When she first came to my law office our secretary/receptionist/clerk, Orlando Gomez, said to me, "Your two o'clock is here."
My watch said 1:50pm so I said, "Tell her to have a seat, I'll be with her at two."
"There's a problem," Orlando said. "She's too big."
"What do you mean, 'too big'?"
"Let me rephrase it. Our chairs are too small."
And then I remembered. This was a weight-discrimination case, referred to me from the Lincoln Park, Michigan, office of Legal Aid, my place of employment before I was laid off five years ago. For want of any alternative, I had opened a law office in nearby, low-rent Taylor Township, sharing overhead, including Orlando, with two other laid-off lawyers. Our waiting room was furnished with bentwood, cane-bottomed armchairs from Discount Imports.
I went to my office doorway, looked at the waiting area and confirmed Orlando's assessment.
Christine stood patiently by the office entrance, her ample girth in stark contrast to the slender nudes of Matisse's La Dance on the wall beside her. I said to Orlando, "Never mind," and approached her.
"Ms. Urbino? I'm David Sedlow. Please come into my office."
Fortunately, I had purchased from the previous occupant a weathered but sturdy red leather couch, of the type once fashionable in hotel lobbies and men's smoking clubs. Christine lowered herself into it with obvious relief. She was indeed a very large person, but very neat, wearing a cream pleated skirt, blue blazer, and white blouse. Her hair was conservatively permed, tinted blond, and her chubby, pleasant face lightly made up. A small gold cross lay at her throat. She sat up straight, looked down at my knock-off Persian carpet, then up at my mounted degrees and certificates, and then straight at me, a slight furrow of concern on her forehead.
"Thank you, Mr. Sedlow, for seeing me. But could you please tell me now what this consultation is going to cost me. I'm on a tight budget since I lost my job."
"Nothing," I replied. "We'll talk about fees if and when we decide that I should take your case. So tell me why you're here. In a nutshell."
She exhaled and the furrow disappeared. "Okay," she said. "I'll try to be brief. I was employed for ten years by the Madison Health and Dinner Club in the Renaissance Center in downtown Detroit. First as a file clerk, then as a membership service associate, and finally as front office receptionist. I worked very hard in that job. I greeted all the members and guests, handled all the dinner and lunch reservations, answered and directed all incoming calls, gave callers directions to the Club, lined up personal trainers, was first responder to complaints. And I loved it. I worked any hours they wanted, stayed late to discuss problem members, volunteered to conduct tours. It didn't pay that much, but it was my whole life. And do you know why, Mr. Sedlow?"
"No, Ms. Urbino, why?"
"Look at me, Mr. Sedlow. What kind of social life do you think I have? I have no family but a sister in Chicago. All I've got is my church. And bingo on Wednesday nights. That receptionist job was my life. I met all kinds of people. I made friends. I really believed that I was a valued employee and not just a fat person. For the first time in many years I felt good about myself."
Christine fished a Kleenex out of her purse and dabbed at her eye. "Darn it, I wasn't going to do this," she muttered.
"That's okay. Take your time," I said, noting the unaffected show of emotion. "Then what happened?"
"The Club, which is part of a national chain, changed managers. Mr. Stephens, the old manager, retired and they transferred the new manager, Jack Perkins, from Houston. He's mid-thirties, athletic type, deep tan. He does a lot of hearty hand-shaking with men and cheek-kissing with women, always smiling. So right away he starts talking at weekly staff meetings about 'image' and 'branding' and 'customer experience' and 'external perception.'
"Well, six weeks after he arrives he calls me into his office and he's not smiling. He tells me there have been some complaints about me. I almost fainted. There had never been complaints about me in ten years. He says several members say I have been rude to them and made them uncomfortable. I asked him, Who? When? How? He says I left them waiting on the phone and haven't followed their instructions regarding reservations for business lunch. I asked him when this happened and who said this? He says they asked their names not be mentioned as they are afraid of retaliation.
"I said, 'Retaliation? By me?' He says in terms of table assignments, reservations, forwarding calls from their offices. And finally, he tells me that I don't project the 'dynamic look' he wants to present at the Club. He has made up his mind. I'm not who he wants up front.
