i» M < 1 I I MERIT SYSTEMS PROTECTION CHICAGO REGIONAL OFFICE

Transcription

1 » M < 1 I I ~W ' TT UNITED STTES OF MERIC TCOM HERING MERIT SYSTEMS PROTECTION BORD CHICGO REGIONL OFFICE IN THE MTTER OF: LEROY J. PLETTEN vs. UNITED STTES OF THE RMY DEPRTMENT Transcrpt of the" Deposton of CRM J.» VERHRT, a wtness n the above-enttled cause, taken before Jo Gallagher, Notary Publc n and for the County of Wayne and State of Mchgan; at 3000 Town Center, Sute 1150, Southfeld, Mchgan, on Frday, prl 23, 1982, commencng!6 at or about 2:44 p.m. PPERNCES: COOPER & COHEN, 3000 Town Center, Sute 1150, Southfeld, Mchgan 48075; ppearng on Behalf of Leroy J. Pletten. BY: STEVEN Z. COHEN, ES. DEPRTMENT OF THE RMY, TCOM LEGL OFF.ICE, DRST-L, Warren, Mchgan 48090; ppearng on Behalf of Unted States Department of the rmy. BY: EMILY SEVLD BCON, ES. lso Present: Leroy J. Pletten ^ ^±

2 tr T \ I N D E X WITNESS PGE CRM J. VERHRT Drect Examnaton by Ms, Bacon Vor Dre Examnaton by Mr. Cohen Drect Examnaton by Ms. Bacon Vor Dre Examnaton by Mr. Cohen Drect Examnaton by Ms, Bacon Vor Dre Examnaton by Mr. Cohen Drect Examnaton by Ms, Bacon Cross-Examnaton by Mr. Cohen Vor Dre Examnaton by Ms. Bacon EXHIBITS ' I; gency No. 8 gency No. 9 gency No. 10 gency No. 11 gency No. 12 gency No. 13 gency No. 14 gency No. 15 gency No. 16 gency No

3 1! Southfeld, Mchgan Frday, prl 23, :44 p.m. P R O C E E D I N G S, C R M J. V E R H R T, beng frst duly sworn, was examned and testfed on her oath as follows: 8 ; I DIRECT EXMINTION»! BY MS. BCON: o; Ms. verhart, what s your poston? I am presently Chef' of Poston and Pay Management 12 Branch. 13 j How long have you held that poston? For almost two years. Snce July of What was your poston pror to the present one you hold? Before that I was a Poston Classfcaton Specalst 17 n the same branch. 18 When dd you frst take that job? 19 I 20 I 21 I beleve t was I came here n I had; another job n personnel for about nne months. re you famlar wth the appellant n ths case; 22 Mr. Pletten? Yes. 23!! 24 I 25! How dd you make Mr. Pletten's acquantance? Well, we both worked n cvlan personnel when I frst / 4

4 came here, n dfferent branches. Eventually we ended up n the same branch. : '. 4 a 8 j I 7 ' I 8 9 In your poston as Chef of the Poston and Pay Management Offce was he one of your employees then? Yes. re you famlar wth hs senstvty and objecton to tabacco smoke? Yes. How dd you frst become aware of hs objectons to 10 tabacco smoke? Well, I beleve t was about Mr. Kator was the Chef at that tme and he notfed the people n.the branch that Leroy was senstve to tabocco smoke and that we should not smoke n hs presence. You sad you had worked there snce Pror to Mr. Kator nformng you of hs senstvty -- pror to that 1979 tme -- had he ever ndcated to you hs senstvty to t? Not that I can remember. Was Mr. Kator's drecton followed to the best of your knowledge? 22 s far as I know, yes. 23 I The case fle at Tab 7 reflects that a letter was sent dated 27 November 1981 proposng Mr. Pletten's separaton for medcal dsqualfcaton.

5 Do you recall sendng Mr. Pletten that 2, letter? 3 ' Yes. 4 Can you gve us some background of the events whch led 5 up to the draftng and sgnng of that letter? 6 Well, we had been notfed by Offce of Personnel j 7 ' Management that our applcaton for Mr. Pletten's dsablty retrement had been dsapproved. So, therefore, ths letter was sent out. What prompted your flng a dsablty retrement applcaton on hs behalf? Well, Mr. Pletten had been on extended sck-leave and there ddn't seem to be any lkelhood that he would be returnng to work. Before we can separate hm we have to try everythng possble and applcaton for dsablty ment s one of the thngs that we do have to try. fter Mr. Pletten had been put on sck leave dd he on any occason try to return back to duty? Yes. I ask f you can dentfy ths document? Yes, I prepared that. MS. BCON: Okay. I move for the submsson of ths memorandum to the record, dated March 20, 1980, as gency Exhbt 8.

6 (gency Exhbt 8 marked for. dentfcaton.) MS. BCON: Off the record, please. (Off the record.) (Back on the record.) MR. COHEN: No objecton. 7 (By Ms. Bacon) Dd Mr. Pletten on any other occason attempt to return to work? 9 Yes, he dd I ask f you can dentfy ths document? Yes, I prepared ths also MS. BCON: I would move for the submsson of a memorandum for the record, dated 29 January 1981, as gency Exhbt 9. (gency Exhbt 9 marked for dentfcaton.) MR. COHEN: I wll object to the admsson of the document to the extent that t states as to what Mrs. Jones nformed her as beng hearsay. MS. BCON: Objecton noted. (By Ms. Bacon) Dd you contact the dspensary after you told Mr. Pletten to report there to be cleared for duty? Yes, I dd. nd I was advsed that he had MR. COHEN: Objecton. zo MS. BCON: ll rght. The memorandum can

7 speak for tself. (By Ms. Bacon) t Tab 7 agan, your November 27th letter, you ndcate that an gency fled dsablty retrement applcaton was dsapproved by the Offce of Personnel Management. Were you nvolved n the flng of that dsablty retrement applcaton? Well, yes. I ntated t. I ddn't do the actual processng but I requested that such an applcaton be fled. What dd you base that decson on? combnaton of thngs.. Mr. Pletten's physcan had ndcated that he had to have a completely smoke-free work envronment. We had attempted to fnd such an envronment and we could not fnd one n our Command and there dd not appear to be any lkelhood that he would return to work unless such were provded. So I had a job to get done and I needed snnone to do t., You say that you attempted to fnd f there was someplace on the nstallaton that had the knd of envronment that Z\ hs doctors advsed he had to have; am I correct?. Yes. Can you dentfy ths document? In fact, these two documents? Yes. I prepared these for Mr. Hoover's sgnature.

