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MIRZA v. DEPT. OF THE TREASURY

August 11, 1998

HELEN K. MIRZA, Plaintiff, The DEPARTMENT OF THE TREASURY, an Executive Department of the United States Government, through ROBERT E. RUBIN, in his capacity as Secretary of the Department of the Treasury; The OFFICE OF THRIFT SUPERVISION, an agency of the Department of the Treasury, through NICOLAS P. RETSINAS, in his capacity as Director, Defendants.


The opinion of the court was delivered by: BUCKLO

MEMORANDUM OPINION AND ORDER

 The plaintiff, Helen K. Mirza, sued the defendants, the Department of Treasury ("Treasury"), through Secretary Robert E. Rubin, and the Office of Thrift Supervision ("OTS"), through Director Nicolas P. Retsinas, alleging violation of Title VII of the Civil Rights Act ("Title VII"), the Age Discrimination in Employment Act ("ADEA"), and the Equal Pay Act ("EPA"). After previous decisions in this case, *fn1" Title VII and ADEA claims remain pending against Treasury and EPA claims remain pending against Treasury and OTS. Both Treasury and OTS move for summary judgment on the remaining claims. For the following reasons, the motions are granted.

 Local Rule 12(M) and 12(N)

 Local Rule 12(M) requires the party moving for summary judgment to file "a statement of material facts as to which the moving party contends there is no genuine issue and... [that] shall consist of short numbered paragraphs, including within each paragraph specific references to the affidavit, parts of the record, and other supporting materials relied upon to support the facts set forth in the paragraph." The party opposing summary judgment must file "a response to each numbered paragraph in the moving party's statement, including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon...." Local Rule 12(N)(3)(a). if there are any other facts that require the denial of summary judgment the opposing party must file a statement of additional facts and support the facts with citation to the record. Local Rule 12(N)(3)(b). The Seventh Circuit has consistently upheld the strict application of the Local Rules. Brasic v. Heinemann's Inc., 121 F.3d 281, 284 (7th Cir. 1997); Schulz v. Serfilco, Ltd., 965 F.2d 516, 519 (7th Cir. 1992).

 Compliance with Local Rules 12(M) and 12(N) saves significant judicial resources by parsing out the contested factual issues for the court and providing a basis for factual disputes. The concept behind Local Rule 12(M) and 12(N) is the simplification of the summary judgment process. The Local Rules are not an invitation for abusive satellite litigation.

 The defendants have submitted three separate Local Rule 12(M) Statements and four separate summary judgment memoranda. Each Rule 12(M) Statement and memorandum deals with a different claim or time period. Accordingly, one Rule 12(M) Statement will be referred to as "Discrimination Rule 12(M) Statement P ," another as "Pre-FIRREA Rule 12(M) Statement P ," and another as "Pay Act Rule 12(M) Statement P ." Ms. Mirza's Rule 12(N) Response will be similarly titled.

 Ms. Mirza has objected to nearly every Local Rule 12(M) paragraph of uncontested fact the defendants present. Many of these objections are frivolous and indicate a glaring misunderstanding of the Federal Rules of Evidence. For instance, Ms. Mirza objects to the defendants' use of her deposition testimony as hearsay. Such testimony is, as any lawyer should know, a party admission and not hearsay. Ms. Mirza's frolic has required this court to expend considerable time wading through her morass of objections. Having done so, only Discrimination Rule 12(M) paragraph 18 and Pre-FIRREA Rule 12(M) paragraphs 4, 18, and 31 are clearly deficient. Ms. Mirza has not properly responded to Discrimination Rule 12(M) paragraphs 24, 27, 30, 44, 57, 58; Pay Act Rule 12(M) paragraphs 12, 13, 14, 15, 16, 17, 18, 19, 20, 22, 23, 25, 26, 27, 28, 29, 30, 31; and Pre-FIRREA Rule 12(M) paragraphs 5, 9, 12, 13, 17, 19, 23, 25, 27, 30, 32, by either not controverting the facts or not meeting Rule 12(N)'s requirement of supporting denials with citation to exhibits. "It is not [the] task...of the district court [] to scour the record in search of a genuine issue of triable fact." Richards v. Combined Ins. Co. of Am., 55 F.3d 247, 251 (7th Cir. 1995). Accordingly, those paragraphs are deemed admitted. Additionally, in other responses Ms. Mirza has both properly and improperly responded, often by failing to support part of her denial with citation to exhibits. Those deficient sections of paragraphs that have not been struck in their entirety have been ignored.

