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Togiola denies allegations of age discrimination

EEOC conciliation agreement rejected
fili@samoanews.com

The latest motion filed by the U.S. Equal Employment Opportunity Commission (EEOC) shows the federal agency was close to reaching an agreement with the American Samoa Government over alleged age discrimination in ASG, but fell apart when Gov. Togiola Tulafono allegedly rejected the agreement.

EEOC filed a civil action suit in August of last year at the federal court in Honolulu, alleging that the American Samoa Government and its Department of Human Resources violated the federal Age Discrimination in Employment Act (ADEA) and the case is set for trial next year with ASG denying the allegations.

Last week the EEOC filed a 36-page motion, which includes some 100 pages of exhibits, in response to ASG’s request in June for the federal court to grant a “partial summary judgment 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, which is set for a hearing Oct. 2.

According to the EEOC motion last week, the federal agency investigated whether DHR “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.”

At the close of the investigation, EEOC found that “a class of employees 40 years and older” had been discriminated against, the motion says.

But prior to closing the investigation, EEOC says it proposed a conciliation, in which “EEOC sought individual relief for two DHR employees and government-wide changes to EEO (equal employment opportunity) policy, training, and complaint procedure,” it says.

“Ultimately, conciliation failed when the Governor rejected the agreement on the basis that American Samoa Government maintained that no discrimination had occurred,” the plaintiff alleges.

EEOC then filed this lawsuit claiming that American Samoa Government “subjected Ms. Liu and a class of similarly situated individuals to unfavorable job reassignments and other adverse employment actions on the basis of age, over forty, in violation of the ADEA.”

Specifically, EEOC alleges that American Samoa Government effectively adopted a policy of pushing older workers to retire through adverse action and harassment, it says.

And 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.

CONCILIATION AND ALLEGATIONS

According to the plaintiff’s attorney, EEOC discovered that in July 2009, Gov. Togiola Tulafono made public comments about his hope to incentivize retirement for senior government employees in order to free up jobs for young people. (EEOC included an exhibit which is a press release issued by the Governor’s Office on the governor’s statement to the Fono in 2009)

According to EEOC, it tried to interview the governor, but the local Attorney General’s Office requested that the Governor instead be provided a list of written questions.

A letter dated May 12, 2010 from then Assistant Attorney General Lisa Johns, legal counsel for DHR, made the request for EEOC to provide a list of written questions. However, the EEOC motion didn’t state as to whether the EEOC did send questions to the governor, and if there was a reply.

The EEOC motion states that 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.”

When EEOC issued its Letter of Determination, it included an invitation to ASG to  participate in conciliation. During conciliation, EEOC sought the remedial relief that it believed was necessary to remedy the age discrimination at issue, the motion states.

Under the Conciliation proposal, EEOC sought an “effective anti-discrimination and harassment policy and reporting procedure… [that] shall be issued annually to all ASG employees.” (Also included in the motion is a copy of the conciliation proposal).

Plaintiff also states that it was Johns who conducted negotiations for the respondent while EEOC investigator Leslie Houston for EEOC.

On Sept. 20, 2010, Johns informed Houston that DHR director Evelyn Vaitautolu Langford was in agreement with the Conciliation Agreement, but that the governor still needed to give his final approval.

The following day (Sept. 21) in an e-mail to Johns, Houston wrote: “Can the Governor sign the agreement on Monday and you scan and email it to me?” and Johns replied: “I will certainly try to have everything in this case completed including the signed agreement scanned and emailed to you on the 27th.”

However, on Sept. 27 there was a faxed letter from Johns to Houston, saying that: “American Samoa Government (ASG) maintains their position that the reassignment of Ms. Liu and the class member, Ms. Lacambra, did not result from age discrimination in any way. As a result, ASG is not comfortable signing the Conciliation Agreement at this time.”

The following day (Sept. 28), Johns was informed via fax letter that this case will be referred to the EEOC’s regional attorney in Los Angeles for review and consideration of litigation.

Samoa News will report later in the week on the main opposition by EEOC to ASG request for partial summary judgment.



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