Halunen & Associates

by Michelle Miron
Managing Editor

Press Publications

WHITE BEAR LAKE — Four former employees of Taymark Inc. have filed companion lawsuits against the company, alleging they were laid off in a June 2007 downsizing because of their ages, genders and/or expense to the company in terms of salary and benefits.

Plaintiffs in the suits filed last month in Ramsey County District Court are Barbara Benedict, 60, and Betty Dueber, 47, both of White Bear Lake; Angela Proper (no age given) of Ramsey; and Gina Lynch (no age given) of Lake City.

Located at 4875 White Bear Parkway in White Bear Lake, Taymark is one of more than 100 subsidiaries owned by Taylor Corp., the North Mankato, Minn., company founded in 1974 by Minnesota Timberwolves owner Glen Taylor.

The plaintiffs each seek damages in excess of $50,000 because of “emotional distress, humiliation, embarrassment, pain and suffering, loss of wages and benefits and other damages.”

Taymark has filed a request that the charges be dismissed and that it be reimbursed legal costs associated with the lawsuit. In a written response to the suits, it said that “all actions taken by the defendant(s) were based on legal business considerations and were made in good faith and in compliance with the provisions of federal and state laws, rules and regulations.”

Taymark attorney John Hauge, of Briggs and Morgan in Minneapolis, declined Aug. 13 to comment further on the cases.

“In the majority of these cases, the trial never happens,” he said. “They’re dismissed because the cases have no merit or the cases get settled.”

The plaintiffs’ attorney, Joni Thome of Minneapolis-based Halunen & Associates, had not returned calls by press time.

Among individual allegations in the suits:

• Claiming two counts of age discrimination and one count each of sex discrimination, reprisal discrimination, and sexual harassment. Proper alleges that constant harassment by another female employee was ignored by managers because the other woman was in a sexual relationship with a manager.  She claims her complaints were a factor in her dismissal. Proper was a catalog manager who worked at Taymark between September of 2005 and June of 2007.

• Lynch, a marketing manager, has alleged one count of discrimination based on sex/pregnancy and three based on age. She worked at Taymark between December of 1999 and was laid off in April, 2007 while on maternity leave.

• Dueber, a marketing manager for Taymark between September of 1989 and June of 2007, claims that her spring 2007 filing of a workers’ compensation claim was a factor in her termination. She alleges two counts of age discrimination and one each of workers’ compensation retaliation and sex discrimination.

• Benedict, an order processor between January of 1990 and June of 2007, claims two counts of age discrimination and one of sex discrimination.

Common to all of the suits were the following allegations:

• Each plaintiff received positive work reviews prior to their terminations.

• In deciding whom to lay off, Taymark managers ranked employees by age, salary levels, years of service, accrued vacation and sick leave, and their filing of disability or workers’ compensation claims. Personal friends of managers were allegedly made exempt. Twenty-seven of 39 workers laid off in June of 2007 were allegedly older than age 40. (In its written statement, Taymark specifically denies that it has used unlawful criteria to choose employees for layoffs and notes that “several women hold key positions within our organization.”).

• Certain female employees were exempted from the layoff because male managers found them physically and sexually attractive.

• Two Taymark managers exhibited conduct that was sexually inappropriate for the workplace, at times bragging about special “massages” vendors had bought for them in China.

• One Taymark manager remained employed after he was found to be selling a sex toy out of Taymark offices.

The written response from Taymark states in rebuttal that “the defendant has in place policing and procedures reasonably promulgated to prevent harassment and discrimination in the workplace” and “the defendant took timely and appropriate remedial action to all workplace complaints lodged by the plaintiff(s).”

Taymark President Troy Ethan told the White Bear Press in May of 2007 that about 40 employees were scheduled to be laid off due to a transfer of its catalog marketing division to a sister company in Amsterdam, N.Y. At the time, Taymark employed about 300 seasonal and permanent people.

“It’s an area of expertise for other companies in our organization,” said Ethan.

The company has been based in White Bear Lake since former owner Charles Anderson moved it from Waseca in 1969. It is known for  distribution of party supplies, namely prom decorations and accessories, which are sold via catalog under several different monikers.

KSTP Channel 5 of Minneapolis reported on the problems experienced by consumers with CertainTeed’s shingles.  The video can be found here.

Bemidji Pioneer - AP
Four women are suing a company owned by Minnesota Timberwolves owner Glen Taylor, alleging they were discriminated against because of their age and gender when they were laid off.

