Former GM sues co-op again

Another lawsuit has been filed against Socorro Electric Cooperative by former General Manager Polo Pineda Jr., this one for breach of contract and violations of the New Mexico Human Rights Act.

The complaint, filed on Monday, Dec. 5, in 2nd Judicial District Court in Albuquerque, names Socorro Electric, Co-op President Paul Bustamante and Trustee Charlie Wagner as defendants.

This is the third time Pineda has filed papers against Socorro Electric in district court since he was fired in August 2010. He earned a $19,000 settlement earlier this year because the co-op failed to issue his final paycheck in a timely manner. Seeking to restore his unemployment benefits, Pineda in October appealed an Order of Non-Determination for charges of discrimination and retaliation he made with the Equal Employment Opportunity Commission.

Pineda’s claim for breach of contract alleges he was not given a reason for being placed on administrative leave on Aug. 13, 2010, or when he was fired two weeks later. The contract he signed when he was hired as GM in November, 2003, attached to the filing as an exhibit, includes a paragraph addressing “Discharge for Cause.”

The complaint further alleges that actions taken by the co-op’s board of trustees to place him on leave and terminate his employment were done during meetings in violation of the New Mexico Open Meetings Act. While electric cooperatives aren’t generally required by law to follow OMA, member-owners of the private, non-profit corporation passed a new bylaw requiring it to do so in April 2010.

“Defendant SEC’s failure to comply with the requirements of the OMA in its actions against Mr. Pineda on August 13, 2010 and August 25, 2010 results in those actions being invalid and not effective,” the complaint reads.

It goes on to say the co-op failed to respond to a written demand for payment of Pineda’s salary shortly after a district court judge ruled in May that the bylaw was valid and the co-op should have been following OMA when members passed it a year earlier.

The allegations of violations of human rights mirror those Pineda made in his EEOC complaints. It claims Pineda’s age, 56, on the day he was fired, was a “motivating factor” in his termination, noting he was replaced by a man under the age of 40.

“Mr. Pineda’s opposition to discriminatory conduct” was another motivating factor in his dismissal, according to the complaint. It claims Pineda was retaliated against after he objected to alleged discriminatory and racist comments Trustee Wagner made against former Office Manager/Accountant Kathy Torres, who was fired the same day as Pineda, and other Hispanic employees.

Wagner has denied those charges.

Other counts included in the complaint are for defamation and breach of the covenant of good faith and fair dealing.

It claims the co-op acted in bad faith by firing Pineda without cause and by not complying with OMA. It also claims the defendants made false statements alleging Pineda had engaged in fraud and committed criminal acts.

The complaint calls for the court to award him compensatory damages for humiliation and mental anguish, punitive damages, actual damages for loss of income and benefits, attorney fees, court costs and that he be reinstated as general manager. It demands that the co-op publish an apology and admission that Pineda did not commit fraud or engage in criminal conduct while employed by Socorro Electric.

Pineda and Torres were fired in wake of an investigation into financial irregularities. A forensic audit later determined that the co-op suffered no losses through a program that allowed employees to borrow money from their 401(k) plans.

The same audit was critical of co-op policies and accounting practices, and the loan program has since been rescinded.

According to previous court filings, Pineda obtained loans totaling $38,000 and an administrative law judge assigned to address the EEOC complaint described his actions as “manipulation and circumvention” of the co-op’s loan policy.

Though President Bustamante may not have provided Pineda with a reason why he was being fired, Bustamante told El Defensor Chieftain at the time of their dismissal that Pineda and Torres were let go for not paying back loans in a timely manner.

The complaint, which calls for a trail before a six-person jury, was filed in Bernalillo County because Pineda is now a resident of Albuquerque.

Pineda’s attorney, J. Edward Hollington of Albuquerque, said no hearings have been set for Pineda’s appeal for unemployment compensation.

Hollington is also representing Kathy Torres, who filed a similar complaint against the co-op for discrimination, defamation, retaliation, breach of implied contract and breach of good faith and fair dealing in 7th Judicial Court in Socorro in September. The defendants in that case are also Socorro Electric, Bustamante and Wagner.

Hollington said that case is still in the early stages of discovery and no hearing dates have been set.

 

-- Email the author at tslast@dchieftain.com.