ASG asks federal court to dismiss age discrimination lawsuit
American Samoa Government has asked the federal court in Honolulu to dismiss an age discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC) and for ASG to be awarded legal costs and other appropriate remedies.
ASG, through its Honolulu based attorney Darin R. Leong, made the request in the defendant’s official 10-page response to the suit, through a motion filed Wednesday which denies all of the allegations made by EEOC, who accused the government and its Department of Human Resources of violating the federal Age Discrimination in Employment Act (ADEA).
The case centers on an age discrimination claim by DHR employee Eseneiaso J. Liu, who was transferred from her previous post as Chief of Personnel to Chief of Human Capital and Strategic Planning Division.
The request for dismissal, according to the defense, is based on the following:
Plaintiff is barred from maintaining this action by the applicable statute(s) of limitations;
Plaintiff’s claims are barred by its failure to exhaust administrative and/or internal and/or contractual remedies, a condition precedent to the maintenance of this action; and
Plaintiff has failed to satisfy the requirements to proceed as a class action and plaintiff is barred from any recovery or award of attorneys’ fees and/or costs by the terms of federal law.
ASG states that any liability should be reduced or modified pursuant to the after-acquired evidence doctrine and liability should be limited based upon Plaintiff’s and/or Ms. Liu’s failure to mitigate any alleged damages.
“Defendant alleges that its conduct is protected by the managerial privilege and that all actions taken with respect to Charging Party were undertaken and exercised with proper managerial discretion, in good faith and for proper, lawful reasons,” according to the defense motion.
ASG asked the court to dismiss the complaint with prejudice; plaintiff takes nothing; defendant receives an award of its reasonable attorneys’ fees and costs; and defendant receives such other and further relief as the Court deems just and equitable.
DENIAL OF ALLEGATIONS
According to the defense, ASG denies the following allegations:
That since January 2009, the defendant had engaged in unlawful employment practices in violation of ADEA;
That around January of 2009, the governor 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…”;
That in March of the same year, 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; and,
That other individuals, over 40 years old, were subjected to “adverse employment action based on age”.
EEOC has cited for example, one case where Langford allegedly asked another DHR employee — who was over 60-years old — whether the employee would retire and the employee said she would not.
Trial in this case is set for February 2013 although the court has ordered a settlement conference hearing for May next year and hopefully by that time, A settlement will be reached by both parties.