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ASG ordered to pay back pay in age discrimination settlement by next month

reporters@samoanews.com

The American Samoa Government has up to March 19, 2013 to pay $12,500 to Deputy Director of Human Resources, Eseneiaso Liu and former government employee Manuia Lacambra. This is part of the consent decree or settlement between the Equal Employment Opportunity Commission and ASG, as a result of a lawsuit filed by Liu and Lacambra and other government employees alleging age discrimination.
 
The lawsuit was filed in the US District Court in Hawaii in August, 2011.  
 
In its response, ASG denied any wrongdoing and successfully defeated an attempt by the EEOC to enlarge the scope of the lawsuit to include all government employees, according to a memorandum issued by Deputy Attorney General Salo Ale. Samoa News has obtained a copy of this memo.  
 
The memo states that last year the court issued the order adopting the decree which requires the government to pay Liu $7,500 and Lacambra $5,000. In addition, the decree requires the government to complete certain 'make better' actions by specified deadlines.
 
Department of Human Resources is expected to carry the heavy load in executing the terms of the decree and the Attorney General’s office will assist them where needed and ensure that various tasks are completed and communicated to the EEOC on a timely basis.
 
“It is critical the ASG complies with terms of the court-ordered Decree to avoid further liability,” said Deputy AG Alo in the memo.
 
The payments should be made not later than March 19, 2013 which is 90 days after its receipt of the EEOC plan. “The payment to each claimant is to be designated as back pay compensation under the Age Discrimination Employment Act (ADEA), and subject to the statutorily required deductions for federal, state and local income tax withholding and social security/Medicare tax withholdings."
 
ASG is responsible for all employer's share of taxes, which are not to be deducted from the total amount due to the claimants. W-2 forms must be also prepared and distributed to the claimants — at ASG cost — and within ten days of payments and issuance of W-2 forms to the claimants, the government must submit a copy of each check-pay stub and each tax related correspondence to the EEOC Regional Attorney.
 
AFFECTED EMPLOYEES REINSTATEMENT PROCEDURE
 
The decree also requires the government to offer reinstatement to Affected Employees, if it determines that they were subjected to demotion and or constructive discharge in violation of the ADEA.
 
In facilitating this process the government must prepare and send a questionnaire to the affected employees by April 21, 2013 seeking information about potential age discrimination claims. DHR is responsible for developing a process to investigate allegations of age discrimination raised in the questionnaire and DHR is also required to open an investigation for each questionnaire alleging age discrimination.
 
The memo states that if the investigation results in a finding of age discrimination ASG is required to offer the affected employee reinstatement into the positions that she/ he previously held at the current rate of pay. If the position no longer exists, or if the affected employee declines reinstatement, the government must issue a letter to the affected employee acknowledging her service to the government and acknowledging that a finding of age discrimination was made by the government.        
 
DHR is designated as the Monitor for the reinstatement process to ensure that no retaliation occurs and the government must notify all affected employees of DHR’s role as Monitor and provide contact information, including a telephone number and an email address where these employees can contact the monitor.
 
DHR is required to report to the EEOC regarding the reinstatement process on June 21, 2014 and August 21, 2015.
 
POLICIES AND PROCEDURES
 
The government must review, revise (as necessary) distribute and implement its policies and procedures against discrimination and retaliation prohibited by the ADEA and list the items that must be included in the policy. ASG is required to provide a copy of the policy to EEOC by April 20, 2013, and by June 19, 2013 the government must provide a copy of its policy to each employee and submit to the EEOC a statement confirming distribution of the policy.  Additionally, the government must ensure that each employee hired after the initial distribution of the policy receives notice of the policy.
 
The affected employee is defined in the decree as any present or former ASG employee who was: 1) employed by the government during the period of June 1, 2009 to December 31, 2010, 2) subject to demotion, termination and/or involuntary retirement during the same time period and, 3) over the age of 40 during the same time period.
 
REQUIRED TRAINING
 
The government is to provide three training workshops to employees covering the Policy and federal law regarding equal employment opportunity, including employment discrimination on the basis of age. The first training must be completed by June 2014.
 
First training must be live in-person training of at least two hours duration to all government employees and it can be divided into sessions during the 18 month period, and all persons required to attend such training must verify their attendance in writing.
 
Second training must take place after the first training and this one hour training is for supervisory level and management employees — including department heads — regarding their specific role of supervisory employees in assuring compliance with the Policy and federal law.
 
The  third training must be a-two hour training for all government employees covering the policy and federal laws regarding employment discrimination.
 
All the trainings shall be conducted through an EEO Officer designated by the DHR.
 
Le’i Sonny Thompson, DHR Director confirmed with Samoa News that they have hired an EEO Officer, Kereti Mata’utia, who has an office within DHR and who has a compliance officer and administrative assistant. Mata’utia was a candidate in the last Congressional Race.  
 
ASG is also tasked to establish a record keeping procedure for centralized tracking of discrimination complaints and the government must provide reports to EEOC within 18 months regarding certification of training, where it took place and description of age discrimination/retaliation complaints made since submission of immediately preceding report and on reinstatement process of all affected employees.
 
The government within 30 days, effective December 21, 2012, must post a full-sized copy of the notice decree and it must be in a clearly visible location frequented by each department.
 
BACKGROUND
 
In 2009, then governor Togiola Tulafono made a public speech in which he stated, in part, “I remain committed to... encouraging our territory’s top-level career service employees to take up retirement or move to the private sector... By freeing up these positions, we may be able to provide much needed and much wanted jobs for our children returning from school...,” according to the complaint filed in the US District Court in Hawaii in August, 2011, alleging age discrimination. It did not identify the governor by name.
 
In March of the same year, then Human Resources Director Evelyn Vaitautolu Langford conducted an employee meeting in which she communicated to the attendees that employees who were fifty or older should retire to make room for the younger generation, the EEOC alleges.
 
The following month (April), Langford informed Mrs. Liu that she was being involuntarily reassigned to a new position as Chief of Human Capital Strategic Planning. Langford “made the reassignment involuntary because she knew Mrs. Liu would not voluntarily accept the reassignment,” it further alleges.
 
“The reassignment was unfavorable. Defendants forced Mrs. Liu to move from a position she held for many years, and for which she was well qualified, into a position that did not even exist at the time and which had certification and other job requirements she did not possess and job duties she did not believe she could fulfill.”
 
Additionally, the defendants relocated Mrs. Liu out of her private office, making her the only Division Chief without an office and also took away her parking space. Mrs. Liu repeatedly complained to Langford about being forced into a position for which she was not prepared and in which she feared she could not succeed.



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