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