The lawsuits, filed last month in Ramsey County District Court, name Taymark Inc., one of over 100 subsidiaries of Taylor’s flagship company, North Mankato-based Taylor Corp.

The plaintiffs include Barbara Benedict, 60; Betty Dueber, 47; and Angela Proper and Gina Lynch, whose ages weren’t given. They say they were replaced by less qualified, less experienced and much younger people.

Dueber also alleges she was fired in part for seeking workers compensation benefits. Proper claims she was the victim of sexual harassment and retaliation for objecting to discriminatory treatment, and Lynch alleges she was terminated because she was pregnant and on leave.

According to Taylor Corp.’s Web site, White Bear Lake-based Taymark “provides youth-oriented promotional and recognition products, including prom and special event decorations.”

The lawsuits say the four women were among several employees laid off in a restructuring in June 2007. They allege Taymark managers chose people for termination based on their age, salary levels, years of service, accrued vacation and sick leave, and whether they had filed workers compensation claims.

They allege that exceptions were made for close personal friends of management, and that managers were encouraged to keep younger, less productive but lower-paid employees. And they claim some men with histories of inappropriate workplace conduct were retained, along with women whose male managers found them attractive.

“The company vigorously disputes the allegations contained in the lawsuits and is confident it will prevail,” Taymark’s attorney, John Hauge, said Tuesday.

In a response filed with the court recently, the company says several women hold key positions within the organization, and that it has followed all laws and addressed all workplace complaints in a timely and appropriate manner, the Minneapolis/St. Paul Business Journal reported. It says any damages the women suffered were their own doing or were caused by third parties over whom the company had no control.

The four lawsuits each seek damages in excess of $50,000, with the amount to be determined at trial.

The women’s attorney, Joni Thome, said the two sides had been in discussions for a while before they decided it was necessary to file the lawsuits. She said no proceedings are scheduled.

Copyright © 2008 The Associated Press. All rights reserved. The information contained in the AP News report may not be published, broadcast, rewritten or redistributed without the prior written authority of The Associated Press.

ABC Channel 7 News in Arlington, VA reported on the problems with CertainTeed shingles and the ensuing class action lawsuit.  Clayton Halunen was interviewed about the lawsuit.  That story can be found here:
http://www.wjla.com/news/stories/0708/539645_video.html?ref=newsstory

