Disclosure

Disclosure Page 17

He then told about the phone call to his wife, and the early meeting the next morning, his subsequent conversation with Blackburn, and his decision to press charges.

"'That's about it," he finished.

Judge Murphy said, "I have some questions before we go on. Mr. Sanders, you mentioned that wine was drunk during the meeting."

"Yes."

"How much wine would you say you had?"

"Less than a glass."

"And Ms. Johnson? How much would you say?"

"At least three glasses."

"All right." She made a note. "Mr. Sanders, do you have an employment contract with the company?"

"Yes."

"What is your understanding of what the contract says about transferring you or firing you?"

"They can't fire me without cause," Sanders said. "I don't know what it says about transfers. But my point is that by transferring me, they might as well be firing me-"

"I understand your point," Murphy said, interrupting him. "I'm asking about your contract. Mr. Blackburn?"

Blackburn said, "The relevant clause refers to `equivalent transfer.' "

"I see. So it is arguable. Fine. Let's go on. Mr. Heller? Your questions for Mr. Sanders, please."

Ben Heller shuffled his papers and cleared his throat. "Mr. Sanders, would you like a break?"

"No, I'm fine."

"All right. Now, Mr. Sanders. You mentioned that when Mr. Blackburn told you on Monday morning that Ms. Johnson was going to be the new head of the division, you were surprised."

"Yes."

"Who did you think the new head would be?"

"I didn't know. Actually, I thought I might be in line for it."

"Why did you think that?"

"I just assumed it."

"Did anybody in the company, Mr. Blackburn or anybody else, lead you to think you were going to get the job?" No.

"Was there anything in writing to suggest you would get the job?"

"No."

"So when you say you assumed it, you were drawing a conclusion based on the general situation at the company, as you saw it."

"Yes."

"But not based on any real evidence?"

"No."

"All right. Now, you've said that when Mr. Blackburn told you that Ms. Johnson was going to get the job, he also told you that she could choose new division heads if she wanted, and you told him you interpreted that to mean Ms. Johnson had the power to fire you?"

"Yes, that's what he said."

"Did he characterize it in any way? For example, did he say it was likely or unlikely?"

"He said it was unlikely."

"And did you believe him?"

"I wasn't sure what to believe, at that point."

"Is Mr. Blackburn's judgment on company matters reliable?"

"Ordinarily, yes."

"But in any case, Mr. Blackburn did say that Ms. Johnson had the right to fire you."

"Yes."

"Did Ms. Johnson ever say anything like that to you?"

"No."

"She never made any statement that could be interpreted as an offer contingent upon your performance, including sexual performance?"

"No."

"So when you say that during your meeting with her you felt that your job was at risk, that was not because of anything Ms. Johnson actually said or did?"

"No," Sanders said. "But it was in the situation."

"You perceived it as being in the situation."

"Yes."

"As you had earlier perceived that you were in line for a promotion, when in fact you were not? The very promotion that Ms. Johnson ended up getting?"

"I don't follow you."

"I'm merely observing," Heller said, "that perceptions are subjective, and do not have the weight of fact."

"Objection," Fernandez said. "Employee perceptions have been held valid in contexts where the reasonable expectation-"

"Ms. Fernandez," Murphy said, "Mr. Heller hasn't challenged the validity of your client's perceptions. He has questioned their accuracy."

"But surely they are accurate. Because Ms. Johnson was his superior, and she could fire him if she wanted to."

"That's not in dispute. But Mr. Heller is asking whether Mr. Sanders has a tendency to build up unjustified expectations. And that seems to me entirely relevant."

"But with all due respect, Your Honor-"

"Ms. Fernandez," Murphy said, "we're here to clarify this dispute. I'm going to let Mr. Heller continue. Mr. Heller?"

"Thank you, Your Honor. So to summarize, Mr. Sanders: Although you felt your job was on the line, you never got that sense from Ms. Johnson?"

"No, I didn't."

"Or from Mr. Blackburn?"

"No."

"Or, in fact, from anyone else?"

"No."

"All right. Let's turn to something else. How did it happen that there was wine at the six o'clock meeting?"

"Ms. Johnson said that she would get a bottle of wine."

"You didn't ask her to do that?"

"No. She volunteered to do it."

"And what was your reaction?"

"I don't know." He shrugged. "Nothing in particular."

"Were you pleased?"

"I didn't think about it one way or the other."

"Let me put it a different way, Mr. Sanders. When you heard that an attractive woman like Ms. Johnson was planning to have a drink with you after work, what went through your head?"

