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EEOC class-wide claims against ASG within DHR remains, dismissed government-wide claims

fili@samoanews.com

The U.S. Equal Employment Opportunity Commission (EEOC) suffered a new blow to its civil lawsuit against the American Samoa Government when a federal judge in Honolulu found that the EEOC “never investigated” the existence of a government-wide policy of age discrimination but centered their investigation only on the Department of Human Resources.

The 31-page decision by U.S. District Court Judge J. Michael Seabright was released last Friday following a hearing last Tuesday on ASG’s motion “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.”

Seabright, who noted that there are 5,000 employees not 4,700 as cited several times by ASG, agreed with the territorial government, saying that EEOC’s probe, followed by the charge against ASG centered first on Liu and later Lacambra.

“Notably, the EEOC limited its investigation to the DHR even though the facts known to the EEOC arguably opened the door to a larger investigation — the EEOC was well-aware that the DHR was the very department within the ASG responsible for EEOC policies,” said Seabright.

Additionally, DHR director Evelyn Vaitautolu Langford attributed her comments at the March 20, 2009 staff meeting to Gov. Togiola Tulafono’s efforts to enact legislation directed to “encouraging our top-level career service employees to take up retirement or move to the private sector in order to open up these positions for others to move up in government.”

However,  the EEOC did not seek information regarding whether Langford’s reassignment of Liu and Lacambra could be tied to a larger ASG policy, and did not seek information regarding any other departments within the ASG, said Seabright.

“In other words, the EEOC performed no investigation to connect the dots between Governor Tulafono seeking legislation in the future and an unlawful, government-wide policy in the present,” he said. “As a result, there is no indication that the EEOC investigated, much less formed a reasonable belief through its investigation, that age discrimination occurred beyond the DHR.”

A footnote in the decision states that EEOC does not argue, and there is no evidence suggesting, the governor’s early retirement plan violated the federal Age Discrimination in Employment Act (ADEA).

“Indeed, it is not unlawful for an employer to offer a voluntary early retirement plan,” said Seabright.

The judge said EEOC also argues the ASG had notice because the EEOC always asserted class-wide claims. “The court is not denying the EEOC’s class-wide claims as they relate to age discrimination within the DHR, yet it should go without saying that asserting class-wide claims directed to one department is very different than asserting claims across the entire ASG,” he said.

Thus, “although the ASG did not have notice of government-wide claims, the court finds that the EEOC’s efforts were sufficient to put the ASG on notice of possible age-discrimination class claims within the DHR — the EEOC investigated the DHR and from this process determined that there was reasonable cause to believe that Liu ‘and a class of employees 40 years and older were subjected to harassment and reassigned because of their age’,” he said.

EEOC had also argued that in the event the court finds that the ASG did not receive adequate notice, the court should stay the proceedings for further conciliation.

“The court rejects this request — returning to conciliation does not fix the fact that the EEOC failed to not only conciliate government-wide claims, but also to investigate them,” said Seabright.

“Whether a stay is appropriate to allow the EEOC to both investigate and conciliate government-wide claims is not before the court; if the EEOC believes this is the appropriate course of action, it may bring the appropriate motion,” he said.

“In sum, the court finds that the ASG was not provided sufficient notice as to government-wide claims,” he said.

CONCLUSION

The court grants defendant’s motion for Partial Summary Judgement and EEOC’s class claim against ASG for age discrimination with the DHR remains, he said.



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