01981133
11-05-1998
C. Tony Liang, Appellant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.
C. Tony Liang, )
Appellant, )
) Appeal No. 01981133
v. ) Agency No. NIA EEO970053
)
Donna E. Shalala, )
Secretary, )
Department of Health and )
Human Services, )
Agency. )
)
DECISION
On November 28, 1997, appellant filed a timely appeal with this Commission
from a November 7, 1997 final agency decision which dismissed one of
two allegations of his complaint for failure to state a claim pursuant
to 29 C.F.R. �1614.107(a).
In its final decision, the agency dismissed allegation (2) of appellant's
August 29, 1997 complaint, wherein he alleged that on February 3,
1997, the NIA Scientific Director commented in a Memorandum: "I am
disappointed in his [appellant's] overall level of productivity and in
the journals in which his work has appeared. He should be encouraged to
be more productive and to put his work in more widely read journals."
In dismissing the allegation, the agency noted that the alleged remark
was not severe, there was no adverse agency action taken as a result of
the remark and that appellant was not harmed.
Upon review, we find that the agency's dismissal was proper. The record
reveals that the alleged discriminatory remark appeared in a February 3,
1997 Memorandum from the Scientific Director to appellant's supervisor as
part of the Scientific Director's performance review of the supervisor
and contains remarks about the supervisor's performance and feedback
about employees whom he supervised. Appellant has not shown how the
remark constituted a direct and personal deprivation at the hands of
his employer, that is, a present and unresolved harm affecting a term,
condition, or privilege of his employment. See Diaz v. Department of
the Air Force, EEOC Request No. 05931049 (April 21, 1994). Moreover,
the Commission has generally held that a remark or comment, unaccompanied
by concrete action, is not a direct and personal deprivation sufficient
to render an individual aggrieved. See Backo v. U.S. Postal Service,
EEOC Request No. 05960227 (June 10, 1996) (supervisor's remarks on several
occasions, unaccompanied by concrete employment action, not sufficient to
state a claim); Simon v. U.S. Postal Service, EEOC Request No. 05900866
(October 3, 1990). We find, therefore, that appellant was not aggrieved.
See Ingerman v. Department of Veterans Affairs, EEOC Appeal No. 01976659
(June 19, 1998)(appellant not aggrieved by electronic mail message which
criticized his performance).
Accordingly, the agency's final decision is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
November 5, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations