7ASR3d171

NGUYEN THI NGA et al., Plaintiffs,

 

v.

 

DAEWOOSA SAMOA, LTD. et a1., Defendants.

 

High

Court of American Samoa

Trial

Division

 

CA No. 133-99

CA No. 68-99

 

October 23, 2003

 

 

[1] Both local and federal law are recognized

sources of valid public policy in wrongful discharge claims.

 

[2] American Samoa’s administrative

rules, having the force and effect of law, protect pregnancy-related

illness. 

 

[3] Government employees are entitled

to use sick leave for “incapacitation related to pregnancy and confinement.”

 

[4] Pregnancy-related disability is

also excepted from the strict requirement that absent proof of illness, sick

leave may only be granted for up to three days. 

If the due date of birth is medically certified, maternity leave is

liberally allowed for up to six weeks prior and six weeks subsequent to

birth. 

 

[5] The administrative rules, when applied in American

Samoa’s cultural context which promotes the aiga or family well-being,

clearly demonstrate a territorial public policy in favor of protecting the

working mother-to-be against discrimination based on pregnancy.

 

[6] The administrative rules of

American Samoa are consistent with the trend in federal law towards a clear public

policy against employment discrimination based on pregnancy by explicitly

protecting pregnancy classifications at work as sex-based discrimination, and

guaranteeing equal employment opportunity of pregnant workers.

 

[7] American Samoa has formulated a

public policy against pregnancy discrimination in the workplace based upon

Title VII and the Territory’s regulatory scheme. 

 

Before RICHMOND, Associate Justice,

ATIULAGI, Associate Judge, and TAUANU`U, Temporary Associate Judge.

 

Counsel: For Vietnamese Plaintiffs,

Virginia Sudbury and Christa

 Tzu-Hsiu Lin

 For Chinese Plaintiffs, Afoa L.

Su`esu`e Lutu and Deanna

 Sanitoa

 For Defendants, Aitofele T. Sunia

 

ORDER DENYING MOTION TO TERMINATE

PREGNANT PLAINTIFFS, RETURNING THEM

TO WORK AND ADJUDGING CONTEMPT

 

Current Procedural Events

 

On August 16, 2000, Vietnamese

plaintiffs (“plaintiffs”) again asked the Court to hold defendants Daewoosa

Samoa, Ltd. (“Daewoosa”) and Ku

-Soo Lee (“Lee”) (together “defendants”) in contempt and require defendants to

abide by certain orders entered in this case. 

On August 24, 2000, defendants sought permission to terminate three

pregnant plaintiffs and return them to Vietnam. 

Both motions were heard on September 22, 2000.

 

On September 26, 2000, plaintiffs requested,

yet again, that we find defendants in contempt for allegedly labeling the eight

plaintiffs who attended the September 22, 2000 hearing “troublemakers” and

refusing to put them back to work.  The

hearing on this motion was held on September 29, 2000.

 

Finally, on October 5, 2000,

plaintiffs appealed to the Court to hold defendants in contempt for failing to

put five plaintiffs, including three pregnant plaintiffs, back to work.  We heard this motion on October 10, 2000.

 

Discussion

 

The Court has issued various orders that are relevant to the August 16, September 26, and October 5, 2000

contempt applications.  These orders

enjoined defendants from: (1) terminating

the sponsorship of plaintiffs without affording them an opportunity to consult

with their attorneys and to appear before the Immigration Board (“December 29,

1999 order”); (2) preventing plaintiffs from working at Daewoosa because they

are plaintiffs in this action (“April 4,

2000 order”); and (3) pressuring plaintiffs to terminate or in any other manner

preventing or discouraging any of them from prosecuting these actions (“July

14, 2000 order”).  The three orders were

duly and regularly made.  Defendants had

knowledge of the three orders and ability to comply with them.

 

A.  Labeling

of Plaintiffs and Termination of Sponsorship

 

The evidence received at the September 22, 2000

hearing established that, by letter dated August 15, 2000 (“August 15th

letter”), Lee, on Daewoosa’s behalf, requested the Immigration Board to terminate

Daewoosa’s sponsorship of 38 plaintiffs. 

The listed plaintiffs were described as “problem workers” for various

reasons cited on a list that defendants posted at Daewoosa’s premises.  The reasons remain unproven.  Lee attended the Board’s hearing on the

matter on August 16, 2000.  Defendants

argue that, in contacting the Immigration Board, they merely intended to ask

for the Board’s guidance regarding certain incidents of public criticism of

their operations.  Again, however, the

incidents of criticism remain unproven. 

Moreover, the plain terms of the August 15th letter belie this claim and

illustrate that defendants’ real purpose was

to terminate Daewoosa’s sponsorship of the listed plaintiffs.

