to "order the depository institution which committed the violation" to reinstate the employee, pay compensatory damages or otherwise act to remedy any past discrimination. 12 U.S.C. § 1831j(c). Furthermore, 12 U.S.C. § 1813 defines the terms used in the whistle blower statute eliminating the need for further statutory interpretation. Depository institutions consist of any bank or savings association, 12 U.S.C. § 1813(c)(1), while an institution-affiliated party includes the directors, officers, employees or controlling stockholders for an insured depository institution. 12 U.S.C. § 1813(u). Since the whistle blower statute provides plaintiff with a remedy only against the depository institution and not against the institution's directors, officers employees or controlling stockholders, Count II will be dismissed as to the individual defendants in both their official and individual capacities, including the estate of Erwin Kucera.
a. 12 U.S.C. § 1831j(b)
RTC has moved to dismiss the whistle blower claim alleging that plaintiff, by failing to file his fourth amended complaint with the Office of Thrift Supervision, has not complied with the court's May 23, 1990 order. The court ordered plaintiff to file a copy of his fourth amended complaint with the appropriate federal banking agency pursuant to 12 U.S.C. § 1831j(b). Hicks v. Resolution Trust Corp., 738 F. Supp. 279, 287 (N.D.Ill. 1990). On June 8, 1990, plaintiff filed his complaint with the Federal Deposit Insurance Corporation which is the appropriate federal banking agency for "a State nonmember insured bank" under 12 U.S.C. § 1813(q)(3). However, the court finds that Clyde Federal Savings and Loan was a savings association or savings and loan holding company within the statutory definition, 12 U.S.C. § 1813(q)(4), for which the Director of the Office of Thrift Supervision is the appropriate federal banking agency.
The purpose of the filing required in 12 U.S.C. § 1831j(b) is to notify the federal banking agency so that it can be apprised of possible discrimination claims against its institutions. Since the filing requirement is merely a monitoring device, plaintiff's failure to file with the appropriate federal banking agency is not fatal to his claim. Defendant's motion to dismiss for failure to comply with the court's order is denied.
b. 12 U.S.C. § 1831j(d)
RTC has also moved to dismiss, or in the alternative, for summary judgment as to count II, plaintiff's whistle blower claim. RTC contends that plaintiff's conduct in providing a false report to the CRA falls within the exclusion to the whistle blower statute, which precludes individuals who participate in the alleged violation from recovery under the statute. Plaintiff admits that he signed a memo stating that Clyde Federal was in compliance with the CRA and that he submitted the memo to the FHLBB voluntarily and with knowledge of its falsity. (Plaintiff's Answer to Supplemental Interrogatories, Answer No. 2., subsections (g) through (i)).
The whistle blower statute applies when an individual is fired for providing information regarding a "possible violation" of any law or regulation. 12 U.S.C. § 1831j(a). Plaintiff need not show that he was fired because he reported an actual violation. All plaintiff must show is that he reported a possible violation. Id. However, subsection (d)(1) strips the protection of this statute from the individual who "participates in the alleged violation". 12 U.S.C. § 1831j(d)(1). Further, subsection (d)(2) provides that an individual who "knowingly or recklessly provides substantially false information" shall not be covered by the statute. 12 U.S.C. § 1831j(d)(2). The plain language of the statute therefore excludes from recovery those who participate in supplying false information to the agencies.
On or about February 16, 1987, plaintiff, as Clyde Federal's CRA compliance officer, signed and submitted a "Nondiscrimination Questionnaire" to the FHLBB. The completed questionnaire indicated Clyde Federal's CRA compliance as follows:
3. Are there neighborhoods or areas within the association's effective lending territory in which the association makes dwelling loans on more restrictive terms? No.