"I thought I better do it. She's my boss."

"That's all you thought?"

"Yes."

"Did you mention to anyone that you wanted to be alone with Ms. Johnson in a romantic setting?"

Sanders sat forward, surprised. "No."

"Are you sure about that?"

"Yes." Sanders shook his head. "I don't know what you're driving at."

"Isn't Ms. Johnson your former lover?"

"Yes."

"And didn't you want to resume your intimate relationship?"

"No, I did not. I was just hoping we would be able to find some way to be able to work together."

"Is that difficult? I would have thought it'd be quite easy to work together, since you knew each other so well in the past."

"Well, it's not. It's quite awkward."

"Is it? Why is that?"

"Well. It just is. I had never actually worked with her. I knew her in a totally different context, and I just felt awkward."

"How did your prior relationship with Ms. Johnson end, Mr. Sanders?"

"We just sort of . . . drifted apart."

"You had been living together at the time?"

"Yes. And we had our normal ups and downs. And finally, it just didn't work out. So we split up."

"No hard feelings?" No.

"Who left whom?"

"It was sort of mutual, as I recall."

"Whose idea was it to move out?"

"I guess . . . I don't really remember. I guess it was mine."

"So there was no awkwardness or tension about how the affair ended, ten years ago."

"No."

"And yet you felt there was awkwardness now?"

"Sure," Sanders said. "Because we had one kind of relationship in the past, and now we were going to have another kind of relationship."

"You mean, now Ms. Johnson was going to be your superior."

"Yes."

"Weren't you angry about that? About her appointment?"

"A little. I guess."

"Only a little? Or perhaps more than a little?"

Fernandez sat forward and started to protest. Murphy shot her a warning look. Fernandez put her fists under her chin and said nothing.

"I was a lot of things," Sanders said. "I was angry and disappointed and confused and worried."

"So in your mind, although you were feeling many different and confusing feelings, you're certain that you did not, under any circumstances, contemplate having sex with Ms. Johnson that night."

"No."

"It never crossed your mind?"

"No."

There was a pause. Heller shuffled his notes, then looked up. "You're married, are you not, Mr. Sanders?"

"Yes, I am."

"Did you call your wife to tell her you had a late meeting?"

"Yes."

"Did you tell her with whom?"

"No."

"Why not?"

"My wife is sometimes jealous about my past relationships. I didn't see any reason to cause her anxiety or make her upset."

"You mean, if you told her you were having a late meeting with Ms. Johnson, your wife might think that you would renew your sexual acquaintance."

"I don't know what she would think," Sanders said.

"But in any case, you didn't tell her about Ms. Johnson."

"No."

"What did you tell her?" "I told her I had a meeting and I would be home late."

"How late?" "I told her it might run to dinner or after."

"I see. Had Ms. Johnson suggested dinner to you?"

"No."

"So you presumed, when you called your wife, that your meeting with Ms. Johnson might be a long one?"

"No," Sanders said. "I didn't. But I didn't know exactly how long it would be. And my wife doesn't like me to call once and say I'll be an hour late, and then call again to say it'll be two hours. That annoys her. So it's easier for her if I just tell her I may be home after dinner. That way, she doesn't expect me and doesn't wait for me; and if I get home early, it's great."

"So this is your usual policy with your wife."

"Yes."

"Nothing unusual."

"No."

"In other words, your usual procedure is to lie to your wife about events at the office because in your view she can't take the truth."

"Objection," Fernandez said. "What's the relevance?"

"That's not it at all," Sanders continued, angrily.

"How is it, Mr. Sanders?"

"Look. Every marriage has its own way to work things out. This is ours. It makes things smoother, that's all. It's about scheduling at home, not about lying."

"But wouldn't you say that you lied when you failed to tell your wife you were seeing Ms. Johnson that night?"

"Objection," Fernandez said.

Murphy said, "I think this is quite enough, Mr. Heller."

"Your Honor, I'm trying to show that Mr. Sanders intended to consummate an encounter with Ms. Johnson, and that all his behavior is consistent with that. And in addition, to show that he routinely treats women with contempt."

"You haven't shown that, you haven't even laid a groundwork for that," Murphy said. "Mr. Sanders has explained his reasons, and in the absence of contrary evidence I accept them. Do you have contrary evidence?"

"No, Your Honor."

"Very well. Bear in mind that inflammatory and unsubstantiated characterizations do not assist our mutual efforts at resolution."

"Yes, Your Honor."