 

After attending the September 22,

2000 hearing, plaintiffs Dung Thi Minh Tam, Bui Binh Hung, Nguyen Ban Bhanh,

Dong Thi Hao, Ngo Thu Hang, Truong Le Quyen, Nguyen Thi Time Dung, and Nguyen

Thi Thanh Thuy were labeled “troublemakers” and not permitted to return to work

when Daewoosa resumed operations during the week of September 25, 2000.  At the September 26, 2000 hearing, defendants

failed to proffer any reasonable explanation for this failure.  Accordingly, we specifically ordered defendants

to return all plaintiffs to work on the following Monday, October 2, 2000.

 

In publishing derogatory labels of

certain plaintiffs as “problem workers” and “troublemakers” on two separate

occasions, defendants willfully and contemptuously violated the April 4, 2000

order and July 14, 2000 order.  In

referring Daewoosa’s sponsorship of those plaintiffs to the Immigration Board

for termination without affording them opportunity to consult with their

counsel, defendants willfully and contemptuously violated the December 29, 1999

order.

 

B.  Pregnancy

Discrimination

 

On September 26, 2000, we also ordered defendants to assign plaintiffs to alternative work

if any of them were unable to perform work duties due to pregnancy.  However, defendants failed to return three

pregnant plaintiffs, Nguyen Thi Hanh, Do Thi Kim Thuy, and Cao Thi Thuy (together “pregnant plaintiffs”) back to

work, or assign them alternative work. 

The pregnant plaintiffs are the subject of defendants’ motion to

terminate plaintiffs due to pregnancy. 

This issue was first taken up at the September 22, 2000 hearing and

again at the October 10, 2000 hearing.

 

The issue of whether defendants may

legitimately terminate or restrict employment of plaintiffs solely because they

are pregnant is of first impression before this Court.  Defendants have a policy, at least

implicitly, to terminate female employees who become pregnant.[1]  The fundamental issue at this juncture of the

proceedings is whether defendants’ no tolerance for pregnancy policy is

permissible under the laws of American Samoa.

 

[1] Many states prohibit employers from discharging or

restricting employment agreements for reasons that will contravene public

policy.[2] Public policy must be

clearly established by statute or constitution.  Both local and federal law have been

recognized as valid public policy sources in wrongful discharge claims.  See

Green v. Ralee Eng’g Co., 960 P.2d 1046, 1056,

1061 (Cal. 1998) (finding that federal regulations are a valid public policy

basis if consistent with authorizing statute); Faulkner v. United Techs.

Corp., 693

A.2d 293, 295 (Conn. 1997) (allowing public policy based upon federal law even

though the plaintiff failed to allege any specific connection between the

federal statute and the policy of the state); Badih v. Myers, 36 Cal. App. 4th 1289 (Cal. App.

Ct. 1995) (finding public policy against pregnancy discrimination in state

constitution and federal law).

 

In Badih, the

California court allowed an employee, who was discharged on account of her

pregnancy, to maintain a cause of action as a violation of California’s public

policy against pregnancy discrimination. 

See generally Badih, 36

Cal. App. 4th 1289.  Analyzing both

amendments to Title VII and California constitutional provisions, the Badih court

found a fundamental public policy against pregnancy discrimination.  See id.

 

1.   American

Samoa Rules Support Anti-Pregnancy

Discrimination

      Public Policy

 

[2-3] American Samoa’s administrative

rules, having the force and effect of law, protect pregnancy-related

illness.  Government employees are

entitled to “earn sick leave at the rate of 4 hours or ½ workday for each full

biweekly pay period.”  A.S.C.A. §

4.0506(a)(1).  The rules recognize that

“incapacitation related to pregnancy and confinement” is a disability that is

chargeable to accrued sick leave. 

A.S.A.C. § 4.0506(c).

 

[4] Pregnancy-related disability is also excepted from

the strict requirement that absent proof of illness, sick leave may only be

granted for up to three days.  If the due

date of birth is medically certified, maternity leave is liberally allowed for

up to six weeks prior and six weeks subsequent to birth.  See

A.S.C.A. § 7.1202(b); A.S.A.C. §§ 4.0506(c), 4.0509(b).

 

[5] These administrative rules applied in American

Samoa’s cultural context, which promotes the aiga or family well-being,

clearly demonstrate a territorial public policy in favor of protecting the

working mother-to-be against discrimination based on pregnancy.

