U.S. Equal Employment Opportunity Commission v. American Samoa Government et al
ORDER GRANTING DEFENDANT AMERICAN SAMOA GOVERNMENT'S MOTION FOR PARTIAL SUMMARY JUDGMENT TO LIMIT SCOPE OF CLAIMS IN LAWSUIT re 30 - Signed by JUDGE J. MICHAEL SEABRIGHT on 10/5/12. "The EEOC's class claims against the ASG for age discrimination within the DHR remain." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
U.S. EQUAL EMPLOYMENT
DEPARTMENT OF HUMAN
CIV. NO. 11-00525 JMS/RLP
ORDER GRANTING DEFENDANT
GOVERNMENT’S MOTION FOR
PARTIAL SUMMARY JUDGMENT
TO LIMIT SCOPE OF CLAIMS IN
ORDER GRANTING DEFENDANT AMERICAN SAMOA
GOVERNMENT’S MOTION FOR PARTIAL SUMMARY JUDGMENT TO
LIMIT SCOPE OF CLAIMS IN LAWSUIT
On August 30, 2011, Plaintiff U.S. Equal Employment Opportunity
Commission (“Plaintiff” or “EEOC”) filed this action asserting that Defendant
American Samoa Government (“ASG”) and its Department of Human Resources
(“DHR”)1 subjected employee Eseneiaso Liu and a class of similarly situated
individuals to unfavorable job reassignments and other adverse employment
Although the EEOC identified the ASG and DHR as separate Defendants, the parties
agree that the DHR is a department within the ASG and not a separate entity. Doc. No. 27 at 2
actions on the basis of age in violation of Age Discrimination Employment Act of
1967, 29 U.S.C. § 621 et seq. (the “ADEA”).
Currently before the court is ASG’s Motion for Partial Summary
Judgment to Limit Scope of Claims in Lawsuit. ASG argues that the EEOC seeks
to use discovery impermissibly to find and assert discrimination claims throughout
the entire ASG, even though its investigation and conciliation during the
administrative process was limited to Liu and the DHR. Based on the following,
the court GRANTS the ASG’s Motion for Partial Summary Judgment.
The ASG and the DHR
The Territory of American Samoa has a total land area of seventy-six
square miles, which consists of five islands and two atolls. See Doc. No. 36-20,
Pl.’s Ex. 19. The largest island, Tutuila Island, is only eighteen miles long and six
miles wide, Doc. No. 36-21, Pl.’s Ex. 20, and is where all of the ASG’s
departments are located, save for some satellite offices on other islands. Doc. No.
36-22, Pl.’s Ex. 21.
Despite America Samoa’s limited geographical size, the ASG has
thirty-three departments and/or offices, and employs approximately 5,000 people.
See Doc. No. 31-10, Evelyn Langford Decl. ¶ 2.2 Each department/office is
overseen by a director, who generally has authority over only that specific
department/office. Id. ¶ 3.
The DHR consists of approximately forty-seven employees and is
overseen by Evelyn Langford, who was appointed by Governor Togiola Tulafono
to the position of Director of the DHR in January 2009. Id. ¶ 4; Doc. No. 36-5,
Pl.’s Ex. 4 at EEOC00064. The DHR is in charge of government-wide, centralized
personnel policies and practices. Doc. No. 36-19, Liu Decl. ¶ 9. As a result,
Langford’s duties include, among other things, implementing, administering, and
ensuring compliance with EEO policies and the Affirmative Action plan
throughout the ASG, see ASG Admin. Code §§ 4.0237, 4.1103, as well as
approving removals, suspensions, demotions, and involuntary reassignments of all
ASG employees. Id. §§ 4.0802, 4.0804(a).
Liu’s Charge of Discrimination
In August 2009, Liu, an employee in the DHR, filed a Charge of
Discrimination (“Charge”) with the EEOC asserting, among other things, that the
DHR had discriminated against her on the basis of age. Doc. No. 36-2, Pl.’s Ex. 1.
Throughout its papers, the ASG asserts that it employs 4,700 employees, even though
the record evidence states that the ASG employs 5,000 employees. Ultimately, this difference in
300 employees does not affect the analysis.
Specifically, the Charge asserts:
On March 20, 2009, [Langford] announced in a staff
meeting that all employees (50 years and older) should
retire and let the younger generation take over their jobs.
In the same meeting, [Langford] also said that she does
not want to give orders to a female who was in the same
age group because it was giving orders to her own
On April 6, 2009, [Langford] issued me a letter
reassigning [me] from my Chief, Personnel Division
position to Chief, Human Capital Strategic Planning
Division. This position did not exist in the Human
Resources Organizational Chart. Further, I do not
believe that I am qualified to perform the position’s
duties. I am aware that a younger, male was placed in
my previous position.
I believe that I have been discriminated against because
of my age (59) in violation of the [ADEA] . . . .
