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Whitaker, et al. v. 3M Company, No. 62-C4-04-012239 (Ramsey County, MN) assigned to Judge Gregg E. Johnson

On December 21, 2004, two plaintiffs, Cliff Whitaker and Michael Mucci filed this lawsuit. The best way to understand the case is to read the Second Amended Complaint. The Complaint now has additional plaintiffs Tom Bulen, Bob Coats and Mark Swanson. It alleges that 3M violated the Minnesota Human Rights Act by policies, practices and patterns of decisions related to performance appraisals, training, promotion, pay and termination that discriminate against employees over the age of 45. Plaintiffs anticipate that the class will include in excess of 4,700 current and former salaried exempt employees.

MINNESOTA Whitaker CASE UPDATES

11.04.09/  Judge Johnson has scheduled a status conference on November 23, 2009 at 10 a.m. to determine next steps now that the case has been remanded to the District Court from the Minnesota Court of Appeals for further proceedings.

8.3.09 / The Minnesota Supreme Court denied 3M's Petition for Partial Review of Decision of Court of Appeals (document posted at "Orders").  The case will now be returned to Judge Johnson for proceedings based on the directions contained in the Court of Appeals' decision.

7.2.09 / We have filed plaintiffs' opposition to 3M's Petition for Partial Review of Decision of Court of Appeals (document posted at "Pleadings").  As discussed below, we asserted that the Court should deny the petition because if fails to meet any of the requirements for review.

6.8.09 / In its petition filed in "Pleadings,"' 3M has asked the Minnesota Supreme Court to do something that the Court of Appeals declined to do - decide as a matter of law that plaintiffs' evidence is insufficient to satisfy class requirements.  We think the petition is groundless and should be denied.  3M does not meet the requirements for review and wrongly claims that the evidence is undisputed.  It asks the Minnesota Supreme Court to rule, in effect, that statistics commonly used to prove discrimination cannot be used to establish age discrimination, because older workers necessarily are poorer performers than their younger counterparts.  We will be filing a response in opposition to 3M's petition by June 17^th and hope the Court will deny the petition quickly.  Then we can proceed with whatever is necessary to apply the Court of Appeals decision to the question of class certification.

4.28.09 / We are very pleased that in its ruling today the Minnesota Court of Appeals rejected 3M's request to deny class certification in this case. Given the trends in federal law, we anticipated that the Court of Appeals would remand class certification issues back to the district court, although we disagree with its two criticisms of the trial judge's decision. We think that the trial judge in fact applied the "preponderance of the evidence" standard, even though he did not expressly articulate it in his order/memorandum. We also believe that he applied appropriate intellectual rigor in evaluating the competing statistical evidence and, in fact, resolved the disputes in plaintiffs' favor.

We are prepared to take whatever steps are needed on remand to keep this case moving towards a positive resolution and are in the process of analyzing what those steps will be. We continue to believe that our statistical and anecdotal evidence is strong and sufficient to support both class certification and a finding of systemic age discrimination on the merits.

4.10.09 / The Minnesota Court of Appeals heard oral argument on 2.4.09 on 3M's appeal of Judge Johnson's certification of the Whitaker class. Michael Lieder argued on behalf of the plaintiffs and the certified class and Tom Tinkham argued on behalf of 3M. It was a spirited hearing, and many questions were asked by the three judges, Judge Renee L. Worke, Judge Francis J. Connolly and Judge Natalie E. Hudson. The Minnesota courts typically file their decisions within 90 days of oral argument, so we hope to have a decision within the next month or two. Throughout this appeal process we continue to interview people who have heard or observed age-biased remarks or conduct. Please call us if you would like to discuss your experiences.

