01a04641_r
06-18-2002
Roger Pulido, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Roger Pulido v. Department of the Air Force
01A04641
June 18, 2002
.
Roger Pulido,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A04641
Agency No. HPOF95276
DECISION
Upon review, the Commission finds that although the agency's decision
dated June 7, 2000, dismissed complainant's complaint for failure
to cooperate, pursuant to 29 C.F.R. � 1614.107(a)(7), it is more
properly dismissed for failure to state a claim, pursuant to 29
C.F.R. � 1614.107(a)(1). In his complaint, dated September 14, 1995,<1>
complainant specifically alleged that the agency concealed the evidence
in the Merit Systems Protection Board (MSPB) records which would show
that he recovered from an on-the-job injury, he timely applied for
WG-06 positions, and he was on priority placement consideration rolls.
It appears that complainant is collaterally attacking the MSPB process
which complainant should have raised during that process.
The record indicates that complainant, while employed as a WG-6 Warehouse
Worker at the agency, sustained an on-the-job injury in 1979, and his
position was, thereafter, changed to a GS-3 position. Thereafter,
complainant filed numerous complaints concerning his position level
and on March 30, 1987, the parties entered into a settlement agreement
resolving such. Therein, the agency agreed to place complainant to a WG-4
level position. Thereafter, complainant alleged that the agency breached
the settlement agreement, and the Commission, in EEOC Appeal No. 01901479
(April 24, 1990), found that the agency breached the settlement agreement,
and ordered the agency to offer, inter alia, complainant a WG-4 level
position. In October 1991, complainant's position was transferred to
another agency, i.e., the Department of Defense (Defense Logistic Agency).
In November 1992, complainant, a Warehouse Worker, WG-4, at the Department
of the Defense, filed an appeal with the MSPB alleging that the agency,
including the Department of Defense, failed to restore him to the WG-6
level. On March 16, 1993, the MSPB dismissed complainant's appeal for
lack of jurisdiction, and his request for review was, subsequently,
denied by the MSPB on March 1, 1994. The record also indicates that
on November 9, 1994, complainant previously filed a formal complaint,
Agency No. HPOF95008, alleging the matters concerning the denial of
priority consideration for WG-06 positions from 1987 to 1991, and his
entitlement to WG-06 pay for a detail from March 1990 to October 1991.
On August 23, 1995, the agency dismissed the subject complaint due to
untimely EEO Counselor contact, and the Commission, in EEOC Appeal
No. 01956530 (October 9, 1996), affirmed the agency decision; his
subsequent request for reconsideration was denied by the Commission in
EEOC Request No. 05970099 (October 8, 1998).
After a review of the record, including the foregoing information,
the Commission finds that the instant complaint involves the matters
which collaterally attack complainant's prior MSPB decision/process.
Furthermore, it appears that the matters concerning the denial of the
WG-level position had been already decided by the agency, as described
above. Upon review, the Commission finds that the complaint fails
to state a processable claim within the purview of the regulations.
Accordingly, the agency's decision is hereby AFFIRMED.<2>
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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. 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. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 18, 2002
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1The agency previously issued its decision dismissing eight other claims
of the instant complaint.
2It is noted that on appeal, complainant raises a non-EEO related matter,
i.e., indicating that the agency breached a Settlement Agreement, AWS
OJT Training, which was entered by the agency and complainant (for the
Union) on December 7, 1989. Specifically, complainant indicates that
this non-EEO settlement agreement shows that the agency breached the 1987
EEO settlement agreement, which was already decided by the Commission,
as described in this decision.