The EEOC Investigation
The EEOC proceeded to investigate Liu’s Charge. In an August 26,
2009 Notice of Charge of Discrimination addressed to Langford, “Human
Resources Director, American Samoa Government, Dept of Human Resources,”
the EEOC asked that she provide by September 28, 2009 “a statement of your
position on the issues covered by [Liu’s Charge] . . . .” Doc. No. 36-3, Pl.’s Ex. 2.
On October 15, 2009, Langford responded by outlining her non4
discriminatory reasons for transferring Liu and explaining her statements at the
March 20, 2009 meeting. Doc. No. 36-12, Pl.’s Ex. 11, at EEOC00345. Langford
explained that on March 20, 2009 she held her initial department meeting to
explain her “guidance and vision in accordance with . . . 1) Governor’s vision of
the Department of Human Resources[;] 2) Governor’s Transition Report,
December 2008[;] 3) Legislative Branch (Senate & House) during Confirmation
Hearings[; and] 4) DHR Employee Interviews (conducted with every DHR
Employee upon my arrival)[.]” Id. She further explained that her comment at the
meeting that she did not want to give orders to a female in the same age group was
“in relation to the cultural aspects of rendering respect for our elders.” Id.
Langford also denied that she stated that all employees fifty years and older should
retire. Rather, Langford asserted that she referred to the retirement of the “senior
workforce” in conjunction with a retirement package incentive to be introduced by
Governor Tulafono in the next legislative session. Id.; see also Doc. No. 36-5,
Pl.’s Ex. 4, at EEOC00065 (Langford EEOC interview in which she reiterated that
her comment regarding the “senior work force” was directed to the Governor’s
plan for a retirement package incentive “across the government” to free up
positions held by top level individuals for more vacancies for mid-level managers
and students returning home).
Langford attached to her position statement a press release providing
Governor Tulafono’s July 13, 2009 statement to the legislature explaining his
legislative agenda, which included incentivizing retirement to open positions for
Retirement Incentive Act -- I remain committed to
providing a sound plan for 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. By freeing up
these positions, we may be able to provide much needed
and wanted jobs for our children returning from school as
well as returning sons and daughters from the military.
The updated skill sets possessed by these individuals will
contribute to the overall productivity and effectiveness
Doc. No. 36-8, Pl.’s Ex. 7 at EEOC00007.
Subsequent EEOC interviews with DHR employees largely
corroborated Liu’s version of what occurred during the March 20, 2009 meeting.
Specifically, seven employees recalled that Langford stated that workers over the
age of fifty should retire. See Doc. No. 36-4, Pl.’s Ex. 3. These interviews further
revealed that another DHR employee, Manuia Lacumbra, believed that Langford
involuntarily transferred her to a less desirable position due to her age and then
filled her position with a younger employee. Id. at EEOC00076. In total, the
EEOC interviewed eight DHR employees, and sought interviews from an
additional three DHR employees. Doc. No. 31-4, Def.’s Ex. C. The EEOC also
sought to interview Governor Tulafono, but the ASG’s Office of the Attorney
General requested that he instead be provided a list of written questions. Doc. No.
36-9, Pl.’s Ex. 8.3
Beyond these interviews, the EEOC sought various documents from
the DHR. In a January 12, 2010 letter directed to the ASG’s Office of the Attorney
General regarding the matter of “Eseneiaso Liu v. American Samoa GovernmentDepartment of Human Resources,” the EEOC sought documents regarding DHR
policies, organization, and complaints, personnel files for certain DHR employees,
information regarding Liu’s transfer, and the attendance record for the March 20,
2009 meeting. Doc. No. 31-13, Def.’s Ex. J. On January 28, 2010, the ASG
responded by providing the EEOC (1) information pertaining to complaints about
Liu; (2) a transition report for the DHR; (3) an organizational chart for the DHR;
(4) personnel files for three DHR employees; (5) policy documents pertaining to
Liu’s transfer; (6) a job description for Chief, Human Capital and Strategic
Planning; (7) the budget for the Chief, Human Capital and Strategic Planning; (8) a
list of attendees at the March 20, 2009 DHR meeting; and (9) a timeline pertaining
Neither party addresses whether the EEOC ever actually presented questions to
Governor Tulafono and/or the content of those questions.
to Liu. Doc. No. 31-12, Lisa Johns Decl. ¶ 3l; Doc. No. 36-12, Pl.’s Ex. 11 at
EEOC 00389. On March 15, 2010, the EEOC made a second request for
information regarding DHR reassignments, retirements, and
discharges/terminations. See Doc. No. 31-14, Def.’s Ex. K. On March 19, 2010,
the ASG responded by providing information regarding seven DHR employees.
Doc. No. 31-12, Long Decl. ¶ 5.
