OSHA cases and 5 USC 7902. Reasonable accommodation superimposed on top of these basic legal facts wil1 assuredly allow immediate return to duty in safe conditions.
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The harm from smoking begins rapidly in terms of physical consequences. J. Crowdy and R. Sowden, "Cigarette Smoking and Respiratory Ill-Health in the British Army," The Lancet 1(7918), 1232-1234, 31 May 1975. provides information. At 1233-1234, "Rimington, in a routine survey of 12,000 young men aged 15-29, found that the prevalence of chronic bronchitis among the smokers of twenty or more cigarettes a day was almost six times that for non-smokers." See J. Rimington, Br. J. Dis. Chest, 1969, 63, 193.
Crowdy and Sowden studied military personnel "since 1959, when a first cohort of approximately 4000 junior entrants, aged 15-18 years, entered the study." The study over ten years is discussed in terms of its results. At 1234, "Our findings, confined to the two small but distinct subgroups of consistent non-smokers and regular heavy smokers, demonstrate a significant and important difference between them in the 10-year record of admissions for both acute respiratory diseases and the rather less well defined category (I.C.D. 470-527) of all respiratory diseases. The broad implication of this difference is that 1000 heavy smokers aged under 28 are likely to need 130 days a year more of inpatient care in respect of respiratory disease than an equal number of non-smokers."
That result is consistent with the data on smoking as inherently dangerous. It is thus foreseeable that adverse effects arise quickly, and that untreated conditions worsen. The study itself at 1233-1234 noted similar results in other studies: "Absenteeism has been associated with smoking, and the prevalence of chronic bronchitis has similarly been strongly and positively related to smoking habits." See H. S. Holcomb and J. W. Meigs, Archs. Envir. Hlth, 1972, 25, 295, and R. W. Wilson, J. Occup. Med. 1973, 15, 236.
Additional data is provided by Major Joseph F. John, Jr., MC, U.S. Army, in "Smoking, the Soldier, and the Army," Military Medicine 142: 397-398, May 1977. At 397, "Military cadets who smoke have been found to be more subject to respiratory infections" than "nonsmokers. . . . It has been shown recently that leukocyte chemotaxis is depressed in young male smokers and that their hematocrits, leukocyte, and monocyte counts are increased, compared with nonsmokers. . . . Presently, the military should recognize the tremendous scope of the smoking problem. . . . Reminders that smoking is hazardous to health are uncommon. . . . Respiratory disease accounts for thousands of man-hours of lost time, especially in basic training, where all febrile patients must be admitted for observation to the hospital. The cost of hospitalization, convalescent leaves, and recycling of personnel must be staggering. Adverse effects from smoking are likely cumulative, and time lost from duty should increase with age and recurrent exacerbations."
It was only a few months later that AR 1-8 was issued. The article had referred to the command authority and to "command itself . . . our strongest tool in constructing workable anti-smoking campaigns" and "to insure the rights of the nonsmoker." Major John ended his article by noting that "the acceptance of self-destructive practices of tobacco smoking in our diverse and basically healthy military community counter the best sense of medical judgment and public health."
Page 26 of _______ pages. Affiant's initials _________
The book, Tobaccoism or How Tobacco Kills, 1927, by John H. Kellogg, M.D., provides insight. At 44, "General Miles, a well seasoned soldier, is a non-smoker, and during the war stated to the writer that he regarded tobacco as an enemy to the soldier." Also, "The general stated that he abandoned the cigar when he saw General Grant in the last stages of smoker's cancer of the throat." "And there were many soldiers who did not smoke and showed superiority in marching and fighting power to those who did, as many officers will testify."
At 82, "A large proportion of young men who are refused admission to the army at the recruiting bureaus are rejected because of neurasthenic symptoms due to the use of tobacco." Such data is consistent with like information in Austin v. Tennessee, 48 S.W. 305 (1898).
At 110, "Capt. Pettingill reports that he once lost half his crew of sailors of yellow fever in Havana and noted that all who died were tobacco users, and all who recovered were non-users."
At 124, "Dr. Cummings, 'the surgeon-general of the U. S. Army, calling attention to the enormous increase in cigarette smoking in 1919 (47 per cent) appeals . . . to combat this vicious practice, telling them that it 'causes nervousness' . . . and is 'one of the worst evils in American life.'"
