Appendix — David v. Defense Logistics Agency

\,

8 5 - 1899 ory "4 - a

\ MAY 16 1986

NO. JOSEPH F. SPANIOL, .'R

i} CLERK

IN THE SUPREME COURT OF THE a —

OCTOBER TERM, 1985

BLANCHE A. DAVID, Petitioner,

Vv.

DEFENSE LOGISTICS AGENCY, Respondent.

APPENDIX

TO PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEAL

FOR THE FEDERAL CIRCUIT

JOHN MURCKO, Esq.

506 - 15th Street

Suite 500

Oakland, CA 94612

(415) 465-2241

Attorney for Petitioner

TABLE OF CONTENTS

Page

Decision of the Court of Appeal

dated September 18, 1985.............. la

Order of the Court of Appeal dated

Pebruary 27, 1966. .ccccccccscscvcvscces 3a

Decision No. SF07520410811 of the

MSPB dated September 24, 1984......... ba

Memo of E.B. McGowan, 2 June 1978..... 23a

Medical Statement of S. Waller,

Melis gn BO MD BPTOs cv ceccswvccsouvcecves 24a

R.I. Iverson letter, February 23,

Dicks hp etmrawe ke neainadi ss 6 0'sv.00* 27a

Petition to Improve Air Quality at

EET VT EEE REECE LETTE CT CEES 29a

Federal Labor Relations Authority

charge, 29 December 1982............. 3la

Letter of Ann Wansley, 14 June 1983...33a

Declaration of Blanche David of

LZ JaMUATY 1963. ccccccvcvevvecesecocs 36a

Letter of Dr. Mackler of 9 September

| BR re ee ey ere 40a

Cee OC BE. BBs ce cc ctcccerescséons 43a

Letter of John Murcko, August 22,

i Terre Te. eee ee Tee eee 45a

TABLE OF CONTENTS (continued)

Page

Decision of Defense Logistics

Agency dated May 18, 1984......... 49a

ii

UNITED STATES COURT OF APPEALS FOR

THE FEDERAL CIRCUIT

Appeal No. 85-1904

BLANCHE A. DAVID, Petitioner,

Vv.

DEFENSE LOGISTICS AGENCY, Respondent.

\¥ 5

DECIDED: September 22, 1983

Before MARKEY, Chief Judge, COWEN, Senior

Circuit Judge, and BALDWIN, Circuit Judge.

BALDWIN, Circuit Judge.

DECISION

The decision of the Merit Systems

Protection Board sustaining petitioner's

removal for absence without leave and

failure to request leave in accordance

with established procedures is affirmed.

OPINION

Petitioner's arguments are adequately

treated in the board opinion dated Septem-

2a

ber 24, 1984. We affirm on the basis

of that opinion.

3a

UNITED STATES COURT OF APPEALS FOR

THE FEDERAL CIRCUIT

Appeal No. 85-1904

BLANCHE A, DAVID, Petitioner,

Vv.

DEFENSE LOGISTICS AGENCY, Respondent.

ORDER

A petition for rehearing and a

suggestion for rehearing in banc having

been filed in this case.

UPON CONSIDERATION THEREOF, it is

Ordered by the court that the petition

for rehearing be, and the same is hereby,

Denied.

The suggestion for rehearing in banc

is declined.

FOR THE COURT

Francis X. Gindhart,

Clerk

Dated: February 27, 1986

=

ha

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

SAN FRANCISCO REGIONAL OFFICE

BLANCHE A. DAVID

Vv.

DEFENSE LOGISTICS AGENCY

Decision No. SFO7528410811

Date: September 24, 1984

INTRODUCTION

Blanche A. David, (appellant) appeals

her removal as a Procurement Clerk (typing)

by the Defense Logistics Agency (agency)

for absence without leave (AWOL) and

failure to request leave properly. For

the reasons stated below, the agency

action is affirmed.