8 ! MS. BCON: I would move for the submsson of the DF dated 17 December 1980, unsgned 3 4 5, t 7!! s but for the sgnature of E. E. Hoover, at ths tme as gency Exhbt 10. MR. COHEN: I would lke to vor dre f I may. MS. BCON: Yes. VOIR DIRE EXMINTION 9 BY MR. COHEN 10 Ms. verhart, dd you wrte ths? 11 Yes You wrote t for -- For Mr. Hoover's sgnature. -- for Mr. Hoover? What dd you base ths document on? What do you mean? MS. BCON: I also don't understand the queston. (By Mr. Cohen) Dd you base t strctly on a letter 20 from Dr. Salomon? It was a lot of thngs but Dr. Salomon's letter was certanly the man thng. So there were a lot of other thngs besdes that whch was ncluded n the document? I am readng ths but maybe I am readng

9 ll 2 r 1 3 t wrong. It says, "Jack Salomon, M.D., has advsed ths Command that Leroy J. Pletten requres a smoke-free work envronment (see enclosed letter)." letter that prompted ths? Now, were there other thngs besdes the Well, there s never one sngle thng that prompts an acton so I am not sure what you mean. 9! 10 Okay. I wll queston you later. I just I had a job to get done and Mr. Pletten wasn't at work 11! and all sorts of thngs Well, I just wanted to know wth vor dre of the document because t s not my turn yet. Okay. I have to follow the rules. MR. COHEN: To the extent that t was drafted by Ms. verhart, but retanng any objectons as to hearsay pendng Mr. Hoover's appearance, no problems. Is ths gency 10? MS. BCON: The one drected to the Command Industral Hygenst w.ll be gency Exhbt 11 and the one drected to the Safety Offce wll be gency Exhbt 10. \ 25 j (gency Exhbts 10 and 11 markec

10 J 10 for DIRECT EXMINTION dentfcaton.) (Contnued) BY MS. BCON: 4 5 I ask f you can dentfy ths document? Yes. Ths was the response I receved from the 6? ndustral hygenst. MS. BCON: I would move for submsson 8 of gency Exhbt 12; the response dated 23 December from the gency hygenst. 10 VOIR DIRE EXMINTION 11 B' BY MR. COHEN: Was ths drected to you, Ms. verhart? It was drected to Mr. Hoover. I take t you saw t? It was drected to you subsequent 15 to that by Mr. Hoover? 16 Rght. 17 So you dd see t? 18 Yes re your ntal's on there anywhere? No, they aren't. So, other than that Mr. Braun has apparently sgned hs name to t, you have no knowledge of ts preparaton or the crcumstances by whch t was prepared? j I don't understand what you mean. j Do you have any knowledge of how Mr. Braun prepared t or;

11 11 1 I f he prepared t, other than the wrtng? MS. BCON: I object to the queston.! MR. COHEN: I am vor drng the document. MS. BCON: Yes, I know you are. MR. COHEN: I have a rght to, Counsel. 6 7 understand then. MS. BCON: Well, ask a queston she can (By Mr. Cohen) Well, f you don't understand a queston ask me and I wll rephrase t. Other than the fact that t says "Edwn F. 11 Braun" dd you see Mr. Braun wrte ths? "! No, I ddn't see hm wrte ths. Dd you talk to hm about ths? I really can't remember. Dd you talk to Mr. Hoover about, ths? Yes. You dd? Subsequent to hs recevng t? Probably. Do you know f Mr. Hoover talked to Mr. Braun about ths? No.. Do you know f Mr. Hoover knows that Mr. Braun wrote ths? No. Do you know anythng about ths other than the fact that you receved t at one tme? 25 I know that t came n and t was sgned by Mr. Braun and

12 12 j 1 j I receved t. 2! t 3 ll rght. MR. COHEN: I object to the admsson of 4 the document except for the lmted purpose of her havng receved t. I would submt the document can be admtted to show that she receved t and read t. But as to the 8! 9 j content thereof I would consder t hearsay. Is ths gency 12? I 12 MS. BCON: Yes. (gency Exhbt 12 marked for dentfcaton.) 13 DIRECT EXMINTION (Contnued) 14 BY MS. BCON: Can you dentfy ths document? Just to save tme, I would suggest that t could be admtted under the same objecton as the prevous objecton. THE WITNESS: Yes, I recognze ths. MR. COHEN: Prevous objecton. MS. BCON: I would submt gency Exhbt 22 13, whch s subject to the same objecton as made to gency Exhbt 12. Ths dated 29 December s a DF from the Safety Drector (gency Exhbt 13 marked for

13 13 1 1! 2 3 : dentfcaton.) (By Ms. Bacon) Now, you testfed that when you got those responses back from Safety and the ndustral hygenst 4 5 that you read them. nd that prevously you had testfed that you had wanted to check out to see f there was an area on the Command that would meet hs doctors' requrements. Based on your revew of gency Exhbts 12 and 13, n your vew was there an area that you could 11 brng hm back to? No, there was not. Can you dentfy ths document? Yes. Ths was sgned by me. MS. BCON: I would submt as gency Exhbt 14 a letter to Mr. Leroy Pletten from Carma J. verhart, dated 24 February MR. COHEN: No objecton. Is that gency 14? MS. BCON: Yes. (gency Exhbt 14 marked for dentfcaton.) 23 j 24! 25 (By Ms. Bacon) Ms. verhart, n the body of ths letter you ndcate that f Mr. Pletten has any comments or nput to make as regardng the flng for dsablty

14 14 applcaton, he has a rght to respond to your notfcaton; correct? 3 That's correct. 4 5 ; Dd Mr. Pletten ever make a response? Yes, he dd. 6! t 8 9, 1 10 " I ask f you can dentfy ths document? Yes. Ths s Mr. Pletten's response. MS. BCON; I would move as gency Exhbt 15 a letter to Carna J. verhart from Leroy Pletten, dated March 12, MR. COHEN: No objectons. (gency Exhbt 15 marked for dentfcaton.) MR. COHEN: Off the record, please. 15 (Off the record.) 16 (Back on the record.) (By Ms. Bacon) In your readng of Mr. Pletten's response dd your readng of the letter ndcate that he dd not want a dsablty retrement fled for? He ndcated that he dd not want one, rght. Was hs response consdered n the makng of the decson to fle a dsablty retrement for hm? Yes, t was. However, there wasn't any new nformaton 24 n hs response. 25 n Was Mr. Pletten nformed of ths decson to fle for hm?