Concern about the harm of smoking in the military is a continuing concern. AR 1-8 is only one example. The medical literature continues to show the harm. Examples include but are not limited to:
E. Jacobs, "Smoking: Insidious Suicide and Personal Air Pollution," Military Medicine 135: 678-681, August, 1970.
J. Finklea, V. Hasselblad, S. Sandifer, D. Hammer, and G. Lowrimore, "Cigarette Smoking and Acute Non-Influenzal Respiratory Disease in Military Recruits," Am. J. of Epidemiology 93(6): 457-462, 1971.
T. Prendergast, M. Preble, and F. Tennant, "Drug Use and Its Relation to Alcohol and Cigarette Consumption in the Military Community of West Germany (Drugs, Alcohol, Cigarettes in a Military Setting," The Int'l J. of the Addictions 8(5): 741-754, 1973.
J. Crowdy and R. Sowden, "Cigarette Smoking and Respiratory Ill-Health in the British Army," The Lancet 1(7918): 1232-1234, 31 May 1975.
J. John, "Smoking, the Soldier, and the Army," Military Medicine 142: 397-398. May 1977.
J. Kark and M. Lebiush, "Smoking and Epidemic Influenza-Like Illness in Female Military Recruits: A Brief Survey," Am. J. Public Health 71(5): 530-532, May 1981.
J. Kark, M. Lebiush. and L. Rannon, "Cigarette Smoking as a Risk Factor for Epidemic A(H1N1) Influenza in Young Men," N. Engl. J. Med 307(17): 1042-1046, 21 October 1982.
Page 27 of _______ pages.
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The Surgeon General's Report for 1982 contains data on smoking and alcoholism, in the context of efforts to halt smoking behavior that involve relapses. At 277, "The factors governing whether or not relapse crises actually resulted in smoking were explored in analyses - of over 30 variables. Only a few were significant. The presence of another smoker, the consumption of alcohol, and the location of the occurrence were all instrumental." At 278, "When alcohol was consumed, 61 percent of crises led to relapse, as opposed to 33 percent in the absence of alcohol."
See the Mich. Law Rev. 81(1): 237-258. November 1982, at 240, "Overwhelming clinical evidence supports characterizing smoking as a physical addiction . . . as a disease." Smoking is a dangerous disease, because it is inherently dangerous and "persists even though the addict knows it subjects him to serious risk of death" from numerous causes. The dangerous aspect alone, apart from the disease aspect, does "affect third persons in much the same sense as a disease may be communicable," words borrowed from Mcintosh v. Milano, 403 A.2d 500 (1979). The disease known as "smoking" is "communicable" not only in its effects on nonsmokers, but also by contact with smokers. As a disease, it is foreseeable that smokers will infect/re-infect ex-smokers and attempted ex-smokers.
The 1982 Surgeon General's Report discusses at 276 "the circumstances surrounding their relapses. Most took place either at home or in a bar, tavern, or restaurant.'' At 277, "The presence of another smoker, the consumption of alcohol, and the location of the occurrence were all instrumental." At 276, "Other persons were present at 83 per cent of the relapses . . . Sixty-two percent of relapses occurred when other people were smoking; 46 percent of relapse cigarettes were requested from others, 11 percent were offered by others, and only 27 percent were bought." Such data is consistent with smoking "as a disease" in both the early and late stages of the "disease" and the multiple, additional diseases that smoking "causes" and "leads to." As a matter of sound orientation for time, other diseases can also produce symptoms immediately upon contact, or after a period of time, or both. As a matter of sound orientation for person and place, disease is more likely around diseased persons, and around assemblies of diseased persons. Disease such as alcoholism and smoking are foreseeable in such places as "a bar" or a "tavern." Smoker brain damage is evident in their disorientation for time, person, and place, in their continued coming into contact with diseased persons whose disease is "communicable."
