Federal regulations provide that "[a] complainant who has filed an individual complaint . . . is authorized under title VII [and] . . . the ADEA . . . to file a civil action . . . after 180 days from the date of filing an individual . . . complaint if an appeal has not been filed and a final decision has not been issued." 29 C.F.R. § 1614.408(b). Mr. Hill filed the formal EEO Complaint of Discrimination in the Postal Service ("EEO complaint") in May 1993 and this suit on April 3, 1996. Defendant argues that, notwithstanding the passage of 180 days, this court lacks subject matter jurisdiction because Mr. Hill failed to exhaust his administrative remedies as to the EAS positions.
Under Title VII, a federal employee must exhaust administrative remedies prior to filing suit in federal court. Pack v. Marsh, 986 F.2d 1155, 1157 (7th Cir. 1993); Mirza, 875 F. Supp. at 520. By contrast, under the ADEA, this Circuit "no longer require[s] that administrative remedies, once begun, must be exhausted before suit is filed in district court." Bohac, 85 F.3d at 311 (citing Adler v. Espy, 35 F.3d 263 (7th Cir. 1994)).
The record shows the following. Mr. Hill's EEO complaint was dated May 11, 1993 and was received by the EEO Office on May 17, 1993. In this complaint, Mr. Hill, through his attorney, Joleen Payeur Olsen, complained that "he had not been selected for any of the new positions in his professional field after the U.S. Postal Service had completed its reorganization. All of the selectees for the various positions were younger than Mr. Hill, and many of the selectees were of a different race, color, and sex than Mr. Hill." Mr. Hill identified the Vice president, Mitchell H. Gordon, and the 18 PCES managers, see supra, as the officials responsible for the alleged discriminatory decisions, and sought as one of his remedies an appointment to a "comparable position." (Maclin Declaration, Ex. 2.)
In October 1993, Mr. Hill was assigned as a PCES on Special Assignment to a temporary detail as a Real Estate Specialist, EAS 16/22. On November 19, 1993, he filed an appeal with the Merit Systems Protection Board (MSPB) on the grounds that this assignment, as well as his nonselection for any position during the defendant's restructuring, was discriminatory. On the same day, Mr. Hill's attorney informed the EEO Office of his MSPB appeal. (Maclin Declaration, Ex. 4.)
On November 18, 1993, the EEO Office accepted Mr. Hill's EEO complaint for investigation. Its understanding was that Mr. Hill was complaining that he had not been selected for the 18 PCES managerial positions. The EEO Office indicated in a letter dated December 8, 1993 that if "the complainant does not agree with the defined issue(s), s/he must provide us with sufficient reasons."
(Maclin Declaration, Ex. 3.) On February 14, 1994, Mr. Hill's attorney, Ms. Olsen, advised the EEO Office that
the EEO process in [Mr. Hill's] . . . complaint . . . was terminated because of filing an appeal with the Merit Systems Protection Board (MSPB). . . . This case . . . [is] no longer in the EEO forum. This complaint was transferred to the MSPB on November 19, 1993, and that transfer terminated the EEO process. . . . The Agency should stop sending requests for affidavits and threatening my client with the dismissal of the complaint, as that process was terminated several months ago . . . .