05970099
10-08-1998
Roger Pulido, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Roger Pulido v. Department of the Air Force
05970099
October 8, 1998
Roger Pulido, )
Appellant, ) Request No. 05970099
) Appeal No. 01956530
v. ) Agency No. HPOF95008
)
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
________________________________)
DENIAL OF RECONSIDERATION
INTRODUCTION
On October 29, 1996, Roger Pulido (hereinafter referred to as appellant)
timely filed a request for reconsideration of the decision in Pulido
v. Dep't of the Air Force, EEOC Appeal No. 01956530 (October 9, 1996).
EEOC regulations provide that the Commissioners may, in their discretion,
reconsider any previous Commission decision. 29 C.F.R. �1614.407(a).
The party requesting reconsideration must submit written argument
or evidence which tends to establish one or more of the following
three criteria: new and material evidence is available that was
not readily available when the previous decision was issued, 29
C.F.R. �1614.407(c)(1); the previous decision involved an erroneous
interpretation of law or regulation, or material fact, or a misapplication
of established policy, 29 C.F.R. �1614.407(c)(2); and the decision is of
such exceptional nature as to have substantial precedential implications,
29 C.F.R. �1614.407(c)(3). For the reasons set forth herein, appellant's
request is denied.
ISSUE PRESENTED
The issue presented is whether the previous decision properly affirmed
the agency's final decision dismissing appellant's complaint for failure
to timely contact an EEO counselor.
BACKGROUND
The following is a summary of the lengthy and complicated procedural
history of the instant case.
In 1979, appellant injured his back while working as a WG-6 Warehouse
Worker for the agency. Thereafter, the agency apparently determined that
appellant was disqualified from his WG-6 position and offered him a GS-3
position that was within his medical limitations as an alternative to
disability retirement or separation. In May 1984, appellant filed an EEO
complaint alleging discrimination based on national origin (Hispanic),
color (brown), sex (male), and physical disability (back injury)
when his GS-3 Supply Clerk position was not reclassified at a higher
grade level. The parties' March 1987 settlement agreement regarding the
above complaint provided that the agency would place appellant in a WG-4,
Step 5, Warehouse Worker position with reasonable accommodation for any
documented lifting restriction.
Thereafter, petitioner alleged that the agency had breached the settlement
agreement. The decision in Pulido v. Dep't of the Air Force, EEOC Appeal
No. 01901479 (April 24, 1990) agreed that the agency had breached the
settlement agreement and ordered the agency to offer appellant the
position of WG-4, Step 5, Warehouse Worker, effective April 4, 1987,
with appropriate backpay and benefits.
In January 1991, appellant filed a petition for enforcement of the
Order in EEOC Appeal No. 01901479. In Pulido v. Dep't of the Air Force,
EEOC Petition No. 04910006 (July 19, 1991), the Commission found that
the agency had complied with the April 24, 1990 Order. Specifically,
the Commission noted appellant's contention that he should have received
a promotion to the WG-6 level retroactive to 6 months after October 27,
1987, as this was the "normal promotional pattern" for similarly situated
employees. The Commission was unpersuaded by appellant's arguments:
[T]he Commission's order...imposed no duty on the agency to place
[appellant] in any position to which he might have been potentially
promoted. Rather, the explicit language of the order only directs
the agency to offer [appellant] the WG-4 Warehouse Worker position.
The record indicates that the agency complied with this order. Moreover,
the evidence indicates that the WG-4 position in which [appellant] was
placed was not a trainee position which was automatically targeted for a
higher grade position. Rather, promotion to the WG-6 position required
basewide competition. Accordingly, while [appellant] speculates that
he would have been selected for the promotion, he has not provided
persuasive evidence to establish that the agency did not comply with
the Commission's order.
In October 1991, appellant's position was transferred to another agency,
i.e., the Department of Defense's (DOD) Defense Logistics Agency.
