This is a Motion to OPM, 25 November 1983, in Continued Opposition to April 1981 Agency Application, Retaliating Against Pletten's Whistleblowing. The retaliation took the form of violations including but not limited to:
  • Inconsistencies and Due Process Violations Warranting Reversal: pdf, html
  • Violations of TACOM's Own Discipline Regulation: pdf, html
  • Violations Overview: pdf, html.
  • See also the Amicus Curiae Brief.
    The goal was to encourage OPM to continue fighting on my behalf. Area U.S. Attorney staff and federal judges were later corrupted to ignore this evidence.
    The ex parte-obtained corruption went to the extreme of saying Pletten applied! The record shows he fought continually, and continues to do so, now the year 2001.
    See also other items in the series, e.g., 21 March 1983, 29 March 1983, 27 July 1983, 10 October 1983, and 2 Jan 1985, as per Pletten's working full-time+ developing every evidence for seeking recognition of his remaining an employee absent a 30 days notice of charges IAW federal law 5 U.S.C. § 7513.(b) warranting removal, and recording his position, for anticipated use in the EEOC forum, which TACOM was claiming would be reviewing the matter.
    More in the series will be posted as scanned. The volume is enormous, takes some time.

    • UNITED STATES OF AMERICA
    OFFICE OF PERSONNEL MANAGEMENT
    CSA BRIEF
    NOV 25 1983
    TABLE OF CONTENTS
    Pages
    Motion that OPM Assist in Resolving the Situation Herein1
    Request Details2
    Enclosure: Analysis of CSC Form 11754

    UNITED STATES OF AMERICA
    OFFICE OF PERSONNEL MANAGEMENT

    Leroy J. Pletten)
    )
    v.
    		)NOV 25 1983
    )
    Department of the Army)
    __________________________)

    MOTION THAT OPM ASSIST IN RESOLVING
    THE SITUATION HEREIN

    NOW COMES Leroy Pletten and moves for OPM assistance via its expertise in qualifications requirements (X-118) and familiarity with personnel rules and guidance in the civil service.

    1. OPM is part of the management of the federal service. When I cite qualifications guidance, I am being pro-management as a trained personnel specialist must be, even when the persons to whom he is providing counseling may not like what must be provided in terms of rules.

    2. Please notify the installation that there are no X-118 provisions on smoking. Since smoking is not a qualifications factor, there can be no disqualification.

    3. Please notify the installation that when there is a hazard, the appropriate status is excused absence.

    4. Please notify the installation to make an "offer" like that in Parodi v. MSPB, 690 F.2d 731 (1982), for a safe environment. Note that I have already accepted the only "offer" tnat has been made—the one indicated by MSPB on 18 June 1981, accepted by me 7 July 1981.

    5. Please suggest that the installation return me to duty if there is no hasard.

    6. Please suggest that Dr. Holt should stop overruling the multiple medical statements from examining doctors, who indicate that I am ready, willing, and able to work.

    7. Please note that the installation had already terminated me in early 1980, as noted by Mr. Henry Perez, the local EEOC representative, and thus, that the local behavior thereafter was disingenuous.

    8. Please note that the issue is discrimination (the lack of job requirements/ qualifications for smoking), not accommodation. Accommodation is a phrase meaningless in a vacuum, apart from requirerents. Moreover, even if this were to change (if OPM altered X-118 to add data on smoking), that would not (for this case) warrant my disqualification—re a future requirement not yet extant.

    /s/Leroy J. Pletten
    LEROY J. PLETTEN

    -1-

    This is a request that you send the installation a letter suggesting that the installation note that X-118/any "job requirements and qualifications" for smoking have never been established. OPM has the responsibility for the X-118 "job requirements ard qualifications" in the federal service. OPM has not set any for smoking. Since there are no "job requirements and qualifications," no disqualification exists.

    The installation and MSPB have not been giving the OPM position the proper deference. OPM has repeatedly noted the lack of any "job requirements and qualifications" for smoking. The lack voids the case ab initio. OPM follows the law on discrimination set forth in cases such as Hill v. Nettleton, 455 F.Supp. 514 (1978), and Sabol v. Snyder, 524 F.2d 1009 (1975). In Hill, supra, a Ph.D. was not required for the college-level position involved; hence, the employee prevailed. Here, of course, smoking is not a job requirement of the job description. If the installation attempted to claim that smoking has become a job requirement, OPM (not just the employee) would challenge the installation's disregard of the X-118 guidance.

    OPM also complies with Sabol, supra. The X-118 "job requirements and qualifications" have "never been formally changed" to include smoking, cf. p. 1011. Since the X-118 has "never been formally changed" to include smoking, that is another basis on which OPM has noted that the installation claims are deficient. Mr. Pletten has provided deference to the accurate OPM analyses. The installation and MSPB should likewise give deference to the OPM analyses.