AR 1-8 warns against smoking behavior as a communicable danger to nonsmokers. AR 1-8 is to be enforced and obeyed without reaching the issue of smoker alcoholism. The endangerment is prohibited regardless of whether smoker "dangerousness" is more or less "communicable" when they have other diseases as well. Alcoholic smokers foreseeably pose a danger to nonsmokers (as well as to smokers). However, the disease known as "smoking" ("tobaccoism"—Dr. Kellogg's term) is not allowed to endanger nonsmokers, whether or not the diseased person also has a condition such as alcoholism. Since "Other persons were present at 83 percent of the relapses," the disease is "communicable rapidly. (The remaining 17 percent of cases involves contact at a time other than immediately "at . . . the relapses.") AR 1-8 forbids both the fast and slow "communicable" danger.
Page 28 of _______ pages.
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In 1899, Dr. Woods noted that smoking "often leads to drink." Both smoking and alcoholism produce additional diseases, including physical diseases. It is thus foreseeable that data on physical disorders would notice any synergistic or combined effects. Since the data on smoking and alcoholism is well-established, such data is not only available, it is widely available and used as recently as the 1982 Report of the Surgeon General.
For example, at 7, the Report indicates, "The use of alcohol in combination with smoking acts synergistically to greatly increase the risk for esophageal cancer mortality." Indeed, at 101, "Numerous investigators have found a synergistic relationship between the use of tobacco in various forms, alcohol consumption, and the development of cancer of the esophagus." These include:
T. Hirayama, "Prospective Studies on Cancer Epidemiology Based on Census Population in Japan," in Cancer Epidemiology, Environmental Factors, Volume 3, Proceedings of the llth International Cancer Congress, Florence, Italy, October 20-26, 1974. Amsterdam, Excerpta Medica, 1975, pp. 26-35.
M. Kamionkowski, and B. Fleshier, "The Role of Alcoholic Intake in Esophageal Carcinoma," Am. J. of the Med. Sciences 249(6): 696-700, June 1965.
B. Kissin, M. Kaley, W. Su, and R. Lerner, "Head and Neck Cancer in Alcoholics: The Relationship to Drinking, Smoking, and Dietary Patterns, J. Am. Med. Ass'n 224(8): 1174-1175, 21 May 1973.
B. Schoenberg, J. Bailar, and J. Praumeni, "Certain Mortality Patterns of Esophageal Cancer in the United States. 1930-1967," J. of the Nat'1 Cancer Inst. 46(1): 63-73, January 1971.
D. Schottenfeld, "Alcohol as a Co-factor in the Etiology of Cancer," Cancer 43(5, Supplement): 1962-1966, May 1979.
K. Takano, K. Osogoshi, N. Kaminura, K. Kanda, K. Kane, R. Kamiyama, K. Sakamoto, H. Sato, Y. Shirai, M. Sei, T. Tanabe, M. Horino, Y. Minami, H. Motoji, R. Morita, .H. Orihata, and T. Hirayama, "Schokudogan no ekigaku, toku ni atsui inshokubutsu, inshu, kitsuen narabi, ni eiyo ketsubo ni tsuit (Epidemiology of Esophageal Cancer . . . )," Intl J. of Cancer 5: 152-156, 1970.
R. Williams, and J. Horm, "Association of Cancer Sites with Tobacco and Alcohol Consumption and Socioeconoroic Status of Patients: Interview Study from the Third National Cancer Survey," J. of the Nat'l Cancer Inst. 58(3): 525-547, March 1977.
E. Wynder and I. Bross, "A Study of Etiological Factors in Cancer of the Esophagus," Cancer 14(2): 389-413, March/April 1961.
E. Wynder, M. Mushinski, and J. Spivak, "Tobacco and Alcohol Consumption in Relation to the Development of Multiple Primary Cancers," Cancer 40(4): 1872-1878, October 1977.
Page 29 of _______ pages.
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"Nearly all alcoholics, recovered or otherwise, are heavy smokers," as Arthur H. Cain, Ph. D., pointed out. Matthew Woods, M.D., noted that "The evils of tobacco exceed those of drink," and of smoking, that "It often leads to drink." He observed that "More young men break down in body and mind and go astray as a result of smoking than of drinking." Forest S. Tennant, M.D., noted that "doctors worried about hidden alcoholics among their patients don't need to worry about nonsmokers," and that employers "who don't want to have alcoholics working for them should get rid of smokers."
Smokers and alcoholics are self-destructive. Low self-esteem is common. Similar symptoms such as irritability, unresponsiveness to reality, apathy and indifference, etc. are evident. The expression "slow-motion suicide" comes to mind. A pattern of deterioration physically is a clue to the deterioration mentally, including organically, that is causing the situation.