JURISDICTION

The Merit Systems Protection Board

(Board) has jurisdiction over appeals

like this one involving the removal of

employees who are non-probationary and in

Oo

es as pai ee oi elaeiamnamlalll

5a

the competitive service. 5 U.S.C. sections

7511-13 and 7701.

FACTS, LAW, ANALYSIS & FINDINGS

Three distinct elements must be shown

in any conduct-based adverse action like

this one: (1) that the alleged conduct

occurred; (2) that there is a nexus between

the conduct and the efficiency of the ser-

vice, that is, there is a need for some

disciplinary action; and (3) that the

particular penalty imposed is reasonable.

Douglas v. Veterans Administration, 5 MSPB

313, 329-330 (1981). These three elements

will be discussed individually below along

with pertinent facts, law and analysis,

Occurrence of Conduct

The agency removed the appellant effec-

tive May 18, 1984, by decision letter dated

May 3, 1984 for AWOL between the period

December 1, 1983 until March 7, 1984 (the

date of the notice of proposed removal).

Some background is necessary.

6a

Appellant last reported for work with

the agency on May 13, 1983. She was on

leave the week of May 16, 1983. The agency

next heard about the appellant on June 7 or

8, 1983, when it received a telephone call

from an unidentified individual who indi-

cated that appellant was hospitalized and

would be unable to return to work. The

caller refused to leave a name, telephone

number or any other information.

Thereafter the agency made numerous,

unsuccessful attempts to contact the appel-

lant and to obtain from her the reason that

she was not reporting for work.

For example, on June 19, 1983. appel-

lant's supervisor wrote to her home, en-

closed an SF-71 and self-addressed envelope

and requested that appellant respond; on

August 8, 1983, another supervisor again

wrote to appellant, enclosed a SF-71 and

self-acdressed envelope and requested in-

formation relative to appellant's health,

—=—_—

7a

expected return to duty and appellant's

wishes with respect to accumulating pay-

checks. Similar unsuccessful attempts were

made by the agency on August 23, 1983,

October 27, 1983, November 16, 1983,

November 25, 1983, and Deceuber 5, 1983.

Indeed the only responses from or about

the appellant between June 8, i983 and the

notice of proposed removal in March 1984

were: an SF-71 dated August 8, 1983, bear-

ing appellant's signature and requesting

sick leave from May 16, 1983 to an unknown

date in the future which did not contain as

requested by the agency a doctor's state-

ment or prognosis; a telegram received

November 8, 1983, from appellant asking

that the agency mail certain compensation

forms to her}; another telegram dated

November 21, 1983 from appellant indicating

l. This request was complied with by the

agency through its November 16, 1983

letter to appellant.

8a

that she intended to file compensation

claim forms and requesting that her leave

¥

status be changed from sick leave to

leave without pay’; a telephone call on

November 29, 1983 from a woman who re-

fused to identify herself and who said

that appellant would be having surgery on

November 30, 1983; another telephone call

on November 29, 1983 from a nurse in a

doctor's office who said she was trying to

confirm appellant's hospital appointment.”

2. This was responded to by the in its

November 25, 1983 letter, in the

agency

declined to honor the request for sick leave or

leave without pay since it had not received the

requested medical certification or any infor-

mation concerning appellant's status.

3. At the hearing, appellant indicated also that

she had submitted a Jume 2, 1983 SF-171 re-

questing 112 hours of sick leave, a September 8,

1983 SF-171, and a September 8, 1983 letter

from her doctor describing her medical condition

and estimat that she could return to work

in Jarwary 1984. The agency has stated credibly

that it did not receive these documents. I

would also note that after the time that these

documents were purportedly submitted the agency

on several occasions informed the appellant

that it had not yet been provided with medical

certification and included SF-171's which the

appellant did not return.

9a

Despite the agency's inability to ob-

tain from appellant the necessary requests

for leave along with supporting documenta-

tion, it carried the appellant in a sick

— status up until December 1, 1983. At

that point she was placed in an AWOL status.

