0520120012
12-21-2011
Kali R. Pinckney, Complainant, v. Mike Donley, Secretary, Department of the Air Force, Agency.
Kali R. Pinckney,
Complainant,
v.
Mike Donley,
Secretary,
Department of the Air Force,
Agency.
Request No. 0520120012
Appeal No. 0120101543
Agency No. 9D1S09009
DENIAL
Complainant timely requested reconsideration of the decision in Kali
R. Pinckney v. Department of the Air Force, EEOC Appeal No. 0120101543
(Sept. 8, 2011). EEOC Regulations provide that the Commission may, in its
discretion, grant a request to reconsider any previous Commission decision
where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(b).
In the underlying complaint, Complainant alleged he was discriminated
against on the bases of his race (African American) and color (Black) when
on or about September 19, 2008, he learned he was not selected for the
position of DoD Police Officer. The Agency dismissed the complaint for
untimely EEO Counselor contact. Complainant appealed that determination
to the Commission.
In Kali R. Pinckney v. Department of the Air Force, EEOC Appeal
No. 0120101543 (Sept. 8, 2011), the Commission determined that Complainant
untimely contacted the EEO Counselor because the record reveals that
he reasonably suspected that he was subjected to discrimination on
or around October 2, 2008. Therefore, the Commission concluded that
Complainant’s December 18, 2008 EEO Counselor contact was not timely.
The Commission also determined that to the extent that Complainant was
alleging a claim of harassment; he failed to state a claim for which
relief could be granted. It is from this decision that Complainant
requests the Commission reconsider.
In his request for reconsideration, Complainant argues, in relevant part,
that he was not arguing that he was subjected to harassment. Rather,
he was arguing that a Background Investigator discriminated against him
when he created false information that lead to Complainant not being
recommended for the position. Complainant also argues that the Agency
failed to provide racial data to him; that he was subjected to disparate
treatment; and he was harmed by the nonselection. The Agency argues
that the request for reconsideration should be denied.
We find that Complainant has failed to demonstrate that the appellate
decision involved a clearly erroneous interpretation of material fact
or law or will have a substantial impact on the policies, practices,
or operations of the Agency. Complainant argues the merits of his case.
However, the underlying appeal was dismissed for failure to contact an
EEO Counselor in a timely manner. Complainant argues that because the
Commission found his appeal to be timely, the case should move forward on
the merits. However, we note that although the appeal to the Commission
was timely, it does not affect whether Complainant timely met with an
EEO Counselor.
After reviewing the previous decision and the entire record, the
Commission finds that the request fails to meet the criteria of 29
C.F.R. § 1614.405(b), and it is the decision of the Commission to deny
the request. The decision in EEOC Appeal No. 0120101543 remains the
Commission's decision. There is no further right of administrative
appeal on the decision of the Commission on this request.
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission’s decision. 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.
RIGHT TO REQUEST COUNSEL (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
__12/21/11________________
Date
2
0520120012
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120012