Zhu v. Federal Housing Finance Bd., CIV.A. 04-2539-KHV.

Citation389 F.Supp.2d 1253
Decision Date22 September 2005
Docket NumberNo. CIV.A. 04-2539-KHV.,CIV.A. 04-2539-KHV.
PartiesXiangyuan ZHU, Plaintiff, v. FEDERAL HOUSING FINANCE BOARD, et al., Defendants.
CourtUnited States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas

Xiangyuan Zhu, Topeka, KS, pro se.

Emily B. Metzger, Office of United States Attorney, Wichita, KS, Cynthia J. Sheppeard, Weathers & Riley, Patricia E. Riley, Wesley A. Weathers, Topeka, KS, for Defendant.

MEMORANDUM AND ORDER

VRATIL, District Judge.

Xiangyuan Zhu pro se brings suit against the Federal Housing Finance Board ("Finance Board"), the Federal Home Loan Bank of Topeka ("FHLB-Topeka"), and individual directors, officers and employees of FHLB-Topeka. Plaintiff asserts claims under 42 U.S.C. §§ 1981, 1982, 1983, 1985 and 1986; Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a et seq.; ("Title II"); the Fair Housing Act, 42 U.S.C. § 3601 et seq. ("FHA"); the First, Fifth, Thirteenth and Fourteenth Amendments to the Constitution of the United States; 18 U.S.C. § 1514A of the Sarbanes-Oxley Act of 2002; the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961-1964 ("RICO"); the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. ("ADA"); the Family and Medical Leave Act, 29 U.S.C. § 2611 et seq. ("FMLA"); the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. ("FLSA"); the Equal Pay Act, 29 U.S.C. § 206(d) ("EPA");Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"); and the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA").1

This matter comes before the Court on Topeka Defendants' Motion To Dismiss Plaintiff's Amended Complaint In Part For Want Of Subject Matter Jurisdiction (Doc. # 86) filed February 15, 2005, Topeka Defendants' Motion To Dismiss Plaintiff's Amended Complaint For Failure To State A Claim (Doc. # 88) filed February 15, 2005, and the Motion Of Federal Housing Finance Board To Dismiss (Doc. # 93) filed March 9, 2005. The so-called "Topeka defendants" include FHLB-Topeka; its directors, Ronald K. Went, Richard C. Berg, Duane L. Fager, David W. Herlinger, Bruce R. Lauritzen, Gilbert Lundstrom, James C. Orbison, B. Stephen Parker, Gregory Stine and Louis F. Trost; and FHLB-Topeka officers and employees, Andy Jetter, Executive Vice President, Mark Yardley, First Senior Vice President, Frank Tiernan, Sr. Vice President, Richard Schaplowsky, First Vice President and General Counsel, Dina Cox, Vice President and Director of Human Resources, Sherri Workman, Human Resources Generalist, Mark McLelland, Vice President and Director of Risk Management, Tommy Millburn, Vice President and Director of Internal Audit, Cindy Williams, User Support Analyst, and Chris Shumaker, Risk Analyst.

Also before the Court are the Supplement To Plaintiff's Opposition To Topeka Defendants' Motion To Dismiss Plaintiff's Amended Complaint In Part For Want of Subject Matter Jurisdiction (Doc. # 117) filed May 25, 2005, the Supplement To Plaintiff's Opposition To Topeka Defendants' Motion To Dismiss Plaintiff's Amended Complaint For Failure To State A Claim (Doc. # 118) filed May 25, 2005 and the Supplement To Plaintiff's Opposition To Topeka Defendants' Motion To Dismiss Plaintiff's Amended Complaint In Part For Want Of Subject Matter Jurisdiction — The Attachment Of Plaintiff's Outline Of Her Second Amended Complaint, (Doc. # 120) filed June 6, 2005, each of which the Court construes as a motion for leave to file a second amended complaint. The final motion before the Court is the Motion To Strike (Doc. # 121) which the Topeka Defendants filed June 8, 2005, asking the Court to strike each of plaintiff's foregoing supplements. As to the motion to file a second amended complaint, plaintiff has not complied with local rules regarding amendment of pleadings. Under D. Kan. Rule 15.1(a), "a motion to amend shall set forth a concise statement of amendment sought to be allowed, with the signed original, and one copy of the proposed amended pleading, attached." Plaintiff has not attached a copy of a proposed amended complaint. The Court is therefore in no position to evaluate the sufficiency of her claims and overrules her motions to file a second amended complaint (as contained in Document 117, 118 and 120) and further overrules as moot defendants' motion to strike (Doc. # 121).