Even after that time, however, the agency

attempted, again unsuccessfully, to com-

municate with appellant and obtain the

necessary SF-71 and requested documentation.

The agency proposed appellant's removal

by letter dated March 7, 1984. Thereafter,

a letter signed by appellant was forwarded

from the agency's Los Angeles offices and

considered by the deciding official as the

equivalent of a written response. “

Again,

the agency removed appellant effective

May 18, 1984 by decision letter dated

May 3, 1984.

4. This letter indicated that appellant intended

to file a claim umder the Federal Tort Claims

Act, acknow receipt of the proposed

removal and various other claims concern-

— the proposal’s unconstitutionality and

s.

aerial

eis ;

l0a

Appellant appealed timely to the Board

and requested a hearing. That hearing was

held July 19, 1984 and five days thereafter

the record was closed.”

5. Late in the afternoon the day before the hear-

ing an attorney representing the appellant

requested a continuance. He stated that-he had

to meet with the appel-

she were prepared to

proceed with the and that the appellant

appeared ill. No ics 1-

lant's illness were provided. That motion for

In that regard, I note

that the agency attempted unsuccessfully to

contact the appellant in order to fulfill obli-

—- imposed by the pre order. Simi-

difficulties were the under-

lla

In relation to the agency's AWOL charge

and the charge that appellant failed to re-

quest leave in accordance with established

procedures, the agency must prove the oc-

currence of an unauthorized absence, that

there was no leave status except AWOL which

Was appropriate and that the appellant was

aware of the agency's leave regulations but

refused to follow them. McDonough v. U.S.

Postal Service, 4 MSPB 441 (1980), aff'd

666 F.2d 647 (lst Cir. 1981); and Bavier v.

Departmemt of Transportation, 5 MSPB 73

(1981). While an agency is required to

grant sick leave in some circumstances (not

applicable here), an employee must support

any sick leave request with acceptable evi-

dence and for absences in excess of three

work days, must submit a medical certifi-

cate or an administratively acceptable

attempting to obtain such services. See

Se OO Se ee aioe,

t No. amuary 20, 1983) and

Townsend v. artment of iculture, MSPB

Docket No. eee ceeraeee 29, 1982).

re

l2a

employee certification. 5 C.F.R. Sectic

630.401 and 403; Master Agreement, Defense

Logistics Agency and DLA Council of Locals,

April 1983, Article 25, Section 2; and

Zeiss v. Veterans Administration, 7 MSPB

6

516 (1981). Also, administrative leave

is grantable only in the agency's discre-

tion and only in instances where the agency

can expect an employee to return to duty

and where the granting of such leave off-

sets such factors as the encumbrance of

the position. Federal Personnel Manual,

Chapter 630, Subchapter 12.

The probative evidence in the instant

appeal shows that the appellant was sched-

uled for duty during the time charged,

that she did not report, that the agency

informed appellant that medical certifica-

tion was needed on numerous occasions and

6. Of course, the Board will enforce agency leave

regulations to include those contained in a

collective bargaining agreement. Geisler v.

Department of Transportation, 3 MSPB 367 (1981).

l3a

that the appellant failed to comply with

the agency's request.’

The agency has proven by a preponder-

ance of the evidence that the appellant was

AWOL between the period December 1, 1983 to

March 7, 1984 and that she failed to follow

regulations in requesting leave.°

The Nexus Between the Conduct and the

Efficiency of the Service

The conduct charged must impair the

efficiency of the service. E.g., Gallagpher

7. The agency evidence shows that it properly exer-

cised its discretion in not putting the appel-

lant in leave without pay status since it could

not afford to encumber the position in that way.

8. While the appellant has not raised this matter,

I would be remiss if I did not address the ques-

tion as to whether the agency had an obligation

to file for disability retirement on appellant's

behalf. In my view, the agency had no such obli-

gation since it did not know and had mo reason

to know on the basis of the evidence befcre it

that the appellant was disabled from performing

her job or that she was mentally incompetent to

file an application on her own behalf. Brink v.

