Roger Pulido, Complainant,v.Dr. James G. Roche, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionJun 18, 2002
01a04641_r (E.E.O.C. Jun. 18, 2002)

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.