“No, I didn’t.”
“Not even in passing? By way of commiserating? No words to the effect of, ‘well, these medical bills are something, Simon’?”
“Nothing like that.” Todd’s tone remained firm.
“But you must have talked about her illness or her treatments.”
“No, not that I recall.”
“How is that so?” Bennie wasn’t buying. “You’re supposedly friends, and his daughter is very ill? You don’t ever once ask him how she is?”
“Okay, whatever. Once or twice I probably said, ‘I hope Rach gets better.’ It went without saying. I didn’t bring it up because I don’t want him to get upset at work. You don’t need that in your face all the time, I wouldn’t like it. I felt sorry for him.”
Bennie wasn’t buying. “Todd, you need to come clean with me. If you were trying to save the company some money, there’s no shame in that. You were between a rock and a hard place, feeling sorry for Simon but knowing that you were responsible for your bottom line.”
“I never said anything like that to him.”
“Did you ever think anything like that?” Bennie watched him carefully for signs to see if he was lying, but so far, she wasn’t sure. “I mean, you knew that the company was paying those medical expenses out of pocket, since they were under the cap. In accounting, do those losses or expenses come out of your department?”
“Yes,” Todd admitted, after a moment.
“So that can’t be good for your bottom line.”
“It’s not.”
“And it can’t be good for you if your department causes the premiums to go up.”
“No. But I never said anything to him about it.”
“Did anybody ever say anything about that to you? Ray or Bashir?”
“No, never.”
“Was it just understood?”
“No, I mean, I admit, I’ll tell you, I worried about it. But I truly never said anything about that to Simon.” Todd shifted in the seat.
“Just tell me, Todd. If you did, no harm, no foul. We can settle this case. It won’t come back on you.”
Todd shifted again. “You don’t know that. You don’t know anything about this business.”
“True, but you don’t know anything about my business, either. And this is about my business—litigation. If this suit gets filed, goes to court, and we lose, it will cost the company a lot more than if we settle. And the PR will be terrible. We can make it go away now, but only if you tell me the truth.”
“I told you the truth!” Todd said, raising his voice. “Why do you think I’m lying? Why? You don’t even know me!”
“Hold on.” Bennie slipped her hand into her messenger bag and extracted Exhibit A, B, and C, the contemporaneous notes attached to the complaint, which she had photocopied. She turned them facedown on the table, watching Todd, who reacted instantly, shifting again in his chair and eyeing the sheets.
“What’s that? Is this some kind of game?”
“No, I’m just trying to get you to level with me. If you’re really telling the truth, then so be it. But I have to know, and this is what you’re up against.” Bennie turned over the top sheet, which was Exhibit A, showing Pensiera’s careful script on a notebook page:
Wednesday, October 20, 11:45 a.m. Todd said: “I hope this next round 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.”
Bennie slid the piece of paper across the table and turned it around so that it faced Todd the right way. “Do you recognize that handwriting?”
“Yes, it’s Simon’s.”
“Take a moment to read it.” Bennie folded her hands, watching Todd critically. He read the sheet quickly, then raked his hand through his hair, leaving lines in the expensive layers of his haircut.
“I don’t know why he would write this. It’s a total lie.” Todd looked up, his face flushing with new anger. “He’s trying to set me up. He’s framing me. He made this whole thing up.”
Bennie kept her expression impassive. “Just so we’re clear, you’re saying that you never said any of this.”
“I never said any of this!”
“You remember that you did not say it.”
“I remember that I did not say it,” Todd repeated, mimicking her intonation.
“It has the date and the exact time.”
“So what?”
Bennie changed tacks. “You wouldn’t happen to remember where you were on October 20 of last year, would you?”
“Of course not.”
“You keep a calendar?”
“Yes, of course.”
“Is it in your phone?”
“Yes,” Todd answered with a scowl. “You want me to check it?”
“Yes, if you don’t mind.”
“Fine.” Todd leaned over, slid an iPhone from his back pocket, and started thumbing the screen.
“So, were you in the office on Wednesday, October 20 of last year?”
“Look.” Todd held up the screen, showing it to Bennie. “No appointments out of the office. I wasn’t calling on accounts that day. But that doesn’t mean I was in or that we had a conversation like this. It doesn’t prove anything.”
“Let’s move on.” Bennie reached for Exhibit B. The fact that Todd was in the office and could have made the statement went against him. “This is the second instance in which Pensiera claims that you made comments about his daughter’s medical expenses. Why don’t you take a look at that and tell me what your reaction is?”
“I can’t believe this!”
“Here we go.” Bennie passed Exhibit B across the table to him, which read:
Thursday, January 5, 9:15 a.m. Todd said: “This is the beginning of a new quarter and a new year. Do you think this is going to be as expensive as the last round?”
Todd looked up, angrier. “I’m telling you, I never said anything like that. This never happened. When does he say this happened?”
“You can see for yourself. On January 5, nine fifteen, when he turned some bills in to you after her second round of chemo.”
“I didn’t say it!”
“Okay, please check your phone for me and let me know if you were in the office that day, around nine fifteen.”
