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Rymal v. Baergen6/8/2004
tely performing, but Baergen refused. It was asserted that plaintiff contacted a Clark executive about her ongoing problems with Baergen, and despite a promise by the executive that he would meet with plaintiff, it did not come to fruition. After this failed attempt by plaintiff to rectify the situation, Baergen refused to pay an expense voucher for plaintiff and removed her expense account entirely. Her duties were lowered to those of an administrator. Plaintiff additionally averred that the claimed reasons for these actions were that, on March 1, 2000, she had been demoted to a sales person. In July 2000, Baergen informed plaintiff that the sales manager job was given to a male. Plaintiff alleged that she left her employment on July 27, 2000, as she had been constructively discharged. We note that with respect to the alleged retaliatory actions, discriminatory practices, and other events, plaintiff's complaint does not distinguish whether the actions were in the context of her employment with Clark or MTD Systems.
Count I of the complaint, which is fairly cursory, asserted a cause of action predicated on the CRA. The count provided, in relevant part:
22. Plaintiff was sexually harassed and retaliated against by defendants' agent and employee, Defendant Baergen, throughout the course of her employment.
23. This sexual harassment and retaliation included, but is not limited to, unwelcome comments and conduct of an offensive and sexual nature directed at plaintiff, the creation of a hostile work environment, as described herein[,] and constructively terminating plaintiff's employment and withholding pay commissions due to her, based on her refusal to engage in a sexual relationship . . . .
Count II of the complaint alleged violations of the SRCA for outstanding sales commissions due and owing plaintiff by Clark and MTD.
B. Proceedings Concerning Attorney Disqualification
Prior to Baergen and MTD filing an answer to the complaint, and fast approaching the deadline for answering, counsel law firm for Clark contacted Baergen asking whether he wished for Clark's counsel to file an answer on behalf of Baergen and MTD with the understanding that the appearance would initially be limited to filing an answer and affirmative defenses. Counsel law firm also informed Baergen that continued representation would be conditioned on an opportunity to determine to its satisfaction that no conflict of interest existed between Clark and Baergen and MTD. Counsel also indicated that while there did not initially appear to be a conflict, a conflict might be revealed through discovery, and if that occurred, counsel for Clark would have to cease representation of Baergen and MTD. Counsel required that Baergen agree that, if a conflict was discovered, counsel could continue to represent Clark notwithstanding that Baergen may have earlier shared information subject to the attorney-client privilege. Baergen signed a letter setting forth all of the conditions noted above, acknowledging acceptance of the law firm's representation under the terms described. Clark's counsel then filed an answer and affirmative defenses on behalf of Baergen and MTD in late August 2001.
A few days later, in early September 2001, Clark's CEO met with Baergen and counsel law firm, and during a discussion of the nature of MTD's business and Baergen's and plaintiff's involvement with the business, it was determined that a conflict of interest existed. Baergen was excused from the meeting, and counsel later informed him that the law firm was withdrawing representation of Baergen and MTD. Baergen obtained new counsel for himself and MTD, and an order for substitution of counsel was e
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