# Appendix — David v. Defense Logistics Agency

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1986
- **Citation:** 477 U.S. 906

## Text

\,
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.
COURTIER

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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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1919%3A2. Public record. Not legal advice.