15 15 I ' 5 6 Yes, he was. I ask f you can dentfy ths letter? I do not ask ths wtness to dentfy t : as to the contents because t s a letter from Mr. Hooverj I submt t at ths tme only for the purpose of Ms. verhart's testmony to the fact that he was nformed of the results of hs objecton to the flng and the fact that the flng was made. 9. VOIR DIRE EXMINTION 10 BY MR. COHEN: Ms. verhart, dd you wrte ths for Mr. Hoover? No. 13 Pardon me? 14 No, I dd not MR. COHEN: May I suggest ths s an napproprate tme to enter t nto evdence. Why don't we wat for Mr. Hoover? He wll be testfyng. MS. BCON: Yes. He wll be testfyng to 19 t n the bulk of hs testmony. In order to keep the record straght I would lke to dxxt t at ths tme, okay? You can object to t agan the next tme t s referred to. MR. COHEN: I object for the reasons stated. It may be admtted. Well, let me ask ths, Ms. verhart, before

16 16 l, o ' I 6 ; I I go any further. 4 (By Mr. Cohen) Dd you have knowledge of ths? Dd you get a copy of ths? Yes, I dd. I was aware of the letter. MR. COHEN: For the lmted purpose that she was aware of t I wll admt t. MS. BCOft: I submt then as gency Exhbt 16 a- letter to Mr. Leroy Pletten from Mr. E. E. Hoover, dated 9 prl (gency Exhbt 16 marked for dentfcaton.) 12 DIRECT EXMINTION (Contnung) 13 BY MS. BCON: 14 Dd you ever receve a decson back from the Offce of 15 Personnel Management? 16 Yes, we dd. We were nformed that hs applcaton had 17 not been approved Can you dentfy ths document? record. MR. COHEN: Counsel, that's part of the 21 MS. BCON: Pardon?, ; *! 24 ' MR. COHEN: That's n the tabbed record. MS. BCON: Can you pont t out to me. MR. COHEN: Let's go off the record for 25 a mnute.

17 17 (Off the record.) (Back on the record.) (By Ms. Bacon) Tab 8 of the gency's response, I ask you f you can dentfy that document? Yes. Ths was the notfcaton we receved from the Offce of Personnel Management. ~ To the best of your recollecton, when, dd you receve that? I beleve t was n October. What acton dd you take upon beng notfed that the OPM acton or that OPM n fact had dsapproved the gency-fled dsablty applcaton? I dscussed t wth Mr. Hoover and decded to remove Mr. Pletten for a medcal dsablty. I ask f you can dentfy ths document? Yes, I prepared that. MS. BCON: I move for the submsson as gency Exhbt 17, a DF enttled "Request for Separaton Due to Medcal Dsqualfcaton," sgned by Carma J. verhart. MR. COHEN: No objecton. (gency Exhbt No. 17 marked for dentfcaton.) (By Ms. Bacon) I thnk you have already testfed to ths before but I would lke to go through t agan. Why dd you go through the dsablty retrement applcaton?

18 l j Well, before an employee can be separated for medcal 18 (3) 4. dsqualfcaton the gency or the employee should fle for a dsablty retrement. It's part of the procedural steps as I understand them. Now your request s dated October 19 and the date of the. proposed separaton acton s November 27. Can you account for the tme lag at all? 8 ; 9' J o No, I can't. It was really out of my hands after I made that request. So somebody else would be n charge of all the techncal procedures n establshng and makng sure that you have the proper grounds and that sort of thng? 13; That's correct Who would do that? That was Mrs. Bertram n the Management/Employee Relatons Branch. MS. BCON: I have no further questons at ths tme. MR. COHEN: May we go off the record for j a mnute, please? (Off the record.) 22 (Back on the record.) 23 CROSS-EXMINTION 24 BY MR. COHEN: 25 Ms. verhart, f I ask you a queston that you don't

19 19 understand please stop me and ask me to clarfy t so that we don't have any msunderstandngs of nformaton. I am partcularly nterested n the documents that have been submtted by the gency and I am gong to ask you to refer to them. I am gong to try and keep the numbers straght. What date dd you become nvolved wth Mr. Pletten's case, f you recall? I am not sure of the exact date because I was ctng Chef for a perod of tme before I became the permanent supervsor. So sometme around the begnnng of 1980 I beleve ll rght. We'll use that as an approxmaton. Were you famlar wth pror decsons n 14 Mr. Pletten's case? n to o 3) 0 0 u. 3 tr UJ. < a. n tr UJ a 0 a UJ oo 23, 2-1 I became famlar wth them. It's hard for me to pnpont an exact tme and say I was famlar wth somethng at a gven tme or not. If I were to refer you to Col. Benacqusta's reactons to varous grevances of Mr. Pletten back n October of 1980 and July of 1980, would you have been famlar wth those? It's possble. I don't know. I'm not always made aware of everythng that someone else has decded. MR. COHEN: I nform you, Counselor, that I wll have copes made of ths. I don't beleve t s 25 n the record.

20 20 MS. BCON: Yes, t s. MR. COHEN: The October 6 letter? MS. BCON: Yes. MR. COHEN: Can we go off the record for a second? (Off the record.) (Back on the record.) 8 ' 9 10 I (By Mr. Cohen) I refer you to gency Exhbt No. 5. I've seen ths, yes. re you famlar wth that? 11 Had you seen t before you took any actons wth regard 12 to Mr. Pletten? What do you mean by "any actons"? Well, when dd you get t, frst of all? I ddn't get t. I've seen t. When dd you see' t? 17 I have no dea. 18 Was t before or after you proposed hs removal? 19 It would have been before. 20 How much before? 21 I have no dea Would that letter have affected your judgment n terms of your treatment of Mr. Pletten's case? 24 j No, t would not. 25 Why not?