"At that point I start to cry so he tells me he's got another job for me in the Membership Office, at the same pay, where I won't have these kinds of problems. He says he'll bring me there tomorrow. Then he tells me to take the rest of the day off and calm down.
"Mr. Sedlow, my heart was broken. I couldn't say anything. I just nodded, stood up, left his office, got my things and went home. When I passed the reception desk there was a new employee there. He had hired her a month before as a membership recruiter."
"Ms. Urbino, I've got to ask you this..."
"I know. She was very petite. Probably a size four."
"What happened the next day?"
"He took me to this room where there was a computer, a table, a chair, a stack of phone books, a big clock on the wall, and two telephones. No windows. My job was to make cold calls to professional and business people, telling them about a one-time special discount on dues for new members. Have you ever made cold calls, Mr. Sedlow?"
"No, but I've gotten them."
"Do you like getting them?"
"Neither do I. Nobody does, especially not busy professional or business people. Eight hours of rejection every day, Mr. Sedlow. Some of it very nasty. In a ten-by-twelve office with no windows. Nobody else had been put in such a setup.
"I did it for six weeks. Finally I asked him if I could do these calls out of my home. He refused. So I stuck it out for another two months. But there was another problem, Mr. Sedlow. I developed a kidney condition. It's not serious, but it requires me to urinate more frequently than most people. He started writing me up for taking too much time away from my desk, even though I made the required number of calls by the end of the day.
"Finally, he changed my shift to afternoons because, he said, he wanted me to call people at home at dinner time. This disrupted my whole body rhythm and aggravated my condition. And Mr. Sedlow, you can imagine the reaction I got from people getting a cold solicitation call when they were sitting down to dinner."
"I know what my reaction is."
"Exactly. Some of them called to complain about getting calls and he wrote me up for that. He said I would be fired if he had to write me up again. I was afraid that if I got fired I would never get another job with that on my record. So I quit to avoid being fired. After I quit, I happened to meet one of the girls from the Club, Nina Falud. Nina said that Perkins was dating the new receptionist, Danielle, a former stewardess."
Christine went on to relate how the club successfully contested her unemployment benefits on the grounds that she quit. She figured this would prevent her from filing a wrongful discharge suit as well. A year later she went to the Legal Aid office to get some help applying for Medicaid. Tom Pace, a former Legal Aid colleague, picked up on the circumstances of her resignation, remembered that Michigan had a civil rights provision against weight discrimination, and referred her to me.
Despite vigorous job search efforts, she had been unemployed for the past year except for some baby-sitting and, with cruel irony, telephone solicitation jobs. Her savings were depleted. Remuneration in her last position with the Club was slightly under $26,000 per year, plus health care coverage.
There are a hundred ways to lose employment cases, they are expensive to bring, and there is no money coming in unless and until you win. The cases are bitterly fought by high-powered law firms who bill for their time and are paid on a monthly basis. Experienced plaintiffs' employment lawyers sign up fewer than one out of twenty potential clients they talk to. The bottom line in such decision making is the bottom line. If I win, what do I get? And the most important factor in that calculation is the client's former compensation level. For most experienced employment lawyers, Christine's salary would have been too low to justify taking time away from their other cases involving former executives and similar high-rollers.
I was not yet an experienced employment lawyer. I hadn't had twenty cases call me. There were no high rollers in my filing cabinet. Further, I was not yet encumbered with the financial burdens generated by family or a pricey lifestyle. I was "...young and easy under the apple boughs..." still able to quote poetry, and firm in my long-standing intent to use law to effect progressive social change. Christine's comparatively low wage scale would not deter me.
But could I win?
Before weighing the many technical factors involved, I leaned back in my Naugahyde swivel chair and took a good look at Christine, as a juror would. She was markedly obese. That struck one first. But she was dignified, intelligent, and straightforward. She looked back at me. She knew what I was doing. And I thought about Perkins, the smiling Texan. Yes, I would go forward with this case. I had her sign some record release forms and said I would be in touch.
Orlando and I clocked many hours of investigation and research, spread over several weeks. Christine's personnel file, reluctantly surrendered by the Club, showed no complaints or discipline prior to Jack Perkins' arrival. The typed letters of complaint Perkins had referred to curiously all had the same format and layout.