Veterans Administration, 4 MSPB 419 (1980); and

Rodri v. Department of the Army, 10 MSPB

262 CORD) Indeed, even at the present time

there is no evidence of such mental inability

or incapacity to perform the duties of the posi-

rr See new regulations at 49 Red.Reg. 1328

( Pe

—————ooo

l4a

v. U.S. Postal Service, 6 MSPB 482 (1981).

Clearly, absence from work interrupts the

efficiency of the service. E.g., Chiaverini

v. United States, 157 Ct.Cl. 371 (1962).

Accordingly, I find a direct nexus between

the appellant's conduct and the efficiency

of the service.

The agency has established by a pre-

ponderance of the evidence that "some pun-

ishment"’ was appropriate. I will now dis-

cuss whether the particular punishment -

removal - promotes the efficiency of the

service.

The Reasonableness of the Penalty

As explained in Douglas at 332, the

Board's role in evaluating the reasonable-

ness of an agency imposed penalty is to

determine after a responsible balancing of

the relevant factors, whether the agency

decision comes "within tolerable limits of

reasonableness."' To assist in that deter-

mination, the Board in Douglas at 333, pro-

15a

vided a list (not necessarily exhaustive)

of the generally recognized mitigation and

aggravating factors which should be consid-

ered. The factors relevant in the instant

appeal include the nature and seriousness

of the offense, supervisory confidence in

the appellant's ability to perform assigned

tasks, the clarity with which the appellant

was on notice of the rule3 violated, her

past work and conduct record, and her po-

tential for rehabilitation.

Appellant's offense was serious, par-

ticularly in view of the five and a half

month length of the AWOL and her absence

for the nearly seven months ovivheus. E.g.

Huston v. Department of the Air Force, 6

MSPB 223 (1981). And there is little

doubt, judging from the averments of

appellant's supervisors that they have lost

confidence in her ability to appear at work

and perform the duties assigned to her.

Also, appellant was clearly on notice

rT

l6a

of leave requirements since the agency

informed her in numerous correspondence

and advised her of the penalty (possible

removal) for failure to comply. Likewise,

appellant's failure to comply in the face

of numerous opportunities reveals that she

has little potential for rehabilitation.

I am mindful that appellant is a long

term employee who in the past has performed

her job well and had no attendance problem.

These factors are insufficient to outweigh

the seriousness of this lengthy AWOL

offense.

Further, I have also considered that

the appellant for at least part of the AWOL

period was undergoing medical treatment.

However, there has been no showing that

appellant's health problems prevented her

from complying with the somewhat simple

procedure of presenting sufficient SF-17ls

and medical documentation if she was indeed

too ill to appear for work.

17a

In view of my analysis of the appro-

priate factors I find that the agency has

proven the facts underlying its penalty by

a preponderance of the evidence and has

shown that the penalty imposed was within

tolerable limits of reasonableness for the

offenses sustained.

AFFIRMATIVE DEFENSE

Even though the agency has established

the occurrence of the conduct and that re-

moval was reasonable, the agency action

must be set aside if the appellant can

show that it was "based" on a prohibited

personnel practice. 5 U.S.C. Sections 7701

(c)(2)¢B); and Stewart v. United States

Postal Service, 8 MSPB 427 (1981). In that

regard appellant claims that the agency

removed her in retaliation for providing

affidavit and other support to another em-

ployee engaged in litigation against the

agency and for disclosing information dur-

ing that proceeding which appellant

| |

18a

reasonably believed evidenced a substan-

tial danger to public health or safety.”