The book, Tobaccoism or How Tobacco Kills, 1927, by John H. Kellogg, M.D., provides pertinent insight. The fundamental fact is noted at 33, "Says the London Lancet, 'No smoker can be a well man.'" At 125, "It is rare to find an alcoholic who does not use tobacco in some form and often other drugs are used." He explains why, "Naturally, one drug habit leads to another." Also, "There is a special reason for the association of the alcohol and tobacco habits; a physiologic reason: Alcohol is a drug antidote for tobacco." He explains that in lay terminology, starting with this fact, "Tobacco contracts the small arteries." At 126, the comparison is shown, "Alcohol produces the opposite effect. It dilates the small arteries. . . . A man who has smoked until his arteries are contracted, feels tense, nervous, irritable, restless." (Note the consistency with the current DSM-III data.) "His blood-pressure is high and his breath a little 'short.' Besides, his secretions are checked, his mouth is dry. Alcohol reverses these conditions. A cocktail . . . champagne or . . . beer, relaxes the blood-vessels . . . and so opens the way for more cigars" and more smoking in the cycle. Dr. Kellogg refers to that vicious cycle, "Narcotic drugs produce different, but kindred effects. The exchange of one drug for another is going about in a circle rather than making progress."
At 127, "Dr. John D. Quackenbos, of Columbia University . . . declared that tobacco creates an instinctive demand for alcohol, and that what he termed 'the intemperate use of tobacco,' 'explains 75% of all drink cases,' adding that 'the alcohol thirst is engendered and inflamed by smoke.' Dr. Hamilton, superintendent of an 'Institute' for the treatment of alcoholics, states that his experience is: 'That persons applying for treatment for both liquor and cigarettes, dread giving up their cigarettes'more than they do the liquor. Moreover, those who return to the use of cigarettes . . . are almost certain to resume the use of liquor to allay the irritability of the nervous system produced by tobacco smoke inhalation.'"
At 126, "Very few boys learn to drink without first learning to smoke. The same disposition which leads a man to seek . . . a cigar or cigarette, leads him to look for the same . . . in a glass of beer or a 'high ball.'" Thus, at 125, rehabilitation "often requires the same restrictive measures to secure reclamation."
Page 30 of _______ pages.
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The pamphlet "Tobacco Abuse" (Exhibit 7a of the 25 Jan 80 Report) indicates that in the 1650's, "the French reported that tobacco smoking shortens life and produces,among other things . . . impotence." In his book, Tobaccoism or How Tobacco Kills, Dr. John H. Kellogg at 106 indicates, "A research conducted by Drs. Roth and Mitchell in the laboratories of the Battle Creek Sanitarium has shown that tobacco smoke destroys the power of reproduction in rats, affecting both males and females. The female has been found to be more easily affected than males." At 105, "Petit gave tobacco to guinea-pigs, dogs, cocks, and rabbits, both male and female. The tobacco was given in the form of smoke or mixed with their food. The result was rapid sclerosis of the ovaries and testicles." At 104, "A cock was placed every night in a chamber in which six grams of ordinary caporal tobacco was burned during the night." At 105, "The chickens of the tobacco-poisoned cock were meager and feeble and lacked animation and the plumage was rough. These experiments were made by Depierris."
At 123, "Lewin states (Jour. Comp. Neurology) that in female smokers menstrual disturbances are frequent and that abortion occurs often among female cigar smokers. . . . strong evidence has appeared that the effect of cigarette smoking is to unsex young women by producing premature degeneration of the sex glands." At 106, "In 1906 a special committee of the House of Lords of the English Parliament, reported a . . . bill to prevent juvenile smoking. The committee called especial attention to the fact that . . . boys show many evidences of deterioration, lessened height, and as professor McKeever informs us, were often observed to be 'sallow, sore-eyed, puny, squeaky-voiced, sickly, short-winded, and nervous' . . . ." At 123, "Lydston asserts that tobacco has a pronounced deleterious effect upon the genito-urinary tract."