A call to Christine's former colleague, Nina Falud, yielded a powerful piece of evidence, if she would testify to it. She said she had walked by Perkins' office and observed him doing an impersonation of Christine's walk for the amusement of Danielle. No one else was present and she couldn't hear what they were saying. Then Nina said she shouldn't be talking to me as her job could be in jeopardy, and she hung up.
Legal research showed we had a decent chance on the issues of constructive discharge, causation, and weight-bias motivation to be able to withstand the employer's pre-trial motions to dismiss.
I had Christine sign a retainer agreement. I drafted the Complaint, filed it with the State Circuit Court and had it served on the employer, now known as the Defendant.
At our meeting to go over the results of the investigation and sign the retainer, I divulged to Christine, Nina's story about Perkins' mime show.
"It doesn't surprise me, Mr. Sedlow, and it doesn't faze me. I hope we can use it to our advantage. Good old Nina. She has a limp. I can imagine what he did when she wasn't around."
I busied myself signing some papers and looked up to see Christine looking out the window, one small tear making its lonely way down her pale cheek.
"For fat people it's like being a dray horse," she said. "You get used to the whip, but it still hurts."
There's a line for the jury, I thought.
Two weeks later, I got a call from Alyne Wallace, the law clerk of attorney Gale Solingen, asking for a thirty-day extension on their thirty-day deadline to answer the Complaint. Solingen and her husband Rick VanDever had just left a big silk stocking firm, ripping off almost all of that firm's corporate clients. They were a conventionally handsome couple with a tendency toward arrogance. A thirty-day extension request was not unheard of but it usually came from attorneys, not their clerks. I so advised her clerk. Two minutes later Solingen called me.
"What's going on, Sedlow?" she barked.
"Do you have some request to make, Ms. Solingen?"
"I'm merely asking for thirty days extension. I'm tied up in some important cases."
"Well, now you've got another one. But since you asked so nicely, the answer is yes. Please draft a confirming memorandum."
"A memo? You have my word."
"I'd rather have your signature. My professional liability premiums are high enough."
"Is this the way it's going to be, Sedlow?"
"Yes, Ms. Solingen. It's called civility."
She hung up.
There followed that long and tedious segment of civil litigation procedure called "discovery," which can last from six months to two years. It essentially consists of each side posing questions and each side doing its best to avoid answering. The whole process is a tooth-pulling, foot-dragging, mind-numbing ordeal hated by all participants except defense counsel, who bill their clients $400 plus per hour.
I prepared Christine for her deposition, but was still worried about how she would hold up under fire from Solingen. Depositions can get very nasty. There's no judge present to referee. Lawyers will deliberately goad the deponents to see if they get rattled or angry and contradict themselves.
I needn't have worried. Christine handled the interrogation with aplomb—waiting a couple of seconds after each question before giving her answer, not volunteering information, not rising to the bait when Solingen posed questions in a sarcastic or hostile mode, not guessing at what she didn't know, remaining dignified and courteous.
This was the opposite of Perkins' demeanor when it was my turn to depose. His friendly, relaxed drawl became a growling threat when cornered. He admitted that he encouraged patrons to file written complaints against Christine. Perkins drafted the complaints himself for the patron's signature. He delayed confronting Christine with the complaints until weeks, and hundreds of patrons, had gone by, so that it was difficult for her to remember particular incidents and contradict the allegations.
But he insisted that Christine's weight was not a factor in his decision to remove her from the receptionist job and that he had never disparaged her physical appearance.
I had included Nina Falud on our witness list despite the fact that Nina had been reluctant to talk to me since our first conversation. Solingen took Nina's deposition. Nina was very nervous. Perkins was in the room sitting next to Solingen. He looked at Nina like a gangster would look at his next victim. This exchange followed.
Q: Ms. Falud, did you consider yourself a friend of Ms. Urbino?
A: Yes, I guess so.
Q: Did you ever hear Mr. Perkins say anything derogatory about Ms. Urbino's weight or size?
Q: Did you ever hear Mr. Perkins ever say anything about Ms. Urbino?