The Conciliation Process
On July 21, 2010, the EEOC issued a Letter of Determination listing
the Charging Party as Liu and the Respondent as “American Samoa Government[,]
Department of Human Resources.” Doc. No. 36-10, Pl.’s Ex. 9. The letter
explained that “there is 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.” Id. The letter further invited Respondent to participate in
During the conciliation process, the EEOC sought monetary relief on
behalf of Liu as the charging party, and Lacumbra as the class member. See Doc.
No. 36-13, Pl.’s Ex. 12 at EEOC00919, 927. According to the ASG, because
Lacumbra was the only class member for which the EEOC sought relief, the ASG
assumed that the EEOC’s “class” consisted of only Liu and Lacumbra, both DHR
employees. Doc. No. 31-12, Johns Decl. ¶ 22. With that said, however, the EEOC
also sought remedial relief applicable to the entire ASG including, among other
things, “an effective anti-discrimination and harassment policy and reporting
procedure [that] shall be issued annually to all ASG employees,” an EEOC
program to handle complaints of discrimination, and mandatory training for all
employees. Doc. No. 36-13, Pl.’s Ex. 12 at EEOC00921-22. The draft agreement
included a signature block for “American Samoa Government, Respondent.” Id. at
In response, the ASG offered a counter-proposal (which the EEOC
rejected), and the parties engaged in conciliation for two months in an attempt to
reach settlement. Doc. No. 31-12, Johns Decl. ¶¶ 12-13. Over this time, the EEOC
did not seek or mention relief as to any employees other than Liu and Lacumbra.
Id. ¶ 14.
In September 2010, it appeared that the parties had reached an
agreement, with the only issue being that Governor Tulafono needed to give his
final approval. See Doc. No. 36-14, Pl.’s Ex. 13. On September 27, 2010,
Defendant asserts that the proposed “Conciliation Agreement” included a signature
block for Respondent as “American Samoa Government, Department of Human Resources.”
Doc. No. 31-12, Johns Decl. ¶ 12. The court cannot determine whether Defendant is mistaken or
is referring to another draft conciliation agreement -- Defendant did not present the draft
conciliation agreement(s) and the only one provided by the EEOC includes a signature block for
Respondent as “American Samoa Government.” See Doc. No. 36-13, Pl.’s Ex. 12.
however, the EEOC received a letter stating that the “American Samoa
Government (ASG) maintains their [sic] position that the reassignment of Ms. Liu
and the class member, Ms. Lacumbra, did not result from age discrimination in any
way. As a result, ASG is not comfortable signing the Conciliation Agreement at
this time.” Doc. No. 26-15, Pl.’s Ex. 14.
On September 28, 2010, the EEOC sent a letter addressed to
“American Samoa Government[,] Office of Attorney General,” stating that the
EEOC “has determined that efforts to conciliate the above-mentioned charge . . .
have been unsuccessful. . . . No further efforts to conciliate this case will be made.
Accordingly, we are at this time forwarding the case to the Regional Attorney in
the Los Angeles District Office for review and consideration of litigation.” Doc.
No. 36-16, Pl.’s Ex. 15. In a similar letter to Liu, the EEOC stated that her case is
being referred to the EEOC’s regional attorney, who would “determine whether the
EEOC [would] bring suit in Federal District Court against the above named
respondent.” Doc. No. 31-6, Def.’s Ex. E. Both letters referred to the charge as
“Eseneiaso Liu v. American Samoa Government-Department of Human
The Present Lawsuit
On August 30, 2011, the EEOC filed its Complaint against the ASG
asserting that the ASG “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.” Doc. No. 1,
Compl. at Nature of Suit. The Complaint outlines Liu’s allegations of
discrimination, and also asserts that another unnamed DHR employee (presumably
Lacumbra) was involuntarily reassigned to an unfavorable position after she told
Langford that she would not retire. Id. ¶¶ 13-17. The Complaint further refers to
the Governor’s public speech where he stated his commitment for top-level career
service employees to retire or move to the private sector to create job openings for
children returning from school. Id. ¶ 12. The Complaint seeks injunctive relief,
back wages for Liu and the class of similarly-situated aggrieved individuals, and
During a December 15, 2011 Rule 16 Scheduling Conference, the
EEOC provided an overview of its case as involving two claimants, Liu and
Lacumbra. Doc. No. 31-1, Leong Decl. ¶¶ 10-11. In their January 16, 2012 initial
disclosures, the EEOC identified Liu and Lacumbra as the claimants in this case,
and further identified five DHR employees, the Governor, and Lieutenant
Governor as witnesses. Doc. No. 31-7, Def.’s Ex. F. During discovery, however,
the EEOC sought information regarding all ASG employees, i.e., its 5,000
employees spanning the ASG’s thirty-three departments. Doc. No. 31-9, Def.’s
Ex. H. Defendant objected to this broad discovery, and in response the EEOC
explained that it is asserting that the ASG discriminated against older employees
both within the DHR and outside it by implementing a policy that was adverse to
older employees. Doc. No. 36-17, Pl.’s Ex. 16. The parties ultimately agreed to
resolve the scope of the lawsuit through this Motion for Partial Summary
Judgment. Leong Decl. ¶ 16.