The New England Journal of Medicine, Vol. 307, Issue 17, pp. 1062-1065, 21 Oct 82, indicates, "It is known that women who smoke have an earlier menopause than those who do not." At 1063, "smokers had substantially and significantly lower levels of all three major estrogens in the luteal phase of the menstrual cycle." At 1064, "There have been reports that tobacco smoking reduces levels of testosterone in men, as well as levels of human placental lactogen and rates of estriol excretion in pregnant women." In the journal, Fertility and Sterility, Vol. 34, No. 1, pp. -64-65, July 1980, there is a discussion of young men who "were examined for testicular varicoceles. . . . The incidence of testicular varicoceles in each of the two samples was significantly greater in the smokers than in the nonsmokers." The Medical Journal of Australia, pp. 616-617, 24 Mar 1973, indicates that "It is known that carbon monoxide is a potent inhibitor of microsomal cytochrome-P450. . . . Our results indicate that heavy cigarette smoking decreases plasma testosterone. . . ."
Sexual Medicine Today 4(10): 10-11, Oct 1980, indicates, "Recent research links smoking and infertility due to lower sperm count, decreased motility and changes in sperm morphology." Dr. Alton Ochsner is quoted, "'smoking is one of the most frequent causes of impotence.'" "Said Bowman Gray's Dr. Lloyd. 'You have to breathe and eat to survive, but you don't have to have sex. When the individual is under any kind of organic pressure, the least important functions will go first.'" Cf. data from the 1650's, "tobacco smoking . . . produces . . . impotence."
Page 31 of _______ pages.
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The article, "Sperm Abnormalities and Cigarette Smoking." by H. J. Evans, J. Pletcher, M. Torrance, and T. B. Hargreave, in The Lancet, pp. 627-629, 21 March 1981, provides insight on the harm from smoking behavior. The article discusses a study of "morphological abnormality. The smokers were found to have a significantly greater percentage of abnormal forms." At 629, "Our results show that cigarette smokers have a higher frequency of morphologically abnormal sperm than non-smokers . . . There is some evidence that the frequency of chromosome damage in the peripheral-blood lyrophocytes of cigarette smokers is a function of the number and type of cigarettes smoked per day, more damage being observed in heavy smokers and in those smoking unfiltered high-tar cigarettes."
The article cites some of the previous data on the subject. At 627, for example, "In 1969 Viczian reported an increase in the number of morphologically abnormal sperm in cigarette smokers compared with non-smokers." At 628, "Viczian reported that . . . the overall frequency of morphologically abnormal sperm was higher . . . the incidence of abnormal sperm appeared to correlate with the number of cigarettes smoked per day." At 629, "Since the publication of Viczian's findings heavy cigarette smokers have been shown to have a higher frequency of chromosome abnormalities and sister-chromatid exchanges in their peripheral-blood lymphocytes than non-smokers. It has also been demonstrated that the urine of cigarette smokers, but not healthy non-smokers or non-inhaling smokers, contains substances that are mutagenic . . . Taken together, these findings point strongly to the conclusion that cigarette smoking may be a mutagenic pastime. . . . the present study confirms and extends previous work indicating higher frequency of morphologically abnormal sperm in the ejaculates of cigarette smokers than non-smokers and, in the light of our current knowledge of some of the causes of sperm abnormalities . . . it seems probable that this increase may reflect an increase in genetic damage in these cells as a consequence of exposure to cigarette-smoke products."
That study is particularly insightful in the context presented by the article, "Effects of Smoking upon Reproduction," by R. T. Ravenholt, M. J. Levinski. D. J. Nellist, and M. Takenaga, in Am. J. Obst. & Gynec., Vol. 96(2), pp. 26?-281, 15 September 1966. The article discusses "measuring harmful effects of smoking upon somatic cells not directly exposed to smoke. . . . The spectrum of damage in bodies of cigarette smokers . . . clearly indicates that damage to somatic cells is not limited to those of the respiratory tract, but extends throughout the body—notably including vascular, glandular, and urinary systems . . . This distribution of somatic cell disease in bodies of cigarette smokers indicates absorption of harmful agents from the respiratory tract, their circulation in the blood, and their excretion, mainly in the urine. . . . The general category of agents most likely to cause the spectrum of disease observed would be mutagens . . . Many carcinogenic agents, some of which are probably mutagenic, have been identified in tobacco smoke, and Polonium 210 . . . a powerful contact mutagen, has been identified in . . . cigarette smokers. . . . Transport of such mutagenic agents . . . would necessarily occur via the bloodstream; and the germ cells as well as the somatic cells would inescapably be exposed to any blood-borne mutagens."