Q: Did you ever hear anyone else at the Club besides Ms. Urbino say that Mr. Perkins treated Ms. Urbino unfairly?
Solingen let a tiny smirk escape across her fashion-model face. She said, "No further questions."
So, I thought. Solingen doesn't know anything about what Nina saw and figures Nina's got nothing but hearsay complaints from Christine. Why should I wise her up by asking Nina about Perkins' charade?
"No further questions," I said.
Perkins smiled openly, stretched and said, "Let's get some lunch."
Nina's deposition was over. She left the room without looking at any of us.
Depositions of the Club members who complained about Christine revealed that they were busy, busy men who couldn't possibly remember some incident with a receptionist two years earlier but, yes, that was their signature on the letter and, yes, it must have been true then. They also couldn't remember paying their Club dues the past three years but their secretaries take care of that and they have no idea why the dues weren't paid while they continued using the facility.
We also established that Christine's windowless Siberia was originally a storeroom and, never before nor after Christine's occupancy, had been used as an employee workplace.
So on the eve of Defendant filing the inevitable Pretrial Motion to Dismiss, what we had was not bad. Our case was essentially:
1. Christine was qualified for the position and was replaced by a much thinner person.
2. Perkins' statement that she didn't have "that dynamic look" they wanted at the reception desk was code for "you're too fat."
3. The ostensible reasons for her sideways demotion, the "member complaints," were a pretext, shown by the suspicious circumstances of their issuance.
4.The history of the windowless room indicates she was put there to induce her to quit, i.e. she was "constructively discharged."
Fortunately we had drawn as our judge for this case, Morris Feldman, a retired judge, brought back part-time to help clear a crowded docket. Feldman was not a proponent of judicial activism. In this case, that meant if discovery revealed evidence that, if believed, made out at least a minimal case, he would let it go to a jury to see if they believed it. "That's what juries are for," he would say.
Accordingly, after briefs and discovery materials were presented, Feldman called in the lawyers and denied Defendant's Motion to Dismiss. "We've got some facts here which, if believed, make out a case of weight discrimination. Do I believe them? That's none of your concern or mine. That's what juries are for. Motion denied. Let's look at the calendar and pick a trial date."
It helped that Judge Feldman was five foot, six inches tall and weighed 270 pounds.
Then came the long wait.
In those days, you were given a trial date some months in advance. As the date approached you re-briefed your client, subpoenaed your witnesses, worked on your opening statement to the jury, cleared your calendar, and lined up some clean shirts. On the morning of the trial date you showed up in court with your client, your witnesses and about twenty pounds of notes, documents and transcripts, only to find that six to eight other pairs of attorneys had been given the same trial date before the same judge. You and your client then stood around for hours in the corridor, desultorily discussing settlement with defense counsel and, every now and then, being called into the judge's chamber where you, defense counsel and the judge desultorily discussed settlement.
Solingen had from the beginning indicated there would be no settlement offer other than for nuisance value of $2500. Hers was a new law firm and they wanted to show how tough they were.
So after four hours of this routine, maybe one or two cases would settle and the judge would pick one of the remaining cases to actually start trial, usually the one with the earliest filing date. The rest of us would get a new "trial date" six to nine months hence, at which time the drill would be repeated. This non-process could and did go on for three years.
Time did not stand still, even though it sometimes felt like it in the halls of justice. I gradually acquired a caseload involving several medium, if not high, rollers and actually settled a couple of cases for substantial amounts. I developed a lifestyle which disposed of my disposable income. I replaced the bentwood cane chairs and the red leather sofa with Herman Miller designs. I tired of tuna fish and bottled Ragu. I began to care less about social change than I did about social security—my own, that is.
I married. My wife Gina was a choreographer and former modern dancer. She made very little money. And she became pregnant with our first child, Zoe. This meant she made no money. So I joined the quotidian rat race and concentrated on building a practice. I served on State Bar committees, gave free lectures on points of law, went to conventions, and schmoozed with the likes of Solingen on panel discussions—all for the purpose of getting case referrals.