“This is so ridiculous.” Todd scrolled through his phone. “This is like a search, an illegal search. I didn’t say any of this stuff and even if I did, is it illegal? Is it illegal to ask questions? To talk?”
“No, but under the Americans with Disabilities Act, it’s illegal to fire an employee to save the company from paying the medical expenses of the employee’s family member. It’s considered discrimination. If you said these things, they are direct evidence of discriminatory animus.”
“What about my rights? Don’t I have a First Amendment right to say what I want? Not that I said it, but I am asking you.”
“No. Your First Amendment right is guaranteed as against abridgment by the government or a state actor, but that’s it. In other words, you don’t have a First Amendment right to say whatever you want, whenever you want to.”
“Lawyers!” Todd scrolled angrily through his phone, then held it up. “Okay, again, so no appointments. I was probably in the office that day at nine fifteen. They pay me good money to come here, so I do. I don’t remember meeting with Simon and I know that I did not say anything like that!”
“Okay, here’s Simon’s last note, but I want you to take a very careful look at this one because it matters most of all.”
“This is unreal.” Todd shook his head, fuming.
“Here.” Bennie passed Exhibit C to him, which contained the admission:
Thursday, March 30, 10:15 a.m. Todd said: “These expenses are going to kill us this quarter. It’s really too much. We can’t keep this up. They’re going to raise our rates.”
Todd sent the paper sliding back to her, his mouth tight. “I didn’t say anything like that. I didn’t say it. He
made this whole thing up.”
“Why would he do that?”
“So he could start a lawsuit. Simon is a very smart guy. What if he had this planned? Back when Rachel got sick, like I told you, he lost interest in the job. He doesn’t want to work but he still needs money. So he makes up this story. He takes fake notes on days he knows I’m in the office.” Todd dismissed the exhibits with an angry wave. “This isn’t proof of anything. He’s trying to get the money for Rachel’s transplant. He made the whole thing up from the get-go.”
Bennie’s ears pricked up. “What transplant?”
“The bone marrow transplant.” Todd hesitated. “You said he’s suing me because I talked about the costs of her transplant.”
“No, I never used the term ‘transplant.’ Neither does he in his contemporaneous notes. I said ‘medical expenses.’” Bennie eyed him hard. “The need for the transplant was a recent development, and it hurts our case that it came so close to the termination, suggesting a causal link.”
“Okay, whatever. It’s semantics.” Todd rolled his eyes. “Stop acting like you caught me in a lie, for God’s sake. I knew she needed a transplant, we all knew. Word got around.”
“Did you discuss the transplant with him, per se?”
“No!”
“Thank you.” Bennie took the exhibits back. “Please check your calendar for me.”
“Under protest, yes.” Todd thumbed his phone, then held it up again. “Ooh, look! Guilty as charged. I was in the office at ten fifteen. Or at least I wasn’t out of the office, because there’s no appointment that morning.”
“Thank you.”
“I don’t like being called a liar. I don’t like being accused of things I didn’t do. Those notes of his are BS.” Todd stood up abruptly, pocketing his phone. “We’re done here, right?”
“Yes, we’re finished. Thank you very much.” Bennie put the exhibits back into her messenger bag, slid a business card from the inside pocket, and passed it to him. “Please take my card. Feel free to contact me if you have any questions or any further thoughts.”
“I don’t need your business card.” Todd reached the door and put his hand on the knob. “And I’ll tell you one thing. Don’t settle this case. I want my day in court. I want to clear my name.”
“Understood,” Bennie said, nodding. Though it was the worst thing she could have heard in the circumstances.
* * *
Bennie found Nate in the manufacturing part of the facility, standing high above the factory floor on a concrete ramp that was protected from the noise below by a Plexiglas wall. The ramp thrummed with the vibration of the heavy machinery below, and the air smelled warm and dusty. Nate smiled when he saw Bennie, gesturing to the factory below.
“Want to take a factory tour? I just had mine. I like to do it from time to time. It’s educational.”
“No thanks, I don’t have time.” Bennie was in no mood. After that interview with Todd, she had a big problem on her hands, and so did Mary.
“I could show you around. It’s so awesome!”
“It’s not a toy, Nate.”
“You’re right, it’s a bottom line.” Nate chuckled, turning to the factory floor. “It looks like they’re making cubicles, but they’re making money. For me.”
Bennie humored him, scanning the scene below. Production lines of heavy machinery and industrial conveyor belts manned by workers in earplugs and safety goggles were attaching stainless-steel frames to a white piece of drywall. In other circumstances, she would’ve loved a factory tour, but not today.
“See that?” Nate pointed at the closest production line. “That’s what Todd was talking about. That’s the line that makes the high-end cubicles, where the components are the best. The drywall is made in the U.S. and so is the steel. None of it’s outsourced at this price point.”
“Nate, we need to talk.”
“No, we don’t.” Nate swiveled his head toward her, his expression turning grim. “It looks to me that everything is pretty clear. We’re not going to be able to settle this case like you thought. Todd didn’t make any of those comments.”
“I think he’s lying.”