    The accuracy of the OPM rejection of the installation's view (innuendo) that the X-118 guidance includes smoking, was confirmed bv the EEOC decision, 8 April 1983. OPM recognizes that EECC has a paramount role in discrimination. OPM reviewed this case, without the benefit of the EEOC analysis. (The OPM role included decisions issued before the 8 April 1983 EEOC decision.) OPM showed a like conclusion as did EEOC, p. 4, noting the lack of installation "compliance with any of the applicable standards of proof required of an agency." The installation made no showing at all of smoking as covered by the X-118 guidance. Since there are no requirements or qualifications for smoking, Mr. Pletten meets all the criteria of record.

    Please suggest to the installation that in view of the hazard repeatedly alluded to by Mr. Victor Russell in his 20 June 1983 analysis, the proper status for an employee when there is a hazard, is excused absence.

    Other employees are provided excused absence when there is a hazard. For Mr. Pletten to prevail, "Comparison with a single employee is sufficient to meet" his "burden of proof," see McDonald v. Santa Fe Trail Transportation Co. (1976), 427 U.S. 273, 96 S.Ct. 2574, 49 L.2d.2d 493)," cited in a recent application of that principle, Clark Oil & Refining Corp. v. Golden, 114 Ill.App.3d 300, 70 Ill Dec. 80, 448 N.E.2d 958 at 964. (1983). The excused absence fact has been used for far more than "a single employee" when there is a hazard. OPM, like EEOC, has noted that the installation has not provided any explanation at all for treating Mr. Pletten differently. The installation has not even tried to meet "any of the applicable standards of proof."

    -2-
    This is a request that you send the installation a letter suggesting that the installation provide me a non-endangering environment in accordance with 32 C.F.R. 203. Please suggest that the installation implement the 25 January 1980 USACARA Report, as it is the installation duty to do under Army rules, cf. Spann v. McKenna, 615 F.2d 137 (1980). Remind the installation that safety rules including AR 1-8 are "remedial and preventative in nature," REA Express, Inc. v. Brennan, 495 F.2d 822 at 825 (1974). Remind the installation that workplaces are to be "free" of hazards, and that the "adjective is unqualified and absolute," Nat'1. Rlty. & C. Co., Inc. v. OSHRC, 489 F.2d 1257 (1973). Thus, there is full "authority" to provide a safe workplace the duty is commanded, and is based on what is "necessary" to suppress hazardous conduct, not what is merely "reasonable," which may vary from person to person, and thus defeat the purpose of the law. The USACARA Report which made this point, under AR 1-8 without having to even reach so far as to OSHA, should have been implemented, not only under Army rules, but also based on the general principle that such a Report "is a guide to our conclusion and should have been given due regard," In Re United Corp., 249 F.2d 168 at 178 (1957).

    Please suggest to the installation that its view that AR 1-8 should not be implemented except "through the procedural hoops for" "reasonable accommodation" is inappropriate. Cf. Sethy v. Alameda County Water Dist., 545 F.2d 1157 at 1162 (1976). The installation view that AR 1-8 cannot be implemented directly, and in its own right, is wrong. Please suggest likewise on OSHA, implementation of the USACARA Report, and/or both of them. OSHA can be enforced directly, in its own right, without being "made to jump through the procedural hoops for" "reasonable accommodation." The 25 Jan 1980 USACARA Report must likewise be complied with, directly, in its own right, without being "made to jump through the procedural hoops for "reasonable accommodation."

    Please suggest to the installation that, in the series of instructions at hand, a safe work environment can be provided by use of AR 1-8 alone, without reaching other rules, OSHA, for example, without ever reaching the last law ("accommodation" guidance) in the series of instructions whereby compliance is to be attained. The 25 Jan 80 Report was based on reaching only AR 1-8 and AR 600-20, for example. As the record shows that the medical advice is for providing an environment that is nonendangering under AR 1-8, please suggest initiating compliance at that point.

    Please suggest that "the status quo cannot be maintained" since doing that "would defeat the purpose of the" conditions set forth in AR 1-8 before smoking can even be initially "permitted." Please call attention to the AR 1-8 conditions "designed to disrupt" "the status quo," U.S. v. City of Los Angeles, 595 F.2d 1386 at 1391 (1979). The status quo which AR 1-8 was "designed to disrupt" had included permitting smokingto endanger, discomfort,, and unreasonably annoy nonsmokers; AR 1-8 [Ed. Note: a pure air rule] was "designed to disrupt" such conduct. Please call attention to the evidence that both USACARA and EEOC have consistently called attention to the local disregard of the conditions which must be met before smoking can initially be "permitted."

    -3-