The arbitration award had to at some point focus on the tipping point on whether or not the email terminating M was sent Oct 2, 2003, as I alleged. It is a tipping point because M’s claims go away in total if this one fact is found to be an October 2, 2003 email terminating M.
Arbitrator C wrote:
23 “The parties are in disagreement about when the October 2, 2003, email was prepared and
24 sent. The testimony of the experts leaves questions open about that controversy, but to the
25 arbitrator it is difficult to harmonize this email with the one written by Mr. Rote just 80-90 hours
Unfortunately this is where the Judicial discretion comes in to compromise a very important factual point. And so lets do more than just say this is an error. Lets call it for what it is, an abuse of discretion. Why is it an abuse? Because our evidence was so overwhelmingly favorable to us.
First, there was no disagreement by my two forensic experts. Both agreed that the email was sent October 2, 2003. My computer was untouched and the email was retained. It was not deleted. It did not need to be recovered.
Second, M’s forensic expert testified that the email terminating M was sent October 2, 2003, but noted there were items he found suspicious, suggested it could have been created to look like that, but ultimately testified that the evidence shows the email was created and sent October 2, 2003. M’s forensic report is here R – Exhibit 3
Third, three people from the company testified that they were aware of M’s termination on October 2, 2003 and two testified as to the fact that a letter was also sent via regular post. All forensic experts concluded that the initial draft of the letter was created in October 1, 2003. I testified that the letter was modified slightly and sent via email on October 2nd. The letter is here.R – Exhibit 1
Fourth, the business computer M used did not have his outlook email account on it. That is the 60 gig hard drive he returned with computer did not have email on it and we could not verify that he received it. Now its not necessary to verify that he received but it would point out that he lied about it. He claimed he did not get it. And we needed to verify the spreadsheet evidence as well and did not have an opportunity to do that.
Fifth, M destroyed the personal computer that had his email account at that time. So in spite of the fact that we did not destroy our computers, he did destroy his. This is considered spoiliation and we should have been entitled to an inference that he destroyed those computers so that we could not perform a forensics report on them. That inference also means that he received the email and sought to hide it from us.
But there is more. Arbitrator C sought also noted that:
7 For example, Claimant relies in several instances in his briefing on Exhibit 1, page 64.
8 and his testimony on May 24, 2010, pages 168-170. (The actual quote comes from page 160 of
9 the transcript.)
10 “Rote explained his response to Z’s ’So I take it I’m fired” email:
11 “And I said, ’Yes, so you seem to want that. You seem to kind want to exit on an
exclamation point, in spite of the fact you’ve asked for this additional time, in
12 spite of the fact we’re working together, you seem to want to exit with some kind
of drama. And so here it is, some kind of drama.” Post-Hearing Memorandum
13 of Northwest Direct Teleservices, p. 67.
And this is the Sixth point. Only a few days before M had withheld processing client reports, for now several days and wanted a raise and guaranteed contract period. He was attempting to hold us hostage. I told him now. Now all of this extortion attempt by M was in the record with the piece that Arbitrator Cused. But he filtered. He removed that damaging part of M’s testimony to make this rather weak point that a few days earlier I had not fired him when he was holding us hostage. That is true.
Once M got the reports done and once I was able to confirm through Chris Cox that he could process the reports I did fire M.
You see Arbitrator C really had to bend over backwards to assist Linda Marshall with this point. I am so mortified by this disgusting behavior, this favoritism shown Marshall, his ex-partner…well it is still hard for me to believe.
It is true that once M was fired, I spent most of my time with the remaining IT staff to try to make sure we could not have a catastrophic event. That did not work out too well. They did take us down anyway. But C’s interpretation of that was that it was an indication that M had not been fired. Once someone tries to hold your clients hostage, to hurt your company, you just don’t chat much.