Facts

Plaintiff's amended complaint alleges the following facts:

Zhu, a female member of a racial minority, was born on September 27, 1953. In December of 1997, FHLB-Topeka hired Zhu as a financial analyst. During the first six months of her employment she was promoted as Senior Risk Analyst and served in that capacity for about three years, through July 26, 2001. Zhu conducted balance sheet analysis and audited modeling results for the Risk Management Department. She made detailed suggestions so that the model results would match the market values calculated in Accounting. Zhu also served on the Interest Rate Risk Committee.

FHLB-Topeka is a district bank of the Federal Home Loan Bank system for Kansas, Colorado, Nebraska and Oklahoma. It is incorporated under 12 U.S.C. §§ 1421-49 and has its principal place of business in Topeka, Kansas.

The Fair Housing Finance Board ("Finance Board")

The Finance Board is an independent executive agency which was created as part of the Financial Institutions Reform, Recovery and Enforcement Act, 12 U.S.C. § 1421 et seq., as a successor to the Federal Home Loan Bank Board. The Finance Board consists of five directors, four of whom are appointed by the President and confirmed by the Senate. The fifth director is the Secretary for Housing and Urban Development. See 12 U.S.C. § 1422a(b)(1)(A & B). The primary duty of the Finance Board is to ensure that the 12 Federal Home Loan Banks operate in a financially safe and sound manner. See 12 U.S.C. § 1422a(a)(3)(A). The Federal Home Loan Banks are government sponsored enterprises (GSEs) as defined by 2 U.S.C. § 622(8), and they help assure an adequate supply of mortgage funds by making loans, to creditworthy financial institutions which then lend the funds to individual home buyers. See 12 U.S.C. § 1430.

Each Federal Home Loan Bank has individual financial institution "members" which share in the bank's ownership and management functions. All federally chartered savings and loan associations automatically become members of a Federal Home Loan Bank. Other financial institutions may become members if they meet eligibility requirements. See 12 U.S.C. §§ 1464(f), 1424(a). Federal Home Loan Banks also provide other services for their members, including check clearing, letters of credits and trustee functions. See 12 U.S.C. § 1431. Federal Home Loan Banks are federally-chartered corporations whose stock is held by their member financial institutions, and Federal Home Loan Banks do not receive operating funds from the federal government. Federal Home Loan Banks are subject to the Government Corporation Control Act, 31 U.S.C. § 9101 et seq., which requires the Federal Home Loan Banks to submit annual management reports to Congress and subjects them to periodic government audits. See 12 U.S.C. §§ 9105, 9106.

The capital stock of each Federal Home Loan Bank is issued in its own name and is owned entirely by its member institutions, which are required to purchase and maintain minimum levels of Federal Home Loan Bank stock. See 12 U.S.C. § 1426(c). The banks distribute dividends to their shareholders, subject to Finance Board regulations. Id. § 1426(h); 12 C.F.R. § 917.9 (2002). The Federal Home Loan Banks obtain funds for advances and operating expenses through fees to member institutions for various services and by selling consolidated obligations in the capital and money markets. These bonds, which are backed by secured advances and government insured or guaranteed mortgages, are not obligations and are not guaranteed by the United States government. See 12 U.S.C. §§ 1431(b), 1435.