 Ms. Mirza consistently cites exhibits throughout her memorandum of law that were not presented to the court in either her Rule 12(N) Response or a Rule 12(N) Statement of Additional Facts. This is plainly improper. This tactic prohibits the defendants from meaningfully responding to Ms. Mirza's additional facts and exhibits and requires the court to sort through pages of exhibits to determine if they support the statements in Ms. Mirza's memorandum of law. The court has wasted enough time sorting through Ms. Mirza's Local Rule 12(N) Response. Accordingly, all exhibits cited in Ms. Mirza's memorandum of law that were not cited in her Rule 12(N) Response are stricken for failure to comply with the Local Rules. Midwest Imports, Ltd. v. Coval, 71 F.3d 1311, 1313-17 (7th Cir. 1995) (finding appropriate a district court's refusal to consider facts and exhibits cited in a brief but not in a Rule 12(N) Statement of additional facts). *fn2"

 Background3

 A. Reduction-in-force.

 Helen K. Mirza is a female over forty years of age. (2d Amended Comp. P 1). In January, 1975, the Federal Home Loan Bank of Chicago ("Bank") hired Ms. Mirza as a Supervisory Analyst. (Discrimination Rule 12(M) Statement P 1). Ms. Mirza was promoted to Supervisory Agent and Assistant Vice President in June, 1984, and to Vice President in September, 1988. (Discrimination Rule 12(M) Statement P 1; Discrimination Rule 12(N) Response P 1). In 1987 Ms. Mirza agreed to head up a newly created mergers and acquisitions unit at the Bank. (Discrimination Rule 12(M) Statement P 2; Discrimination Rule 12 (N) Response P 2).

 In 1989 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 OTS, an office within Treasury. (Discrimination Rule 12(M) Statement PP 4-5). After enactment of the FIRREA Ms. Mirza transferred to OTS and became the Industry Rehabilitation Manager, which required the handling of mergers and acquisitions of insolvent institutions. (Discrimination Rule 12(M) Statement P 6; Discrimination Rule 12(N) Response P 6). Ms. Mirza worked in the Central Region in Chicago, Illinois. (Discrimination Rule 12(N) Response P 6). Ms. Mirza was asked to: (1) facilitate recapitalization of undercapitalized thrifts; (2) bring together potential investors in the thrift industry and undercapitalized savings and loans institutions; (3) oversee the transfer of failing savings and loan associations to the Resolution Trust Corporation ("RTC"); (4) foster interest in recapitilizing savings and loans through mergers and acquisitions and other means; (5) deliver documents at receiverships, maintain investor files, and maintain contact with the investment community; and (6) perform certain liaison duties with the Federal Deposit Insurance Corporation ("FDIC"). (Discrimination Rule 12(M) Statement P 7).

 The number of thrift institutions in OTS's Chicago District Central Region decreased between 1989 and 1992. Thrifts were sold, liquidated, merged, and converted to state charters. (Discrimination Rule 12(M) Statement P 8; Discrimination Rule 12(N) Response P 8). Under an OTS rating system used to assess the health of the savings and loan industry, by June, 1992, 600 thrifts in the Central Region were classified as either "well-capitalized" or "expected to meet capital requirements." (Discrimination Rule 12(M) Statement PP 9-10). This amounted to 89% of the Central Region's thrifts. (Discrimination Rule 12(M) Statement P 10). Only four thrifts were given the lowest rating and were expected to need government assistance. By November, 1992, two these four thrifts had been resolved and two had been transferred to the RTC. Id. Ms. Mirza testified that between 1989 and mid-1992 the number of unhealthy thrifts in the Central Region diminished. (Discrimination Rule 12(M) Statement P 11).