"I want everyone here to be clear: these proceedings are potentially damaging to all parties-not only in their outcome, but in the conduct of the proceedings themselves. Depending on the outcome, Ms. Johnson and Mr. Sanders may find themselves working together in some capacity in the future. I will not permit these proceedings to unnecessarily poison such future relationships. Any further unwarranted accusations will cause me to halt these proceedings. Does anyone have any questions about what I've just said?"

No one did.

"All right. Mr. Heller?"

Heller sat back. "No further questions, Your Honor."

"All right," Judge Murphy said. "We'll break for five minutes, and return to hear Ms. Johnson's version."

You're doing fine," Fernandez said. "You're doing very well. Your ice was strong. You were clear and even. Murphy was impressed. You're doing fine." They were standing outside, by the fountains in the courtyard. Sanders felt like a boxer between rounds, being worked over by his trainer. "How do you feel?" she asked. "Tired?"

"A little. Not too bad."

"You want coffee?"

"No, I'm okay."

"Good. Because the hard part is coming up. You're going to have to be very strong when she gives her version. You won't like what she says. But it's important that you stay calm."

"Okay."

She put her hand on his shoulder. "By the way, just between us: How did the relationship end?"

"To tell the truth, I can't remember exactly."

Fernandez looked skeptical. "But this was important, surely . . ."

"It was almost ten years ago," Sanders said. "To me, it feels like another lifetime."

She was still skeptical.

"Look," Sanders said. "This is the third week in June. What was going on in your love life the third week of June, ten years ago? Can you tell me?"

Fernandez was silent, frowning.

"Were you married?" Sanders prompted.

No.

"Met your husband yet?"

"Uh, let's see . . . no . . . not until . . . I must have met my husband . . . about a year later."

"Okay. Do you remember who you were seeing before him?"

Fernandez was silent. Thinking.

"How about anything that happened between you and a lover in June, ten years ago?"

She was still silent.

"See what I mean?" Sanders said. "Ten years is a long time. I remember the affair with Meredith, but I'm not clear about the last few weeks of it. I don't remember the details of how it ended."

"What do you remember?"

He shrugged. "We had more fights, more yelling. We were still living together, but somehow, we began to arrange our schedules so that we never saw each other. You know how that happens. Because when we did run into each other, we fought.

"And finally one night, we had a big argument while we were getting dressed to go to a party. Some formal party for DigiCom. I remember I had to wear a tux. I threw my cuff links at her and then I couldn't find them. I had to get down on the floor and look. But once we were driving to the party, we sort of calmed down, and we started talking about breaking up. In this very ordinary way. Very reasonable way. It just came out. Both of us. Nobody shouted. And in the end, we decided it was best if we broke it off."

Fernandez was looking at him thoughtfully. "That's it?"

"Yeah." He shrugged. "Except we never got to the party."

Something at the back of his mind.

A couple in a car, going to a party. Something about a cellular pbone. All dressed up, going to the party and they make a call, and

He couldn't get it. It hung in his memory, just beyond recollection.

The woman made a call on the cellular pbone, and then . . . Something embarrassing afterward . . .

"Tom?" Fernandez said, shaking his shoulder. "Looks like our time is about up. Ready to go back?"

"I'm ready," he said.

As they were heading back to the mediation room, Heller came over. He gave Sanders an oily smile, then turned to Fernandez. "Counselor," he said. "I wonder if this is the time to talk about settlement."

"Settlement?" Fernandez said, showing elaborate surprise. "Why?"

"Well, things aren't going so well for your client, and-"

"Things are going fine for my client-"

"And this whole inquiry will only get more embarrassing and awkward for him, the longer it continues"

"My client isn't embarrassed at all-"

"And perhaps it is to everyone's advantage to end it now."

Fernandez smiled. "I don't think that's my client's wish, Ben, but if you have an offer to make, we will of course entertain it."

"Yes. I have an offer."

"All right."

Heller cleared his throat. "Considering Tom's current compensation base and associated benefits package, and taking into consideration his lengthy service with the company, we're prepared to settle for an amount equal to several years of compensation. We'll add an allowance for your fees and other miscellaneous expenses of termination, the cost of a headhunter to relocate to a new position, and all direct costs that may be associated with moving his household, and all together make it four hundred thousand dollars. I think that's very generous."

"I'll see what my client says," Fernandez said. She took Sanders by the arm, and walked a short distance away. "Well?"

"No," Sanders said.

"Not so fast," she said. "That's a pretty reasonable offer. It's as much as you're likely to get in court, without the delay and expenses."

"No."

"Want to counter?"