John T. Adcock, Complainant,v.Dr. James G. Roche, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionSep 16, 2002
05A20692 (E.E.O.C. Sep. 16, 2002)

05A20692

09-16-2002

John T. Adcock, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.


John T. Adcock v. Department of the Air Force

05A20692

09-16-02

.

John T. Adcock,

Complainant,

v.

Dr. James G. Roche,

Secretary,

Department of the Air Force,

Agency.

Request No. 05A20692

Appeal No. 01985867

Agency No. RX0F96026

Hearing No. 110-97-8150x

DENIAL OF REQUEST FOR RECONSIDERATION

The Department of the Air Force (agency) timely initiated a request

to the Equal Employment Opportunity Commission (EEOC or Commission) to

reconsider the decision in John T. Adcock v. Department of the Air Force,

EEOC Appeal No. 01985867 (February 6, 2002). EEOC Regulations provide

that the Commission may, in its discretion, 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).

After a review of the agency's request for reconsideration, 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. Although the

agency argued that the Supreme Court's decision in Toyota Motor Mfg.,

Inc. v. Williams, 534 U.S. 184 (2002) requires a different result in

this decision, we do not agree. The administrative judge found that the

complainant's degenerative disc disease, herniated disc, arthritis of

the knee and foot and fused bones in the foot significantly restricted

complainant in the performance of manual tasks. When read in context,

these impairments and resulting restrictions from heavy lifting, heavy

carrying, repeated bending, twisting, crawling and complainant's

inability to perform manual labor on the job, persuades us that

complainant was significantly restricted from performing manual labor,

whether on or off the job. The decision in EEOC Appeal No. 01985867

remains the Commission's final decision. There is no further right of

administrative appeal on the decision of the Commission on this request

for reconsideration. The agency shall comply with the Order in the

previous decision as restated below.

ORDER (D0900)

The agency is ordered to take the following remedial action:

1. The agency shall determine if the fastener cage position or

an equivalent position exists at Robins Air Force Base. If such

a position or equivalent position exists, the agency shall further

determine if complainant is physically qualified to perform the duties

of the position or equivalent position, with or without reasonable

accommodation. If complainant is physically qualified to perform the

duties of the position or equivalent position, he shall be reinstated

to the position. If complainant is physically qualified to perform

the duties of the position or equivalent position, and if the position

or equivalent position existed after July 1, 1996 but no longer exists

because of downsizing, the agency shall pay the complainant back pay and

benefits from July 1, 1996 until the date the position no longer existed.

If complainant is not physically qualified to perform the duties of the

position or equivalent position, he shall be entitled to receive back pay

from July 1, 1996 to the date he became physically not qualified, off-set

by the amount complainant earned in disability retirement payments.

The complainant shall cooperate in the agency's efforts to determine

if he is physically qualified to perform the duties of the position or

equivalent position, and shall provide all relevant information requested

by the agency;

2. The agency shall determine the appropriate amount of back pay,

interest, and other benefits due complainant, pursuant to 29 C.F.R. �

1614.501, no later than sixty (60) calendar days after the date this

decision becomes final. The complainant shall cooperate in the agency's

efforts to compute the amount of back pay and benefits due, and shall

provide all relevant information requested by the agency. If there

is a dispute regarding the exact amount of back pay and/or benefits,

the agency shall issue a check to the complainant for the undisputed

amount within sixty (60) calendar days of the date the agency determines

the amount it believes to be due. The complainant may petition for

enforcement or clarification of the amount in dispute. The petition for

clarification or enforcement must be filed with the Compliance Officer,

at the address referenced in the statement entitled "Implementation of

the Commission's Decision";

3. The agency shall expunge the record of complainant's July 1, 1996

termination;

4. Within ten (10) calendar days of the date this decision becomes

final, the agency shall give complainant notice of his right to submit

objective evidence in support of his claim for compensatory damages.

This evidence should be submitted within forty-five (45) calendar days

of the date complainant receives the agency's notice. The agency shall

complete the investigation on the claim for compensatory damages within

ninety (90) calendar days of the date this decision becomes final.

