Please assist Mr Albert Benitez in his inquest under the Freedom Of Information Act or other remedies available under the United States Constitution. This inquest is in the interest of the Public and will be followed diligently for the duration. Your assistance in this matter is appreciated and will be noted.
Thank You,
Anton
On 8/25/07, Alberto Benitez <abenitez_64@yahoo.com> wrote:
August 25,2007
Ms. Elaine L. Chao
U.S. Secretary of Labor ,
I have attempted to conduct an inquest under the Freedom Of Information Act , unfortunately I have been unsuccessful. Please read this FOIA request, and if it is not possible for your agency to recognize this act then please advise so I may take other action.
Respectfully Submitted,
alberto benitez
Alberto Benitez < abenitez_64@yahoo.com> wrote:Date: Fri, 16 Mar 2007 19:03:24 -0700 (PDT)
From: Alberto Benitez < abenitez_64@yahoo.com>
Subject: Fwd: eeoc FOIA
To: michele.olivarez@eeoc.gov
March 15, 2006Please pass this on to your public information officer.Administrator
U.S. Department of LaborEEOCTo the Administrator:This is an appeal under the federal Freedom of Information Act, 5 U.S.C. 552. On July(22, 2006, I made an FOI Act request for concerning an EEOC administrative investigation on Del Mar College Corpus Christi, Texas, your agency denied my request because up to this date I have not received one shred of documentation even though I have utilized U>S. mail communiques, as your administration requested. EEOC has failed to respond within the legal time limits, so I will turn this matter over to the Secretary of Labor to conduct an inquiry . Copies of this correspondence are enclosed.Please be informed that I consider the requested information clearly releasable under the FOI Act and consider your agency's denial to be arbitrary and capricious.I trust that upon reconsideration, you will reverse the decision denying me access to this material and grant my original request. However, if you deny this appeal, I intend to to initiate a lawsuit to compel disclosure.As I have made this request in the capacity as a victim of civil rights violation and a researcher of bureaucratic paradigm, and this information is of timely value, I will appreciate your expediting the consideration of my appeal in every way possible. In any case, I will expect to receive your decision within 20 business days, as required by law. Thank you for your assistance.Sincerely,al bebitez159 E. CR 2130Kingsville, Texsas 78363
Alberto Benitez < abenitez_64@yahoo.com> wrote:Date: Wed, 26 Jul 2006 20:03:54 -0700 (PDT)
From: Alberto Benitez < abenitez_64@yahoo.com>
Subject: eeoc FOIA
To: michele.olivarez@eeoc.gov
Appeal of Alberto Benitez to the Board of Regents at Del Mar CollegeSubmitted via Overnight Delivery on February 8, 2005c/o Mr. Gabe Rivas, P. O. Box 5065, Corpus Christi, Texas 78465Points of AppealAlberto Benitez timely files this appeal of the decision by the President of Del Mar College to uphold the recommendation of the Faculty Review Panel that he be "discharged" from his position as a tenure-track instructor at Del Mar College. Mr. Benitez received notice of this decision by the President on January 31, 2005. The appeal of Mr. Benitez is based on five grounds, only the first three of which are discussed in detail in this appellate brief; the fourth and fifth points of appeal are self-evident from the limited description given in this Points of Appeal section of the brief:First, the proceedings were unlawful because they violated governing Board policy;Second, Mr. Benitez was terminated under provisions of the Board Policy that were never given to him as a basis for his dismissal, which deprived him of due process and the opportunity to defend himself against those "charges;"Third, the actions taken were a breach of Mr. Benitez' contract with Del Mar College ;Fourth, the hearing was conducted without Del Mar College providing the technician(s) and the equipment so that a verbatim transcription of the hearing could be made. (B6.7.5.5.1). This failure by Vice President Garcia to meet her obligations resulted in a virtually useless transcript of the hearing. Many of the most critical questions and answers do not appear in the transcript at all, or they are so poorly transcribed that it renders them useless for purposes of the appeal. There are, therefore, very few references to the transcript in this appeal, and even where references are made, the transcription is so poor that the context and the meaning of the questions and answers are barely discernible in most instances. There is no way that a member of the Board of Regents who attempts to read the transcript will be able to discern what actually transpired at the hearing; andFifth, and finally, Mr. Benitez appeals because he was given such a restricted period of time to present his defense that he was deprived of all due