You recall that M sent me an email attaching an excel spreadsheet claiming that we were over-billing clients. He claimed he received the spreadsheet via an email from one of our employees. But he did not turn over that email nor any other with any discussion about the spreadsheet.He destroyed the computer on which M received the email.
We asked all of our employees to produce such spreadsheet if they had it and to do so with no threat of firing. No one claimed to know anything. We looked for it on numerous computers but did not find it. M’s legal team did not request to do a forensics exam on any of the computers. If M had actually received the spreadsheet he would have known which or whose computer to evaluate. A forensics team would have found remnants of the file at the very least. We kept the computers for 7 years. We found nothing.
As I indicated before, we took a close look at the spreadsheet and it reflected nominal changes a number of days over the course of the month. Most entries were a write-off of time of a few hundred dollars. A few of the entries wrote time up, also for a few hundred dollars in month in which four hundred thousand dollars of fees were billed.
I dug deeper though. In looking at the meta data of the spreadsheet it was identified to a call center manager in one of our Oregon locations, meaning the spreadsheet identified him as the author. He denied it. He was also one of the employees who was going to join M and Paul in their company in Delaware. The name of the file could have been easily manipulated if M or someone he hired created the spreadsheet. I don’t think he did, but the programming on the spreadsheet was beyond the skill set of this manager.
Over the years managers we hired would come to us with a variety of experiences and ethical training. On more than one occasion we would have to counsel, admonish and sometimes terminate employees, including managers, that seemed to embrace behavior I considered unacceptable. Writing off time and trying to recover it was one such behavior. One manager even felt we should write-up time if we exceeded our sales performance goals. These are people who came over to us in management positions. Yet there was no conflict in these managers about this behavior and that surprised me.
But we stopped this behavior whenever we found it. For some reason even when threatened with a loss of job a manager would write down time before reports were issued. Eventually we had to take all reporting away from local managers and disallowed all write-downs of any kind. The stimulus to write-down hours came from the local managers interacting with some of our clients on a daily basis. Once I found out who was bringing this pressure to write down time I talked that client and removed the opportunity.
I have always been surprised by this behavior and it has always been nominal amounts of money. I don’t know why a manager would bother. They knew we would catch it within a short time.
In spite of no evidence of the spreadsheet being ours, I have always wondered if it is…if it was. Some of the data was inaccurate. Some was accurate. M had access to enough data to create some of the entries.
I believe M created the spreadsheet. Why? Because he destroyed the email from which he claimed to have received the spreadsheet. He did not request to do a forensic exam on the employees computer from which he claimed to have received the email. He withheld the identity of that person for 5 years, many years after that employee no longer worked for us. We could not find the email or spreadsheet on that person’s computer, but we did retain it.
As Max’s testimony confirmed, he thought that it is inappropriate to write-off time when we so desired, for whatever reason. This speaks to both his lack of sophistication and common sense. It does not explain why Arbitrator C did not process this, even after asking M to repeat his statement on this topic. I know C understood the stupidity of M’s testimony, because as he left for break his head was shaking in amazement.
Under the terms of our contract, we can terminate a management employee for any reason and at any time. Oregon law provides an opportunity for an employee to file a lawsuit for damages if he or she was fired for filing a criminal complaint. M testified that he did not consider the billing evidence he alluded to as criminal. His words. Neither did the ODJ. Neither did James Egan, who recalled that the complaint was filed on a do not call issue. Case closed. Or at least it should have been.
We had no proof that M received the spreadsheet by email. Many of us testified that we did not know anything about it. We did not. He admits he never represented that we were engaged in any criminal activity. I’m gathering that the report to the ODJ was not really his idea in so far as no evidence was provided to the ODJ.
Since M would not provide the email by which he claimed to have received it, I’m guessing he created it. That is more logical than the alternative theory. But if it was ours it was created months before, which raises other questions. As I indicated before, we had our forensic experts look at this document as well and the meta-data of the spreadsheet shows that it was created by one of our former IT department members, someone who worked for M. It also showed that it was modified by a former center manager of ours, the very person M claims sent the email to him. Again M never did provide the email to us, not at any time. M did admit that the email was not sent to me. But there’s more.
The meta-data also showed the spreadsheet was created on October 2, 2003, the day he was terminated. Having access to his personal computers to do forensic exams was therefore important to us. We preserved our computers. He did not. And under the laws covering destroyed evidence we are entitled to what is called an inference, that inference being that M created the spreadsheet. Again he did not request to do a forensic exam on any computer but the computer he turned over and my computer.
But again as long as this discussion is it needs some context. The sum of the adjustments were really nominal and showcases I think that the person who created the spreadsheet and the data knew little about our overall revenue. The adjustments would be equivalent to us going 55.05 mph in a 55 mph zone. Or put another way would have been 10 cents on a $100 item. The context is important. It’s just all so silly.
And yet he prevailed and was awarded 10 months compensation. We had a two-week notice period to terminate unless there was a material breach. That notice for cause was then immediate. We had given M more than 30 days notice to assist him in finding new employment. No good deed goes unpunished.
On his last day, M reformatted a hard drive containing programs necessary to generate reports. No version of those programs were found on our servers or on the computer he returned. No member of our IT department knew where to find them. That was shocking in and of itself. And so a week or so before thanksgiving we shut down for just over a week. And 175 employees were laid off for part of that time.
Arbitrator C what is going on here? I know you went on record that we were not engaged in over-billing. But let’s be reasonable, the spreadsheet was not corroborated by M and he could have done so by providing the email on which he claimed to receive it. He did not.