Thereafter, the agency shall process the claim for compensatory damages

in accordance with 29 C.F.R. � 1614.108(f);

5. If the agency has not done so, the agency shall consider taking

disciplinary action against the employee(s) responsible for the

discrimination herein. The agency shall report its decision in

its Compliance Report. If the agency has taken or decides to take

disciplinary action, it shall identify the action taken in its Compliance

Report. If the agency decides not to take disciplinary action, it shall

set forth in its Compliance Report the reason(s) for its decision not

to impose discipline;

6. The agency is further directed to submit a report of compliance, as

provided in the statement entitled "Implementation of the Commission's

Decision." The report shall include supporting documentation of the

agency's calculation of back pay and other benefits due complainant,

including evidence that the corrective action has been implemented.

POSTING ORDER (G0900)

The agency is ordered to post at Robins Air Force Base copies of the

attached notice. Copies of the notice, after being signed by the

agency's duly authorized representative, shall be posted by the agency

within thirty (30) calendar days of the date this decision becomes final,

and shall remain posted for sixty (60) consecutive days, in conspicuous

places, including all places where notices to employees are customarily

posted. The agency shall take reasonable steps to ensure that said

notices are not altered, defaced, or covered by any other material.

The original signed notice is to be submitted to the Compliance Officer

at the address cited in the paragraph entitled "Implementation of the

Commission's Decision," within ten (10) calendar days of the expiration

of the posting period.

ATTORNEY'S FEES (H0900)

If complainant has been represented by an attorney (as defined by

29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of

reasonable attorney's fees incurred in the processing of the complaint.

29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid

by the agency. The attorney shall submit a verified statement of fees

to the agency -- not to the Equal Employment Opportunity Commission,

Office of Federal Operations -- within thirty (30) calendar days of this

decision becoming final. The agency shall then process the claim for

attorney's fees in accordance with 29 C.F.R. � 1614.501.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the complainant. If the agency does not comply with the Commission's

order, the complainant may petition the Commission for enforcement

of the order. 29 C.F.R. � 1614.503(a). The complainant also has the

right to file a civil action to enforce compliance with the Commission's

order prior to or following an administrative petition for enforcement.

See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).

Alternatively, the complainant has the right to file a civil action on

the underlying complaint in accordance with the paragraph below entitled

"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.

A civil action for enforcement or a civil action on the underlying

complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)

(1994 & Supp. V 2000). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 29 C.F.R. � 1614.409.

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)

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 (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

____09-16-02______________

Date

NOTICE TO EMPLOYEES

POSTED BY ORDER OF

THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

An Agency of the United States Government

This Notice is posted pursuant to an order by the United States Equal

Employment Opportunity Commission dated __________ which found that a

violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791

et seq. (1994 & Supp. V 2000) has occurred at this facility.

Federal law requires that there be no discrimination against any employee

or applicant for employment because of the person's RACE, COLOR, RELIGION,

SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring, firing,

promotion, compensation, or other terms, conditions or privileges of

employment.

The Department of the Air Force, Robbins Air Force Base, supports and

will comply with such Federal law and will not take action against

individuals because they have exercised their rights under law.

The Department of the Air Force, Robbins Air Force Base, has been found to

have discriminated against an employee because of his disability and has

been ordered to pay back pay and damages to the employee. The Department

of the Air Force, Robbins Air Force Base, will ensure that officials

responsible for personnel decisions and terms and conditions of employment

will abide by the requirements of all Federal equal employment opportunity

laws and will not retaliate against employees who file EEO complaints.

The Department of the Air Force, Robbins Air Force Base, will not in any

manner restrain, interfere, coerce, or retaliate against any individual

who exercises his or her right to oppose practices made unlawful by,

or who participates in proceedings pursuant to, Federal equal employment

opportunity law.

______________________________

Date Posted: _____________________________

Posting Expires: _________________________

29 C.F.R. Part 1614