On June 26, 2012, Defendant filed its Motion for Partial Summary
Judgment. The EEOC filed its Opposition on September 11, 2012, and a Concise
Statement on September 21, 2012, and Defendant filed a Reply on September 28,
2012. A hearing was held on October 2, 2012.
III. STANDARD OF REVIEW
Summary judgment5 is proper where there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law. Fed.
Some courts have addressed the issue of whether the EEOC provided adequate notice
as a jurisdictional issue under Rule 12(b)(1). But because the court finds (and the parties agreed
at the October 2, 2012 hearing) that the analysis would be the same as either a motion to dismiss
under Rule 12(b)(1) or a motion for summary judgment under Rule 56, the court need not
determine whether Rule 12(b)(1) is a more appropriate vehicle for raising the notice issue.
R. Civ. P. 56(a). Rule 56(a) mandates summary judgment “against a party who
fails to make a showing sufficient to establish the existence of an element essential
to the party’s case, and on which that party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Broussard v. Univ. of
Cal. at Berkeley, 192 F.3d 1252, 1258 (9th Cir. 1999).
“A party seeking summary judgment bears the initial burden of
informing the court of the basis for its motion and of identifying those portions of
the pleadings and discovery responses that demonstrate the absence of a genuine
issue of material fact.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th
Cir. 2007) (citing Celotex, 477 U.S. at 323); see also Jespersen v. Harrah’s
Operating Co., 392 F.3d 1076, 1079 (9th Cir. 2004). “When the moving party has
carried its burden under Rule 56[(a)] its opponent must do more than simply show
that there is some metaphysical doubt as to the material facts [and] come forward
with specific facts showing that there is a genuine issue for trial.” Matsushita
Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586-87 (1986) (citation and internal
quotation signals omitted); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986) (stating that a party cannot “rest upon the mere allegations or
denials of his pleading” in opposing summary judgment).
“An issue is ‘genuine’ only if there is a sufficient evidentiary basis on
which a reasonable fact finder could find for the nonmoving party, and a dispute is
‘material’ only if it could affect the outcome of the suit under the governing law.”
In re Barboza, 545 F.3d 702, 707 (9th Cir. 2008) (citing Anderson, 477 U.S. at
248). When considering the evidence on a motion for summary judgment, the
court must draw all reasonable inferences on behalf of the nonmoving party.
Matsushita Elec. Indus. Co., 475 U.S. at 587; see also Posey v. Lake Pend Oreille
Sch. Dist. No. 84, 546 F.3d 1121, 1126 (9th Cir. 2008) (stating that “the evidence
of [the nonmovant] is to be believed, and all justifiable inferences are to be drawn
in his favor” (citations omitted)).
The ASG argues that the EEOC’s pre-litigation efforts did not provide
the ASG sufficient notice of the potential scope of the claims that the EEOC may
seek to assert in this action -- i.e., that the ASG did not have notice that the EEOC
may seek to assert claims as to the entire ASG and not merely the DHR. The court
first outlines the relevant framework, and then analyzes the EEOC’s investigation
and conciliation to determine whether the ASG was provided adequate notice.
The ADEA provides that before the EEOC may bring an action
against an employer-defendant, it must “attempt to eliminate the discriminatory
practice or practices alleged, and to effect voluntary compliance with the
requirements of this chapter through informal methods of conciliation, conference,
and persuasion.” 29 U.S.C. § 626(b); Gilmer v. Interstate/Johnson Lane Corp.,
500 U.S. 20, 27 (1991); EEOC v. Pan Am. World Airways, Inc., 897 F.2d 1499,
1505 n.5 (9th Cir. 1990). This requirement “embodies the congressional intent that
enforcement be effected wherever possible without resorting to formal litigation.”
EEOC v. Prudential Fed. Sav. & Loan Ass’n, 763 F.2d 1166, 1169 (10th Cir. 1985)
(quotations and citations omitted).
In general, “[c]onciliation contemplates charge, notice, investigation
and determination of reasonable cause.” See EEOC v. Pierce Packing Co., 669
F.2d 605, 608 (9th Cir. 1982) (discussing Title VII).6 Specifically, before the
EEOC may bring suit, it must (1) receive a charge of unlawful employment
practice; (2) “notify the alleged wrongdoer of the charge, conduct an investigation,
and determine whether reasonable cause exists to believe that the charge is true;”
(3) “eliminate any such alleged unlawful employment practice by informal
methods of conference, conciliation, and persuasion;” and (4) notify the respondent
in writing if it determines “that further conciliation efforts would be futile or
The parties do not draw any distinctions between Title VII, ADA, or ADEA claims in
terms of the administrative process in which the EEOC must engage, and the court sees no
practical distinction either. The court therefore cites to cases discussing claims beyond the
nonproductive.” Id. at 607 (quotation and citations omitted); see also EEOC v.