12.22.08 / The Minnesota Court of Appeals has set oral argument on 3M's appeal of Judge Johnson's certification of the Whitaker class. It is on Wednesday, February 4th, 2009 at 12:40 p.m. The public is welcome to attend. The three judges assigned to hear the case are Judge Renee L. Worke, Judge Francis J. Connolly and Judge Natalie E. Hudson. You can find information about them at www.mncourts.gov. The hearing will take place in Courtroom 200 at the Minnesota Judicial Center. 25 Rev. Dr. Martin Luther King Blvd., St. Paul, Minnesota (near the state capitol). If you are a class member and wish to see the plaintiffs' opposition, please request it from jobrien@sprengerlang.com. You can find the amici brief filed by The National Employment Lawyers Association, Minnesota Chapter and The Impact Fund on our "Pleadings" page. Throughout this appeal process we continue to interview people who have heard or observed age-biased remarks or conduct. Please call us if you would like to discuss your experiences.

10.10.08 / We have completed all briefing to the Minnesota Court of Appeals. If you are a class member and wish to see the plaintiffs’ opposition, please request it from dtoms@sprengerlang.com. You can find the amici brief filed by The National Employment Lawyers Association, Minnesota Chapter and The Impact Fund on our “Pleadings” page. The court recently issued an order informing us that the hearing will occur sometime after February 15, 2009 and that 3M’s motion for additional time at oral argument is granted. Throughout this appeal process we continue to interview people who have heard or observed age-biased remarks or conduct. Please call us if you would like to discuss your experiences.

7.23.08 / The Minnesota Court of Appeals granted requests by various groups to file amicus briefs supporting both parties. Amicus briefs are filed by “friends of the Court” – organizations whose interests are impacted by the issues on appeal. The Minnesota Chapter of the National Employment Lawyers’ Association (http://www.mn-nela.org/, http://www.nela.org/NELA/) will file a brief supporting Plaintiff’s’ position on behalf of itself, and on behalf of a national organization called the Impact Fund (http://www.impactfund.org/). 3M also has received permission to file amicus briefs. One will be filed by the Minnesota Chamber of Commerce and another by an “employer group” consisting of companies headquartered in Minnesota. The petitions supporting each of these requests may be found on the “Pleadings” page.

3M’s opening brief is due August 7, 2008 and its amicus briefs will be filed on August 14, 2008. Plaintiffs’ responsive brief is due September 8, 2008, and their amicus brief will be filed on September 15, 2008. 3M’s reply brief is due September 22, 2008. The Court will set a date for the hearing after the briefing is completed.

Throughout this appeal process we continue to interview people who have heard or observed age-biased remarks or conduct. Please call us if you would like to discuss your experiences.

7.3.08 / The Minnesota Court of Appeals granted 3M’s motion to review Judge Johnson’s decision to certify the class. The appeal process will take approximately six to eight months, but will depend on how quickly the appellate panel issues an opinion. In the meantime, phase two discovery in the district court will be on hold and no trial can occur until the appeal is decided. However, we continue to interview people who have heard or observed age-biased remarks or conduct. Please call us if you would like to discuss your experiences.

6.6.08 / After much negotiation, the parties have agreed to unseal the class certification materials previously filed with the court, on the terms that certain portions of the briefs are blocked out or “redacted.” With these redactions, we are now finally able to make these materials publicly available. See “Pleadings” to view them. If you are a Class Member and you sign a form agreeing not to disclose any of the redacted information, you may view the materials in their entirety. Please contact us if you wish to view the non-redacted materials.

3M asked the Minnesota Court of Appeals to review Judge Johnson’s decision to certify the class. We expect that the Court will decide whether or not to review the decision by mid-July.

In May, the parties filed a Joint Proposal for discovery, class notice, and trial, and have proposed a trial date of November 2008. We are waiting for Judge Johnson’s approval. In the meantime, phase two discovery has begun and plaintiffs have requested additional documents, including updated employee data from 3M.

Also, if you are a Class Member you can help. We continue to interview people who have heard or observed age-biased remarks or conduct. Please call us if you would like to discuss your experiences.

4.16.08 / What happens next? Under Judge Johnson’s Order, the parties have 30 days to submit a plan for additional discovery (fact investigation), notice to the class, a trial plan, and a trial date for the first stage of trial. In the first stage of trial, the Judge will decide the issues stated in his order, including whether 3M engaged in a pattern or practice of age discrimination at 3M and whether specific policies had a disparate negative impact on older employees.