And so my life went, practicing law during the day and hustling cases at night and on weekends. Gina had a life too. She formed a dance company that toured throughout the Midwest. We saw little of each other and our private lives followed similar paths. I had an affair with another woman during my travels and Gina had an affair with another woman during her travels. Upon mutual disclosure, our relationship rapidly deteriorated. We divorced, sharing custody of Zoe but with the principal burden of support on me.
Amidst my personal and professional turmoil, Christine would faithfully call once a month. I would faithfully take the call and inform her that, alas, there was nothing new on the issues of trial or settlement. She would chat for a while, about her job search efforts, her church activities, her cat, her sister. Then she would thank me for my hard work, express her confidence in me, and ring off.
I did not share her confidence. The circumstances of the divorce shattered my ego like a ball-peen hammer, plus cases weren't settling, support payments were due, and I was strapped for money. After Bar Association functions, over a few drinks, friendly corporate lawyers would ask me why I was knocking my brains out as a plaintiff's lawyer when the big money was on the other side. Things went further than that. Solingen made me a job offer. She had split up with VanDever and kept most of their clients but needed some help with the trials.
She said, "Listen, David. Dump those chickenfeed cases like Urbino, bring the rest over and work for me. Make some real money. We'll have some fun." Then she gave me her portfolio smile. She was a real looker. I had to think for a minute.
"Gale," I said. "I can't do what you do. I can't represent those fuckers."
"Then you had better leave," she said, lighting up a cigarette.
"I guess I had better," I said, reaching for my pants.
I stopped taking Christine's calls, instructing Orlando to tell her there were no new developments. I didn't want to spend time chatting when I had bigger fish to fry—age discrimination class actions, flagrant sex harassment cases, heart-breaking handicapper cases.
Finally, we received a trial date in Christine's case that I believed was the real thing. We were, by far, the oldest case of the group scheduled and we weren't going to settle.
Christine came in for what I hoped was her last trial prep. She was a mess. She had put on even more weight. She wore a dirty, secondhand muumuu that looked like a tent on her. No makeup. No earrings. Her hair unpermed and askew. She smelled. She clutched a rosary in her left hand. Looking at her I could not control a slight wince. She saw it.
"I know what you're thinking, Mr. Sedlow. I can't go to court like this. And you're right, I won't. I'll look as sharp as the first day you saw me. I'm not stupid. But I wanted you to see, to know, how it is with me on an everyday basis. How I don't care anymore. How all I've got is my faith and food. I've got diabetes and kidney disease and a lot of other health problems. Even if we win, I'll probably not live to see the money. I've been disappointed that you haven't taken my calls. But you've worked hard on my case so I can't let you down. I'll give it one more try. Let's get to work."
A law professor who taught trial advocacy often referred to the "hurly-burly of trial." It's the unarmed equivalent of the "Fog of War." No matter how much one prepares, a jury trial will take off in unexpected directions only some of which remain in the memory, especially if you try the case alone, as I did.
At the defense table were three classically Western female beauties—Gale Solingen, her clerk—Alyne Wallace, and Danielle Dumont, Christine's replacement as receptionist and now Director of Public Relations for the Club. They were impeccably groomed, had tanned, taut bodies and handsome features. I realized that this was no accident. They, especially Danielle, were there to show to the jury what they couldn't come out and say: "This is how a business person's health club receptionist should look."
Christine, had, as promised, done a self-makeover. She spent precious savings on a perm and tint, a facial and a manicure. And she starved herself down twenty pounds so she could wear her freshly cleaned blazer and pleated skirt. But she hung on to the rosary.
The testimony went pretty much as expected. I had a good time cross-examining Perkins about his solicitation of complaints against Christine and his conversion of a storage room into a cell for her. By the end of his testimony he was gripping the arms of his chair like he was going to tear them off. I remember referring to him in final argument as "...a one-eyed jack and we've seen the other side of his face."
The best testimony came at the end of Defendant's case when Solingen called Nina Falud to the stand and had her acknowledge that she regarded Christine as a friend but she never heard Mr. Perkins disparage Christine for her weight.
On my cross-examination Nina stated that while she couldn't hear what he said she had seen him imitating Christine's walk for Danielle's amusement.
On redirect exam, Solingen, mousetrapped, tried to recover and asked the classic dangerous Question You Don't Know the Answer To.