 In early 1992 Stuart Brafman, OTS's Regional Director, and Ronald Karr, OTS's Regional Deputy Director, assigned Ms. Mirza, in her capacity as Industry Rehabilitation Manager, to cover the entire seven states of the Central Region. (Discrimination Rule 12(M) Statement P 14). *fn4" At that time the OTS analyst assigned to the Industry Rehabilitation unit was reassigned to another position. (Discrimination Rule 12(M) Statement P 15). Ms. Mirza began reporting to a new supervisor, Philip Gerbick. (Discrimination Rule 12(M) Statement P 16). While OTS suggests Ms. Mirza's workload diminished after the regionalization due to a decrease in ailing thrifts, Ms. Mirza suggests her workload increased during this time. (Discrimination Rule 12(M) Statement P 16; Discrimination Rule 12(N) Response P 16). Ms. Mirza admits the number of thrifts being transferred to the RTC dwindled after the regionalization. (Discrimination Rule 12(M) Statement P 17).

 OTS imposed a hiring freeze in 1992. (Discrimination Rule 12(M) Statement P 19). In March or April 1992 Mr. Karr decided to abolish the Industry Rehabilitation Manager position. (Discrimination Rule 12(M) Statement P 20). Ms. Mirza's duties as Industry Rehabilitation Manager were transferred to Assistant Directors, Mr. Gerbick, and others. (Discrimination Rule 12(M) Statement P 21). OTS offered Ms. Mirza a position as Examiner V, Grade 21. (Discrimination Rule 12(M) Statement P 25). An Examiner V is a Senior Examiner who conducts field examinations of thrifts and prepares examination reports on his or her findings. (Discrimination Rule 12(M) Statement P 56). Although the position was a Grade below Ms. Mirza's Industry Rehabilitation Manager position, the position was offered without a reduction in salary or benefits. (Discrimination Rule 12(M) Statement P 25). Ms. Mirza accepted the Examiner V position. (Discrimination Rule 12(M) Statement P 26).

 B. Deputy Regional Director position in La Palma, California.

 After Ms. Mirza accepted the position as Examiner V she applied for the position of Deputy Regional Director in OTS's West Region La Palma, California office. (Discrimination Rule 12(M) Statement P 34). The La Palma Deputy Regional Director position was posted nationally in September, 1992. (Discrimination Rule 12(M) Statement P 35). Ms. Mirza's application was handled by Lee Jordan in the Human Resources Division in Washington, D.C. (Discrimination Rule 12(M) Statement P 36). Mr. Jordan received seven applications for the position. Six of the applications were from men and the seventh from Ms. Mirza. Of the seven applicants, four were over the age of forty. Five of the applicants were from the West Region. (Discrimination Rule 12(M) Statement P 37). Mr. Jordan sent the applications to Janice Roudebush, Regional Deputy Director for Administration in OTS's West Region. Ms. Roudebush forwarded the applications to Eric Shand, Regional Director of the West Region. (Discrimination Rule 12(M) Statement P 38). Mr. Shand was responsible for recommending a candidate for the Regional Deputy Director position.

 Mr. Shand decided to limit consideration for the Regional Deputy Director position to the five candidates from the West Region. (Discrimination Rule 12(M) Statement P 40). Mr. Shand decided to limit consideration to West Region candidates because the West Region was undergoing downsizing and he hoped to boost morale and confidence by hiring from within the Region. (Discrimination Rule 12(M) Statement PP 44-46). Mr. Shand was not aware of Ms. Mirza's age when he decided to limit consideration for the position to West Region candidates. (Discrimination Rule 12(M) Statement P 41).

 After discussing the candidates with a variety of individuals Mr. Shand recommended Richard Sanchez, a 37 year-old male, for the position. (Discrimination Rule 12(M) Statement PP 49-50). Mr. Sanchez was appointed the Regional Deputy Director in December, 1992. (Discrimination Rule 12(M) Statement P 51).

 Ms. Mirza filed an internal Equal Employment Opportunity ("EEO") complaint with Treasury alleging gender and age discrimination for failure to promote her to the Regional Deputy Director position. Ms. Mirza concedes she did not include a claim for retaliation in her EEO complaint. (Discrimination Rule 12(M) Statement P 54).

