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TSAI v. RICKI TIGERT HELFER

September 17, 1996

LYMAN TSAI, Plaintiff, against RICKI TIGERT HELFER, and FEDERAL DEPOSIT INSURANCE COMPANY, Defendants.


The opinion of the court was delivered by: HAIGHT

 HAIGHT, Senior District Judge:

 This action arises under the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. Plaintiff Lyman Tsai alleges that she was harassed, denied a promotion and transferred to an undesirable location by the Federal Deposit Insurance Company ("FDIC") and its Chairman, Ricki Tigert Helfer, on account of her age. Defendants move to dismiss under Rules 12(b)(1) and 12(b)(6), Fed. R. Civ. P., claiming that plaintiff failed to properly exhaust her administrative remedies and thus filed this action prematurely. Alternatively, defendants contend that they were not properly served with process, and seek dismissal pursuant to Rule 12(b)(2).

 I.

 Plaintiff's first formal complaint of discrimination was filed with the FDIC's Office of Equal Employment Opportunity (FDIC-EEO) on July 21, 1994. The complaint alleges discrimination on the basis of race, sex, age and national origin, as well as retaliation for complaining of the discrimination. Plaintiff was represented by counsel at the FDIC-EEO stage, and that representation has continued throughout the course of this litigation.

 On September 9, 1994, while plaintiff's discrimination claims were being processed by the FDIC-EEO, counsel for plaintiff wrote to the Equal Employment Opportunity Commission ("EEOC") notifying the Commission of plaintiff's intent to sue in federal court under the ADEA. In the letter, plaintiff acknowledges the fact that her complaint before the FDIC-EEO contains allegations of age discrimination, but goes on to say that "the matter of age was not raised at the informal complaint stage and is therefore not properly before the FDIC." Defendants' Exh B. This letter prompted a subsequent correspondence from the EEOC to the FDIC-EEO which served as formal notice to the FDIC-EEO of plaintiff's intent to sue, and directed the FDIC-EEO to conduct an inquiry into the merits of plaintiff's age discrimination claim, in hopes of resolving the case amicably.

 On October 19, 1995, the EEOC denied plaintiff's appeal. On the charge of age discrimination, the EEOC wrote:

 
On appeal, appellant . . . argues that the agency has no jurisdiction over her claim of age discrimination because she filed a civil action in a federal district court on January 27, 1995. The Commission finds that appellant did raise the basis of age discrimination in her EEO complaint. The Commission finds that appellant's argument amounts to a withdrawal of her age discrimination claim. Therefore, we shall not consider the basis of age discrimination in this appeal.

 EEOC Decision at 3.

 Defendants now move jointly to dismiss the complaint, urging that plaintiff did not allow the EEOC a sufficient amount of time to decide her appeal before she commenced this action, and therefore failed to exhaust her administrative remedies under 29 C.F.R. § 1614. Defendants alternatively argue that plaintiff's failure to serve the United States Attorney General in accordance with the terms of Rule 4 is fatal to her complaint. For reasons that follow, I dismiss on grounds related to defendants' first contention. I therefore do not reach the second.

 II.

 Under the ADEA, a federal employee wishing to assert a claim for discrimination has the option of "invoking the EEOC's administrative process and then filing a civil action in federal district court if he is not satisfied with his administrative remedies" or "presenting the merits of his claim to a federal court in the first instance." Stevens v. Department of the Treasury, 500 U.S. 1, 5-6, 114 L. Ed. 2d 1, 111 S. Ct. 1562 (1991) (citing 29 U.S.C. § 633a(b), (c) and (d)); see also 29 C.F.R. § 1614.201. If an employee chooses the administrative route, a question arises as to whether he is required to fully exhaust all administrative remedies before proceeding to federal court, and if so, whether the remedies were in fact exhausted. That is the primary question posed by the instant motion. Before proceeding to it, however, I must first consider plaintiff's contention, raised before the EEOC and alluded to again in these proceedings, that she never invoked the administrative process in the first place. The contention is without merit. Plaintiff plainly and undeniably asserted her claim of age discrimination in the original FDIC-EEO complaint. That simple act of checking the box marked "age" on the FDIC-EEO form complaint set the administrative wheels in motion, and vested the FDIC-EEO with jurisdiction to consider the merits of the claim. That plaintiff may have neglected to raise her claim at the informal complaint stage does not in any way effect or alter the express allegations of the formal complaint. Nor did plaintiff's filing of an intent to sue letter with the EEOC somehow divest the FDIC-EEO of jurisdiction to decide her ADEA claim. That claim was, quite simply, subject to agency review once the formal complaint had been filed. *fn1"


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