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(pp 33-64)
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 to- provide wrong information that typhoid fever would not infect others, Davis v. Rodman, 147 Ark. 385, 227 S.W. 612 (1921).
- It is not acceptable for a doctor to provide wrong data that scarlet fever would not infect others, Skillings v. Allen, 143 Minn. 323, 173 N.W. 663 (1919).
- It is not acceptable to wrongly inform a neighbor that smallpox is not contagious, Jones v. Stanko, 118 Ohio St. 147, 160 N.E. 456 (1928).
It 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, 177 N.W. 831 (Neb. 1920). The rights of healthy people have priority. That is the AR 1-8 philosophy. Smokers are not allowed to make people ill.
| Page 65 of ___84__ pages. | | Affiant's initials _________ |
(pp 66-83)
Under civil service rules and circumstances, in a situation of a hazard, the status for leave purposes is excused absence during the pendency of the hazard. Under the circumstances of a hazard, for example, a stormy environment or other environmental hazard of some type, excused absence is granted. As a personnel specialist for years, I am trained in leave administration. Indeed, the agency involved me and assigned me in counseling supervisors and employees on leave matters, of a complicated nature. Excused absence in a situation of a hazard is well-established, i.e., not at all complicated. When the agency subjects me to "disparate treatment," it is not necessary to reach the issue of "reasonable accommodation" on resolution of the hazard. Compliance with the underlying safety rules, and/or with AR 1-8, is appropriate, without reaching the issue of "reasonable accommodation." Providing an "equitable balance" such that the AR 1-8 duties to "not endanger life or property, cause discomfort or unreasonable annoyance to nonsmokers, or infringe upon their rights" are achieved, is what the 25 Jan 1980 USACARA Report reminded the installation, is the AR 1-8 duty. As the EEOC 23 Feb 1982 decision notes, "the agency failed to abide by" the guidance.
Resolution of the case need not reach that issue, unless desired. The immediate issue is the disparate treatment, i.e., issues of retirment, instead of excused absence, being raised. Employes are not retired on disability when the environment is stormy, unsafe, or otherwise unacceptable. Moreover, smoking is behavior; issues of disability retirement are especially inappropriate when personal reasons are involved—on the part of others. For example, when the supervisor's motives were personal, full pay status (here, tantamount to excused absence) was restored to an employee in the case of Knotts v. United States, 121 F.Supp. 630 (Ct.Cl. 1954). Since smoking is personal behavior, a pertinent principle from Shelley v. Kraemer, 334 U.S. 1 (19^8) is apropos, in rejecting "granting judicial enforcement of" personal behavior ("restrictive covenants"). Here, the installation is "granting" administrative "enforcement of" personal behavior. That installation misconduct is in violation of EEOC rules on processing EEO cases, in violation of Army rules on processing and implementing USACARA Reports (cf. Spann v. McKenna, 615 F.2d 137, 1980), and of course, in violation of the guidance in safety, AR 1-8, and leave status instructions in the civil service.
Resolution involves dealing with the issues in sequence. For example,
- 1. Excused absence as appropriate as distinct from disability retirement, especially considering my ability to work, the lack of "job related" "physical criteria," and the circumstances.
- 2. Guidance on dealing with the underlying situation, such as by ceasing and desisting from the actions/misconduct noted by EEOC.
- 3. Guidance on dealing with the pertinent specific rules (as on safety, AR 1-8, for example), in advance of precipitous rush to the consideration of "reasonable accommodation" issues which foreseeably will not arise, upon the installation beginning to take the corrective actions already specified by the basic rules.
| Page 84 of _______ pages. | | Affiant's initials _________ |
UNITED STATES OF AMERICA
OFFICE OF PERSONNEL MANAGEMENT
| In the Matter of | | ) | |
|
| | ) | |
|
| | ) | | CSA
| Leroy J. Pletten | | ) | |
| | _______________________ | | ) | |
| |
MOTION FOR REMAND
TO AGENCY
NOW COMES the applicant [for OPM-directed reinstatement pursuant to FPM Supp 752-1, §S1-6c(4)(d) mandating same], Leroy Pletten, and moves that the filed-by-agency application for disability retirement be remanded to the agency, under 5 C.F.R. 831.1204, for reasons including but not limited to the following:
1. The OPM analysis, dated 22 Feb 1982, issued to the agency by Lorraine E. Dettman, Chief, Reconsideration Section, is accurate in showing that the agency has "not presented documentation that specifically demonstrates" seven enumerated aspects.