A board of directors manages each Federal Home Loan Bank. The Board is comprised of 14 members, eight of whom are elected by member institutions. See 12 U.S.C. § 1427(a). The Finance Board appoints the other six members of the board and also designates the chairman and vice-chairman. Id. The Board then selects a president and other officers for the bank, subject to approval by the Finance Board. See 12 U.S.C. § 1432(a).

The Finance Board has the power to remove any director, officer, employee or agent of any Federal Home Loan Bank. See 12 U.S.C. § 1422b(a)(2). Each Federal Home Loan Bank submits a budget for approval by the Finance Board. Federal Home Loan Banks may only acquire or dispose of securities or other property with prior approval of the Finance Board or in accordance with stated agency policy. See 12 U.S.C. § 1432(a); 12 C.F.R. § 956.2. Other Federal Home Loan Bank functions, such as the taking of demand and time deposits, are carried out only upon terms and conditions the Finance Board may prescribe. See 12 U.S.C. § 1431(e)(1).

Federal Home Loan Bank employees are not employees of the federal government. See 12 U.S.C. § 1422b(a)(2). Federal Home Loan Bank employees participate in a private employer retirement plan (the Financial Institutions Retirement Fund) which is not open to federal employees. Each Federal Home Loan Bank has the authority to hire and fire its employees at will, without recourse to any civil service remedy. See 12 U.S.C. § 1432(a).

Background of Legal Proceedings Involving Zhu and Marc Bunting

In June of 1998, Zhu informed her real estate agent, Marc Bunting of Countrywide Realty, Inc., that she did not want to buy a house at 2918 SW Gainsboro Road. Although it is not clear from the complaint, Zhu apparently was already living in the house. Bunting called Zhu at work and threatened to sue her if she did not buy the house. Bunting then went to FHLB-Topeka and threatened to sue Zhu because of her race. Zhu purchased the home based on...

To continue reading

Request your trial
14 cases
  • Moore v. Univ. of Kan.
    • United States
    • U.S. District Court — District of Kansas
    • July 28, 2015
    ...§ 1514A, which has been interpreted by the courts to have an exhaustion of administrative remedy requirement. Zhu v. Fed. Hous. Fin. Bd., 389 F.Supp.2d 1253, 1272 (D.Kan.2005) (Because the "plaintiff does not allege that she exhausted her administrative remedies under Sarbanes–Oxley," the c......
  • Lagerstrom v. Mineta
    • United States
    • U.S. District Court — District of Kansas
    • January 13, 2006
    ...Act). The federal sector provision of the ADEA is a limited waiver of sovereign immunity, 29 U.S.C. § 633a; Zhu v. Fed. Hous. Fin. Bd., 389 F.Supp.2d 1253, 1291 (D.Kan.2005), and defendant argues that disparate impact claims are not within the scope of that waiver. Defendant insists that th......
  • Azim v. Tortoise Capital Advisors, LLC
    • United States
    • U.S. District Court — District of Kansas
    • September 2, 2014
    ...claim, and a former employee lacks standing to assert a RICO claim based on an alleged wrongful termination. Zhu v. Fed. Hous. Fin. Bd., 389 F. Supp. 2d 1253, 1274 (D. Kan. 2005) (citing Beck v. Prupis, 529 U.S. 494, 500-04 (2000)); see also Masters v. Daniel Int'l Corp., No. 87-1290-C, 199......
  • Wallace v. Microsoft Corp.
    • United States
    • U.S. District Court — District of Kansas
    • June 27, 2008
    ...825.208. See, e.g., Moss v. Bluecross, Blue Shield of Kansas, 534 F.Supp.2d 1190, 1200 n. 23-25 (D.Kan.2008); Zhu v. Federal Housing Fin. Bd., 389 F.Supp.2d 1253, 1289 (D.Kan.2005). Further, as one commentator has recognized, even invalidating § 825.208 would not automatically require the e......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT