Mirza v. Department of Treasury

• Decision Date: 09 February 1995
• Docket Number: No. 93 C 3122.,93 C 3122.
• Parties: Helen K. MIRZA, Plaintiff, v. The DEPARTMENT OF TREASURY, an Executive Department of the United States Government, through Lloyd Bentsen, In His Capacity As Secretary of the Department of Treasury; The Office of Thrift Supervision, an Agency of the Department of Treasury, through Jonathan L. Fiechter, In His Capacity as Acting Director; and the Federal Home Loan Bank of Chicago, through Alex J. Pollock, In His Capacity as President of The Federal Home Loan Bank of Chicago, a quasi-governmental agency, Defendants.
• Court: U.S. District Court — Northern District of Illinois

875 F. Supp. 513

Helen K. MIRZA, Plaintiff, v. The DEPARTMENT OF TREASURY, an Executive Department of the United States Government, through Lloyd Bentsen, In His Capacity As Secretary of the Department of Treasury; The Office of Thrift Supervision, an Agency of the Department of Treasury, through Jonathan L. Fiechter, In His Capacity as Acting Director; and the Federal Home Loan Bank of Chicago, through Alex J. Pollock, In His Capacity as President of The Federal Home Loan Bank of Chicago, a quasi-governmental agency, Defendants.

No. 93 C 3122.

United States District Court, N.D. Illinois, Eastern Division.

February 9, 1995.

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Susan Bogart, Chicago, IL, for plaintiff.

Ann L. Wallace, Chicago, IL, Elizabeth R. Moore, Richard L. Rennert, Washington, DC, Alan M. Kaplan and Adrianne C. Mazura, Chicago, IL, for defendants.

MEMORANDUM OPINION AND ORDER

BUCKLO, District Judge.

Facts

In January, 1975, the Federal Home Loan Bank of Chicago ("Bank") hired Helen Mirza ("Ms. Mirza") as a Supervisory Analyst. Ms. Mirza was promoted to Supervisory Agent and Assistant Vice President in June, 1984, and to Vice President in September, 1988. Ms. Mirza remained employed at the Bank until 1989, when Congress enacted the Financial Institutions Reform, Recovery and Enforcement Act ("FIRREA"), which abolished the Federal Home Loan Bank Board and transferred its regulatory functions to the Office of Thrift Supervision ("OTS") within the Department of the Treasury ("Treasury"). FIRREA mandated that all home loan bank employees performing functions delegated by the Board would be transferred to OTS by October 8, 1989. Ms. Mirza became an OTS employee at that time.

In November, 1989, Ms. Mirza was demoted to the position of Group Leader at OTS. On November 29, 1989, Ms. Mirza protested to her superiors that her new position assignment was part of a pattern of unlawful sex discrimination of which she had long been aware, that she had informally attempted to resolve such discrimination over the years, and that she intended to file a formal complaint with the Equal Employment Opportunity Commission ("EEOC") and to explore the possibility of bringing a civil suit. However, Ms. Mirza never filed with the EEOC a formal complaint or a notice of intent to sue in connection with this demotion or any other unlawful employment practices at the Bank. In December, 1990, Ms. Mirza took the position of Industry Rehabilitation Manager. On June 17, 1992, Ms. Mirza was formally notified that, effective August 23, 1992, this position would be eliminated through a reduction in force ("RIF"). Ms. Mirza was offered, and accepted, the position of Examiner V at the same annual salary, but at a lower grade.

On September 11, 1992, Ms. Mirza appealed the RIF to the Merit Systems Protection Board. In her appeal petition, Ms. Mirza claimed that the RIF constituted discrimination, was part of a pattern of discrimination based on age and sex, reflected retaliation against her for having reported banking law violations, and was procedurally deficient. On March 19, 1993, Administrative Judge Julia Grip rejected these allegations and affirmed OTS' decision to eliminate the position for a permissible reason, i.e., lack of work.

On May 24, 1993, Ms. Mirza brought this action against the Department of the Treasury (through Secretary Lloyd Bentsen), OTS (through Acting Director Jonathan L. Fiechter), and the Bank (through President Alex J. Pollock), alleging violations of Title VII of the Civil Rights Act ("Title VII"), the Age Discrimination in Employment Act ("ADEA"), and the Equal Pay Act ("EPA"). Generally, Ms. Mirza alleges that, at least since 1986, defendants have engaged in a pattern of unlawful and discriminatory employment practices that have deprived her of equal employment opportunities, advancement, and wages because of her age and sex.

On February 2, 1994, Judge Zagel, to whom this case was then assigned, dismissed the Title VII and ADEA claims against OTS, and all discrimination claims against the Bank arising from conduct alleged to have occurred after October 8, 1989. The Bank now moves for summary judgment on all remaining claims against it. Treasury moves to dismiss the pre-FIRREA Title VII and ADEA claims, and for summary judgment on the post-FIRREA Title VII and ADEA claims, except as to the August 23, 1992 reduction in force. As to the reduction in force, Treasury moves to dismiss the retaliation claim in Count III. Treasury and OTS also move to dismiss the EPA claim to the extent that Ms. Mirza seeks relief for alleged pay discrimination occurring before May 24, 1990. For the reasons stated herein, defendants' motions are granted in part and denied in part.

Analysis

I. Pre-FIRREA Title VII and ADEA Claims

The Bank moves for summary judgment on Ms. Mirza's pre-FIRREA Title VII and ADEA claims on the ground that Ms. Mirza failed to exhaust her administrative remedies. For the same reason, Treasury separately moves to dismiss these claims for lack of subject matter jurisdiction pursuant to FED.R.CIV.P. 12(b)(1). In response, Ms. Mirza argues that the conduct of the defendants equitably tolled the relevant statutes of limitation.

As an employee of the Bank, Ms. Mirza was required to comply with the administrative exhaustion requirements applicable to private employees. 12 U.S.C. § 1422b(a)(2); Andrews v. Federal Home Loan Bank of Atlanta, 998 F.2d 214 (4th Cir.1993); Osei-Bonsu v. Federal Home Loan Bank of New York, 726 F.Supp. 95 (S.D.N.Y.1989). A Title VII complainant must file a charge of discrimination with the EEOC within 180 days after the alleged unlawful employment practice occurs. 42 U.S.C. § 2000e-5(e)(1). If the EEOC dismisses the charge or fails to act within 180 days after the charge is filed, the Title VII complainant may bring a civil action against her employer in federal district court. 42 U.S.C. § 2000e-5(f)(1). An ADEA complainant in Illinois must file a charge of discrimination with the EEOC within 300 days after the alleged unlawful employment practice occurs. 29 U.S.C. § 626(d)(2); Hamilton v. Komatsu Dresser Industries, Inc., 964 F.2d 600, 603 (7th Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 324, 121 L.Ed.2d 244 (1992) (citing Stark v. Dynascan Corp., 902 F.2d 549, 551 (7th Cir.1990)). The ADEA complainant may not bring a civil action in federal court until 60 days after the charge has been filed with the EEOC. 29 U.S.C. § 626(d). These administrative filing requirements are not jurisdictional prerequisites which pose an absolute bar to suit, but rather "conditions precedent," similar to statutes of limitations, which are subject to equitable modification. Perkins v. Silverstein, 939 F.2d 463, 469-70 (7th Cir.1991) (citations omitted).

Ms. Mirza admits that she has never filed charges with the EEOC in connection with any of the Bank's alleged unlawful employment practices. Instead, Ms. Mirza argues that the statute of limitations must be equitably tolled in this case because all unlawful acts of which she complains, beginning in March, 1986 and continuing through the present, constitute a "continuing violation." Under the continuing violation doctrine, the statute of limitations begins to run on the date of the last occurrence of discrimination. Therefore, she concludes, "the only question before this Court is whether Plaintiff filed her claim in connection with the last act of discrimination charged in her complaint," i.e., the reduction in force of August 23, 1992, which was timely appealed to the Merit Systems Protection Board.

Ms. Mirza's argument, however, misconstrues the law. As the Seventh Circuit recently explained:

Under the doctrine of equitable tolling, ... a person injured by an unlawful act need not sue until he knows, or through the exercise of reasonable diligence would have known, ... that he has been injured by a possibly wrongful act of the defendant.... If it is only with the benefit of hindsight, after a series of discriminatory acts, that the plaintiff can realize that he is indeed a victim of unlawful discrimination, he can sue in regard to all of the acts provided he sues promptly after learning their character, even if the statute of limitations has run on all of them. If, however, he knows or with the exercise of reasonable diligence would have known after each act that it was discriminatory and had harmed him, he may not sit back and accumulate all the discriminatory acts and sue on all within the statutory period applicable to the last one.

Moskowitz v. Trustees of Purdue University, 5 F.3d 279, 281-82 (7th Cir.1993).

In the case at bar, it is clear that Ms. Mirza was aware of the alleged pre-FIRREA discriminatory conduct insofar as it involved sex discrimination at least as early as November 29, 1989. On that date, Ms. Mirza sent her superiors a memorandum, in which she stated:

I conclude, as a result of a great many factors coming to bear over the 15 years of my employment here at FHLB/OTS, that I am the object of sexual discrimination, disparate treatment, and subtle, but painful, harassment.... There are a significant number of other incidents and events that have occurred in the near and distant past which I could and am prepared to, cite that support my conclusion.... In the event that these matters, which I have broached directly and indirectly on numerous face-to-face occasions over the years and recent months with my direct superior ... are not addressed, I feel I will then have no alternative but to attempt to address these matters through channels outside the organization.... Specifically, I intend to file an EEOC complaint as well as to explore the possibility of a civil suit ...

Declaration of Randy Thomas, Ex. B, pp. 1-2; Bank 12(M) Statement, ¶ 15; Treasury 12(M) Statement, ¶ 6. Evidently, Ms. Mirza believed that she had been the object of discrimination at the Bank and understood the charge-filing procedure...