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Scope of EEOC age discrimination lawsuit is government-wide says court

fili@samoanews.com

The U.S. Equal Employment Opportunity Commission (EEOC) maintains its stand that the civil action suit against the American Samoa Government stems from an ASG wide policy of pushing older workers to retire through adverse action and harassment — thereby violating the federal Age Discrimination in Employment Act.

EEOC, through its Los Angeles based attorney Carol Igoe, was responding to ASG’s motion filed in June asking the court for “partial summary judgement in ASG’s favor, limiting the claims in the... lawsuit” to DHR employees Eseneiaso Liu and Manuia Lacambra.

In the alternative, “limiting the permissible scope of claims in the instant lawsuit” to DHR, the motion states.

“During written discovery of this litigation, the EEOC disclosed that it intends to pursue claims beyond Liu and Lacambra,” the defense said. “The EEOC seeks to use discovery in litigation to uncover and assert potential discrimination claims throughout the entire ASG, which consists of 33 departments and approximately 4,700 employees.”

The defense argued that EEOC’s “over-broad approach exceeds the permissible bounds of the applicable law.”

A hearing on ASG’s motion is set for tomorrow at the federal court in Honolulu.

EEOC RESPONSE TO ASG’S MOTION

The federal agency, in its 40 plus page motion and more than 100 pages of exhibits, says it investigated whether ASG’s Department of Human Resources effectively adopted a policy of pushing older workers to retire through adverse action and harassment, pursuant to the governor’s policy goal of freeing up jobs for young people.

Only two individuals were initially identified by the EEOC in the case but at the close of the investigation more than two years ago, EEOC found “a class of employees 40 years and older” had been discriminated against, the plaintiff pointed out.

In conciliation, EEOC sought individual relief for two HR employees and government-wide changes to EEO policy, training, and complaint procedure. However, conciliation failed when the Governor rejected the agreement on the basis that ASG maintained that no discrimination had occurred.

EEOC then filed this lawsuit alleging that the American Samoa Government effectively adopted a policy of pushing older workers to retire through adverse action and harassment. Because EEOC has information and belief that there was one effective policy throughout the American Samoa Government, EEOC seeks relief for a government-wide class.

EEOC claims that the main question before the court is: has American Samoa Government received adequate notice of a government-wide claim of age discrimination when the investigation focused on a discriminatory policy effectively adopted by its centralized Human Resources?

And the answer “is yes” and therefore the “appropriate scope of this lawsuit is one government-wide claim of age discrimination on behalf of a government-wide class,” said EEOC, who further claimed that ASG was given sufficient notice that this was a government wide investigation into ASG’s practices.

During its investigation, EEOC said it found that Human Resource director Evelyn Langford held a mandatory department meeting in which she told the staff that older workers should retire to make room for younger workers.

EEOC also provided for the court DHR staff interview notes in which seven of those employees reported that Langford specifically said that workers over fifty should retire. EEOC claims that during an interview, the DHR director “reported that she spoke about the ‘aging workforce’, using the term ‘senior workforce’.”

 Included in the motion as exhibit are Langford’s interview notes.

Langford “claimed that her comments were limited to a discussion about the Governor’s policy initiative to create retirement incentives. She reported that this was a government-wide policy. Langford also stated that she believes that there should be a mandatory retirement age,” said EEOC’s motion.

At the close of its investigation, EEOC issued a Letter of Determination finding that “there is reasonable cause to believe that Charging Party and a class of employees 40 years and older were subjected to harassment and reassigned because of their age,” according to EEOC, who included as exhibit the Letter of Determination.

EEOC also stated that DHR didn’t act alone in this matter and other departments also treated the governor’s policy goal as effective even though no legislation was ever adopted. For example, Dr. Claire Poumele, who was Education Department director in 2009, reported to EEOC that, “I remember the Governor making remarks in a public speech in 2009 about moving older workers out of the workforce to make way for younger workers. When I heard these remarks, I understood that the Governor was encouraging departments to look at their workforce to evaluate whether there was any way the department could get older workers to retire.”

“There was no focus on performance, just age,” said EEOC who also included an exhibit from Poumele.

According to EEOC it maintains the “allegations that this discriminatory practice in ASG was spurred by the Governor’s policy initiative of encouraging senior employees to take up retirement to open up these positions for young people — even though the Governor’s formal legislative proposals were never enacted.”

CONCLUSION

“...American Samoa Government received adequate notice of the government-wide claim against it in this lawsuit. Accordingly, EEOC respectfully requests that this court find that the appropriate scope of this lawsuit is one government-wide claim of age discrimination on behalf of a government-wide class,” according to the EEOC motion.



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