process. When a faculty member's career is on the line, and a "fair hearing" is mandated, it is a cruel joke to say that the faculty member has one hour to present a defense. This is particularly true when the faculty member has been the subject of retaliatory actions by powerful members of the administration over the course of a year, for the specific purpose of finding a way to terminate his relationship with Del Mar College.Point One – The Proceedings Violated Board Policy and Were Therefore Unlawful1. On January 10, 2005, proceedings initiated by Vice President Rosie Garcia on October 5, 2004 to dismiss Alberto Benitez from his position as a tenure-track instructor at Del Mar College were held. The only provisions of Del Mar Board Policy that were referenced as a basis for initiating his dismissal proceedings in the Notice of Intent to Dismiss were B5.11 and B6.7.5.3. The proceedings were initiated and heard by a panel of faculty members who were selected in accordance with the procedures set forth in B6.7.5.3.3 and the sub-sections that follow. Prior to their selection, and again after they were seated as a panel, counsel for Mr. Benitez objected that the proceedings had been unlawfully initiated by Vice President Garcia, and that consequently Mr. Benitez was being deprived of his due process and contract rights as a tenure-track instructor at the college.2. Under governing provisions of Board Policy B6.7.5.5.3, only grounds and alleged actions specified in the "Notice of Intent to Dismiss" shall be considered at the dismissal review hearing. Despite this prohibition against initiating a "sneak attack" against a faculty member, Vice President Garcia and counsel for Del Mar College, with the assistance of the Faculty Review Panel, did just that in a blatant disregard for Board Policy. At the hearing Vice President Garcia and counsel for Del Mar College claimed to be proceeding under some mysterious "discharge" provision rather than under the "dismissal" provisions and procedures set forth in B6.7 et seq. Not once during the hearing did they present evidence of any kind regarding any lawful basis for trying to "discharge" Mr. Benitez. They did this in an obvious effort to deprive Mr. Benitez of his due process and contract rights by playing "hide the ball" and by skipping the mandatory mediation stage of the dismissal process (B6.7; B6.7.5; and B6.7.5.1). Under these mandatory provisions of Board Policy, the Vice President has no power to act until the mediation stage has been fully adhered to and exhausted and the case is referred to her by Mr. Benitez' supervisor. Any doubt about the intention of the administration to drive Mr. Benitez out of Del Mar College without regard to his due process rights, his contract rights, and the consequences of wrongful discharge, can be readily observed by listening to the venomous nature in which absolutely irrelevant questions were directed to Mr. Benitez at the hearing by counsel for Del Mar College in an effort to embarrass and belittle him.3. All proceedings in this matter were unlawful in that they were purportedly held pursuant to authority of Vice President Garcia to by-pass the explicit provisions of B6.7 and B6.7.5 et seq that establish a mandatory set of procedures to be followed any time dismissal of a faculty member is sought by the college. More specifically, Ms. Garcia knowingly and deliberately aborted the mandatory mediation stage that had been invoked by the first line supervisor of Mr. Benitez on October 5, 2004. At the Faculty Review Panel hearing, after repeated attempts to get her to explain what specific portion of the Board Policy she was proceeding under to "discharge" rather than "dismiss" Mr. Benitez, Vice President Garcia refused to provide an explanation. (Transcription dated 1/17/05 page 27) The Faculty Review Panel also asked for testimony to explain how the college was proceeding under some discharge theory rather than under the dismissal provisions of Board Policy. (Id.) Counsel for Del Mar College then said it was a "legal matter" that would be addressed in closing argument. (Id.) Absolutely nothing was ever presented in testimony, in any exhibit, or in closing argument by counsel for Del Mar College, to explain this mysterious authority to "discharge" Mr. Benitez. The Faculty Review Panel then went off on a lark of its own, somehow obtaining a copy of Board Policy (no such information was submitted to the Faculty Review Panel as part of the hearing) and purported to invent a way to "get it done for the administration" with no notice to Mr. Benitez and no opportunity to show why the provisions that were used to "discharge" Mr. Benitez don't apply to his situation at all.4. Vice President Garcia has no authority to vary Board Policy, yet she admitted that she did that very thing. When asked who other than her was responsible