21 ; 4 I n ' I 6* Because I am able to separate someone else's opnon! from my own. t But the Colonel's opnon, of course, s based on the j nformaton suppled by hs subordnates; sn't that true' I have no dea what the Colonel's opnon s based on. Let me understand somethng. The Cvlan Personnel Offce doesn't provde nformaton and gudance to the senor offcals o 03 0 u 2 4 a. UJ a. C. <f tr u *- X 0 a X 9 '! o '< l 12:! " 22 I 23 ' 24 ' I 25 I lke the Chef of Staff? Cvlan Personnel Offce certanly provdes nformaton to a lot of people. But the way the grevance procedure works, dependng.on when the grevance was fled, I may or may not have been nvolved n t. nd even f I am nvolved n t I am only nvolved at the ntal step and not at the fnal decson-makng step of Mr. Pletten's or anyone else's grevances. But, obvously, In ths crcumstance you recommended removal You were nvolved n trggerng the fnal step n hs crcumstance; aren't you? Rght. But that was totally unrelated to a grevance. It was based on otter consderatons? I dd not suggest a removal because of a grevance. The reason I suggest ths s that I am somewhat confused. gency Exhbt 5 ndcates that as of October 1980 the Command had taken a poston wth regard to a health or

22 22 safety hazard and had ndcated that they would not be j 2 ' 3 4 : 5 j t 6 ; takng any further actons. In addton I pont you to July 24, 1980, Exhbt No. 4 proposed by the gency. That exhbt ndcates that the gency s no longer gong to consder furure correspondence from Mr. Pletten and that they have made a determnaton -- MS. BCON: Objecton. I thnk you are readng that out of context. MR. COHEN: Excuse me. I wll rephrase t, Counsel. (By Mr. Cohen). That letter states: "s the above stated ssues are already under consderaton, the Command wll no longer respond to-your future correspondence concernng these matters." That s referrng to Mr. Pletten. rd t says n the text, f I am not mstaken, that they have attempted to accommodate. "Is.complyng and wll contnue to comply wth regard to bannng smokng and mantanng an equtable balance." I have seen ths letter. re you famlar wth those documents? 24 When dd you see ths one 25 I don't remember.

23 23! You don't remember. ; The queston I ask s why dd t take so long for you to send gency Documents Nos. 10 and 11 when the Colonel sad that he wasn't gong to do anythng 1 5 more for Mr. Pletten wth regard to complance? Why dd those thngs come out all.of a sudden? { 8j 9 I! I 10 ; 0 I can't really answer that queston because I ddn't do t based on the letter sent by someone else. Who drected you to send ths complance letter? Whch complance letter? The one that Mr. Hoover sgned supposedly; "pproprate Work reas for Leroy J. Pletten," 10 and 11.»1 to n o w -0 6 o 0 o u, «a <r u < c d X 0 a. a UJ /1 0 tl t MS. BCON: If you wll rephrase your *- MR. COHEN: No, I won't, THE WITNESS: ll rght. I was not drected to send these. I was attemptng to fnd out what my optons were n the face of havng a mountng workload and no employee to carry out the work. I was advsed that there are certan procedures that we go through. We try to accommodate the employee. We try to fnd out f there s a place they can work, f there s a job the employee can do. nd ths was what 25 1 I 1 I was attemptng to do.

24 24 * Who nformed you that that was what you were supposed to do? 3 4 t 5 The regulatons and the dvsor of Management-Employee Relatons Branch. So f ths wasn't done before t means t's somethng that should have been done pror to your December 17, 198C letter, f there was an ssue of ths before; s that 8 ; correct? 9! We had been attemptng to fnd somethng that Mr. Pletten o 12 could do but s not just can he do the job or what s he qualfed to do, but s there anyplace that he can do them. 13 No, I understand. But t seemed to me by the way that n <o (0 o o o u. 2 <t a. H a a < <r 0 a. tr oo I 23 I 24 j 1! 25 I t s a very legtmate request and makes sense that you send such a document. But why was t so long n comng? If all ths had started well nto 1979,. why dd t take almost a year or year and a half to make such a request? Well, I don't know. I can't say that such a request had never been made, whether t was n wrtng or verbally, but at the tme Mr. Pletten frst brought hs condton to our attenton t wasn't known whether t was gong to \ be percent or temporary. j! I What made you thnk that Mr. Pletten couldn't return to j work? J t Hs physcan's statement. I

25 / m l ' / B 1 m , I ll the physcans' statements or just one of them? \ I don't know about all the statements. I've seen at least two that sad he requred a totally smoke-free ' r work envronment. ^ -^^ 5 Do you have a fle that ndcates what you consdered? 6 Do I have a fle of what? 7 Do you have a fle that you used n consderng 8 Mr. Pletten's case, that you kept? 9, Yes, I have materals that Mr. Pletten suppled ne from 10 hs Do you have a case fle called Leroy Pletten? 12 No, I don't have a case fle called Leroy Pletten. I 13; have nformaton related to Mr. Petten's case. u Where would that be kept? o In my offce. Do you have that wth you? J o J. 2 n <r UJ a. a n X 'V 0 a n IT a 0 « l No. Do those documents dffer from the ones before us? No. Not at all? I have some notes to myself that we don't have here but I don't know what knds of nformaton you're lookng for. MR. COHEN: Can we go off the record for a mnute? 25 (Off the record.)