To prove such a claim, appellant has

the burden to show that (1) she was engaged

in a protected activity; (2) she was trea-

ted adversely by the agency; and (3) there

is a causal link between the protected

activity and the adverse action. Valerino

v. Department of Health and Human Services,

7 MSPB 347 (1981). Even assuming appellant

10 and

was engaged in a protected activity

that the agency adversely treated her

(removal) she has not shown a causal link

between the protected activity and the ad-

verse action. Indeed, despite appellant's

long absence the agency did not even put

the appellant in an AWOL status until Dec-

ember 1, 1983 and did not take action

against her until March 7, 1984. Before

9. In this other proceeding, appellant provided

evidence concerning alleged environmental health

hazards which existed at the agency facility.

10. See e.g., 5 U.S.C. 2302 (b)(8) and (9).

19a

that time she was given numerous opportun-

ities to conform her obviously improper

conduct to agency regulations. She did not

do that and the agency removed her for AWOL

and failure to comply and not decwnee of

any participation in a law suit or because

of any disclosure of information.

The appellant has failed to prove by

a preponderance of the evidence that the

agency retaliated against her, +}

CONCLUSION AND DECISION

The agency has established by a pre-

ll. It is unclear whether the appellant is making

a claim of handicap discrimination in viola-

tion of the Rehabilitation Act of 1973, 29

U.S.C. Section 791. In any event, appellant has

not shown that she is handicapped, that the

agency knew or should have known of any handicap

or that the disciplinary action taken against

her was because of her handicap. Stalkfleet v.

U.S. Postal Service, a; Henderson v. U.S.

Coast Guard, MSPB ATO 10362 (Jamary 21,

1983); and Webb v. U.S. Postal Service, 9 MSPB

749 (1982). Similarly, appellant's generalized

claims in her petition for appeal concerning

the unconstitutionality of the agency action

and other asserted violations are unsupported

by evidence.

20a |

ponderance of the evidence that the appel-

lant committed the conduct charged and that

removal is a reasonable penalty for such

conduct. Further, the appellant has failed

to show by a preponderance of the evidence

that the agency committed a prohibited

personnel practice.

The agency's removal decision is

AFFIRMED.

APPEAL RIGHTS

This is an initial decision of the

Merit Systems Protection Board. Any party

or the Office of Personnel Management may

seek to have it reviewed by the Board by

filing an original and two copies of a

petition for review with the Secretary,

Merit Systems Protection Board, 1120 Ver-

mont Avenue, N.W., Washington, D.C. 20419,

in accordance with 5 C.F.R. Section 1201.

114 and .115. The petition for review must

be filed on or before October 29, 1984, and

must set forth objections to the initial

2la

decision, supported by references to app-

licable laws, regulations, and the record.

This initial decision will become a

final decision of the Board on October 29,

1984, unless a petition for review is filed

by that date or the Board reopens the case

on its own motion. 5 C.F.R. Sections

1201.113 and .117.

If the appellant wishes to contest the

Board's final decision on the issue(s) of

discrimination (s)he has raised, (s)he may

obtain administrative review of the (those)

issue(s) alone by filing a petition for

review with the Equal Employment Opportun-

ity Commission (EEOC) within 30 days of the

date the initial decision becomes final. 5

U.S.C. Sections 7701(b)(1) and 7702(b) (3) (B).

If the appellant wishes to contest the

Board's final decision on the issue(s) of

discrimination and has not filed a petition

with ZEOC, (s)he may obtain judicial review

of all -«sues by filing a petition with an

22a

appropriate United States District Court

within 30 days of the date the initial

decision becomes final. 5 U.S.C. Sections

7702(a)(3) and discrimination which were

brought before the Board under 5 U.S.C.

Section 7702, appellants have the right

to request the court to appoint an attorney

to represent them. 42 U.S.C. Section

2000e-5(£) (2).

If the appellant chooses not to con-

test the Board's final decision on the dis-

crimination issue(s), (s)he may obtain

judicial review of the other issues by

filing a petition with the United States

Court of Appeals for the Federal Circuit,

717 Madison: Place, N.W., Washington, D.C.

20439. Such a petition must be received

by the Court within 30 days of the date

the initial decision becomes final. 5

U.S.C. Section 7703(b)(1).