In November 1992, appellant filed an appeal with the Merit Systems
Protection Board (MSPB) alleging that both the agency and the DOD had
failed to restore him to the WG-6 level.<1> In its March 16, 1993 initial
decision, the MSPB dismissed the appeal for lack of jurisdiction, i.e.,
appellant had failed to allege an agency action appealable to the MSPB.
Appellant apparently requested that the MSPB review the initial decision
and, on March 1, 1994, the MSPB issued its final order denying the
request.
Appellant then filed a petition for review with the Commission.
Because there were two defendant agencies, the Commission treated
the petition as two petitions and docketed them separately. In both
decisions, the Commission found that appellant's appeals were "unmixed"
and instructed the agencies to process appellant's allegations pursuant
to 29 C.F.R. Part 1614. The decisions specifically stated that the date
on which appellant filed his appeal with the MSPB would be deemed the date
of initial contact with an EEO counselor. See Pulido v. Dep't of the Air
Force, EEOC Petition No. 03940109 (July 29, 1994) and Pulido v. Dep't of
Defense, EEOC Petition No. 03940084 (July 29, 1994). The instant case
involves only the complaint appellant filed against the Department of
the Air Force as a result of the decision in EEOC Petition No. 03940109.
Appellant subsequently filed a formal complaint with the agency alleging
race (Caucasian), color (brown/dark skinned), national origin (Hispanic),
perceived disability (musculoskeletal), and reprisal discrimination.
The EEO counselor's report indicated that appellant's initial contact
occurred on October 12, 1994 and defined the issues as:
1) On an ongoing basis from July 17, 1987, through October 1991 (when
appellant was reassigned to the Defense Logistics Agency), he was
allegedly denied priority consideration for all WG-6907-06 Warehouse
person positions filled during that time period; and,
2) On March 19, 1990 through October 1991, he was allegedly denied
WG-06 grade level pay after completing six months of training at the
WG-4 level.
In its final decision (FAD), the agency dismissed appellant's EEO
complaint for untimely contact with an EEO counselor. On appeal, the
decision in Pulido v. Dep't of the Air Force, EEOC Appeal No. 01951074
(July 13, 1995) reversed the FAD and remanded the case to the agency
for clarification of the issues in appellant's complaint. The decision
also noted that pursuant to the "NOTICE TO PARTIES" in EEOC Petition
No. 03940109, the date on which appellant filed his appeal with the
MSPB would be deemed the date of his initial EEO contact, and mistakenly
identified the date as March 1, 1994.
Pursuant to the July 13, 1995 Order in EEOC Appeal No. 01951074,
appellant's issues were clarified as follows:<2>
1) On an ongoing basis from July 17, 1987 through October 1991 (when the
complainant was reassigned to the Defense Logistics Agency) and after the
complainant's partial recovery from a compensable work injury occurring
on 17 and 21 July 1987, the complainant allegedly was not given priority
consideration for promotion to a WG-6907-06 position;
2) On an ongoing basis from 17 July 1987 through October 1991...and
after the complainant's full recovery from a compensable work injury
occurring on 2 November 1990, the complainant allegedly was not given
priority consideration for promotion to a WG-6907-06 position;
3) On an ongoing basis from the date [a WG-6 employee] retired, thereby
vacating a WG-6907-06 position, through October 1991..., the agency
allegedly refused to promote the complainant into [the] vacant position;
4) On 19 March 1990 through October 1991..., the complainant was allegedly
denied WG-06 grade level detail pay after completing six months training
at the WG-04 level due to discriminatory application of job classification
grading standards; and,
5) On an ongoing basis from the date six months after the complainant was
promoted to a WG-6907-04 through October 1991..., the agency failed to
pay the complainant for performing the duties similar to those performed
by WG-6907-06 level employees.
In its August 23, 1995 final decision, the agency again dismissed
appellant's complaint for untimely contact with an EEO counselor.
