Louis J. Blumen, Complainant,v.R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMay 25, 2007
0120063137 (E.E.O.C. May. 25, 2007)

0120063137

05-25-2007

Louis J. Blumen, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.


Louis J. Blumen,

Complainant,

v.

R. James Nicholson,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 0120063137

Agency No. 200406882003103

Hearing No. 100-2004-00894X

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts for de novo

review, complainant's appeal from the agency's March 28, 2006 final

decision concerning his equal employment opportunity (EEO) complaint

alleging employment discrimination in violation of Section 501 of the

Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �

791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA),

as amended, 29 U.S.C. � 621 et seq. Complainant, a former fee-based

contract physician at the Washington, D.C., VA Medical Center's Ambulatory

Evaluation Clinic (AEC), alleged that the agency discriminated against him

on the bases of disability1 and age (D.O.B. 11/10/1925) when management

terminated him on July 2, 2003, and subsequently denied him reappointment

as a contract physician on September 30, 2003.2

After a review of the record in its entirety, including consideration

of all statements submitted on appeal, it is the decision of the Equal

Employment Opportunity Commission to affirm the agency's final decision

because the preponderance of the evidence of record does not establish

that discrimination occurred.3

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

The Commission may, in its discretion, reconsider the decision in this

case if the complainant or the agency submits a written request containing

arguments or evidence which tend to establish 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.

Requests to reconsider, with supporting statement or brief, must be filed

with the Office of Federal Operations (OFO) within thirty (30) calendar

days of receipt of this decision or within twenty (20) calendar days of

receipt of another party's timely request for reconsideration. See 29

C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for

29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests

and arguments must be submitted to the Director, Office of Federal

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

Washington, D.C. 20036. In the absence of a legible postmark, the

request to reconsider shall be deemed timely filed if it is received by

mail within five days of the expiration of the applicable filing period.

See 29 C.F.R. � 1614.604. The request or opposition must also include

proof of service on the other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. Any supporting documentation

must be submitted with your request for reconsideration. The Commission

will consider requests for reconsideration filed after the deadline only

in very limited circumstances. See 29 C.F.R. � 1614.604(c).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)

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. If you

file a request to reconsider and also file a civil action, filing a civil

action will terminate the administrative processing of your complaint.

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

May 25, 2007

__________________

Date

1 Complainant states that he has macular degenerative eye disease.

Here, we will assume arguendo that complainant is disabled pursuant to

the Rehabilitation Act.

2 In this case, complainant initially requested a hearing before an

Administrative Judge (AJ) of the EEOC. However, the AJ cancelled the

hearing on the basis of complainant's failure to submit a pre-hearing

statement and failure to prosecute his complaint. On appeal, complainant

does not challenge the AJ's decision to cancel the hearing. Accordingly,

we will not address the matter herein.

3 Although denial of reasonable accommodation was not an accepted issue

in this case, the agency discussed it in the FAD, and found no violation

of the Rehabilitation Act. The record indicates that in response to

complainant's request, the agency provided him a text enlargement program

(Zoomtext) for use with the computer. Complainant indicated in his formal

complaint that he also asked to be sent for a special course concerning

how the Zoomtext could be applied to the agency's record system.

Complainant stated that this request was denied. Complainant further

stated that he asked for a brighter monitor screen so that he could

read it more easily and thus expedite his work, and that this was also

denied. After a careful review of the record, we find that complainant

said nothing more in his Affidavit about these alleged requests, and he

submitted no evidence to support that he made such requests and/or that

they were denied. Accordingly, and in light of the fact that complainant

failed to take advantage of the hearing process that was available to him

(wherein more information could have been produced on these matters),

we decline to find a violation of the Rehabilitation Act.

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0120063137

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036