FOR THE BOARD:

SAMUEL A. VITARO

PRESIDING OFFICIAL

23a

FROM MERIT SYSTEMS PROTECTION BOARD

UNITED STATES GOVERNMENT

MEMORANDUM

Dated: 2 June 1978

TO: DCRL-GFP

FROM: DCRL-GFP (LTC MC GOWAN/69537/pjr)

SUBJECT: Potential Problem with Air

Circulation System

Attached is a medical statement from

Letterman Army Medical Center that our buil-

ding air conditioning bstem may contain

allergen thermophilic actinomyces. It is

requested that this matter be referred to

the GSA for appropriate investigation/

action.

E.B. MC GOWAN

LTC, ORDC, USA

Chief, Production

Division

Encl.

24a

FROM MERIT SYSTEMS PROTECTION BOARD

DEPARTMENT OF THE NAVY

Letterman Army Medical Center

Presidio of San Francisco, CA 94129

26 May 1978

RE: SCOTT, DORIS

MEDICAL STATEMENT

I began seeing Ms. Scott on 16 May

1978 for multiple medical complaints. At

that time she stated that since beginning

work in a new building at the same job and

with the same co-workers in July 1977, she

has had frequent episodes in which she

develops over the period of 1-2 days a

feeling of nasal congestion, dry cough,

chest congestion, and general malaise. The

symptoms persist through the time she works

in the building during the week and then

disappear following her being home from

work on the weekend or over holidays.

Within 1-2 days of returning to work she

develops the same symptom complex. She

states that several co-workers have told

25a

her that they have had the same symptoms

since moving into the present building

although not to the same degree as she has

had them. |

Ms. Scott's symptoms are strongly sug-

gestive of contact with an air-borne aller-

gen, thermophilic actinomyces, which lives

in some air conditioning and heating sys-

tems. I have arranged for Ms. Scott to see

a pulmonary specialist in regard to the

symptoms, and this appointment hes been

made for 28 June 1978. In the interim I

feel that it is medically indicated that

Ms. Scott be transferred to a place of em-

ployment outside the current building in

which she is working or be granted a leave

of absence for medical reasons until her

Symptoms are further investigated. Ms.

Scott is not, specifically, medically dis-

abled at this time and should be able to

continue to work at the same or similar

duties at which she is employed, but

26a

should simply do so in a building geogra-

phically removed from the one in which she

is experiencing her symptoms.

STEPHEN F. WALLER, M.D.

Major, MC

Neurology Clinic

27a

FROM MERIT SYSTEMS PROTECTION BOARD

Dated: 25 February 1983

DCRL-GFB

SUBJECT: Improvement of Air Quality at

DCASMA, San Francisco

Mr. John C. Hackman

P.B.S. Operations Branch

General Services Administration

555 Battery Street, Room 503

San Francisco, CA 94111

Dear Mr. Hackman:

Reference: Building survey conducted

by GSA Representative, Mr. Hackman, on

Friday, 18 February 1983.

To further supplement our discussion

on Friday concerning air conditioning pro-

blems at DCASMA, San Francisco Headquarters

Building, 1250 Baynill Drive, a copy of a

complaint and petition which I was made

aware of after your visit is enclosed. I

believe this is a good example of the type

of employee complaints we are receiving and

it also identifies the physical ailments

employees are experiencing.

28a

It is suggested that GSA request the

lessor to inspect the air conditioning

system in the building for the purpose of

providing better circulation.

Sincerely,

R.I. IVERSON

Captain, SC, USN

Commander

Concur

DCRL-GFA ELAINE F.

