THE CASE OF RESORT TO COURT

Based on Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4^th 686

[It is June 21, 2004 at Trendwest Resorts, Inc., a company that sells credits in vacation timeshares.On stage alone and working at his desk is Mr. Tamer Mamou, a Project Director at the company's Walnut Creek office.He is not a participant in the conference call that begins the scene, which takes place with the participants sitting at their desks in class.On the conference call are Don Harrill, president of Trendwest, Lauren DeSimon Johnson, vice president of human resources, in-house attorney John Dempsey, and Kevin Fiore, regional vice president for Northern California.]

Don:OK, Kevin.We're all on the line now and we have all reviewed the documents you circulated.What did you want to discuss?

Kevin:I wanted to talk about the letter my office received from a document examiner with the California Secretary of State.The letter rejected articles of incorporation that one of the employees I supervise, Tamer Mamou, attempted to file.Those articles of incorporation indicate that Tamer was starting a company called Worldmark Heaven, Inc. which would be engaged in the business of reselling timeshare credits.

Don:Yes, I read that letter you sent to us.That's a problem.Trendwest sells its vacation timeshare credits under the name "Worldmark, the Club."We market those timeshares through sales locations throughout the world, including the Walnut Creek office where Tamer works.When successful, the presentation results in the buyer signing a sales contract.A resale company, like the one Tamer apparently was trying to start, comes into the picture only if the buyer wants to back out of the contract so that they can buy the same Trendwest timeshare credits more cheaply from a current holder of credits trying to get rid of them, through resale companies, on the secondary market.

Kevin:Right.In that case, Trendwest only makes money from the fee we charge to transfer the credits from the original buyer to the second buyer.

Don:Thanks for the report, Kevin.John, can Tamer legally get away with exploiting the name under which we do business - especially as an employee of the company?

John:Almost certainly not.This is someone who is a Project Director who is attempting to steal from the company.By using the name "Worldmark," he is using a trademark we have registered to sell our timeshares.Tamer also would be getting in the business of selling timeshare credits for his company on the secondary market at the same time his job is to secure the sale of original credits for Trendwest, his employer.It's not only theft; it's an obvious conflict-of-interest.He is acting in a manner that is absolutely inconsistent with his obligations to the company.

Don:That's what I thought.

Kevin:That's why I wanted to have this conference call.I wanted to ask you, as the upper management team of the company, whether I was authorized to fire Tamer because of this.I am Tamer's immediate supervisor and Ted Curtis, who is my supervisor, agrees with me that this conduct warrants termination.

Don:I would definitely give the green light.

John:He's an at-will employee, so there's no problem that I can see, even if he weren't guilty of serious misconduct.

Don:That's good enough for me.You've got your authorization to terminate Mamou, Kevin.

Lauren:We may want to consider another issue before moving forward.

Don:Go ahead, Lauren.

Lauren:Tamer is a longtime employee, having been here since 1992.Over the years, he's received a series of promotions.He's also a naturalized U.S. citizen who was born in Syria.

Don:What's that got to do with anything?We just decided to fire him for disloyalty and trying to steal from us, not because of where he was born.

Lauren:He might not see it that way, Don.I got a call last month from Robert Bishop who also works out of Walnut Creek.According to my notes, Bob told me that Ted Curtis, Kevin's supervisor, asked him:"What the hell is going on down there in that Northern California region with all those f'ing rag heads?"Bob said that Ted concluded the call by saying:"We've got to get rid of those rag heads."

John:Is there anything else, Lauren?

Lauren:I'm afraid there is.I have heard from another Walnut Creek employee that Carter Lee, regional director of Northern California, has been saying recently that he was brought in to bust up and get rid of the "Syrian regime" and the "Arab regime."The timing of all of these comments is bad given the action we are considering taking against Tamer.

Kevin:But all of that has nothing to do with me.

Lauren:Actually, I wasn't finished.Mamou himself called me to tell me that you, Kevin, had developed a policy of turning away would-be customers of Middle Eastern and East Indian origin because you believed those tours would result in few sales.Mamou also told me that Carter Lee had told him that you had a problem with Mamou and other Middle Eastern employees you supervise.When Mamou asked Carter what the problem was, Carter told him only "more than I can tell you at this stage."

Don:This is the first time I am hearing any of this, Lauren.

Kevin:All of what Lauren was told is a lie and I will say so under oath if I have to.And you're taking your eye off the ball, Lauren.This is about firing someone who was trying to compete against his own employer and steal from us.

Don:What do you have to say, John?

John:I agree with Kevin - to a point.Tamer has engaged in serious misconduct detrimental to the interests of the company.As I see it, the comments that Lauren reported were never directed at Tamer as such.Most importantly, none of us making the decision to fire Tamer made any of the comments, so he can't say the decision was tainted with discrimination.

Lauren:Oh, I see your point, John.I still wanted to make sure you were all aware of all the facts so that you weren't surprised when Mamou sues us.

Kevin:So what do you want me to do?

Don:Go ahead and fire Tamer.Do you agree, John?

John:Yes.

Don:How about you, Lauren?

Lauren:I support the decision.

Kevin:Thanks.I have my marching orders.And just to be on the safe side, and even though Tamer is not being fired for poor performance, I'll have our hr person in this office take the lead in building a file on problems in Tamer's performance over the last six months.Good-bye, all.

[Kevin leaves his seat in class to approach Tamer at his desk.Joining Kevin in leaving his seat in class is Ted Curtis.]

Kevin:Tamer, we got these documents from the California Secretary of State the other day.We know you attempted to establish a timeshare resale company using the Worldmark name.We have decided to terminate you effective immediately.We would like you to pick up your personal belongings and leave the premises immediately.

Tamer:May I explain what this is all about?

Kevin:No.No need to.

Tamer:Can I have a change in status, such as a demotion or a suspension?I mean, give me a specific reason why termination.

Kevin:No need to.We will need your keys.We want you off the premises immediately.

Ted:I'm disappointed in you, my Arab friend.

whats the legal question?

do you agree with the worker or the company? why? explain.