2. OPM has thus noted a void in the record as submitted by the agency.
3. The OPM analysis finding the void in the record is accurate as a matter of fact, and as a matter of law, as the record shows, and as multiple court precedents make clear.
4. The void includes failure to identify an actual or potential service deficiency, a nexus with employment, duration, reasons for failure to enforce pertinent rules, reasons for not reaching the "reasonable accommodation" guidance, and, indeed, not even "A medical condition which is defined as a disease or injury."
5. The record shows my 27 August 1981 and 5 November 1981 requests to review the case file, which right was denied, and concerning which, the case file was not provided to me until your office did so. Thanks to your office, the record only made available after the local transmittal to your office, shows the void which you noted. The void includes the lack of a "job-related standard" for physical requirements, as only one of the many voids you noted.
6. Under the circumstances, which the 22 Feb 1983 letter accurately summarizes, the agency has not even begun to make and prepare a case, if any, in this matter.
7. Under such circumstances, if the agency upon remand, choses to develop a case and propose it, the void may be remedied, for me to reply. But until the agency presents case filling in the void you identified, and I find now on review of the file, after the fact, the right to reply, and to have my reply considered, was denied.
WHEREFORE, this motion for remand to the agency is made.
/s/Leroy J. Pletten
LEROY J. PLETTEN
Page lxxxv
UNITED STATES OF AMERICA
OFFICE OF PERSONNEL MANAGEMENT
| In the Matter of | | ) | |
|
| | ) | |
|
| | ) | | CSA
| Leroy J. Pletten | | ) | |
| | _______________________ | | ) | | | |
MOTION TO DISMISS APPLICATION ON THE GROUNDS
EXCUSED ABSENCE IS APPROPRIATE
NOW COMES the applicant [for OPM-directed reinstatement, pursuant to FPM Supp 752-1, §S1-6c(4)(d), mandating same], LEROY PLETTEN, and moves that the application be dismissed on the grounds that excused absence is the appropriate course of action in situations of hazards.
1. In the civil service, excused absence is granted when hazards exist. This includes environmental situations. Sometimes hazards are foreseeable, as for example, storms that are predicted, so employees are sent home prior to the full force of the hazard.
2. Disability retirement is not appropriate in hazards, since there are no "job related" "physical criteria" relative to hazards, storms, and other unsafe situations or environments. A status other than excused absence in a hazard represents "disparate treatment," contrary to well-established principles of law on reprisal and discrimination.
3. The particular circumstances of this case as demonstrated in the record show failure to implement guidance to obey and implement AR 1-8; EEOC analyses showing installation violations; the receipt of unemployment compensation due to my clear-cut ability to work combined with "the agency's decision to terminate" me evident not later than the time of the 9 April I980 letter from EEOC Examiner Henry Perez, Jr., etc.
4. Various court precedents show that, as a matter of law, and of fact, "Workmen are not employed to smoke," as with any hazard where excused absence is the appropriate course of action pending resolution.
5. Until the deficiencies noted by USACARA and by EEOC are resolved, and the hazard corrected, "reasonable accommodation" processes clearly have not begun, considering that compliance with prerequisite guidance, such as AR 1-8, safety, etc., has not yet been effected.
6. As a matter of law, no "job related" "physical criteria" can ever be provided. As this is the case with any hazard, manmade or natural, excused absence is appropriate. The law does not have a "fall-back" position contemplating disability retirement in lieu of excused absence, just as there is no "fall-back" position for less than full compliance with any law, regulationn, or enactment.