“Disagree. It’s a credibility contest. Nevertheless, he’s not backing down, and neither is Ray. He just told me. They’re on the same page. They want to fight this thing, so I’m not settling.”
Bennie bore down. “I confronted Todd about the contemporaneous notes, and his reaction wasn’t good. I don’t think he’d be a good witness on the stand. I think he’d tank on cross.”
“Are you saying that because your partner’s on the other side?” Nate lifted an eyebrow.
“No, I came here with an open mind and I analyzed Todd’s demeanor, as I would any witness. He’s the decision maker, and his testimony is the most critical. He was tense in the meeting with you and he lost his temper with me.”
“He’s unjustly accused, and I’m not settling. Ray doesn’t want to settle either. They both think that the plaintiff is in it for the money, for his kid. He made the whole thing up.”
“Nate, I’m not going to quibble with you about whether that’s likely or not. In my opinion, it’s not.” Bennie kept her cool, leveling with him. “But the fact is, it doesn’t really matter. The plaintiff’s case is extremely sympathetic. He has a child with cancer and he lost his wife a few years ago—”
“So what does that matter? You’re a lawyer, not some bleeding heart who gives out money just because it’s a company being sued. The plaintiff couldn’t do the job and he deserved to be fired.”
“You didn’t let me finish. The plaintiff made his quota for almost twelve years and he fell off one month. Todd admitted that he’s never fired anybody else who didn’t make quota after one month. If you single one rep out, that’s discrimination per se.”
Nate didn’t interrupt her again, so she kept talking.
“When the jury is looking around for a reason why Todd fired the plaintiff, they have an easy answer. Todd wanted to save the company money. The medical expenses and transplant affect his bottom line and reflect poorly on him to management. I would settle this case. You’re in trouble.”
“No, you’re in trouble. Because you’re going to defend this case and your partner is conflicted out.”
“You expect me to sue my own partner?”
“Yes. Welcome to the NFL.”
“If you’re not going to settle, I’m not taking the case.” Bennie had prepared for this possibility, at least mentally. “Farm it out to one of the big firms like you would have before.”
“You’re turning down the work?” Nate straightened up, with a new frown. “Why, if your partner is conflicted out?”
“Because I don’t want any part of it, unless it’s to settle it. I’m not going to war with a personal friend of hers. She regards the plaintiff as a family member. She loves the kid. I just won’t do it.”
Nate burst into laughter, without mirth. “Well, look at you! Sisterhood is powerful! Why?”
“I thought about it. I knew it was a possibility that Todd would deny everything, and now that I’ve interviewed him, I feel stronger than ever. I’m not taking this case. Send it to somebody else.”
“I’m sending it to you.”
“I’m not accepting it.”
“Really.” Nate’s eyes flashed with anger. “Then I’m no longer your client. I’m not sending you any more work from Dumbarton or the other subs. Checkmate.”
“So be it.” Bennie didn’t blink.
“What do you mean? You want to lose me? And all my business?”
“If that’s the way you want it, that’s the way it has to be.” Bennie remained calm. In fact, she only got calmer in conflict, which was why she loved being a lawyer. When things went well, she didn’t know what to do with herself.
“You’re just saying that. You’re calling my bluff. You don’t think I’ll fire you because were friends.”
“No, because were friends, I think you’ll fire me. I
know you and I know how you think. You like getting your own way. You’re used to it. But you can’t make me take a case I don’t want, and if you feel you have to fire me, I’m fine with it.” Bennie had made her peace, last night. His business was considerable, but it wasn’t everything.
“So you’re serious.”
“Totally.”
Nate blinked, stepping backwards. “Hold on. Rewind. You should think this over.”
“I already have.”
“Reconsider. Slow down this transaction. Go back and crunch the numbers. Take a look at your billings. See how much of them come from Dumbarton and the subs. And consider our relationship, which evidently I value more than you do.”
“I value our relationship too. But the fact is, I have a partner now, and her name is Mary DiNunzio. Not you or any other client. So take care, I have work to do back at the office.” Bennie turned away, holding her head high.
“Call me and let me know your decision,” Nate called after her, chuckling. “I’m giving you the second chance you won’t give me!”
“Good-bye,” Bennie called back, heading out the factory door.
CHAPTER ELEVEN
Mary looked up from her laptop to see Bennie arriving at the threshold of her office, her topknot messy and her skin vaguely flushed, probably from the heat. Bags weighed down her shoulder, and her lips formed a flat, uncharacteristically grim line. Mary felt a clenching in the pit of her stomach, since she knew Bennie had been at OpenSpace.
“DiNunzio, I mean Mary. I have bad news.”
“Oh no.” Mary gestured to the chair opposite her desk, then realized Bennie had never visited her in her office, it usually was the other way around. Still. “You can sit down if you want to.”
“No thanks. I’ve been in the car for almost two hours. There was an accident on 611.”
“Okay, so what’s up?”
“The case isn’t going to settle,” Bennie answered, matter-of-factly. “I can’t go into detail because the situation is ethically challenged, at best. Suffice it to say that I gave it the old college try, but it isn’t happening.”