Under court rules, 3M may ask the Minnesota Court of Appeals to review Judge Johnson’s decision certifying the class. 3M must make this request within 30 days of the entry of the order on April 11, 2008. The Minnesota Court of Appeals will then decide whether or not to review the decision.

What can you do to help? If you haven’t talked with us yet, please call or contact us if you heard age-related remarks directly or indirectly, or if you observed conduct that treated older employees differently than younger employees.

4.15.08 / Plaintiffs just received Judge Johnson’s April 11, 2008 order granting their motion for class certification. This is a significant victory and a necessary milestone in allowing the plaintiffs to go to trial to prove that 3M engaged in a pattern and practice of age discrimination against the class. We will post more information soon.

2.12.08 / At the class certification hearing in December 2007, Chief Judge Johnson ordered the record kept open to give plaintiffs an opportunity to respond to defendant’s experts’ surprise affidavits filed in opposition to plaintiffs’ class certification motion. Plaintiffs filed two expert affidavits on Monday, February 11, 2008. This will close the record on class certification. Typically the court rules on motions within 90 days of the closing of the record, but whether that will happen here depends on the Judge’s schedule and other demands on his time.

12.21.07 / Chief Judge Johnson heard oral argument on plaintiffs’ Motion for Class Certification on December 12, 2007. The Courtroom was filled. Each side had a total of 90 minutes to argue whether the case warrants treatment as a class. Michael Lieder from Sprenger & Lang argued for the plaintiffs and explained how the plaintiffs have met each of the requirements for class certification under Rule 23. Thomas Tinkham argued for 3M and primarily challenged plaintiffs’ statistical analyses. Judge Johnson did not rule from the bench. He took the matter under advisement, meaning that he will consider all of the party’s filings and the oral argument and issue his decision later.

On November 7, 2007, the parties argued two motions before Chief Judge Johnson and he recently issued decisions on those issues that are favorable to the plaintiffs. The two decisions are posted in the “Orders” section of this website. In the first decision, he denied 3M’s motion for summary judgment on plaintiffs’ disparate impact claims, meaning that plaintiffs may proceed in litigating whether genuine issues of material fact exist as to claims relating to assignment of “high potential” ratings, selection and promotion of Black Belts and Master Black Belts, and Pre-MAP selection.

In the second decision, he granted plaintiffs’ motion to stay 3M’s motions for summary judgment on each of the five named plaintiffs. He held that a pattern or practice claim like that filed here requires analysis under a different standard than if the plaintiffs had filed individual claims.

Finally, plaintiffs filed a motion to strike expert surrebuttal affidavits that 3M filed with its opposition to plaintiffs’ motion for class certification. The Court has ordered that plaintiffs file a response to those affidavits. Plaintiffs also moved to have the bulk of their class certification memoranda and expert reports unsealed. The Court ordered the parties to continue to try to negotiate a resolution of this issue.

Plaintiffs’ counsel continue to be interested in talking to persons who believe they have experienced age discrimination at 3M.

11.16.07 / The hearing on plaintiffs’ Motion for Class Certification has been changed to Wednesday, December 12, 2007 beginning at 9:30 a.m. in Courtroom 1280. We anticipate the hearing will last until mid-afternoon, with a lunch break. Mark your calendars as we hope to have a good turnout of 3M current and former employees for this hearing. The courthouse address is Ramsey County Courthouse, 15 Kellogg Blvd. W., downtown St. Paul.

11.02.07 / The hearing on plaintiffs’ Motion for Class Certification has been changed to Wednesday, December 12, 2007 at 2:00 p.m. Mark your calendars as we hope to have a good turnout of 3M current and former employees for this hearing. 3M recently filed their opposition to plaintiffs’ Motion for Class Certification, and a total of six motions for summary judgment on plaintiffs’ disparate impact claims and on the five individual named plaintiffs. Plaintiffs’ filed their opposition to 3M’s Motion for Summary Judgment on the Disparate Impact Claims, but filed a motion to strike or stay the motions for summary judgment on the named plaintiffs as premature. The hearing for these motions is scheduled for Wednesday, November 7, 2007 at 9:00 a.m. Plaintiffs will file the reply brief to their Motion for Class Certification on November 13, 2007.

