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.