04A40005
04-06-2004
John T. Adcock v. Department of the Air Force 04A40005 04-06-04 . John T. Adcock, Petitioner, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
John T. Adcock v. Department of the Air Force
04A40005
04-06-04
.
John T. Adcock,
Petitioner,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Petition No. 04A40005
Request No. 05A20692
Appeal No. 01985867
Agency No. RX0F96026
Hearing No. 100-97-8156x
DECISION ON PETITION FOR ENFORCEMENT
On November 6, 2003, the Equal Employment Opportunity Commission (EEOC or
Commission) docketed a petition for enforcement to examine the enforcement
of an order set forth in John T. Adcock v. Department of the Air Force,
EEOC Request No. 05A20692 (Sept. 16, 2002). Petitioner alleged that
the agency failed to fully comply with the Commission's order in that
decision. This petition for enforcement is accepted by the Commission
pursuant to 29 C.F.R. � 1614.503.
In its previous decision, the Commission affirmed an earlier finding that
the agency had discriminated against petitioner on the basis of disability
(degenerative disc disease, herniated disc, arthritis of the knee and
foot and fused bones in the foot) when on May 28, 1996, he was placed
on enforced sick leave, and thereafter on July 1, 1996, he was separated
from the agency. The Commission directed the agency to determine, among
other things, if the fastener cage position or an equivalent position
existed at Robins Air Force Base, and if it existed, to place petitioner
in that position, with appropriate back pay. Petitioner asserted that
the agency failed to comply with that part of the Order, as evidenced
by the agency's failure to place him in any position and pay him back pay.
The agency submitted its compliance report and supplemental documentation
in which it identified the steps taken toward compliance. In an
October 22, 2002 memorandum, the agency asserted that no fastener cage or
equivalent position existed at Robins Air Force Base. In his petition for
enforcement, petitioner asserted that the job of fastener cage attendant
no longer existed as a position to be filled by an Air Force employee,
but was contracted out. He added that �numerous� equivalent positions
existed; however, petitioner failed to identify any of these equivalent
positions which he was qualified to perform.
Clearly petitioner agreed with the agency that no fastener cage position
existed which an Air Force employee could fill. Regarding whether an
equivalent position was available, we note that as an evidentiary matter,
it is petitioner's burden to show that the agency's assertion, that no
equivalent positions existed, was untrue. Here, absent identification
of the specific equivalent positions which petitioner was qualified to
perform, we find that petitioner has failed to carry his burden to show
that it is more likely than not that vacancies existed into which he could
have been placed. Because petitioner failed to show that, after July 1,
1996 (the date complainant was separated from the agency) the fastener
cage or equivalent positions existed into which he could be assigned,
he is not entitled to back pay.
After reviewing the instant petition for enforcement, the agency's
response, the previous decision, and the entire record, the Commission
finds that the agency has fully complied with the order for relief set
forth in the previous decision.
STATEMENT OF PETITIONER'S RIGHTS ON PETITION FOR ENFORCEMENT
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
____04-06-04_____________
Date