10.01.07 / Mark your calendars to attend the Class Certification Hearing on Wednesday, November 28, 2007 at 9:30 a.m. We hope to have a good turnout of 3M former and current employees for this hearing. Plaintiffs filed their Motion for Class Certification on September 11, 2007. Along with the memorandum, we filed over 50 current and former employee affidavits and our expert reports. 3M’s response is due on October 23^rd and then plaintiffs will file a reply. Other activities include taking depositions of 3M’s three experts, and defending 3M’s deposition of our statistical expert, Dr. Janet Thornton, and our rebuttal labor economics expert, Dr. David Neumark. Potential class members who sign a confidentiality agreement may review expert reports. 3M also will be filing motions for summary judgment on the named plaintiffs and on plaintiffs’ disparate impact claims. The hearing on those motions is scheduled for November 7, 2007 at 9:00 a.m.

7.11.07 / The parties have agreed to a Class Certification Schedule and a schedule for expert reports and depositions. Please mark your calendar to attend, if possible, the Class Certification hearing that will occur on Wednesday, November 28, 2007 at 9:30 a.m. Also, on Thursday, July 12, 2007 at 9:30 a.m. plaintiffs will argue a motion asking the Court to allow them to depose Dennis Nowlin. Since the last update, plaintiffs’ counsel have been preparing their brief for class certification, working with their experts, and addressing outstanding discovery issues. On June 22, 2007, plaintiffs served on 3M the Report of Economic and Statistical Analyses by their expert, Janet Thornton, Ph.D. Potential class members who sign a confidentiality agreement may review expert reports.

The plaintiffs have decided to assert a class in this case that includes only salaried exempt employees. This means that non-exempt employees will not be potential class members. However, non-exempt current and former employees may be eligible to participate in any action resulting from the federal charges that have been filed with the EEOC that allege class claims.

Judge Johnson has issued rulings (1) allowing 3M to use late-produced employee data for employees who worked at the company since 1975 but left before 1998; (2) allowing plaintiffs’ counsel to contact former 3M employees above grade level 17; (3) requiring 3M to produce certain documents they have withheld as attorney-client and work product privileged; and (4) finalizing a Document Preservation Order for this case.

1.05.07 / Plaintiffs deposed Kay Grenz in December and engaged in negotiations with 3M regarding disputed discovery matters with respect to both documents and data. Plaintiffs have prepared briefs for the Court on three unresolved matters: (1) prohibiting 3M from using in this litigation late-produced employee data for employees who worked at the company since 1975 but left before 1998; (2) allowing plaintiffs’ counsel to contact former 3M employees above grade level 17; and (3) requiring 3M to produce certain documents they have withheld as attorney-client and work product privileged. A hearing on these discovery motions will occur before Judge Gregg Johnson on Tuesday, January 16, 2007 at 9 a.m. in the Ramsey County Courthouse (go to Room 130 to find out which courtroom will be used). All are welcome to attend. Plaintiffs also are engaged in the ongoing process of analyzing employee data, gathering documentary evidence and preparing materials for the Class Certification process.

11.01.06 / Plaintiffs deposed W. James McNerney at Boeing Headquarters in Chicago, in addition to twenty-four other current and former 3M managers and executives, including Charles Cutler, Jay Ihlenfeld, Angela Lalor, James Mahon, William Mahoney, Moe Nozari, Fred Palensky, and Brian Ronningen.

10.01.06 / Plaintiffs continued their document and data reviews, negotiated with 3M regarding production of company witnesses to testify about the 3M processes at issue in the case, and deposed Margaret Alldredge and Brad Sauer. 3M deposed all named plaintiffs and five persons who signed affidavits.

9.01.06 / During July and August 3M completed the bulk of its production of over 240,000 hard copy and electronic documents, and continued its production of employee data. Plaintiffs’ counsel reviewed documents, determined which 3M managers and executives to depose and conducted the first two depositions -- of Alex Cirillo and Pam Martyn.

