Williams v. Department of the Army, 715 F.2d at 1485, 1487 (Fed. Cir. 1983).
In the case at bar, Ms. Mirza brought a timely appeal of the August 23, 1992 RIF before the MSPB. On March 19, 1993, Administrative Judge Grip affirmed the agency's action, finding that the agency invoked the RIF regulations for a permissible reason, i.e. lack of work, and that the action was not a pretext for prohibited discrimination. Complaint, Ex. A. However, Administrative Judge Grip also found that the MSPB lacked jurisdiction over the other non-RIF discriminatory acts of which Ms. Mirza complained, presumably because they did not constitute "adverse actions" as defined by 5 U.S.C. §§ 7512(1-5). Declaration of Randy W. Thomas, Ex. III. Therefore, the record before the Court reveals that Ms. Mirza has exhausted her administrative remedies only as to the timely-filed RIF appeal to the MSPB. With respect to her other claims of discrimination, Ms. Mirza has not produced any evidence in opposition to Treasury's summary judgment motion demonstrating that she has satisfied the applicable Title VII and ADEA administrative requirements.
Ms. Mirza's actual awareness of an alleged pattern of discriminatory practices as early as November, 1989 precludes tolling the statute of limitations with respect to these claims. See Moskowitz v. Trustees of Purdue University, supra, 5 F.3d at 281-82; Jones v. Merchants National Bank & Trust Company of Indianapolis, 42 F.3d 1054, 1994 WL 695739, at *3 (7th Cir. 1994). Since they are now time-barred, Treasury is entitled to summary judgment on the non-RIF, post-FIRREA Title VII and ADEA claims for which Ms. Mirza has failed to satisfy the applicable administrative requirements.
Treasury also moves to dismiss Count III with respect to the RIF. Treasury argues that dismissal of this claim is warranted because Ms. Mirza failed to raise during her MSPB appeal a claim that the RIF constituted retaliation for her previous opposition to unlawful employment practices. When considering a "mixed" case, a federal district court reviews the discrimination claim de novo, and the nondiscrimination claim on the administrative record. 5 U.S.C. § 7703(c); Romain v. Shear, 799 F.2d 1416, 1421 (9th Cir. 1986), cert. denied, 481 U.S. 1050, 95 L. Ed. 2d 840, 107 S. Ct. 2183 (1987); Murray v. United States Department of Justice, 821 F. Supp. 94, 101 (E.D.N.Y.), aff'd., 14 F.3d 591 (2nd Cir. 1993). However, the sparse record before this Court neither supports nor refutes Treasury's contention. Accordingly, Treasury's motion to dismiss Count III with respect to the RIF is denied.
III. Equal Pay Act Claim
Treasury, OTS, and the Bank next move this Court to dismiss the EPA claim on the ground that it is time-barred by the applicable period of limitation.
Under the Equal Pay Act, a claim for sex-based wage discrimination must be brought within two years of the alleged violation, or within three years if willfulness is alleged. 29 U.S.C. § 255(a); Feng v. Sandrik, 636 F. Supp. 77, 81 (N.D. Ill. 1986). Since Ms. Mirza has alleged willfulness on the part of defendants, the applicable period of limitation in this case is three years. Ms. Mirza is not entitled to rely on a continuing violation theory to revive her claims of discriminatory pay occurring before the three-year limitation period. Jones v. Merchants National Bank & Trust Company of Indianapolis, supra, 42 F.3d 1054, 1994 WL 695739, at *3 (citing Webb v. Indiana National Bank, 931 F.2d 434, 438 (7th Cir. 1991)).
Therefore, Ms. Mirza is entitled to recover for alleged violations of the Equal Pay Act occurring within three years of the May 24, 1993 filing date of this lawsuit, i.e., pay discrimination occurring on or after May 24, 1990. See Sweeney v. Edward Don & Co., 1987 U.S. Dist. LEXIS 3385, No. 86 C 5745, 1987 WL 10287, at *2 (N.D. Ill. Apr. 24, 1987). Accordingly, the EPA claim is dismissed as to Treasury and OTS to the extent that Ms. Mirza seeks relief for alleged unlawful conduct occurring before May 24, 1990. The Bank is entitled to summary judgment on the EPA claim since Ms. Mirza received her last paycheck as a Bank employee on September 30, 1989, and ceased to be an employee of the Bank as of October 8, 1989.
For the foregoing reasons, the Bank is entitled to summary judgment on all remaining claims against it. Accordingly, the Bank is dismissed from this lawsuit. Treasury is entitled to judgment on those post-FIRREA Title VII and ADEA claims for which Ms. Mirza failed to timely comply with the applicable administrative requirements. Treasury's motions to dismiss the pre-FIRREA Title VII and ADEA claims, and those claims relating to the August 23, 1992 reduction in force, are denied. The motion by Treasury and OTS to dismiss the Equal Pay Act claim against them is granted to the extent that Ms. Mirza seeks relief for alleged unlawful conduct occurring before May 24, 1990.
ELAINE E. BUCKLO
United States District Judge
Dated: February 7, 1995.