“It’s an ADA action on behalf of a sales rep who was fired. The facts are sympathetic. If Mary can prove it, it’s a winner.”
“So they should settle it.” Sam spread open his palms in appeal. “If it’s little, it makes sense to settle. If it were bigger, I’d be on your side. I’d be more inclined to say that Mary should take it. But it’s not anything with enough exposure to impact the bottom line of Dumbarton.”
“True.” Bennie didn’t like the way this was going.
“So, it’s an individual case with some measure of damages that affect the bottom line of Dumbarton. It’s not even worth litigating, and OpenSpace is insured for the loss. What’s the big deal?”
“It’s the principle of the thing.”
“What principle?”
“The duty of loyalty to the client. I knew Nate when Dumbarton had two subs, then six, then twenty. I watched it grow.”
“So what? It’s a business, not an embryo.” Sam lifted an eyebrow. “Wait, what? Are you getting maternal on me?”
“God, no,” Bennie answered quickly. She knew she had a justice bone, but she wasn’t sure she had a maternal bone in her body. She loved dogs, but she was pretty sure it wasn’t the same thing.
“Then what’s bothering you?”
“I’m not proud of what she’s doing and I don’t think it’s right, so I don’t even feel that I could defend it to Nate.”
“But it’s a judgment call under the rules.”
“He’ll never see it that way. He’ll feel betrayed, and he’s a major client.”
“Pssh.” Sam waved her off. “You’re not going to lose him over it. He loves you.”
“He loves my work.”
“Keep telling yourself that. And more importantly, what about Mary? Aren’t you trying to play nice with her? She’s your partner now. Where’s your loyalty to her?”
“What about her loyalty to the firm?”
“Not the point. She didn’t know. She’s trying to be a good lawyer.”
“So am I.”
Sam frowned. “Bennie, compromise. You should try to work with her.”
“I’m trying.”
“Try harder, girl. You’re her partner. Act like one.”
“Okay, whatever.” Bennie checked the clock. She had only a half hour before the deposition. “Let’s move on. We have more important things to talk about.”
“What do you know?” Sam snorted. “You made a skirt out of pants. I’ve lost all respect.”
CHAPTER FIVE
Mary sat at her desk behind her laptop, working faster than she had ever before. She’d already formulated a litigation strategy around her new idea and gotten a thumbs-up from Simon. The EEOC complaint was just a form, but the complaint took more work. She tapped away on a draft complaint, mindful of her main task. Under the ADA, it was unlawful for OpenSpace to fire Simon because it didn’t want their insurance premiums raised because of Rachel’s medical expenses, but it was lawful to fire him for cause, like falling sales quotas. She had to prove that the medical expenses were the real reason he was fired, not his performance. It was a commonsense task to show a causal relationship between the medical expenses and the termination, and in that regard, Simon’s notebook was extraordinarily helpful because the temporal relation between the two was clear.
Mary took the facts directly from Simon’s notes, and there were three different occasions on which Eddington had made comments about Rachel’s medical expenses, and Mary made each one into a specific allegation of facts to support her theory of the causal connection. She typed:
On Wednesday, October 20, after the plaintiff’s daughter’s first round of chemotherapy started, plaintiff submitted a bill to Todd Eddington, whereupon Eddington stated, “I hope this works, for her sake and for ours. These expenses are going to mount up, and we met our deductible already. Our premiums are going to go up.”
Mary shook her head with disgust. She could only imagine how betrayed Simon must have felt by Eddington, who’d been so callous in the face of Rachel’s life-or-death struggle. Mary understood that business wasn’t always warm and fuzzy, but she also knew that corporations purchased insurance policies for a reason. Medical expenses for employees were a cost of doing business, and this situation was exactly the type that the Americans with Disabilities Act had been legislated to prevent.
She kept typing, detailing the second incident:
On Thursday, January 5, plaintiff submitted a bill for his daughter’s chemotherapy to Todd Eddington, who said, “This is the beginning of a new quarter and a new fiscal year. Do you think this is going to be as expensive as the last round?”
Mary typed the quote with grim satisfaction. She wouldn’t usually be so detailed in the complaint, but she had strong facts and believed that if she highlighted them, the other side would see she had a winning case and be convinced to settle more quickly. It was part-and-parcel of her new plan. The only problem was Bennie.
Mary kept writing:
On Thursday, March 30, plaintiff informed Todd Eddington that his daughter would require a bone marrow transplant, and Eddington asked how much the transplant would cost. Plaintiff didn’t know at the time, but told Eddington that the search charges to find a donor would cost approximately $60,00 to $100,000. Eddington stated, “These expenses are going to kill us this quarter. We can’t keep this up. They’re going to raise our rates.”
Mary knew it didn’t get any better than that in terms of proof. Eddington was practically admitting that he was going to find a way to cut Rachel’s medical expenses, which was homerun evidence for their case. She was always surprised at how many supervisors, bosses, and middle managers made statements that were completely unlawful, merely because they either didn’t know the law—or didn’t care. But not on her watch.
She wrote the next allegation in a more argumentative style to drive home the point:
It is no coincidence that the very next day, on March 31, Todd Eddington informed plaintiff by email that his region was being decreased from three mid-Atlantic states to just one, the smallest, Delaware. This employment decision was essentially a demotion and virtually assured that plaintiff would not be able to meet his sales quotas because …