 C. Performance Evaluation.

 While she was the Industry Rehabilitation Manager between January and March, 1992, Ms. Mirza was supervised by Chester Bierdon. Between March and August, 1992, Ms. Mirza reported to Philip Gerbick. After becoming an Examiner V in August, 1992, Renaldo Salonis supervised Ms. Mirza (Discrimination Rule 12(M) Statement P 55). Ms. Mirza was the only Senior Examiner without prior experience as an Examiner. Mr. Salonis placed Ms. Mirza with an experienced Examiner to provide guidance for Ms. Mirza's switch from Industry Rehabilitation Manager to Senior Examiner. (Discrimination Rule 12(M) Statement P 57).

 Ms. Mirza's 1992 performance was evaluated by all three supervisors to whom she reported during the year. (Discrimination Rule 12(M) Statement P 59). On a five level scale, Mr. Salonis rated Ms. Mirza at level 2 for the three to four months she was a Senior Examiner. A level 2 rating indicates the employee is performing at a "minimally acceptable" level. (Discrimination Rule 12(M) Statement P 58). Mr. Salonis concluded Ms. Mirza's work was that of an entry level Examiner. Id. Mr. Bierdon and Mr. Gerbick, the individuals that supervised Ms. Mirza while she was the Industry Rehabilitation Manger, evaluated her at level 3. A level 3 indicates the employee is "fully successful" in his or her job. (Discrimination Rule 12(M) Statement P 59). Ms. Mirza was given an overall rating of level 3 in her 1992 performance evaluation and a merit increase in salary. (Discrimination Rule 12(M) Statement P 60).

 In April, 1993, Ms. Mirza filed an EEO complaint contending that she should have received a 1992 evaluation of level 5, indicating "exceptional" work, as both the Industry Rehabilitation Manager and an Examiner V. Ms. Mirza alleged age and sex discrimination. (Discrimination Rule 12(M) Statement PP 63-64). In October, 1993, Ms. Mirza filed an Individual Complaint of Employment Discrimination with Treasury. She checked the boxes for age and sex discrimination, but not the retaliation box. (Discrimination Rule 12(M) Statement P 66).

 D. Pre-FIRREA Age Discrimination Claims.

 As early as 1986 Ms. Mirza suspected that she was the victim of age discrimination. (Pre-FIRREA Rule 12(M) Statement P 10). Based on discussions she had while working at the Bank, Ms. Mirza suspected she was being undercompensated. (Pre-FIRREA Rule 12(M) Statement PP 6-7). Based on other discussions Ms. Mirza also believed younger employees were receiving "extraordinary salary increases" and superior performance ratings. (Pre-FIRREA Rule 12(M) Statement PP 8-9). After becoming the head of mergers and acquisitions Ms. Mirza felt some of her job duties were assigned to younger employees and that the younger employees refused to cooperate with her when she tried to perform certain duties. (Pre-FIRREA Rule 12(M) Statement P 11).

 In 1987 Ms. Mirza began to complain to her superiors about the younger employees' lack of cooperation. (Pre-FIRREA Rule 12(M) Statement P 12). In particular, Ms. Mirza complained to her supervisor, Chester Biedron, that younger employees were performing her job function and refusing to cooperate with her. (Pre-FIRREA Rule 12(M) Statement P 13). In 1988 Ms. Mirza became interested in the vacant position of Applications Department Head at the bank. (Pre-FIRREA Rule 12(M) Statement P 14). The position was filled by Philip Gerbick, an individual Ms. Mirza knew to be younger than her. (Pre-FIRREA Rule 12(M) Statement P 16).

 At some point prior to February, 1981, Ms. Mirza met with an attorney to discuss whether she had been illegally discriminated against. (Pre-FIRREA Rule 12(M) Statement P 21). In 1984 Ms. Mirza graduated from law school, passed the Illinois bar examination, and became a licensed attorney. (Pre-FIRREA Rule 12(M) Statement P 24). In November, 1989, Ms. Mirza drafted a memorandum to her superiors complaining of sex discrimination and stating she might file an EEOC complaint and a civil suit to address the monetary ramifications of discrimination over the span of her career at the Bank. (Pre-FIRREA Rule 12(M) Statement P 17). Shortly before drafting the memorandum Ms. Mirza met with an employment law attorney. (Pre-FIRREA Rule 12(M) Statement P ...


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