26 26 I»! 2 3 ' (Back on the record.) Comng back on the record, we had a long dscusson wth regard to.the avalablty of documents. Ms. verhart had ndcated that there were some personal notes that she may have had n a fle J and they were not produced here. I have asked Ms. Bacon to produce them. The agreement that we have reached s tentatvely as follows. On Monday, when we resume depostons for tral, Ms. verhard wll have suppled Ms. Bacon wth whatever fles she has. MS. BCON: I would correct you rght now. If we are startng at 8:00 I wll be comng drectly here n o 0 u 0 2 <e OJ a. < a. V) c 0 or UI tt I wll not be gong to the offce so t wll have to be at a later date than Monday. Monday afternoon or early the next day or whenever. MR. COHEN: Well, at some date when these matters resume Ms. verhard wll produce her fles to Ms. Bacon and they wll be submtted subject to the objecton of Counsel; to Ms. Bacon's subsequent objectons If she has a problem lettng me look through the fles on behalf of Mr. Pletten, we have agreed J to contact Mr. Manrose of the MSPB for a rulng as to j whether the "documents should be provded or not provded. That s how we left t, so I presume that!

27 27 l wll happen. a' 3 ' (By Mr. Cohen) Let's talk about the dsablty retrement because I now have some copes here. I would lke you to dentfy ths f you could. 6 I don't recognze t. 1, You don't? 8 9 o No. You don't recognze t. Do you recognze the form? I recognze the form, yes. ll VOIR DIRE EXMINTION 12 BY MS. BCON: I Have you ever seen ths one wth ths wrtng on t before No. I don't recognze ths one. 15 Do you know who wrote ths? 16 No Do you know f t came from the Offce of Personnel Management? No. Is any of the nformaton on t flled n? 21 Yes. 22 \ ' Is ths form typed? No. It s handwrtten. Do you know who made the handwrtng on t? No, I don't.

28 28 = c 3 Do you know f anybody from OPM made the handwrtng on t? No, I don't. 4 MS. BCON: Well, I would object for ts admsson. MR. COHEN: I haven't moved for ts admsson. MS. BCON: Okay (By Mr. Cohen) You have never receved that n your experence wth regard to ths case? 11! No I You have never seen the document before? No. 14' Hypothetcally, f I were to tell you that such a 15 document was receved by Mr. Pletten, pursuant to a 16 Freedom of Informaton ct request, and that the document 17 ndcated that no reasonable accommodatons of hs 18 crcumstances had been shown, would that clck n your 19 mnd as to anythng you had been told by anybody at the 20 ; j 21 j 00 : 23 ' I 24 ;! 25 Command wth regard to Mr. Pletten? No. You have never been nformed by anybody from OPM -- have you had any dscussons-wth OPM? Let me ask that. No. You never contacted them at all personally?

29 r l No. Other than the wrtten request I take t? 29 3 j I 1 6, I don't actually process the wrtten request. Who does? Techncal Servce Offce representatve. Who would that be? It would have probably been Mrs. Blevns. 8 9 I nd n your estmaton she would have n all probablty have processed the dsablty papers? 10 Yes. 11 You ndcated earler n your testmony that before. 12 I thnk I can quote exactly. 13 "Before we separate someone we have to try everythng possble." Is that what you sad before? 16 I probably dd Was t your ntenton to separate Mr. Pletten before you had authorzed the "go ahead" for dsablty retrement? I can't separate Mr. Pletten. I wanted to get a job done and I wanted to fnd out what my optons were and what 21 the requrements were. Well, why dd you earler say that "before we separate someone we have to try everythng possble"? It just came out lke that. It just came out lke that. nd you had no ntentons n

30 30 r 2 ' 3 4, n takng these actons to separate Mr. Pletten? You only wanted your job done? Mr. Pletten was already not there. Mr. Pletten has not j physcally been there snce I have been the supervsor. But he hasn't been separated from the Federal Servce yet, has he? But I am sayng that he was not physcally there to do 8! the job Dd you ask for a manpower ncrease n your balwck there as Chef of the Branch? Let me explan somethng to you. We had fve people there to do the job. Mr. Pletten represented 1/5 of my work: force. 14 I understand. 15 nd when he left So you were understaffed? 17 So I was grossly understaffed >4 25 Dd you make a request from your superor for an addtonall person, notwthstandng Mr. Pletten's status? I always request addtonal people, contnually. Why? Because I need them to get the job done. You always need people? I mean, when you say "contnuallyj' I -- t that tme we were more crtcally understaffed than at

31 31 any other tme snce I have been there, okay? So I ; am contnually askng for more people. 3 ' When Mr. Pletten left t was a sgnfcant 4 I loss. 5 Mr. Pletten had been gone for a long perod of tme by 6 ' ths tme, hadn't he? t I 1 1 Yes. 8, Let me understand. If Mr. Pletten were to be severed 9 from the Servce and you were to be successful n ths 10 acton aganst hm would that promote your gettng 11 another person nto that poston? 12 If Mr. Pletten was not n a space, rght. Then I could 13 hre someone else to take hs place. n 10 o 0 O D 0 'J 0 a 2 4 a UJ < a a. X JJ r * * j UJ 5 u m I to understand -- and maybe I am gettng ths wrong. m I to understand that the man thrust and reason ths s beng done s to free up a space so you could hre somebody? t' No. That s not the man thrust. Why sn't t? It seems lke t. The man thrust for me s to get my job. done. Mr. Pletten dd not appear to be returnng to work and I don't understand the ratonale for havng someone on the rolls who does not appear to be ever be comng back. Well, what does beng on the rolls cost the government?

32 32 I don't know. Does t cost them anythng to your knowledge? I don't know what t cost the government. Were they payng Mr. Pletten? Mr. Pletten was n a sck leave status so he was enttled to use all of hs sck leave. nd dd you check to see f he had used all of hs sck leave? Yes. Had he? He fnally used t all by -- I am not sure of the date December of 1980 or somewhere around there. December of 1980 and here we are n 1982; are we not? Yes, we are. Okay. nd t was an extended perod of tme between the tme he no longer had sck leave untl the tme you started the admnstratve actons, wasn't t? I don't know whch admnstratve acton you mean. Well, let's talk about the applcaton for dsablty retrement. When was that made? I can't remember all the dates Well, let's see. prl of prl of It's almost a year ago, sn't t? 25 I Yes.

