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ASG asks court to limit scope of claims in age discrimination lawsuit

fili@samoanews.com

The American Samoa Government contends that the U.S. Equal Employment Opportunity Commission’s (EEOC) alleged age discrimination case against ASG and its Department of Human Resources (DHR) centers on only two DHR employees and requested the federal court to limit the scale of the lawsuit to the two workers.

The EEOC civil suit filed at the federal court in Honolulu last August accused the defendants of violating the federal Age Discrimination in Employment Act (ADEA) and the case is set for trial next year with ASG denying the allegations.

In a motion filed Tuesday with the federal court, the defendants’ attorney, Darin R. Leong with the Honolulu based law firm of Marr Jones & Wang, asked 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.

In its 34-page memorandum statement, the defendants point that the EEOC’s complaint asserts that the two employees in question were involuntarily transferred by the DHR director and that such a transfer constituted age discrimination.

“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.”

ASG contends that the permitted scope of an EEOC lawsuit is “constrained and dictated” by the scope of the EEOC’s underlying investigation and conciliation efforts. Additionally, the EEOC must identify its claimants and claims during a reasonable investigation, and must give the employer notice of such claims during the administrative process.

“The EEOC is not permitted to use discovery as a ‘fishing expedition’ to uncover claims that should have been investigated and conciliated during the underlying administrative stage,” ASG argued.

ASG went on to say that the EEOC only identified one claimant—Liu—during its investigation underlying this lawsuit and the EEOC’s investigation pertained to Liu’s claim of discriminatory involuntary transfer.  And during the investigation, the EEOC interviewed and/or contacted thirteen employees of DHR,  a department of about 47 employees.

The defense motion also states that the EEOC’s information requests during the administrative investigation sought information pertaining to DHR, not the entire ASG.

“Moreover, during conciliation, the EEOC only sought relief of behalf of Liu and Lacambra as the purported ‘class members’. No other purported ‘class members’ were identified. The EEOC’s claims in the present lawsuit must be limited by the narrow scope of its underlying investigation and conciliation efforts,” defense argued.

A footnote in the memorandum says that Lacambra had filed her own individual Charge of Discrimination around Oct. 18, 2010 alleging age discrimination by ASG. The EEOC, on Apr. 20, 2011, issued a “no cause” finding and 90-day right-to-sue with respect to Lacambra’s charge. However,  the 90-day time limit elapsed without Lacambra - or anyone on her behalf - filing a lawsuit.

The defense revealed that in February this year, EEOC had requested ASG to provide information on the entire workforce, not just DHR. According to the defense, the EEOC stated that the purpose of the information was for the EEOC to “identify...the older employees in other departments who were discriminated against” in order to add these previously unknown individuals as a claimants to the present lawsuit.

“The EEOC’s admission squarely demonstrates that it failed to conduct a reasonable investigation and is now engaging in a ‘fishing expedition’ through discovery to identify claimants and that should have been developed during the underlying investigation,” the defense points out.

One of the issues raised by EEOC in the lawsuit was a move by ASG offering an early retirement incentive for workers who have worked in the workforce for many years but don’t want to wait til the required retirement age or years of service to retire.

However, the defense contends that this early retirement incentive bill never reached a floor vote and never passed. It also says that EEOC never conducted an investigation into the alleged implementation of the failed retirement bill, which was disclosed during the EEOC investigation.



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