CRST Van Expedited, Inc., 679 F.3d 657, 672 (8th Cir. 2012) (discussing these
steps as “sequential steps in a unified scheme for securing compliance with Title
VII” (emphasis omitted)). “Each step along the administrative path -- from charge
to investigation and from investigation to lawsuit -- must grow out of the one
before it.” EEOC v. Jillian’s of Indianapolis, IN, Inc., 279 F. Supp. 2d 974, 979
(S.D. Ind. 2003) (citing Vela v. Vill. of Sauk Vill., 218 F.3d 661, 664 (7th Cir.
2000)). In other words, “the EEOC’s investigation must occur within the ‘scope of
the charge’ -- that is, it must reasonably grow out of the charge underlying it, [and]
“a lawsuit must be like or reasonably related to the underlying EEOC charge.” Id.
As a result, the scope of permissible claims in a civil action is limited
by what an EEOC investigation uncovers and what the EEOC conciliates:
So long as discovery of the new discrimination arises out
of the reasonable investigation of the charge filed, it can
be the subject of an EEOC “reasonable cause”
determination to be followed by an EEOC offer of
conciliation and, if conciliation fails, by a civil suit
without the filing by EEOC of a separate charge on the
In other words, the original charge is sufficient to support
EEOC administrative action, as well as an EEOC civil
suit, for any discrimination stated in the charge itself or
discovered in the course of a reasonable investigation of
that charge, provided such additional discrimination was
included in the EEOC “reasonable cause” determination
and was followed by compliance with the conciliation
procedures of the Act.
EEOC v. Hearst Corp., 553 F.2d 579, 580 (9th Cir. 1977) (per curium); see also
EEOC v. Occidental Life Ins. Co., 535 F.2d 533, 541 (9th Cir. 1976). That is,
“[t]he EEOC may seek relief on behalf of individuals beyond the charging parties
and for alleged wrongdoing beyond those originally charged; however, the EEOC
must discover such individuals and wrongdoing during the course of its
investigation.” EEOC v. Dillard’s Inc., 2011 WL 2784516, at *6 (S.D. Cal. July
14, 2011) (collecting cases).
The reason for this limitation on the claims that the EEOC may bring
is that “[a]bsent an investigation and reasonable cause determination apprising the
employer of the charges lodged against it, the employer has no meaningful
opportunity to conciliate.” CRST Van Expedited, Inc., 679 F.3d at 676 (citing
EEOC v. Gen. Elec. Co., 532 F.2d 359, 366 n.14 (4th Cir. 1976)). Thus, “[t]he
relatedness of the initial charge, the EEOC’s investigation and conciliation efforts,
and the allegations in the complaint is necessary to provide the defendant-employer
adequate notice of the charges against it and a genuine opportunity to resolve all
charges through conciliation.” Dillard’s Inc., 2011 WL 2784516, at *6 (citing
EEOC v. Outback Steak House of Fla., Inc., 520 F. Supp. 2d 1250, 1263 (D. Colo.
This limit on the scope of EEOC claims in a civil suit also serves to
limit the discovery the EEOC may conduct in the civil action -- although “[t]he
EEOC enjoys significant latitude to investigate claims of discrimination, and to
allege claims in federal court based on the results of its investigations, [there is] a
clear and important distinction between ‘facts gathered during the scope of an
investigation and facts gathered during the discovery phase of an already-filed
lawsuit.’” CRST Van Expedited, Inc., 679 F.3d at 675 (quoting Dillard’s Inc.,
2011 WL 2784516, at *7); see also Jillian’s, 279 F. Supp. 2d at 982. “Where the
scope of its pre-litigation efforts are limited -- in terms of geography, number of
claimants, or nature of claims -- the EEOC ‘may not use discovery in the resulting
lawsuit ‘as a fishing expedition’ to uncover more violations.’” CRST Van
Expedited, Inc., 679 F.3d at 675 (quoting Dillard’s Inc., 2011 WL 2784516, at *7);
see also EEOC v. Target Corp., 2007 WL 1461298 (E.D. Wis. May 16, 2007)
(citing EEOC v. Harvey L. Walner & Assocs., 91 F.3d 963, 971 (7th Cir. 1996)).
Applying this framework, the court must determine whether the
EEOC discovered government-wide discrimination during its investigation,
included such claims in its “reasonable cause” determination, and conciliated those
claims with the ASG. See Hearst Corp., 553 F.2d at 580. In other words, the court
must determine whether during its investigation and conciliation the EEOC
provided the ASG notice of the government-wide claims that the EEOC now seeks
to investigate and bring in this action.