33 33. So t has been a year ago that you appled for the dsablty retrement for Mr. Pletten. I mean, I don't understand why t took that long a perod of tme. Ms. verhart? Do you understand the thrust of my queston, I I guess not. ll rght. You knew for a year that he was not gettng sck leave -- excuse me. You knew snce December of 1980 untl prl of 1981 that he was not gettng.any sck leave, correct? Yes. Was he recevng any other remuneraton from the Federal Government at that pont? I don't Dd you know. check? I don't know what other remuneraton he mght be enttled to. He was out of sck leave and he was out of hs annual leave. nd those are the only two thngs that I would really be able to fnd out about. Dd the Pay Offce tell you that he was recevng anythng? Dd you ask Mr. Hoover? I'm sorry, let me ask t ths way. Dd you ask Ed Hoover f he was gettng any moneys at all from the government? 24 ' 25 I I don't know what other moneys you are talkng about. I thnk he s enttled to sck leave and annual leave. nd

34 34 I : he used those. \ nd you testfed that he had used all those. 3 t 4 ; 3 : That's rght. Does that get replnshed? No, t does not. fj ll rght. Then he had used up all hs enttlements? ", 10 " I 11 ' t t 12 I The ones that I was aware of, yes. Dd you ask f there was anythng else he was gettng? No. No, you ddn't. Can we presume that Mr. Pletten was recevng not dme one from the Federal Government, from what you just testfed? 13 I don't know what Mr. Pletten was recevng. m 0 0 r- O o u 0 o 0 3 ds H UJ < a. a tu X I 22 I 23 24! 25! But based on your nvestgaton you ddn't thnk he was gettng anythng? I wasn't nvestgatng to see what knd of money Mr. Pletten was gettng. You obvously went to the pont where you knew whether he had annual leave or sck leave. That's rght, because I am responsble for managng that for the employees n my branch. nd f an employee s on extensve leave I should know about that. I should know how ther leave balances are. nd all ths beng the case, f he wasn't costng the Government anythng by just beng on the rolls, would

35 35 hs beng on the rolls have been the sole preventatve 'I 2 for your gettng another person nto hs poston? 3 : No. 4. Could you have gotten an addtonal person n your branch j 5 even wth Mr. Pletten on the rolls? 6 j Possbly. "[ Possbly. You seem hestant. 8 I defnte? Why would t be possble as opposed to Jell, I just can't remember all the detals about when thngs happened. Yes, I could have gotten someone. I could have justfed t by Mr. Pletten's not beng there, okay? ll rght. Dd you attempt to do so? Yes." - Do you have documents to support that? Probably not. Dd you wrte somethng to somebody sayng, "I've got ths guy who s out forever and I need somebody"? No. Why not? I just ddn't. You just ddn't. Dd you dscuss t wth Mr. Hoover? Yes. I dscuss my staffng problems wth Mr. Hoover. nd what dd Mr. Hoover say?

36 36 l! 9. I don't remember. You act as f all of our dscussons centered around Leroy Pletten. 3 : No. I know that you have been called for testmony on Mr. Pletten's matter and have been alerted that you are gong to be dscussng Mr. Pletten. nd I expect that some of the memores wll come floodng back to you. Well, I am dong the best I can. 8 I understand But t seems ludcrous to me that the Command would not -- that you would not have made a request for an addtonal person f your need was so large and explaned the crcumstances regardng 13 Mr. Pletten. 14 Do you understand my queston? I understand your statement. ll rght. Why ddn't you do t f you were so pressed? I don't know f I can put ths nto context but, n assessng my staffng needs, I look at a lot of thngs and I have prepared all sorts of budget justfcatons and staffng justfcatons; almost on a quarterly bass Mr. Pletten's absence was one of the factors that entered nto ths but I ddn't prepare anythng that solely centered around replacng Mr. Pletter What poston dd Mr. Pletten have, f any, wth regard to 25 your budgetary consderatons?

37 37! Well, when he was on the rolls he was beng pad. 2 \ 3 4, 5, 6; 'I I 8 j 9 j 10 I 11 But at the tme you made the decson to apply for dsablty retrement he had been off the rolls for fve months. He was on the rolls but -- But he was off the payroll. he was off of leave. Rght, he was out of leave. He wasn't gettng pad was he? Rght. nd he ddn't appear to be comng back to work. Well, f that was the case, why ddn't you just ndcate or why ddn't you ask somebody, "Gve me somebody owng to the crcumstance'.'? Why dd you recommend ths dsablty retrement? I don't know f you've ever been a manager but t s poor management to have somebody just sttng out here n lmbo nether returnng nor beng separated. I mean, they are just sort of there. They are not workng but they are just over there. If a person s dsabled for an extended perod of tme are you tellng me that you'd do somethng wth them one way or the other? You would ether get rd of them or 23 do somethng wth them? I am sayng normally the physcans provde you some prognoss on when they are gong to be able to return and

38 38 f they are gong to be able to return. nd, based on Mr. Pletten's physcans' statements that he had to have an absolutely smoke-free' work envronment and based on the nformaton I receved from our ndustral hygenst and the Command medcal offcer that we could not meet those requrements, t dd not appear that he would be returnng. What nformaton dd you get from the Command medcal offcer? w That Mr. Pletten was not ft for duty untl he could be ; cleared by hs personal physcan to work n our envronment. ' Dd you read doctors' records from Mr. Pletten? No. What do you mean by doctors' records? I'm sorry. Mr. Pletten's doctors' letters. Yes, I have'receved some copes of hs doctors' records. Dd you receve all the.letters? I have no dea. Dd you ask Dr. Holt f you had receved all of the : communcatons? I contacted the dspensary at varous perods of tmes! to try to be sure that I had all the nformaton. But I can't say that I personally talked to Dr. Holt to say,' "Dd you gve me everythng?" Dd you talk wth any of the doctors that sgned the

39 39 letters for Mr. Pletten? No, Why not? Because I rely on the Command medcal offcer to make that knd of determnaton. nd to make that knd of contact? Well, whoever. I don't make the contact wth Mr. Pletten's physcans. Does anybody? Do you know? I have no dea. I mean, n your poston, asde from dealng wth management problems concernng Leroy Pletten, what s t that your branch does? We are responsble for makng sure that employees' postons are accurately classfed and that organzatons are properly structured. In order to do that don't you sometmes have to go do the legwork yourself? We go out and vst the organzatons, yes. To make sure what they are tellng you s accurate; s that correct? _ Yes. If there s a conflct n statements from somebody n one of the organzatons, you resolve the conflct? We try to get enough nformaton, yes.