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BEST AVAILABLE COPY

33a

FROM MERIT SYSTEMS PROTECTION BOARD

U.S. EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION

San Francisco District Office

10 United Nations Plaza

San Francisco, CA 94102

14 June 1983

Director, Equal Employment Opportunity

Defense Logistics Agency

ATTN: KLA-KE

Cameron Station

Alexandria, VA 22314

Re: Helen B. Bellew and Elisa

Fernandez vs. Defense Contract

Administration Services

Management Area, San Francisco

EEOC Cases No. 091-83-X0097 and

091-83-x0098

Dear Sir or Madam:

Transmitted herewith are two copies of

the Recommended Decision on the discrimina-

tion complaints of Helen B. Bellew and Elisa

Fernandez, employees of the Defense Contract

Administration Services Management Area,

San Francisco. The two cases were consoli-

dated for purposes of the hearing and the

Recommended Decision.

Also enclosed please find the case

34a

file and correspondence file for each case,

and a folder containing the exhibits ad-

mitted in evidence at the hearing and

post-hearing.

The original copy of the transcript is

enclosed. One copy has been forwarded to

the EE Manager, Defense Contract Adminis-

tration Services Region, Los Angeles.

That office has agreed to make two addi-

tional copies and forward them to you.

Ur.fortunately, the Court Reporter furnished

only an original and one copy of the trans-

cript. (But see page 80 of the transcript).

At the time of your decision on this

matter, a copy of this Recommended Decision,

and a copy of the transcript, must be for-

warded to each complainant, separately.

Additionally, a copy of your decision and

this Recommended Decision should be for-

warded to Ms. Bellew’s representative. 29

CFR 1613.221.

I would appreciate receiving a copy

35a

of your final decision(s) on these cases.

Very truly yours,

Ann Wansley, Attorney

Examiner

Enclosures

cc (w/o enclosures):

Helen B. Bellew

Elisa Fernandez

Blanche A. David

Jenifer B. Smith

Marie R. Seckler

36a

FROM MERIT SYSTEMS PROTECTION BOARD

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 80-7671

IRENE D. PARODI, Petitioner,

Vv.

MERIT SYSTEMS PROTECTION BOARD,

Respondent,

and

OFFICE OF PERSONNEL MANAGEMENT ,

Intervenor-Respondent.

AFFIDAVIT OF BLANCHE DAVID

I, BLANCHE DAVID, under penalty of

perjury declare and say:

1. I am over the age of 18 years, I

am a resident of California, and I am not

a party to the above-entitled action.

2. I am employed at the Defense Lo-

gistic Agency, San Bruno, California. My

job at the DLA is that of senior research

clerk. I am familiar with the facility,

including the main contract room and the

computer room.

37a

3. I have reviewed the job descrip-

tion of the position offered MRS. PARODI,

which is marked Exhibit "A", attached here-

to and incorporated herein by this refer-

ence. The position is that of "senior

research clerk", which is the same as my

job. I am therefore highly qualified to

evaluate the responsibilities of that job.

4. Although MRS. PARODI has been

assigned to the computer room, the job will

require MRS. PARODI to spend most of her

time away from her desk and in the large

contract documents room where she was

assigned before. The job requires that she

meet with ACOs throughout the building. Her

work space is therefore approximately 29,000

square feet, none of which is smoking-

restricted. She must review files and

contracts, all of which are located in the

larger contract documents room.

5. It is impossible to perform the

job of research clerk usefully or effi-

38a

ciently by staying in the computer room. It

is my opinion that MRS. PARODI would neces-

sarily spend at least 3-to-4 hours per day

in the main working area where the smoky

air makes her sick.

6. The large contract documents room

has very bad air quality. Many of the em-

ployees and supervisors smoke. The issue of

smoking is very sensitive, and any employee

who asks a supervisor to quit smoking risks

receiving a poor job report.

7. We have been in contact with the

health and safety officers regarding the

ventilation and air conditioning in the

building, but nothing has been done to in-

prove the same since MRS. PARODI left work

in 1979.