7.11.06 / At the May 16, 2006 hearing, Chief Judge Gregg Johnson told the parties he had assigned himself to the case because he had previous experience with a large class case and did not anticipate any further judge reassignments. As a result of the hearing on electronic discovery disputes, the Judge ordered the parties to cooperate in developing an efficient means of collecting relevant email and electronic documents from 3M managers and executives. 3M continues to ask the Court to limit the number of persons from whom it must collect electronic documents and to order plaintiffs to pay certain costs of this discovery. Plaintiffs are asking 3M to complete production of electronic documents in the near future. Also, plaintiffs’ counsel are analyzing the documents they have received and preparing to depose 3M managers and executives. In addition, witnesses are completing affidavits to submit in this case, and many more witnesses are preparing affidavits. Plaintiffs seek additional witnesses willing to share their experiences of age discrimination and witnesses willing to sign affidavits about those experiences. Finally, the Court entered an Amended Phase One Scheduling Order and set the class certification hearing for June 12, 2007.

4.20.06 / The hearing originally scheduled for February has now been set before the new judge in this case, Chief Judge Gregg Johnson on Tuesday, May 16, 2006 at 9:30 a.m. in the Ramsey County Courthouse, Room 130 [check with the information desk to determine Judge Johnson’s courtroom for that day]. The hearing is public so anyone is welcome to attend.

2.01.06 / The Second Amended Complaint adding four plaintiffs was filed on January 25, 2006. On January 23, 2006 plaintiffs filed a Motion to Compel 3M to complete its production of hard-copy documents, privilege and redaction logs, and electronic documents, and to modify the Phase One Scheduling Order. 3M filed a Motion to Compel plaintiffs to specifically identify five class members who originally sought protection from disclosure. Plaintiffs and 3M filed their respective oppositions to these motions on January 30, 2006. Both motions will be heard by the Honorable Teresa R. Warner at the Ramsey County Courthouse, Room 1060 on Monday, February 6, 2006 at 1:30 p.m. (postponed, new date to be announced).

1.05.06 / On January 3, 2006 plaintiffs filed a Motion to join four additional plaintiffs and amend the complaint. A hearing on that motion is scheduled for 02.06.06. Class Counsel continue to talk to potential witnesses and class members, and to review documents produced by 3M. We continue to be interested in talking with current or former salaried (exempt or non-exempt) employees below grade 18 who have relevant non-privileged information.

11.01.05 / Plaintiffs continue to talk to potential witnesses, plaintiffs and class members and review documents. Close to two hundred current and former 3M employees have contacted class counsel. We are interested in talking with any current or former employee below grade 18 who has relevant non-privileged information, including particularly non-exempt employees (salaried but paid overtime) and persons who held managerial positions.

10.17.05 / Plaintiffs filed a petition for discretionary review of the Court’s Order requiring disclosure of identities of certain clients, as well as a motion to stay the disclosures until the appeal is resolved.

9.16.05 / Judge Warner issued her rulings on the motions argued on July 12, 2005. She set guidelines for communication with current employees and ordered 3M to give notice of this lawsuit when offering severance programs to employees that include releases. She denied [link to order denying race gender information] plaintiffs’ request for race and gender analyses and to unseal certain documents. She also denied [link to anonymous client order] plaintiffs’ motion to protect certain client identities. Plaintiffs plan to seek discretionary review of this order by the Minnesota Court of Appeals. Discovery continues.

9.01.05 / July-August Report: Judge Warner’s ruling on the four motions argued on July 12, 2005 continues to be pending. The case is now in the pre-class certification phase called “discovery.” In July and August, the parties have been exchanging documents as part of the discovery process, as well as negotiating issues regarding the preservation of electronic documents. We continue to interview potential plaintiffs, class members and witnesses. We are analyzing documents and employment data and planning for depositions of key 3M employees.

7.12.05 / Hearing before Judge Teresa R. Warner in Minnesota Case: Plaintiffs asked the Court to

• set guidelines about communications with potential class members, including limiting 3M’s contact with them;
• unseal plaintiff’s expert statistical report preliminarily analyzing 3M’s employment practices, and its brief explaining the results;
• protect the anonymity of certain clients; and
• order 3M to produce documents containing race and gender analyses of its employment policies for purposes of comparison to 3M’s response to age issues.

Judge Warner said she would rule on these matters as soon as she was able.