40 40 So f you had the responsblty of resolvng a conflct between two doctors' letters I presume you would nvestgate further and contact them? No. I don't see that I can resolve a conflct between two doctors. No, I am not sayng that you could. But, f you were n a poston where you were traned n that area wth regard to medcne, that would be good management? I don't know. I don't know what I would do n another area. ll rght. Would t be good management to make thorough nvestgatons of any conflct that comes before a manager? It would depend on what the conflct conssted of. Would you agree wth the statement that the most )b ' nformaton s always the best for a decson maker? I would agree that the most pertnent nformaton s the best. lot of nformaton s rrelevant. re you famlar wth rmy Regulaton 1-8? Is that the one on smokng n occuped buldngs? I don't know, s t? I thnk that's the one. ll rght. nd you are famlar wth that? If that's what t s. That s what t s. When dd you revew t frst?

41 41 I have no dea. Dd you know about t before Mr. Pletten's case came up? No. Had you ever been brefed as a supervsor about t? I was not a supervsor before Mr. Pletten's case came up, When you were made a supervsor dd the Command gve you any drecton as to smokng nsde the buldngs? gan, ths s another area where I am not sure what happened frst. I had begun to get nvolved n Mr. Pletten's case as an ctng Supervsor and I became aware of the regulaton somewhere n the frst part of Dd you seek addtonal gudance from anybody else 14 wthn the Command Personnel Offce as to those regula- :? tons? ' ls Yes. 1 ' From whom? y " From Mr. Hoover. nybody besdes Mr. Hoover? I probably talked wth Mrs. Bertram about t too. Bascally they found whatever nformaton you needed? :: Well, they provded the regulaton. I don't know what other nformaton you are talkng about. Do you know what the defntons of smoke are, for example?

42 Ml ^ T 42 Of smoke? Cgarette smoke and the contents of cgarette smoke? The only defnton I am aware of s what I would consder an ordnary defnton of cgarette smoke. ll rght? When you smoke a cgarette t produces smoke. But you ddn't go nto the detals of any toxc nature of the smoke? No. Dd you seek gudance from the medcal staff wth regard to cgarette smokng? I don't know what knd of gudance you mean. Dd you ask them for nformaton about cgarette smokng and ts effect on employees? No. Dd you take a poll or a survey of your employees to determne f cgarette smokng bothered them? No. Do you yourself smoke? Occasonally. Occasonally. How long have you smoked for? MS. BCON: Objecton for the record as rrelevant. Go ahead. THE WITNESS: Oh, I don't know. Off and on for a couple of years; three years, four years. I

43 43 don't know. I smoke very seldom. If t bothers somebody I take t you put t out? Normally I would ask someone before I smoked f t would bother them. nd f t dd bother them what would you do? I wouldn't smoke. Dd you have the power In your branch, the authorty as the Chef, to ban smokng n the branch? That would normally not be a branch level decson. I had testmony from Mr. Kator, your predecessor, who ndcates that he had such power. Do you stll agree wth that? He could have had such power. But at the tme I became Chef, Leroy's cases had started and, at that tme, I would not have made a branch level decson lke that. Do you have the power now to ban smokng now that Mr. Pletten s removed? I really don't know. I haven't thought about t n terms of a power. Do you have any objectons to bannng smokng n the branch? I don't have any reason to ban smokng n the branch rght now. Presumng Mr. Pletten were renstated, would you have any problems bannng smokng n the branch?

44 44 If t were requred I suppose I could do that. What f t were not requred per se? Then I would have to thnk about t. Have you thought about t? No. You haven't surveyed any of the employees as to ther postons on the ssue, have you? No. Has anybody else complaned to you about the crcumstances? No. How many people n your branch smoke? I don't know. Maybe four or fve. Out of fve or sx? Well, the branch has grown snce Mr. Pletten left. Snce the tme you took ths acton wth regard to retrement? Yes. Ir other words, you got replacements? Yes. How many replacements dd you get? I ddn't get replacements. The program has changed and we have more people now. Your staffng crss s over? _ No, because we have more to do. How many people do you stll need?

45 45 I don't know. Well, your poston s management. Do you need one person more or two persons more? I don't know. Have you made requests for staffng? No, not lately.. I thought you sad you always made them? I contnually make requests but I have not made a recent " request for."x" number of people. > When was the last tme you made a request? Rght now I am workng on a request to get outsde. assstance, not to hre people. Is there any reason you haven't made a request to hre ' people nsde?! < There are not a lot of people who are qualfed for the job. : If Mr. Pletten were avalable would you hre hm? I % If Mr. Pletten's physcan sad he could work, yes, I would consder hm. nd t was your mpresson from readng the letters from' hs doctors that he was dened the ablty to work? It was my mpresson, based on hs doctors' letters and our Command medcal offcer, that he could only work n a smoke-free envronment. nd t was my understandng that lmtng'

46 46 smokng n one branch would not meet hs requrements. Dd you ever consder drectng hm to come back to work? No. Why not? Because f t s a health problem I am not gong to ask someone to come to work whose doctor say3 they can't work n that envronment. nd has Mr. Pletten stated to you that the doctor dd not say that he couldn't come back to work? I don't know f he ever phrased t that way. Mr. Pletten has sad that he s ready to come back to work but he has not been cleared by hs physcan or the Command medcal offcer as far as I know. I just asked you, "Dd Mr. Pletten ever tell you that he had doctor's clearance to go back?" nd you stated that you don't remember hm sayng that? - I don't thnk that s exactly what you sad. ll rght. What dd I say then? I don't know. But I don't know f that's exactly what you sad. MR. COHEN: Can we have that read back? (ueston read back.) (By Mr. Cohen) I understand your confuson now. It s not exactly what I asked. I asked you earler f Mr. Pletten had

47 47 told you that the doctors dd not say that he couldn't go back to work and you sad that you ddn't remember that. nd I now note n gency No. 9 that what you sad was "Mr. Pletten appeared and sad that he could report for duty." Okay. Now, dd you ask hm anythng further than that whch s contaned n document gency No. 9? No. Ths summarzes what happened that day. Wth Mr. Pletten statng that he had a doctor's clearance and you havng based prevous conclusons on the bass of letters that say he could not return, dd 14 that pont out to you the concept that there may now be a change n status? Well, that s why I asked hm to get a doctor's statement and take t to the dspensary so that he could be cleared to return for duty. Owng to the fact that he ddn't, -- I understand that he dd not, based on your statement -- dd you then wrte to hs doctors? No. Dd you ask Mr. Pletten to wrte to hs doctors? No. You ddn't? Why not?