/s/Leroy J. Pletten
LEROY J. PLETTEN
Page -lxxxvi-
UNITED STATES OF AMERICA
OFFICE OF PERSONNEL MANAGEMENT
| In the Matter of | | ) | |
|
| | ) | |
|
| | ) | | CSA
| Leroy J. Pletten | | ) | |
| | _______________________ | | ) | |
| |
MOTION TO DISMISS APPLICATION ON THE GROUNDS
THAT IT ARISES FROM "VICIOUS HABITS," OR
INTEMPERANCE, OR INSANITY, OR OTHER
MISCONDUCT OR FRAUD BY SMOKERS
NOW COMES an/ the interested party, LEROY PLETTEN, and moves that the [TACOM-smokers-filed] application be dismissed on the grounds that it arises from smoker addiction, alcoholism, mental illness, and/or brain damage and/or other smoker deviance, whereby disability retirement is not authorized;
1. Numerous court precedents reflect well-established awareness of smoker addiction and their harmful and untoward propensities unless restrained.
2. Medical literature for many years shows smoker addiction, lack of insight on their conditions, insanity, link with alcoholism, delusions of grandeur and uniqueness, intolerance of restraint, diseases which they spread, apathy and indifference for themselves and others, etc.
3. The smokers who have engaged in overt acts in the case at bar are displaying symptoms of the nature as are described in the medical literature. They are parading their addiction, denouncing the duty of compliance, ignoring procedures on USACARA Reports, time limits for processing EEO and other cases, etc. They have not, in all the time that has transpired, ever shown or displayed insight on their condition, or the ability to comprehend that the type of analysis that reviewers (EEOC, OPM, MESC, USACARA, etc.) have made, would be made. Clearly, they are displaying severe lack of orientation to reality.
4. The insistence on "cannot" comply with even AR 1-8 guidance reflects delusions of grandeur, since- (a) they have not considered the matter, and
- (b) others "can" comply.
Clearly, local smokers "cannot" conform their conduct to the requirements of law, and lack substantial capacity to appreciate the wrongfulness of their conduct, guidance on insanity from People v. Matulonis,320 N.W.2d 238 (1982).
WHEREFORE, the application should be dismissed.
/s/Leroy J. Pletten
LEROY J. PLETTEN
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Enclosures
1. FMCS Arbitration Case 81K - 26042
2. Letter from Dr. John Grabowski, DHHS, 16 Dec 80
3. Mortality Chart showing high smoker suicide, mental illness, rates, et
4. ICD-9-CM, p. 233, DHHS
5. Letter from Henry Perez, Jr., EEOC, 9 April 1980, on the local "decision to terminate" me in early 1980
6. EEOC Decision, 23 February 1982, on local rejection of consideration of USACARA Report, 25 Jan 80, to obey AR 1-8, which Report the installation "failed to abide by"—cf. Spann v. McKenna, 615 F.2d 137 (1980)
7. Brief from the case of Shimp v. New Jersey Bell Telephone Co., 368 A.2d 408 (1976)
8. Transcript of Hearing in Shimp, supra.
9. Mich. Empl. Sec. Com'n Decisions granting and confirming the unemployment compensation received by me in the period Jan 81 - Oct 81. The several decisions show repeated TACOM appeals, albeit unsuccessfully. The time period encompasses and extends beyond the time of the installation efforts to secure OPM endorsement of their misconduct.
10. "Second-Hand Smoke," an August 1977 pamphlet from the Am. Lung Ass'n.
11. A list of examples of the range of compliance to be effected, prior to "reasonable accommodation." The installation refuses to even start the pre-"reasonable accommodation" process, and misprocessed my EEO cases trying to secure "accommodation" under the prerequisite rules, without having to reach the full-blown "reasonable accommodation" process, to cover any gaps, if any, since the basic regulations already provide a full range of protection. The evidence shows that I am at all times herein cited, agreeable to beginning the process, for example, via implementation of the 25 Jan 1980 USACARA Report saying to the installation to comply with AR 1-8.
12. Example of a building-wide ban in a Dep't of Defense agency, in the Air Force, at its Museum (complete ban even affecting the public, except "in the coffee shop," Such strong action is clearly an example of compliance with 32 C.F.R. 203, under which AR 1-8 has also been issued. In my case, since the process has not started, I can only repeat that the evidence seems to show that resolution in my case clearly seems possible simply under the agency's own guidance, without ever having to reach issues such as of OSHA, 5 USC 7902, etc., and of "reasonable accommodation" thereafter.
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