Starting with Liu’s Charge, it was directed solely to alleged age
discrimination that she experienced as an employee of the DHR. See Doc. No. 362, Pl.’s Ex. 1. Liu’s Charge recites that during a DHR staff meeting, Langford
allegedly announced that all employees fifty years and older should retire to open
up positions for the younger generation, and that Liu was subsequently transferred
to a less desirable position within the DHR so that a younger employee could take
her previous position. Id. The Charge makes no allegations regarding any other
departments and does not assert that the DHR implemented this “retirement plan”
in any other departments. Thus, at least from the Charge there is no indication that
government-wide discrimination was alleged.
The EEOC’s investigation was similarly limited to conduct within the
DHR. Specifically, the EEOC (1) interviewed only DHR employees, focusing on
Langford’s statements to the DHR regarding retirement and possible age
discrimination within the DHR, Doc. No. 36-4, Pl.’s Ex. 3; (2) requested
documents largely directed to the DHR and Liu’s transfer, Doc. Nos. 31-13, -14,
Def.’s Exs. J-K; (3) identified only Liu and Lacumbra as potential claimants; and
(4) consistently identified the Respondent as the “American Samoa Government,
Department of Human Resources.” See, e.g., Doc. Nos. 31-13, -14, Def.’s Exs. JK.
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, and Langford attributed her comments at the March
20, 2009 staff meeting to Governor 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.”7 Doc. No. 36-8, Pl.’s Ex. 7 at EEOC00007. But the EEOC did
not seek information regarding whether Langford’s reassignment of Liu and
Lacumbra could be tied to a larger ASG policy, and did not seek information
regarding any other departments within the ASG. 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. As a result, there is no indication that the EEOC investigated, much less
The EEOC does not argue, and there is no evidence suggesting, that Governor
Tulafono’s early retirement plan violated the ADEA. Indeed, it is not unlawful for an employer
to offer a voluntary early retirement plan. See 29 U.S.C. § 623(f)(2)(B)(ii).
formed a reasonable belief through its investigation, that age discrimination
occurred beyond the DHR.
The scope of conciliation was similarly limited to the DHR. Although
the EEOC sought government-wide remedial relief, the EEOC sought monetary
relief on behalf of only Liu as the charging party and Lacumbra as the class
member, see Doc. No. 36-13, Pl.’s Ex. 12 at EEOC00919, 27, which led the ASG
to believe that the “class” consisted of only Liu and Lacumbra, both DHR
employees. Doc. No. 31-12, Johns Decl. ¶ 22. As a result, there was no
“affirmative indication” that the EEOC’s allegations might result in governmentwide claims on behalf of any ASG employee. See Dillard’s Inc., 2011 WL
2784516, at *8 (rejecting that suggested changes to companywide policy would
provide employer notice of companywide claims where conciliation focused on
two individuals from one store).
The court’s conclusion that the EEOC did not provide the ASG notice
that it would assert government-wide claims is confirmed by the fact that it is only
now in this action that the EEOC seeks broad discovery to identify additional class
members outside of the DHR. In other words, the EEOC seeks to gather facts in
the discovery phase of this action because it did not do so during its investigation.
See CRST Van Expedited, Inc., 679 F.3d at 675 (drawing a distinction “between
‘facts gathered during the scope of an investigation and facts gathered during the
discovery phase of an already-filed lawsuit’” (quoting Dillard’s Inc., 2011 WL
2784516, at *7)). Now one year past the commencement of this action, the EEOC
still has not identified any claimants other than Lacumbra and Liu, and has offered
the court no explanation as to how many individuals may be in such class. See
EEOC v. CRST Van Expedited, Inc., 2009 WL 2524402, at *9 (N.D. Iowa Aug. 13,
2009) (rejecting classwide-claims where “the EEOC did not know how many
allegedly aggrieved persons on whose behalf it was seeking relief,” but “[i]nstead
. . . was using discovery to find them”). The EEOC may not attempt to expand its
claims through discovery -- its investigation was limited to age discrimination
claims within the DHR, and it may not use this lawsuit “as a ‘fishing expedition’ to
uncover more violations.” CRST Van Expedited, Inc., 679 F.3d at 675 (quoting
Dillard’s Inc., 2011 WL 2784516, at *7); see also EEOC v. ABM Indus. Inc., 2008
WL 5385618, at *8 (E.D. Cal. Dec. 23, 2008) (rejecting request for state-wide
discovery because it would impermissibly “allow Plaintiffs to search for other
employees with colorable claims, with no factual nexus other than the fact that they
do or did work for Defendants”).
In opposition, the EEOC acknowledges that the test is ultimately one
of notice to the ASG. The EEOC nonetheless argues that Lucky Stores v. EEOC,
714 F.2d 911 (9th Cir. 1983), establishes that an employer receives adequate notice
of a lawsuit encompassing multiple locations (or in this case, multiple departments)
even though the administrative process focused on only one location so long as (1)
the locations share significant geographic proximity, (2) the locations share
significant overlap in personnel matters, and (3) there is continuity or overlap in
discrimination. See Doc. No. 36, Pl.’s Opp’n at 1. The court rejects that Lucky
Stores, which addresses very specific facts not applicable to this action, supports
the generalized framework that the EEOC now propounds.