8. The position of research clerk is

a ''dead-end" job. I have been in the posi-

tion since 1977, when I was demoted pursuant

to a Reduction In Force notice, and I have

been a GS-5 ever since. In fact, I had been

ata cate eT

39a

promised to be promoted to a GS-7 as far

back as 1968. The research clerk position

offers no opportunity at advancement, and I

expect that I will never receive a promo-

tion and will retire a GS-5.

By contrast, a procurement clerk posi-

tion offers the possibility of advancement,

in many cases all the way to GS-12.

I certify and declare under penalty of

perjury that the foregoing is true and

correct, except as to those matters stated

on information and belief, and as to those

Matters I believe it to be true. I certify

and declare under penalty of perjury that

this Affidavit is executed on the 12th day

of January, 1983.

B DAVID

State of California) on

County of San Mateo)

Subscribed to and sworn before me this

12th day of January, 1983.

Notary Public for the

State of California

40a

FROM MERIT SYSTEMS PROTECTION BOARD

DAVID L. MACKLER, M.D.

A Professional Corporation

Internal Medicine

4141 Geary Boulevard

San Francisco, CA 94118

September 9, 1983

TO WHOM IT MAY CONCERN:

RE: BLANCHE DAVID

The above mentioned patient has been

under my care since June 3, 1983 when she

was hospitalized for extensive, severe

pneumonia. |

She was almost blind in both eyes by

cataracts. The one in the right eye was

removed in July 1983.

In addition, the patient is being

treated for severe osteoporosis which has

caused lordosis of her thoracic spine.

Her lung condition is slowly improv-

ing, and she is to have the cataract in her

left eye removed in October 1983. Follow-

ing cataract surgery, it is estimated that

|

4la

Mrs. David will not be able to return to

work until January 1984.

Very truly yours,

DAVID L. MACKLER, M.D.

DLM/ jhp

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45a

FROM THE MERIT SYSTEMS PROTECTION BOARD

JOHN MURCKO

Attorney at Law

436 Fourteenth Street (Suite 728)

Oakland, CA 94612

August 22, 1984

Samuel A. Vitaro

Presiding Official

Merit System Protection Board

525 Market Street, Suite 2800

San Francisco, CA 94106

Re: Blanche aA, David v. DLA

No. SF0O7528410811

Dear ALJ Vitaro,

Please be advised that I am writing

this letter on behalf of Ms. David. On

August 22, 1984 I called the MSPB regarding

the case of David v. DLA. I notified you

that Ms. David was in my office and wished

to retain me to represent her at the hear-

ing scheduled for tomorrow. I notified you

that she has made attempts for the last

three months to obtain an attorney to rep-

resent her before the MSPB without success.

46a

Everyone said that they do not know the

procedures and could not represent her.

As I explained to you, Ms. David obtained

my name from Ms. Parodi one week ago. She

called my offices on Monday, August 20,

1984. I returned her call today and spoke

to her about it. I told her that I would

represent her provided that I could obtain

a continuance of the hearing from August

25, 1984 to mid-October, 1984. I am occu-

pied until September 6, 1984 and then I

will be going on vacation until September

25, 1984.

During our telephone conversation I

notified you that I could not be prepared

in one day to handle the case. I also told

you that Ms. David was a sick woman because

she has osteoporosis, asthma and a lung

disorder. She appears very weak and has

extreme difficulty functioning. I do not

believe that she is physically or mentally

capable of representing herself. You

47a

etated that you wuuld aol giant her a con-

tinuance because the case ‘aust be done.

I spoke to counsel for DLA, Ms. Jenn-

ifer Smith who also refused to stipulate

to a continuance. It is my understanding

that all of the witnesses that have been

subpoened are from San Mateo County. There

are three witnesses.

I am asking you again please grant

Ms. David a reasonable continuance so that

she can have representation at the hearing.

The other side has an attorney and she

should have the right to have one also.

Sincerely,

John Murcko

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