48 48 I told hm to get a doctor's statement. Now that you had a clearer understandng that there was other nformaton why ddn't you seek t? ' It ddn't sound to me as f there was other nformaton. Leroy was sayng the same thng he's been sayng all along. Well, Leroy sad that he had a doctor's clearance n order to return to duty. No. Leroy sad he ddn't need a doctor's statement snce he wasn't sck. Your testmony here n gency No. 9 says at paragraph 2, sentence 2: 4 "He stated that he had a doctor's certfcate from 20 January, and that t cleared hm for duty." :> I'm sorry, you're rght. nd I told hm to take hs certfcate to the dspensary. 1 ssumng that he dd not, dd you nqure further from hs doctors? No. Ddn't you have a conflct as to what the crcumstances were wth regdrd to hs condton? No. It was my understandng that f Mr. Pletten was able to return to work he knew the procedures. He knew that he had to get a doctor's statement and that he had to be cleared by the dspensary:

49 49 When dd you make the applcaton for dsablty retrement? Was that n prl? I guess t was-prl. That means that some three months after ths memorandum for the record you made an applcaton for dsablty retrement for Mr. Pletten; s that true? Yes. The gency dd. t your drecton? t my request. Wth the knowledge that he had a doctor's certfcate or the knowledge that he had represented that he had a doctor's certfcate ndcatng that he was healthy? nd you appled nonetheless? 1 Mr. Pletten dd not take a certfcate, f he had t, to the dspensary. I ddn't ask you that. You made a statement to the Offce of Personnel Management applyng for Pletten 1 s dsablty retrement when you had reason to beleve, at least from hs mouth and that you had not verfed, that he ndeed could work and was not dsabled? Well, f he had such a certfcate I assumed he would go to the dspensary wth t. You made the applcaton for hm, he dd not, why ddn't you check? I had told Leroy what he had to do and he chose not to

50 50 do t. You told me prevously what you had to do, and that s overturn every last shread. Before we separate we have to try "everythng possble." nd you have obvously not done everythng possble; sn't that correct? Well, I suppose t would depend on how you nterpret everythng possble. I told Leroy specfcally what he had to do and he dd not do t. I ask you to look at Tab 2-D, plus a couple, at a notaton from Bruce Dubn, D.O. It s typed out at the bottom. re you famlar wth that? I don't know f I've seen that or not. You've never seen t?.1 don't recall seeng ths. Now that you've seen t, doesn't t do somethng to your opnon as to whether he needed a reasonably free area or an absolutely smoke-free area? It doesn't do anythng to me because I had to rely on the Command medcal offcer to say whether or not that cleared hm to return to duty. But, Ms. verhard, knowng now that that exst, wouldn't t put some doubt n your mnd as to whether he needed a reasonably free or an absolutely smoke-free area? I don't know what he needs. Hs doctor says that he needs a smoke-free envronment.

51 51 Doesn't t say, "an envronment reasonably free of contamnaton"? I don't know what hs doctor means by reasonably free. I understand that. But wouldn't that lead you to queston hm as to what he meant by that? I would not queston hs doctor. I would ask hm as I asked hm then to take that statement to the dspensary. Whch obvously got there because t s n the record as suppled by the gency. In ths crcumstance would you -- you are a pretty thorough woman n the busness you do -- wouldn't you contact the medcal offcer for the faclty and ask? I don't assembly the package. They go to Dsablty Retrement but I don't know everythng that goes nto t or who s contacted. Dd you ask them f he was dsabled? Dd I ask who f he was dsabled? The medcal offcer. Dd you ask hm, "Do you thnk I should apply for hs dsablty?" No, I ddn't ask hm, "Do you thnk I should apply for. hs Why dsablty". not? I ddn't see that t was requred. Nothng s requred necessarly but sn't t logcal to fnd out whether you have a chance before you do somethng?

52 52 To the best of my knowledge at the tme I requested t, Mr. Pletten's doctor had sad that he could not work n the envronment that we had. Now whether t was reasonably or another word, I don't know. s far as I knew he could not work n our offce. You ndcated n gency No. 9 that you contacted the dspensary to determne f t had been brought there and you were under the belef that t had not. That's true. If I were to tell you that Mr. Pletten would testfy that that had already been brought to the dspensary, what would that do? I don't know what you mean. What would t do? I mean, would that change your poston? Would that note have changed your poston had you had t on January 20, some four months before you appled for hs dsablty retrement? If the dspensary had receved that and had cleared hm as a result of t, I am assumng I would have been notfed. In other words, the whole problem I have then s wth the dspensary? I guess you are tellng me that I have to drect my questons to the dspensary? I guess you.wll. Okay. In that regard I guess I wll. Let me go on to

53 53 some other areas. In your opnon or mpresson now, s the only thng stoppng Mr. Pletten from comng back to work -- asde from the adverse acton taken -- a note clearng hm by the medcal faclty at the Command? I don't know what the procedures are after an employee has been separated. Let's say t's proven that the medcal offcer ddn't really do a complete job and let's assume I wn on : '' Mr. Pletten's behalf, would you take hm back? ' Rght now, f he.were clear, would you take hm back? MS. BCON: I thnk that s an mproper : queston. If actons are- taken ether way as a result ' '-' of a decson then certan actons wll be drected -- ' ' MR. COHEN: ll rght. Let me rephrase " 1 t then, Ms. Bacon. ' ' (By Mr. Cohen) Would you mnd havng hm back as an ' * employee? I don't have any personal negatve feelngs about Mr. Pletten.!. Do you have any msgvngs about hm comng back f that would be the case? If Mr. Pletten s told or whatever the crcumstances are that he comes back, he comes back. I don't look on ths as a personal ssue so I don't really know what you are '