“Do you keep anybody at Dumbarton informed of hiring and firing?”
“No.”
“How about payroll? Where does that come from? You’d have to take Pensiera off the payroll.”
“We do our own payroll and accounting.”
Bennie breathed a relieved sigh. So far so good. She avoided looking over at Nate and put him out of her mind. “How big is the Sales department?”
“I have ten reps under me.”
“And they all have different territories?”
“Yes, we’re national.”
“So you’re spread thin.”
“Understatement of the year.”
“Do you have accounts, as manager?”
“Yes, I kept some of mine as I got promoted. It makes up for the lost commissions. I kept my bread-and-butter, mostly in the area. I got tired of being a road warrior and I have a lot more paperwork as manager.”
“Okay, I’m here to try to understand the facts concerning Mr. Pensiera’s termination. Let’s start with—”
“Why?” Todd leaned forward, with a frown. “Why does this come up? What does this have to do with you, an outside lawyer?”
“Mr. Pensiera is claiming that you fired him to mitigate medical expenses for his daughter, Rachel, who has cancer.”
“That’s bull!” Todd raised his voice, his handsome face flushing under his fresh tan. “Are you serious? I mean, for real, what are you accusing me of?”
Jason interjected, “Todd, she’s not accusing you of anything. She’s here as our lawyer to tell us about the suit.”
“There’s a lawsuit?” Todd’s blue eyes flew open, incredulous. “Simon is suing me? What law says that I have to keep a rep who doesn’t do his job anymore?”
Bennie raised a hand, signaling for him to calm down. “I know this is unpleasant, but let’s get the facts on the table, then we can sort it out. That’s the quickest way to get us all back to work.”
Jason nodded. “Todd, please listen to what Bennie has to say.”
“Fine!” Todd lowered his voice, but a frown took up residence on his forehead, creasing his sunburn.
Ray said nothing, folding beefy arms over his paunch.
Bennie changed tacks. “Tell you what, Todd. Instead of me doing all the talking, why don’t you tell me why you fired Pensiera?”
“Okay, good.” Todd shifted forward in his chair, his anger controlled but obvious. “It was his performance. He was doing a bad job. His numbers were going down. They don’t lie.”
“Has that always been the case?”
“No. He’s always been one of our top guys. Always made above quota. His accounts love him. He reports directly to me. We get along great. I gave him the biggest region. We’re friends, for God’s sake! We socialized, at least we used to. I can’t believe he would do this to me!” Todd banged the table, but Bennie ignored the outburst.
“When did his performance start to change?”
“I would say about two years ago.”
“How?”
“He wasn’t as into work as he used to be. Ellen, his wife, died a few years ago, and he became a single father. He lost his edge. His priorities changed. He became more of a family guy. Then Rachel got sick and it got worse.”
“Are you saying his performance was affected by his child’s illness?” Bennie asked, a legally significant question. Last night, she had researched the case law under the Americans with Disabilities Act, and even if an employee was distracted because of the illness of a family member, it was still illegal to terminate that employee.
“No, not because she was sick. I think it was because his wife died and he had to take care of the kid. He made calls, but he didn’t care anymore. His heart just wasn’t in it. He wasn’t closing as many deals. It’s like his values changed. Like I say, he lost his edge.”
Bennie listened critically, evaluating Todd’s response as he spoke. If he were telling the truth, then it would have been a nuanced theory of the defense and even permissible under the ADA, as a performance-based termination.
“He turned touchy-feely. Warm and fuzzy. Seize the day, all that. I might get that way too, if I had a really sick kid. But I need reps who are committed. Sales is a brutal business, especially in this economy.”
“How does the economy impact you?”
“Our market is the most competitive. We’re the middle tier of cubicle manufacturers. We compete with Knoll and Kimball, plus remanufacturers and clone manufacturers from China.”
“What’s a clone manufacturer?”
“It’s a copied system with a tried-and-true design. It’s sourced from China using cheaper materials. Our business is growing but it’s not easy. Nothing about this business is easy. You have to grind every day, every hour. That’s why I reduced his territory.”
“Why, exactly?”
“Because he wasn’t paying attention. His numbers were slipping.”
“Did he make quota?”
“No.”
“For how long?”
“A month, and he was trending down. He made fewer calls each quarter. You could see it in his call logs and his POs, or purchase orders. He was falling asleep at the switch.” Todd threw up his hands. “That’s why I reduced him to Delaware and figured he could knock himself out.”
“Did you ever fire another rep who didn’t make quota after one month?”
Todd thought a minute. “Uh, no.”
Jason made a note on a legal pad, but didn’t interrupt.
“Did you warn him?”
“No.”
“Why not?”
“I didn’t think I was going to fire him. I thought reducing his territory would work. Most reps would see the writing on the wall and take it up a notch.”
Bennie glanced at Jason. “Does OpenSpace have a termination procedure with any kind of warning system, written or no?”
Jason frowned. “Unsure.”
“It should.”
“We just acquired OpenSpace last year, so we’re just coming up to speed. I’ll get on that.”
Bennie let it go, returning her attention to Todd. “When you reduce his territory, don’t you ensure that he can’t make quota?”
“Not necessarily. Well, er, wait.” Todd held up a hand like a traffic cop. “Let me explain. We also adjust his quota, so he could’ve done very well.”
“How, if it was a smaller territory? And I also understand that it contained fewer businesses.” Bennie was referring to the complaint.
“True, but they tended to be high-end. We produce three lines of product—expensive, medium, and cheap. The businesses in the region that I gave him are very high-end. Businesses incorporate in Delaware because the state laws are favorable. They headquarter or keep an office in Wilmington and the subs. They have the money and they go for top-of-the-line construction.” Todd leaned over again, warming to the topic. “Stainless-steel frame. Floor-to-ceiling. The best drywall. Real glass windows. Electrified under the counter, with LED lights. Some even have doors. Some are custom. I could go on but I won’t bore you.”