7.07.05 /Ruling on Motions Argued on 06.10.05: Judge Warner granted plaintiffs’ motion to compel discovery regarding salaried non-exempt employees and 3M’s document preservation policies. She further entered an Interim Document Preservation Order requiring the parties to confer about relevant issues within 30 days. She denied 3M’s motion to dismiss continuing violation allegations from the Complaint. She also denied plaintiffs’ motion for certain discovery regarding releases.

6.14.05 / Phase One Scheduling Order: Judge Warner entered a scheduling order that, among other things, provides that fact discovery in the first phase (class certification) of this case will end on May 26, 2006 and that plaintiffs will file their motion for class certification by September 1, 2006. Mark your calendars for the hearing on plaintiffs’ motion for class certification that will occur on November 14, 2006 at 9 a.m. This may sound like it’s a long way in the future but the parties have much to do in the interim, including examining hundreds of thousands of documents, taking and defending up to sixty depositions, facilitating the analysis and preparation of expert reports, and briefing why the Court should certify the proposed class.

6.10.05 / Order Regarding Stipulation and Protective Order: This Order provides a means for the parties to designate documents as confidential and attorneys’ eyes only, to challenge those designations, and to determine how court filings containing confidential information will be handled. Potential class members who sign the Agreement to Be Bound by Stipulation and Protective Order (attached to the Order as Exhibit A) in front of a notary public and return it to plaintiffs’ counsel, may review certain documents that otherwise will be filed under seal.

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Federal Charges

Former 3M employees have filed charges alleging that 3M violated the federal Age Discrimination in Employment Act (ADEA) by policies, practices and patterns of decisions related to performance appraisals, training, promotion, pay and termination that discriminate against employees over the age of 40. The charges further allege that 3M’s release is illegal and invalid, that it misleads employees into thinking that they cannot file administrative charges with the EEOC, and that 3M wrongly used the release to shield itself from liability for known discriminatory practices. The charges are brought on behalf of the individual charging party and other persons similarly situated.

FEDERAL CHARGES UPDATES

4.10.09 / If you are not a member of the Whitaker class but believe that 3M discriminated against you based on your age at any time after January 1, 2001, please contact us. This includes former employees who signed releases, regardless of whether you worked in Minnesota or elsewhere in the U.S. The next major step in this litigation will be filing a federal complaint that challenges the validity of the releases and alleges that 3M engaged in age discrimination against salaried employees throughout the U.S.

4.8.08 / The EEOC investigation continues. Class counsel also is collecting additional information from persons not included in the Minnesota case. We would like to talk with you if you worked at 3M outside Minnesota at any time from 2001 to the present or if you worked anywhere in the United States from 2001 to the present and signed a release after being terminated. We particularly would like to hear from persons who worked in California or Texas. The next major step in this litigation would be filing a federal complaint.

7.11.07 / The EEOC actively is investigating the class charges filed by current and former employees in California, Texas, Minnesota, and Missouri, including seeking information from the charge filers and others similarly situated and 3M. 3M has agreed to allow the plaintiffs in the Whitaker case to provide the EEOC with confidential materials obtained in discovery in that litigation.7.11.06 / Federal charges have been filed in Minnesota and California on behalf of the charging parties and other similarly situated 3M employees across the United States. The charges allege age discrimination and violations of federal law with respect to the release of claims form 3M asked the charging parties to sign. The EEOC is investigating the claims.

1.05.06 / We are currently interviewing persons interested in filing federal EEOC charges, including former employees who signed releases. We continue to be interested in talking with any current or former salaried (exempt or non-exempt) employee below grade 18 who has relevant non-privileged information.

10.07.05 / We filed a response to 3M’s rebuttal of the first EEOC charge, including additional challenges to the validity of the release signed by the employee.

10.07.05 / A second EEOC charge was filed today with the EEOC in Minnesota by a former Minnesota employee who signed a release.

9.01.05 / July-August Report: 3M has submitted its response to the first EEOC charge filed in July and a response is being prepared. Additional charges are being prepared.

7.06.05 / EEOC charge filed on behalf of a former 3M employee and release signer whose job was eliminated in August 2004.