In Lucky Stores, the employer opened its Vacaville warehouse in
January 1978 with a skeleton staff. 714 F.2d at 911. It began full operations in
June 1978 after closing its Sacramento warehouse and reducing activity in its San
Leandro warehouse, and by staffing its Vacaville warehouse with many employees
who had previously worked at these two other facilities (over two-thirds of the
employees were from the other facilities). Id. at 911-12. The EEOC investigated
and conciliated sex discrimination claims directed to the Vacaville warehouse only,
yet brought a civil action asserting claims directed to all three warehouses. Id. at
911. Based upon a close analysis of the unique facts presented, Lucky Stores
determined that the employer had notice of these expanded claims. Specifically,
Lucky Stores acknowledged that the applicant pool for each facility differed,
different unions represented employees at each facility, and different persons were
responsible for hiring at each facility. Id. at 913. Lucky Stores nonetheless
determined that the employer had adequate notice of these broadened claims given
that “Vacaville is essentially a consolidation of the Sacramento and San Leandro
operations,” and the EEOC was now asserting claims based on practices at these
predecessor facilities “which affected operations and positions later transferred to”
Vacaville. Id. Lucky Stores therefore concluded that “[b]ecause Vacaville is the
successor of those facilities added to the amended complaint, Lucky received
‘adequate notice during administrative investigation of the substance of the issue
subsequently raised.’” Id. (quoting Occidental Life, 535 F.2d at 542).
These unusual facts -- addressing a successor facility -- do not, as the
EEOC argues, suggest that an employer has notice of company-wide claims any
time where locations share significant geographic proximity, locations overlap in
personnel matters, and the EEOC asserts similar claims. And Lucky Stores is
simply not helpful in addressing the facts presented here -- the DHR is not a
“successor” to other departments within the ASG, much less even a
“consolidation” of other departments. And although it is true that many ASG
departments are in the same office building and employees have transferred
between departments, see Doc. No. 36-19, Pl.’s Ex. 18, Liu Decl. ¶¶ 5-6 (reciting
that at least 16 DHR employees transferred from other departments), those facts
can just as easily be chalked up to the fact of island geography and do not suggest
notice where the EEOC never investigated any government-wide policy.
In further support of its framework for determining notice, the EEOC
argued for the first time at the October 1, 2012 hearing that EEOC v. American
National Bank, 652 F.2d 1176 (4th Cir. 1981), supports the EEOC’s framework
and is controlling because it was adopted by EEOC v. Bruno’s Restaurant, 13 F.3d
285 (9th Cir. 1993). This argument wholly lacks merit.
As an initial matter, the EEOC strains credulity in suggesting that
American National Bank, a Fourth Circuit case, is controlling authority in the
Ninth Circuit simply because Bruno’s Restaurant cited to it. Bruno’s Restaurant
did not discuss American National Bank in any detail, and did not even address
directly the issue of notice to an employer. Rather, Bruno’s Restaurant overruled
the district court’s award of attorneys’ fees based on the EEOC’s failure to
conciliate its pattern and practice claims brought in the civil action. Id. at 288.
Bruno’s Restaurant held that “[t]he mere fact that the EEOC may have failed to
conciliate is not enough to find that bringing suit was unreasonable;” instead, the
relevant question is “whether its belief that it had done so was reasonable.” Id. In
determining that the EEOC could have reasonably believed that it had conciliated a
pattern and practice claim, Bruno’s Restaurant cited to American National Bank,
describing in a parenthetical its holding that the “EEOC’s conciliation efforts
regarding discriminatory practices at one branch office were sufficient to confer
subject matter jurisdiction on the district court over claims of similar
discrimination at other branches.” Id. at 289. In other words, Bruno’s Restaurant
cited American National Bank for the simple proposition that the EEOC had at
least some basis to believe it conciliated its claims; it did not adopt American
National Bank as law of this circuit. In contrast, Lucky Stores discussed American
National Bank at length and specifically chose not to determine “whether to accept
the rule of American National Bank that unified operation and control of separate
plants is itself sufficient to permit their inclusion in the litigation.” 714 F.2d at
913. Thus, whether American National Bank is persuasive authority in the Ninth
Circuit is an open question at best.