 

2.  Title VII Protects against

Pregnancy-Related

    Discrimination in the Workplace    

 

In 1978, in reaction to the Supreme

Court’s decision in General Electric v. Gilbert, 429 U.S. 125 (1976), that

pregnancy discrimination was not sex discrimination, Congress passed the

Pregnancy Discrimination Act (“PDA”), which explicitly banned pregnancy

discrimination.  42 U.S.C. § 2000e(k);

see Newport NewsSipbuilding and Dry Dock Co. v. E.E.O.C., 462 U.S. 669

(1983) (finding employer’s health plan, which afforded less protection to

pregnantspouses, violated PDA); California Federal Sav. and Loan Ass’n v.

Guerra, 758 F.2d 390 (9th Cir 1985).

 

When Congress amended Title VII in

1978, it unambiguously expressed its disapproval of both the holding and the

reasoning of the Court in the Gilbert decision. 

 

Badih, 36 Cal. App. 4 at 1294 (citations

omitted).

 

The PDA amended the terms “because of

sex” or “on the basis of sex” in Title VII of the Civil Rights Act of 1974 to

include “because of or on the basis of pregnancy, childbirth, or related

medical conditions,” and provides that “women affected by pregnancy,

childbirth, or related medical conditions shall be treated the same for all

employment-related purposes, including receipt of benefits under fringe

benefit programs, as other persons not so affected but similar in their ability

or inability to work.”  42 U.S.C. §

2000e(k) (emphasis added).  In California

Federal Sav. and Loan Ass’n, 758 F.2d 390, the Court, in upholding a

California statutory provisions allowing employees up to four moths leave for

pregnancy related illness held that the PDA required states to provide equal

employment opportunities to pregnant women.

 

By making pregnancy a substitute for

sex in Title VII’s antidiscrimination mandate, Congress procured forpregnancy

that which it had already procured for sex: a guarantee against discrimination

of all varieties, including facially neutral policies with a disparate impact. 

 

Id. at 396 (citation omitted).

 

[6] The trend in federal law towards

explicitly protecting pregnancy classifications at work as sex-based

discrimination, and guaranteeing equal employment opportunity of pregnant

workers, illustrates a clear public policy against employment discrimination

based on pregnancy.  The administrative

rules of American Samoa are consistent with this policy.

 

[7] Based upon Title VII and the

Territory’s regulatory scheme, American Samoa has formulated a public policy

against pregnancy discrimination in the workplace.  On its face, defendants’ no tolerance for

pregnancy policy discriminates against the pregnant plaintiffs on account of

their pregnancy.  Unless defendants can

demonstrate a legitimate interest in their policy, which interest can not be

achieved through a variety of less drastic, and sexually neutral means,

defendants’ guidelines are an infringment on American Samoa policy, and are

therefore, impermissible.  At the October

10, 2000 hearing, defendants suggested but failed to present any convincing

evidence that they had a legitimate safety concern for the pregnant plaintiffs

that could not be addressed by assigning them alternative duties. 

 

Like defendants’ other actions, the

motivation for their refusal to permit the pregnant plaintiffs to work comes

across as an effort to discourage them from pursuing this action simply because

they are plaintiffs, again in violation of the April 4, 2000 order and July 14,

2000 order.  Therefore, we will deny the

motion to terminate the pregnant plaintiffs and hold defendants incontempt once

more for not returning them back to work. 

 

Order

 

1.  Defendants’ motion to terminate the pregnant

plaintiffs and return them to Vietnam is denied.

 

2. Defendants shall put the pregnant plaintiffs

back to work, retroactively with pay from October 2, 2000.  If for some legitimate reason they cannot

perform their normal duties due to their pregnancy, defendants shall assign

them to alternative duties, without any loss of pay.

 

3. 

For the reason stated above, defendants are adjudged in contempt of

court for their violations of the Court’s orders of December 29, 1999, April 4,

2000, and July 14, 2000.

 

4. 

In light of defendants’ constant failure to heed this Court’s orders,

and the non-deterring effect of previously imposed sanctions, it appears that

we must resort to the severe penalty of imprisonment and more substantial fines

before defendants will begin to take the Court’s orders seriously.  Accordingly, Lee is sentenced to imprisonment

for 10 days at the Tafuna correctional facility.  Lee and Daewoosa are also each fined $10,000.

 

5. 

In addition, defendants shall pay, not later than seven days

after the entry of this order, directly to Virginia L. Sudbury and Christa

Tzu-Hsiu Lin, plaintiffs counsel, $1,000.00, as and for-attorney’s fees and

costs incurred in these contempt proceedings.

 

6. We will give defendants one final

chance to demonstrate their willingness to toe the line and comply with the Court’s

orders.  Execution of Lee’s term of

imprisonment and each of the defendants’ fines is suspended on condition that

they comply with all orders of the Court in this action, including but not

limited to timely payment of the $1,000.00, as and for attorney’s fees and

costs incurred in these contempt proceedings, to plaintiffs’ counsel.

 

It is so ordered.

 

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