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Shih v. Taipei Economic and Cultural Representative Office

February 11, 2010

HSIAO E. SHIH, CAROL YAO, AND KUANG-TAO HU, PLAINTIFFS,
v.
TAIPEI ECONOMIC AND CULTURAL REPRESENTATIVE OFFICE, DEFENDANT.



The opinion of the court was delivered by: Judge Blanche Manning

MEMORANDUM AND ORDER

Plaintiffs Hsiao Shih, Carol Yao and Kuang-Tao Hu were employed by the Defendant, Taipei Economic and Cultural Representative Office ("TECRO"), in the United States. They allege various violations of federal employment discrimination statutes as well as state law claims. TECRO has moved to dismiss the amended complaint pursuant to Federal Rules of Civil Procedure 12(b)(1), contending that the court lacks jurisdiction over the plaintiffs' claims. For the following reasons, TECRO's motion to dismiss is denied in part and granted in part.

I. Background

The following facts are drawn from the plaintiffs' complaint and are accepted as true for purposes of the motions to dismiss. TECRO was established under the Taiwan Relations Act, 22 U.S.C. §§ 3301-3316 ("TRA"), to "continue commercial, cultural and other relations between the people of the United States and the people of Taiwan." 22 U.S.C. § 3301(a)(2). TECRO has many offices throughout the United States, including Chicago, Illinois.*fn1

Each of the plaintiffs alleges that TECRO engaged in age discrimination and retaliation in violation of the ADEA. Plaintiffs allege in their amended complaint that in October 1991, a document entitled "Guideline for Local Employees Hired by ROC Embassies, Consulates and Offices Abroad" was released (the amended complaint does not identify by whom), and at all relevant times was in effect and applicable to TECRO's local U.S. employees.*fn2 Paragraph five of the Guidelines, entitled "Age" states, "a person who is qualified for a local employee position must be over 18 years old and must not exceed 45 years old." Plaintiffs allege that TECRO's actions in attempting to adhere to this policy resulted in discriminatory treatment and retaliation in violation of the ADEA, as well as certain state law violations.

A. Plaintiff Shih

Shih is a citizen of the United States, residing in Darien, Illinois. At the time of the events in question, Shih was a 59 year-old permanent resident of the United States. Shih was employed by TECRO as a temporary local employee in TECRO's Chicago office for approximately 15 years performing primarily secretarial tasks such as answering phones, and translating public documents and articles contained in public periodicals from English to Chinese. In performing her work, Shih was not privy to confidential government documents, nor was she involved in policy-making decisions.

In August of 2002, Shih requested a promotion from temporary local employee to a Type B regular local employee, a position that Shih believed she was well qualified for. Shih alleges that the promotion to type B regular employee provided improved employee benefits and pay, despite the fact that the work was substantially similar to that which she had been performing for several years. TECRO later informed Shih that due to her age she was not eligible for such a promotion and her request was denied. In April 2007, Shih alleges that she was passed up for the same promotion when TECRO rehired a former temporary local employee between the ages of 18 and 45 who had previously quit in 2006.

In June of 2003, Shih filed the first of two age discrimination charges against TECRO with the Equal Employment Opportunity Commission ("EEOC"). After conducting its investigation into Shih's charges, the EEOC found reasonable cause to believe that unlawful discrimination under the ADEA had occurred. Shih alleges that TECRO retaliated by not giving Shih a pay increase while all other local employees in her office received raises. Shih responded by filing her second EEOC charge, and now alleges that TECRO retaliated again by shutting down the division of the Chicago office in which Shih had worked for the past 15 years. Of the other employees at Shih's office, Shih was the only employee who was not reassigned and was terminated when the office closed.

Shih seeks damages resulting from TECRO's alleged discrimination (Count I) and retaliation in violation of the ADEA (Count II).

B. Plaintiff Yao

Plaintiff Yao lives in Hinsdale, Illinois and at all relevant times was a citizen of the United States. At the time of the events in question, Yao was 51 years old. Yao was employed by TECRO as a clerk in its Westmont, Illinois, office for approximately 13 years, performing strictly clerical tasks and bookkeeping. At the time TECRO terminated Yao in December 2004, she was the oldest full-time employee working in the Westmont office. Yao was not privy to confidential government documents, nor was she involved in any policy-making decisions.

Yao alleges that after she turned 51 years old, TECRO created a hostile work environment and discriminated against her in order to convince her to quit the position she had held at TECRO for nearly 13 years. Among other acts, Yao alleges that TECRO forced her to perform unassisted manual labor that resulted in injury to her person and work excessive hours without overtime pay, and stopped giving her pay raises while other younger workers continued to receive raises. In March of 2004, Yao filed the first of four charges with the EEOC and the Illinois Department of Human Rights alleging discriminatory treatment in violation of the ADEA. Yao alleges that after she filed her claims, TECRO retaliated by creating an increasingly hostile work environment. Yao alleges that the discrimination culminated in her termination and/or failure to renew her employment contract in December 2004 for pretextual reasons, in retaliation for having filed EEOC claims against TECRO. All of Yao's EEOC charges of discrimination and retaliation in violation of the ADEA were found to be meritorious by the EEOC.

Yao seeks damages resulting from TECRO's alleged discrimination (Count III) and retaliation (Count IV) in violation of the ADEA, as well as other state law claims: common law retaliatory discharge (Count V), violations of the Illinois Wage Payment and Collection Act (Count VI) and the Fair Labor Standards Act (Count VII).

C. Plaintiff Hu

Plaintiff Hu lives in Glendale Heights, Illinois and at all relevant times was a citizen of the United States. At the time of the events in question, Hu was 70 years old. Hu was employed by TECRO for approximately 16 years as a part-time office worker performing clerical tasks in the library at TECRO's Westmont office. Like plaintiffs Shih and Yao, Hu was not privy to confidential government documents and was not involved in any policy-making activities.

According to Hu, after he turned 65 years old in 2001 until his constructive discharge in June of 2006, TECRO created a hostile work environment in an effort to convince him to retire from his position with TECRO. Among other acts, Hu alleges that TECRO substantially cut his work hours, cut his rate of pay in half and paid younger employees a higher rate than Hu. Hu then filed a charge of age discrimination against TECRO with the EEOC and the Illinois Department of Human Rights. Hu further alleges that, as a result of the charges he filed against TECRO, they retaliated against him by creating a work environment that was so hostile he felt he had no other choice but to quit his job. At the time he quit, ...


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