Further, regardless of whether American National Bank is controlling
or persuasive authority, it is distinguishable on its facts and ultimately not helpful
in this court’s analysis. American National Bank allowed EEOC claims against
three bank branches even though the EEOC reasonable cause determination was
directed to only one branch. American National Bank defined the issue as
“whether the district court had jurisdiction over the same charges of discrimination
against a single defendant, expanded to include the same practices at all its branch
offices when the original charge and investigation focused on one city but where
there was common ownership and control over branches in both that city and a
nearby city, and where the challenged hiring practices for all branches were
similar.” 652 F.2d at 1185. American National Bank answered this question in the
affirmative because (1) the EEOC raised a single charge of race discrimination in
hiring; (2) the branches were “subject to unified supervision and control and using
similar hiring practices;” (3) the original charge filed with the EEOC was sent to
the branch manager at one office but acknowledged by a vice-president from the
other; (4) the bank’s attorney, a participant in the conciliation effort, “presumably
represented” the entire bank; and (5) any changes agreed to in conciliation would
“logically and necessarily” apply to the other branches. Id. at 1185-86.
Unlike American National Bank, this is not a case where the EEOC is
challenging a company-wide policy as applied in one department. Indeed, there is
no indication that Langford transferred Liu and Lacumbra pursuant to any
government-wide policy, and the EEOC never investigated the existence of such
policy. Further, there is a significant difference in scale -- unlike in American
National Bank where the EEOC investigated a company-wide policy applied at one
branch and brought claims encompassing two additional branches, the EEOC here
seeks to assert claims encompassing the ASG’s thirty-three departments and nearly
5,000 employees even though it investigated only one department’s practices,
which encompasses only forty-seven employees. Where the EEOC did not assert
in its investigation a discriminatory government-wide policy and focused on only
one department, the ASG would have no reasonable basis to believe that
government-wide claims were at issue.8
The EEOC also argues that evidence establishes that the DHR had
notice because it “did not act alone” in “treat[ing] Governor Tulafono’s policy goal
as effective even though no legislation was ever adopted.” Doc. No. 36, Pl.’s
Opp’n at 14. Specifically, the EEOC presents evidence that Dr. Claire Poumele,
the Director of the Department of Education, understood Governor Tulafono’s
comments as “encouraging departments to look at their workforce to evaluate
whether there was any way the department could get older workers to retire.” Doc.
No. 36-23, Pl.’s Ex. 22, Poumele Decl. ¶ 3. William Emmsley, a Dean at the
American Samoa Government Community College, reported that during a Deans
and Directors meeting the President of the College said something to the effect that
To the extent argued by the EEOC, the court also rejects that the ASG had notice of
government-wide claims simply because the Attorney General’s office and the Governor were
involved in conciliation. As aptly stated by the ASG, accepting this “reasoning would be
tantamount to creating a nonsensical legal rule or presumption that having the in-house counsel
defend the company or involvement of a top official at conciliation opens the company up to
company-wide claims in a lawsuit to follow.” Doc. No. 43, Def.’s Reply at 16.
“we need to make way for younger people to move up in management.” Doc. No.
36-24, Pl.’s Ex. 23, Emmsley Decl. ¶ 4. These statements are merely individuals’
interpretations of Governor Tulafono’s plans to enact legislation regarding
retirement of government workers; they do not suggest a government-wide plan to
discriminate against older workers. And even if these statements could support an
inference of a government-wide policy, the fact of a government-wide policy
(although deeply troubling) is beside the point. Rather, the relevant inquiry is what
the EEOC’s administrative investigation uncovered and what claims were
conciliated with the ASG. These statements were not part of the investigation and
The EEOC also argues that the ASG had notice because the EEOC
always asserted class-wide claims. The court is not denying the EEOC’s classwide 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. 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.” See Doc. No. 36-11, Pl.’s Ex. 10; see also Dillard’s Inc., 2011 WL
2784516 at *8 (finding that investigation focusing on two individuals provided
sufficient notice that defendant faced class claims for individuals in same store)
(citing EEOC v. Outback Steakhouse of Fl., Inc., 520 F. Supp. 2d 1250, 1267 (D.
Colo. 2007) (finding that where the investigation focused on a three-state region,
the EEOC’s references to “Charging Part[ies] and a class of females” may have put
defendants on notice of a potential regional class, but not a potential nationwide
class); Jillian’s, 279 F. Supp. 2d at 983 (the reference in the EEOC’s determination
to a “class of similarly-situated male employees and applicants” provided sufficient
notice of a potential “local class”).
Finally, the EEOC argues that in the event the court finds that the
ASG did not receive adequate notice, the court should stay the proceedings for
further conciliation. Doc. No. 36, Pl.’s Opp’n at 37. 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. 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.
In sum, the court finds that the ASG was not provided sufficient
notice as to government-wide claims.
For the reasons stated above, the court GRANTS Defendant’s Motion
for Partial Summary Judgment. The EEOC’s class claims against the ASG for age
discrimination within the DHR remain.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, October 5, 2012.
/s/ J. Michael Seabright
J. Michael Seabright
United States District Judge
U.S. Equal Employment Opportunity Comm. v. Am. Samoa Gov’t et al., Civ. No. 11-00525
JMS/RLP; Order Granting Defendant American Samoa Government’s Motion for Partial
Summary Judgment to Limit Scope of Claims in Lawsuit
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