for that decision, she indicated that she was solely responsible. (Transcription 1/17/05 page 20) We did, however, hear testimony that impeached Vice President Garcia because President Carlos Garcia actually ordered that dismissal proceedings be initiated against Mr. Benitez. (Transcription 1/17/05 page 79-80) According to witness testimony, Vice President Garcia and Stonewall Van Wie (Mr. Benitez' first line supervisor) were all very much aware of this order, yet they denied it under oath. Dean Teresa Cox, who was also present when President Garcia issued the order, impeached the witnesses who denied under oath knowing about the order from the President. (Transcription 1/17/05 pages 19-20, 59, and 79-80)5. We have learned since the hearing that counsel for Del Mar College visited with the Board of Regents about dismissal proceedings against Mr. Benitez prior to the hearing in order to convince them that dismissal proceedings were appropriate, thereby tainting the "fair hearing" mandate in B6.7.5 and the due process and appellate rights of Mr. Benitez. We have also learned that no variance to Board Policy was sought from the Board of Regents and no variance was given. Only the Board of Regents can authorize a variance from Board Policy, and the entire proceedings against Mr. Benitez were therefore unlawfully instituted, the Faculty Panel had no authority to act, and Mr. Benitez' due process rights and contract rights were completely and unlawfully ignored.Point Two – The Basis Used for the Termination was not Disclosed to Mr. Benitez Prior to the Hearing, Which Deprived Him of Due Process and the Opportunity to Defend Himself6. The Faculty Review Panel could clearly see that Vice President Garcia had no authority to proceed under B6.7.5.3, but in their zealous effort to help her find a way to get rid of Mr. Benitez, they decided to say he was discharged pursuant to B5.11.4. The Faculty Review Panel should have kept reading Board Policy if it wanted to act as a vigilante force. If a faculty member is to be discharged, the provisions of B5.12 must first be invoked by the college. On its face, however, B5.12 doesn't even apply to discharge of a tenure-track faculty member – it only applies to discharge of tenured faculty, non-renewal of tenure-track faculty, and discharge of expiring-term and month-to-month employees. Regardless, Mr. Benitez never received a notice issued pursuant to B5.12 because no such notice was ever issued.7. If a notice had been issued, and assuming B5.12 was intended to apply to tenure-track faculty, Board Policy allows a faculty member who desires to contest such an action to proceed directly under the District's Procedure for Dismissal for Cause of Faculty Policy ( B6.7) (B5.12.1; B5.12.1.1; B5.12.1.2). This means that even in a discharge situation, the college must comply with B6.7 et seq when the faculty member invokes that procedure. Therefore, even if the notice issued by Vice President Garcia on October 5, 2004 could be construed as giving notice pursuant to B5.12.1, Mr. Benitez timely demanded on October 15, 2004 that a Dismissal Review Panel hearing be conducted pursuant to B6.7, which resulted in the scheduling of the hearing that was held on January 10, 2005. There is no back-door way of getting rid of Mr. Benitez just because powerful people in the administration don't like him and are retaliating against him for standing up for his rights and the rights of students at the college.8. The foregoing provisions of Board Policy are crystal clear but they were ignored by Vice President Garcia, by counsel for Del Mar College, and by members of the Faculty Review Panel. They have also been ignored by President Carlos Garcia, who on January 31, 2005 rubber-stamped the unlawful proceedings that were initiated and conducted by Vice President Garcia at the direction of President Carlos Garcia.Point Three – When All Else Fails, Read the Contract9. Mr. Benitez tried for months to obtain a copy of his personnel file from Del Mar College so he could use it to help prepare for the Faculty Review Panel hearing. His file was not produced until it was requested by the Faculty Review Panel during the hearing on January 10, 2005, which deprived Mr. Benitez and his counsel of the opportunity to review his personnel file in preparation for the hearing. In his file there are two distinctly different kinds of "printed form contracts" used by Del Mar College. One is a Contract for Limited Period Employees which was in place only until January 31, 2001. (See Exhibit "A"). The other is a Renewing Term Contract for Probationary Teaching Faculty, which is the relationship that existed between Mr. Benitez and Del Mar College as of the date of the hearing. (See Exhibit "B") An examination of the two distinctly different types of contracts is quite illuminating, and it is immediately