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