Kevin W. Luby was the featured speaker at a Continuing Legal Education seminar hosted by the Washington County Bar Association on February 8, 2011.  The topic was Developments in Real Property Law and focused on recent statutory changes and case law that affect all aspects of real property law in Oregon. 

Kevin W. Luby has been invited to address the entire student body of Jesuit High School in Beaverton on the legal and emotional implications of underage drinking.  The speech will take place in late April, approximately a week prior to the School's Prom.  In addition to addressing such issues as minor-in-possession and DUII, Kevin will discuss the potential civil liability for both students and parents that can arise out of underage drinking.  Finally, Kevin will speak about the personal impact that underage drinking has had upon his life, as well as that of his family.

A company that owns a chain of tanning salons/medical spas in Washington County was sued by a former employee alleging claims of age discrimination, as well as for discrimination and retaliation for bringing wage and safety complaints.

The employee was hired in May, 2009 when she was 19 y.o. to be a sales associate at a tanning salon in Tigard. Less than 2 months into her employment, she sent a letter to the Company’s owner accusing the company of "illegal and immoral" practices. These "practices" included allegedly discriminating against employees because of age, an alleged failure to properly pay employees for all hours worked and, perhaps most tellingly, for chastising employees for making mistakes. When the former employee didn’t get a prompt enough response, she sent a second letter to the owner, this time by certified mail, return receipt requested, accusing the Company of engaging in "unfair and unlawful" practices, as well as the "illegal and immoral" practices.

Immediately upon receipt of this second letter, the issue involving wages was resolved and the employee was paid the sum of $29.40 for previously unpaid overtime.  Six days later, the employee filed a complaint with the Oregon Occupational Safety and Health Department (OSHA) alleging 12 separate safety concerns, including the the failure to display licensing and lack of safety posters. The employee had not previously mentioned these items to her manager or anyone else at the Company.

OSHA conducted an investigation and cited the Company for a single violation for the failure to post a required safety poster. At no time during the investigation did the Company know that the investigation was the result of an employee complaint.

Due to the Recession and the fact that she was the most recently hired, part-time employee at that location, the employee was laid off in November, 2009, together with four (4) other part-time sales associates throughout the Company.

The employee then filed a discrimination complaint with the Oregon Bureau of Labor and Industries (BOLI) but her complaints were dismissed. She then retained legal counsel and filed suit against the Company seeking economic damages of $17,640.00 and non-economic damages (stress, depression, etc.) of $250,000.00.

The case came to trial in Multnomah County Circuit Court before the Hon. Karin Immergut and a 12 person jury. Over the course of three days, the former employee admitted that she hadn’t been singled out for any of the claimed discrimination and that, in fact, she didn’t know if there was any other discrimination. She also confirmed that she had no knowledge of whether or not the Company knew that she had filed a complaint with OSHA until she filed her post-termination discrimination claim with BOLI.

The Company established that it did not discriminate as it has, both before and after the employee’s hiring and lay off, hired sales associates as young as 16 and others well into their 30s. The Company also established that they had not received any complaints regarding discrimination or retaliation from any other employees, past or present. The Company admitted that some minor mistakes had been made regarding some wage issues but that it always promptly and properly addressed and resolved them.

On 3 of the 4 claims asserted (unlawful retaliation for filing OSHA complaint; unlawful retaliation for complaining of possible wage and hours laws; and unlawful discrimination based on age), 11 of the 12 members of the jury found in favor of the Company. On the final claim (unlawful retaliation for complaining of possible age discrimination), the jury unanimously found in favor of the Company. The former employee was not awarded any damages. 

The case is entitled Holly Birkett v. The Ultimate Tan & Spa, LLC, Multnomah Co. Circuit Court Case No. 1007- 10079. The Ultimate Tan & Spa, LLC was represented by Kevin W. Luby and Kevin L. Davenport with the trial work being handled by Kevin W. Luby.

Many people don't realize that the concept of sharecropping still exists.  Our office represents Junior Kundelius who provides farming services to various property owners, mostly in Washington County.  Junior doesn't currently own any farmland but his farming includes planting, maintaining and harvesting hazelnuts, Christmas trees and various other crops.

Back in 1997, Junior agreed to help an Intel engineer, who had recently bought some farmland, to work his grove of hazelnut trees.  A couple of years later, they agreed that Junior could plant a crop of Christmas trees for harvest and sale in 8 - 10 years.  As is common in these situations, the profits from the harvest and sale of both the hazelnuts and Christmas trees would be split.  As is also common in the area, there were no writings to confirm the parties' agreements.

Over the years, conflicts arose between Junior and the property owner's significant other because of the hours that Junior kept and the use of the property.  Farming requires odd hours and is very dependent upon weather conditions.  It's definately not an 8 to 5 job.  It is also very common for farmers to come visit one another and share information and equipment.  The property owner and his significant other were not used to the "ways" of rural Washington County and wanted to limit Junior's hours, as well as his overall access to the property and the ability of other farmers to come visit and help.  The conflicts increased to the point where the property kicked Junior off the property and called the police on a number of occassions.  All of this prevented Junior from being able to farm and harvest the Christmas trees.

We were retained to assist Junior in recovering the lost value of the Christmas trees, as well as unpaid amounts for his work on the hazelnut orchard.  A three day trial was conducted in Hillsboro before Senior Judge Robert Milliken.  Elizabeth Lemoine and Kevin W. Luby shared the trial duties in representing Junior.  At the conclusion of the trial, the Court ruled that the property owner had improperly barred Junior from the property and awarded him $41,782.91 in damages. 

Kevin W. Luby has been appointed the Municipal Judge for the City of King City.  Kevin has been serving as Judge pro tem filling in for the late Patrick J. Furrer.  Kevin promisses not to let this appointment go to his head.

Attorney Kevin Davenport obtained "Not Guilty" verdicts on all charges following a two day jury trial in Clackamas County Circuit Court on April 21, 2011. The client, Greg S., was facing four Class A Misdemeanor charges related to a minor collision on SE 82nd Ave. near the Hwy 224 exit. Greg S. was charged with three separate misdemeanors related to accusations of recklessly and/or intentionally causing contact between his truck and another vehicle traveling the same direction. Although the collision occurred the defense was that it was an accident, the result of the other vehicle being in the client’s right rear blind spot. The other vehicle skidded into the right side guard rail after the collision. Greg S. was also charged with Failure to Perform the Duty of a Driver [Hit and Run] for failing to stop his truck immediately at the scene. The defense was that Greg S. stopped his truck at the nearest, safest place he could find on the roadside, which was about 500 yards from the collision scene, where he waited for law enforcement to arrive.

Following the trial, the jury deliberated for approximately two hours. During deliberations the jury requested review of a short video recording that was put into evidence by the defense to show the scene of the collision, the road conditions, and the distance of travel by the client. Also important for the not guilty verdicts was the expert opinion of Bernard Maddox, a forensic engineer withTalbott and Associates, Inc. who was retained to help with collision scene analysis and to testify for the defense.

After the jury verdict, Greg S. stated that the favorable outcome was absolutely necessary. "Now I will keep my driver’s license, and therefore I keep my job." The client is employed as a copy machine supervising service technician, a position he has held for nearly 20 years.