apparent that the purported "discharge" proceedings against Mr. Benitez were not only unlawful for all the reasons already given, but they were also a breach of his contract with Del Mar College.Contract for Limited Period Employees (Exhibit "C"), Paragraph 10:"Discharge: Employee may be discharged from the employ of the College during the term of this contract for the reasons and in the manner specified in those provisions of Board or Administrative Policy governing the discharge of employees of the College employed under an Expiring Term Contract." (Italics added for emphasis)Renewing Term Contract for Probationary Teaching Faculty (Exhibit "D"), Paragraph 9:"Dismissal: Faculty Member may be dismissed from the employ of the College during any year for good cause as defined in Board Policy and in the manner prescribed by Board Policy for the dismissal of faculty." (Italics added for emphasis)Renewing Term Contract for Probationary Teaching Faculty (Exhibit "D"), Paragraph 2:"Term: This contract shall be for a term of one contract year (hereafter called "year") commencing on August 20, 2001 and ending on August 19, 2002, and shall continue from year to year thereafter without the necessity of annual reappointment, until such time as Faculty Member is granted tenure, resigns, retires, or the employment relationship with the College is terminated either by dismissal or non-renewal in accord with Board Policy ." (Italics added for emphasis)
- The terms of the Renewing Term Contract between Mr. Benitez and Del Mar
College were brought to the attention of the Faculty Review Panel, Vice President Garcia, and counsel for Del Mar College at the hearing. They were all told in no uncertain terms in closing argument that dismissal of Mr. Benitez without following the contractually required procedure would be a breach of contract and would therefore be a wrongful termination. At the urging of Vice President Garcia and counsel for Del Mar College, however, the Faculty Review Panel ignored the terms of the contract, just as they ignored the clear and explicit terms of Board Policy. President Carlos Garcia likewise ignored both the contract rights and the due process rights of Mr. Benitez under Board Policy.11. Finally, although not at issue in the Faculty Review Panel hearing, the President of Del Mar College refused to follow either Board Policy or the Americans with Disabilities Act by refusing to accommodate the disability of Mr. Benitez. Those issues, along with all of the retaliatory acts against Mr. Benitez as well as his wrongful discharge, are now the subject of EEOC charges that will ultimately result in civil liability for Del Mar College.ConclusionNo objective, educated person could read the provisions of Board Policy and the contract between Mr. Benitez and Del Mar College, and then look at what Del Mar College has done to Mr. Benitez, without concluding that the entire process has been a deprivation of his due process rights, a breach of his contract, an unlawfully convened and conducted hearing, and a wrongful termination.Everything possible was done to ensure that Mr. Benitez would not receive a "fair hearing" as required by Board Policy (B6.7.5). The administration achieved what it set out to do in the friendly confines of its own facility with a faculty panel that was subject to being tainted by internal discussions and influence by members of the administration, and with a first-level appeal to the very person who ordered that the dirty deed be done.When all the evidence is presented in a forum where the witnesses will be forced to answer questions, where Del Mar College will not be allowed to withhold evidence, where witnesses will be held accountable for perjury, where the administration cannot rely on hearsay and unauthenticated documents, where there are rules and procedures that must be followed, where fair-minded people are listening to the evidence, and where Del Mar College is in the spotlight as the Defendant, a very different result can be expected.The Board of Regents has one last opportunity to right an egregious wrong. If it does not, an unbiased civil jury is not likely to be as kind as the Faculty Review Panel and President Garcia have been in furthering the goals of the administration without regard to what is right, what is fair, and what is lawful. The proceedings conducted against Mr. Benitez by Del Mar College raise disturbing issues about an administration that has no respect for the law, no respect for due process, no respect for the rights of students or faculty, no respect for Board Policy, and no respect for contract rights. The question now is whether the Board of Regents will condone the wrongful acts of the administration, or whether it will acknowledge and rectify the wrongs that have been done to Mr. Benitez.
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