The agency found that the date of appellant's EEO contact--March 1,
1994--was considerably beyond the time allowed for timely contact.
Appellant appealed from the FAD, contending--inter alia--that the date
he filed his MSPB Appeal (and therefore the date of his EEO contact)
was November 1992, and not March 1, 1994. Upon review, the previous
decision affirmed the agency's dismissal of appellant's complaint for
untimely EEO contact.
Thereafter, appellant filed a request for reconsideration.
ANALYSIS AND FINDINGS
The Commission may, in its discretion, reconsider any previous decision
when the party requesting reconsideration submits written argument or
evidence which tends to establish that at least one of the criteria
of 29 C.F.R. �1614.407(c) is met. For a decision to be reconsidered,
the request must contain specific information that meets the criteria
referenced above.
In his reconsideration request, appellant asserts that he filed his
appeal with the MSPB in November 1992, not March 1994. Having conducted
an exhaustive review of the record and related documents, the Commission
agrees. The decision in EEOC Appeal No. 01951074 mistakenly identified
March 1, 1994--the date on which the MSPB issued its final decision--as
the date on which appellant filed his appeal with the MSPB. In fact,
appellant filed his appeal with the MSPB in November 1992.
The Commission nonetheless finds that the previous decision properly
affirmed the agency's dismissal of the complaint for untimely EEO
contact.
The Commission finds that the events of which appellant complained
occurred on or before October 1991 and that his EEO contact in November
1992 therefore was beyond the time period for contacting an EEO counselor.
The Commission notes that appellant has never provided any reason
or explanation as to why he was unable to timely contact a counselor
regarding his allegations.<3> In addition, the record contains voluminous
evidence and argument from the agency documenting appellant's familiarity
with the EEO complaint process as well as the agency's dissemination
of information regarding the time period for EEO counselor contact,
including posters containing the time limits for same.
Appellant points to an August 16, 1995 memorandum and asserts that it
represents the agency's acceptance of his complaint for investigation,
thereby waiving all timeliness requirements. A review of the document,
however, showed that the memorandum merely advised of the receipt of
appellant's complaint--apparently following the remand of same in EEOC
Appeal No. 01951074 (July 29, 1995).
Because appellant's request fails to meet the criteria for
reconsideration, the Commission therefore denies the request.
CONCLUSION
After a review of appellant's request for reconsideration, the agency's
response, the previous decision, and the entire record, the Commission
finds that appellant's request for reconsideration fails to meet the
criteria of 29 C.F.R. �1614.407(c), and the request hereby is DENIED. The
decision in EEOC Appeal No. 01956530 hereby is AFFIRMED.
STATEMENT OF APPELLANT'S RIGHTS
RIGHT TO FILE A CIVIL ACTION (P0993)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court.
It is the position of the Commission that you have the right to file
a civil action in an appropriate United States District Court WITHIN
NINETY (90) CALENDAR DAYS from the date that you receive this decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. If you file a civil action,
YOU MUST NAME AS THE DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE
OFFICIAL AGENCY HEAD OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS
OR HER FULL NAME AND OFFICIAL TITLE. Failure to do so may result in
the dismissal of your case in court. "Agency" or "department" means the
national organization, and not the local office, facility or department
in which you work.
RIGHT TO REQUEST COUNSEL (Z1092)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. ��791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
Oct. 8, 1998
Date Frances M. Hart
Executive Officer
1Specifically, appellant argued that he was entitled to restoration
to his WG-6 Warehouseman position because his restoration to the WG-4
Warehouseman position after partial recovery was improper. Appellant
further argued that he had fully recovered from his injury and had not
been given priority consideration for placement in the WG-6 position.
2Appellant also raised new allegations of discrimination which the
agency decided were properly addressed in a new complaint, HPOF95276.
3The Commission also notes that the evidence of record strongly suggests
that appellant appears to be relitigating the same issues over and over
in different forums.