by Barbara L. Jones writing for Minnesota Lawyer
The state Supreme Court recently revived a sexual harassment lawsuit under the Minnesota Human Rights Act that had been dismissed by the lower courts.
In so doing, the high court adopted federal caselaw that said a plaintiff alleging sexual harassment by a supervisor is not required to prove that the employer knew or should have known about the harassment and failed to take timely and appropriate action.
However, the court declined to set a strict liability standard for employers, instead establishing an affirmative defense.
In Frieler v. Carlson Marketing Group, a man allegedly assaulted a female co-worker who was also a prospective subordinate after calling her into a private room to discuss work-related matters. Similar incidents allegedly occurred on three other occasions, after which the woman for the first time made a harassment complaint. An investigation ensued, and the man opted to quit. The woman subsequently left the company, and filed an action alleging a hostile work environment.
A Hennepin County District Court judge dismissed the case, holding that there were no fact issues as to whether the defendant knew about the harassment, whether the alleged harasser was a supervisor for purposes of vicarious liability and whether sexual harassment was foreseeable at the company or in the industry.
The Court of Appeals affirmed, saying that Minnesota had not adopted the federal standard for supervisor liability set forth in 1998 by the U.S. Supreme Court in Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth. That standard relieves the employee of proving actual or imputed knowledge where the harassment was by a supervisor.
The Minnesota Supreme Court reversed and remanded the case for trial, saying the Court of Appeals had erred in determining that the Faragher/Ellerth standard did not apply.  It said that under the MHRA, an employer is subject to vicarious liability for sexual harassment by a supervisor.
It also said that the employer is afforded an affirmative defense when no tangible employment action is taken as a result of the harassment.  The elements of the defense are that the employer exercised reasonable care to prevent and correct harassment and that the employee unreasonably failed to take advantage of corrective/preventive opportunities provided by the employer.
The court said that the defense allows “an inquiry into the reasons that would support a conclusion that harassing behavior ought to be held within the scope of a supervisor’s employment.”  The defense is unavailable in cases of a “tangible employment action” such as discharge, demotion or undesirable reassignment.
The court then determined that a person is a supervisor if the individual has the authority to undertake or recommend tangible employment decisions affecting the employee or the authority to direct the employee’s daily work activities, which is the definition adopted by the Equal Employment Opportunity Commission.
The plaintiff had raised a genuine issue of material fact that the alleged harasser was her supervisor, the court concluded.  Thus it remanded the case for trial.
However, the court upheld summary judgment on the plaintiff’s claim for assault and battery, saying that the plaintiff did not show that the alleged assault was foreseeable such that the company should be held vicariously liable for it.  The foreseeability of an employee’s conduct is a question of fact to be analyzed based on the evidence presented in a particular case and the existence of a harassment policy is not sufficient to create a fact issue on forseeability, the court said.
Strictly speaking
The business community quickly claimed victory in the case because the court had refused to subject employers to a strict liability standard.
Minneapolis attorney Joe Schmitt, who represented the Minnesota Chamber of Commerce, amicus curiae, issued a press release that said, “the Supreme Court decision allows employers to avoid liability provided that they have adopted and distributed appropriate harassment and complaint resolution procedures. This decision provides further encouragement to employers to adopt and implement effective harassment and complaint policies and procedures.”
The case points out the need for a policy and a complaint procedure that people can understand and at the same time preserves the plaintiff’s rights to argue egregious fact circumstances, said Minneapolis attorney Linda Holstein.
Attorneys for Carlson Marketing Group said their clients would not comment on pending litigation.
Another view
Lawyers who typically represent employees were not so sure the case is a victory for businesses.
“Whether Frieler is a victory for employers at the expense of employees, as some have suggested, remains to be seen and depends largely on how broadly or narrowly state courts apply the affirmative defense at the summary judgment stage,” said Minneapolis attorney Justin Cummins, chair of the Minnesota State Bar Association Labor and Employment Section.
Cummins pointed out that the employer must prove each element of the affirmative defense, which ordinarily would turn on facts that should not be decided on summary judgment.
The employer must show that it took adequate preventive action, which means that an anti-harassment policy must be conveyed in a way that is readily understandable to the particular workforce, he said.
Second, the employer must show that it took timely and sufficient corrective action, which means an examination of its specific actions.  Third, the burden is on the employer to show that the employee acted unreasonably in avoiding and/or reporting the harassment.  That element means that the adequacy of the employer’s procedures becomes relevant because if the procedures are inadequate then a failure to report may become reasonable, Cummins said.
Attorneys for the plaintiff, Frances E. Baillon and Joni Thome of Minneapolis, said that the Faragher/Ellerth defense should not apply in this case because the harassment resulted in tangible employment action. The woman allegedly was told, “I’m going to be your boss, you got to handle it.”
But even if the defense does apply, the defendant can’t meet it, said Thome.  “I think it will be difficult for defendants to get past Faragher/Ellerth,” she said.
Ballion noted that the majority made it clear that Minnesota is going to apply the Faragher/Ellerth standard according to the broad and remedial purposes of the MHRA.
She explained that the court recognized that a person in a supervisory role has power over the employee and therefore the reasonableness of the plaintiff’s response to the harassment should be evaluated in that light. Additionally, the court adopted what it called the EEOC’s expansive definition of “supervisor” and rejected the 8th U.S. Circuit Court of Appeal’s narrow view, Baillon said.
Furthermore, it is now certain that there is such a thing as apparent authority, said Thome.
“I think it is important to note that we are to apply the EEOC definition of supervisor, which includes a supervisor whom the employee reasonably believes has supervisory authority or apparent authority,” she said.
Thome also said that the decision leaves the door open for future assault and battery claims where there is evidence — not necessarily expert evidence — of foreseeability.
“We still bring those claims and the evidentiary threshold is low, certainly not what I imagine the defense bar was hoping for,” she said.  The future evidence may include the experience of other employees and statistical information on assaults in the workplace, she added.

Starbucks Corp. recently has been ordered by the California Superior Court to reimburse its baristas over $105 million dollars for money taken from the employee tip pool. About 120,000 individuals were involved in the case, and each will receive compensation for the funds they were denied by Starbucks. The case concerns Starbucks’ practice of paying its shift supervisors with funds taken from barista tip pools.

Halunen & Associates is investigating Starbuck’s violations of wage and hour laws in the State of Minnesota as well as other states. If you or anyone you know has been affected by Starbucks’ unjust payment practices, click here to contact the attorneys at Halunen & Associates, and we will provide you a free consultation. To learn more about class action lawsuits, click here.