Sex discrimination case against DHSS now in federal court

Pago Pago, AMERICAN SAMOA — The U.S. Justice Department (USDOJ) filed last week Thursday a civil action lawsuit against the American Samoa Government’s Department of Human and Social Services (DHSS) for “discriminating against an employee on the basis of her sex by maintaining a work environment hostile to her because she is a transgender woman.”

And even though the civil case is now just being filed and made public on federal court records, Gov. Lemanu P. S. Mauga has submitted for Fono approval, a proposed appropriation bill, which includes funds for the USDOJ litigation as the case is moving forward to a settlement through a proposed consent decree.

The 19-page civil action suit, filed with the federal court in Honolulu, was the result of a discrimination complaint filed by Simeonica Tuiteleleapaga — who worked for the DHSS from 1995 until 2022 — in January 2017 with the U.S Equal Employment Opportunity Commission (EEOC).

“Tuiteleleapaga alleged that in late 2016, she was subjected to discrimination based on her sex. Specifically, she alleged that the DHSS subjected her to a hostile work environment because she is a transgender woman,” according to federal court documents.

Following its investigation, the EEOC found reasonable cause to believe that Tuiteleleapaga was subjected to a hostile work environment based on her sex. EEOC then attempted to resolve the charge through voluntary conciliation efforts, but was unsuccessful and subsequently referred the matter to the USDOJ, according to the lawsuit.

It alleges that DHSS discriminated against Tuiteleleapaga in violation of federal law by “allowing the misconduct” of then DHSS’ director Meki Solomona, “to create and maintain a work environment hostile to Tuiteleleapaga because she is transgender.”

(Samoa News notes that the lawsuit does not use Solomona’s chiefly title, Taeaoafua. He passed away in December 2017.)

CONSENT DECREE

Also last Thursday, Assistant U.S. Attorney, Jeffrey Morrison, with the USDOJ Employment Litigation Section’s Civil Rights Division, filed a “Notice of Settlement” with the federal court in Honolulu.

The US government, with the consent of the defendant, and ASG though its counsel, notified the court that the “parties have reached an agreement in resolution of this matter via a proposed consent decree.”

Furthermore, the parties anticipate submitting the proposed consent decree for the court’s consideration and entry once the American Samoa Government’s legislature appropriates the funding required to fulfill its obligations under the agreement.

The parties requested that the court stay the proceedings in this matter, for 120 days to allow for the finalization of appropriations. No other information was included in the parties’ motion such as the agreed upon dollar amount to resolve the case.

Court records show U.S Magistrate Judge Kenneth J. Mansfield granted the request, with the Scheduling Conference hearing set for November this year.

To fulfill ASG’s obligation under the agreement with USDOJ, the governor — in an Apr. 13 letter to Fono leaders — submitted an appropriation bill for $278,000 “for the Partial Settlement of various legal claims against” ASG.

The governor explained that the appropriation is required as these settlements meet the statutory threshold by local law.

Of the totals proposed appropriation bill — which is expected to be introduced in both chambers when the Fono convenes in July — the Administration is seeking $100,000 for the “Simeonica Tuiteleleapaga/ DOL v. ASG and DHSS, Consent Decree” federal case.

The rest of the requested funds will settle litigation against the American Samoa Government in the High Court of American Samoa. (Samoa News will report later this week on these High Court cases.)

CIVIL SUIT

While the federal suit cited incidents of alleged harassment by Solomona, against Tuiteleleapaga, the one that pushed this case to the public forum, occurred right after the November 2016 general election, during a DHSS staff meeting of some 200 workers where a staff member made an audio recording of Solomona berating Tuiteleleapaga and posted it on social media.

As previously reported by Samoa News and also cited in the lawsuit, then Gov. Lolo Matalasi Moliga was re-elected in the 2016 election and was supported by Solomona, while Tuiteleleapaga had supported her uncle in the gubernatorial race.

And this incident, widely reported at the time by the private media, Samoa News and KHJ News, resulted in Tuiteleleapaga’s complaint to EEOC.

According to the lawsuit, at the beginning of the staff meeting in the afternoon of Nov. 16, 2016, Solomona, using a microphone, started the meeting by asking, “Is Simeonica [Tuiteleleapaga] here?”

When she raised her hand, Solomona said, “Simeonica, I don’t want you here after this meeting.” Tuiteleleapaga then questioned why she should leave the meeting. In response, Solomona stated, “You come see me. Your position will be eliminated.”

The lawsuit alleges that Solomona then interrogated Tuiteleleapaga for about two minutes in front of the entire DHSS staff meeting about whether Tuiteleleapaga should have been supporting her uncle in the election instead of the candidate Solomona preferred.

Solomona then said “I know about your status” and “Do you have papers?” Tuiteleleapaga started to cry. Solomona instructed her “don’t cry” and “sit down.” Solomona told Tuiteleleapaga, “You keep shooting your mouth” and then announced back to the group, “This is exactly the reason I don’t want these kind of people here.”

Solomona also opined about the futility of the employees complaining to Human Resources or attempting to sue over his conduct. He said, “I’ve got the upper hand. If you think about the law? I’m a lawyer too. If you think about HR policies? I know HR policies.” He stated that he knew the head of HR.

The lawsuit alleges that Solomona then ordered Tuiteleleapaga to “get out.” Then he quickly asked her, “Are you a girl or a boy?” She responded, “I’m a woman.” He then ordered her, “Yeah? Take it off. And let us see if you are a woman.

“Tuiteleleapaga, upset and crying, ran out of the room and left the premises,” the civil suit points out. 

The suit went on to allege that Solomona then spent approximately forty more minutes during the meeting disparaging Tuiteleleapaga to her DHSS co-workers. He repeatedly referred to Tuiteleleapaga as a “thing” or an “it,” saying, for example: “This Thing has got away with this for years.”

Solomona also repeated his reference to Tuiteleleapaga removing her clothes to prove her gender. While referring to Tuiteleleapaga, he argued that “this type of lifestyle has no morals.”

He said “she lives as an ‘it,’” and to make himself clear even spelled it out “I-T” - according to the lawsuit.

It also confirmed that an unidentified individual made an audio recording of Solomona’s harassment of Tuiteleleapaga at the meeting, which was later widely circulated among the DHSS staff via social media and reported upon in the local press.

The lawsuit points out that even after Solomona’s misconduct and harassment of Tuiteleleapaga was widely reported upon by the local press, then Gov. Lolo Moliga reappointed Solomona as the Director of the DHSS.

And on February 13, 2017, Solomona’s reappointment by the governor as the DHSS’s Director was confirmed by the Fono, despite discussions at his confirmation hearings about his misconduct at the November 10, 2016 staff meeting.

Solomona then served as the DHSS’s director until he died on December 11, 2017, the lawsuit states.

Samoa News will report later this week on other details of the lawsuit including corrective actions that USDOJ requested ASG to take, and the “aftermath of the staff meeting.”