Q: If you couldn't hear him, how do you know it was Ms. Urbino he was imitating?
A: Because he was wearing Christine's jacket.
The jury was out two hours. Waiting for the verdict in the empty courtroom, Christine and I sat silently at Plaintiff's table. Gale, Danielle and Alyne chatted, joked and made calls at theirs. Perkins sat in a corner, glowering.
The jury came back and we stood for the verdict. It was unanimous: $300,000 for lost past and future wages and $100,000 for emotional distress for the Plaintiff Christine Urbino. The judge thanked the jury for their services, adjourned for the day, and hurried into his chambers.
Christine was crying. I gave her a hug. Solingen was muttering angrily in a huddle with the two other women. She noticed me looking at her, forced a smile and said, "congratulations." I nodded.
The jury foreman, a retired toolmaker named Mullone, was putting on his coat. I walked up and asked him what drove the verdict. He thought for a minute, then said, "It was, like, the prom queens beating up on the fat girl." Then he smiled, shook my hand and left.
"Well," I said to Christine, "now we'll both have enough money to join the Club." And for the first and last time, I heard her laugh.
I wish there were no epilogue.
Solingen appealed to the Michigan Court of Appeals. This stayed payment of the verdict until the Court of Appeals ruled. Their hearing docket was running about two years with decisions coming about six months after the hearing. I told Christine to be patient a little longer, that we should win in the Court of Appeals and that interest was accruing on the judgment. However she again began to deteriorate and was in a lot of pain from her ailments. So I began to call her every week to buck her up.
During those two years, a right wing governor appointed nothing but ultra-conservative judges. They increasingly engaged in the practice of vacating jury verdicts on the hitherto rarely used ground that "no reasonable jury could have reached such a verdict on the evidence." So after a two-year wait and a perfunctory hearing before a three-judge panel, dominated by two of such appointees, the Court issued an Opinion ruling, two-to-one, to vacate Christine's verdict and returned the case for dismissal at the trial level on the grounds that "no reasonable jury, etc..."
I called Christine to tell her the bad news and to suggest I come over the next day to discuss filing a petition for rehearing en banc or continuing the appeal to the Supreme Court. She sounded almost relieved that some decision had been made.
"Yes, "she said. "Come over tomorrow. That will give me time to clean up"
The next day, in late afternoon, I pulled up in front of her Levittown style bungalow. The front yard was overgrown but one could see where flower beds had flourished and where climbing roses had bloomed on a four-foot cyclone fence.
I knocked and no one answered. I tried the door and it was unlatched. I went in. The shades were drawn and filtered sunlight bathed the tiny living room in a golden haze. The room was clean and orderly in its offering of mismatched wooden chairs, an early model La-Z-Boy recliner and the spavined red leather sofa I had given her when I refurnished my office. I called out her name and heard no response, but I smelled one. It came from the kitchen. There was Christine, spread-eagled on the floor, a tray of spilled crostini next to her, dressed in her blazer and pleated skirt, vomit on her face and in her mouth and throat, her eyes open in surprise.
I called her sister, Irene, in Chicago, the EMS and the police. Her sister flew out immediately to view and identify the body at the morgue. I suggested she bury Christine in her blazer outfit and Irene agreed. I was one of eight pallbearers.
I saw Gale Solingen outside the courthouse a few days later.
"Sorry about Christine," she said, putting her hand on my arm and leaning close. "It was so sad. But you know, she really didn't have a case. And now, at least you're free of it, except for whatever costs the court awards us, which we'll waive, of course, if you drop any further appeals on behalf of her estate. You're not going on with this, are you? I mean, really, David, it's time for you to move on, don't you think?" she said with that same perfect smile.
I was silent for a moment.
"Gale, Christine is dead. Further appeals won't do her any good. Do what you want with your award of costs."
The smile faded a little and she took her hand away from my arm.
"But tell me something," I said. "Were you ever a prom queen?"
"Why... yes. Yes, I was," she said, the smile brightening.
"I thought so."
"Well, thank you," the smile broader.
"Don't mention it," I said, as I turned to go into the courthouse.
Title graphic: "Drawn to Justice" Copyright © The Summerset Review 2011.