Former co-op GM seeks unemployment benefits
A former general manager at Socorro Electric Cooperative is seeking to have a New Mexico Department of Workforce Solutions Board of Review decision reversed so that he can receive unemployment benefits.
Polo Pineda Jr., through his attorney, J. Edward Hollington of Albuquerque, filed a petition for writ of certiorari (appeal) in 2nd Judicial District Court in Albuquerque on Sept. 26. Named as defendant appellees are the Board of Review and Socorro Electric Cooperative.
Pineda, who had served as the co-op’s general manager for seven years, was fired from the job Aug. 25, 2010, in the wake of an investigation into financial irregularities. He later made claims against the co-op and board of trustees member Charlie Wagner for age discrimination and retaliation with the Equal Employment Opportunity Commission.
Last month, Workforce Solutions issued an order of non-determination, closing the case with prejudice, meaning the charges could not be brought to the EEOC again. However, the process allows for the decision to be appealed in district court.
Pineda, 57, made his claim of age discrimination after the co-op hired a 37-year old general manager earlier this year. His claim of retaliation alleged that he was fired because he had raised an issue about remarks Wagner allegedly made about former co-op employee Kathy Torres pertaining to her race and gender.
Torres, who was fired the same day as Pineda, also made EEOC complaints of sex and racial discrimination and retaliation that were dismissed. She filed a lawsuit against the co-op, President Paul Bustamante and Wagner last month for discrimination, defamation, retaliation, breach of implied contract and breach of good faith and fair dealing in district court in Socorro. Her complaint asks the court to award her damages for loss of income and benefits, back-pay and front-pay, punitive damages and pre- and post-judgment interest. The complaint also demands that her case be heard by a six-person jury. No hearings in that case have been set.
Pineda’s complaint asks that the Board of Review’s decision be reversed so that he may receive unemployment benefits and that the court make several findings and conclusions that support his position.
The document states that the administrative law judge made mistakes while characterizing Pineda’s actions as “manipulation and circumvention” of the co-op’s loan policy. It also states that the code of conduct introduced as evidence in the appeals tribunal hearing applied only to members of the board of trustees, not employees.
According to the court filing, Pineda obtained loans totaling $38,000 through his 401(k) and the tribunal determined that the co-op’s policy limited loans to $20,000. Pineda’s petition disputes this, saying that a forensic audit, which reviewed loans made to both Pineda and Torres and co-op policies found that there was no policy regarding loans to employees.
“Mr. Pineda cannot willfully and deliberately violate a policy that does not exists,” the filing states.
It goes on to say, “The forensic audit concluded that SEC had no losses as a result of any loan advances made to Mr. Pineda or any other employees. The forensic audit contained no findings or conclusions that Mr. Pineda violated any policy or procedure of SEC.”
The filing also disputes the Board of Review’s finding that Pineda’s actions reached the level of “misconduct” and “a willful disregard of the employer’s best interest.”
It also claims that Pineda was not initially given a reason for why he was being let go and that during the hearing process the co-op gave three different versions of its explanation for firing Pineda.
Pineda took Socorro Electric to court before and won. He filed a wage claim against the co-op a year ago, arguing that he did not receive his final check from the co-op in a timely manner. State law specified that he was entitled to an additional $19,000. A settlement was reached last spring.
Contact T.S. Last