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THE CASE OF THE DEAR JERRY LETTER Based on Sutton v. Brandywine Realty Trust (N.D.Cal. 2008) 2008 WL 928654. [It is December 5, 2006.Jerry Sweeney,

THE CASE OF THE "DEAR JERRY" LETTER

Based on Sutton v. Brandywine Realty Trust (N.D.Cal. 2008) 2008 WL 928654.

[It is December 5, 2006.Jerry Sweeney, the CEO of Brandywine Realty Trust in northern California is working at his desk.His secretary, Joanne Ford, has just come into his office.]

Joanne:Mr. Sweeney, Mr. Sutton, Vice President of Development, just dropped this off for you and asked me to have you read it immediately.[Joanne hands Jerry the letter.]

Jerry:Thank you, Joanne. [Joanne goes to her desk nearby, remaining on stage.Jerry opens the letter and reads.]"72-Hour Notice of Resignation."Why?

John [from his seat in class]:Dear Mr. Sweeney:I joined Prentiss Properties in January 2005 as the Vice President of Development in the Oakland office.Exactly one year later, Brandywine acquired the company.It now appears that it is time for me to go.As you know, on August 8 of this year, I learned that my supervisor Dan Cushing had instructed his secretary to take an online real estate exam for him in violation of California Business & Professions Code section 10153.1 which makes it unlawful for any person with respect to any examination needed to maintain their real estate license "to practice any deception or fraud with regard to his or her identity in connection with any examination, application, or request to be examined."As I am Brandywine's Broker of Record in California, I felt it was my legal and ethical obligation to report what I had learned to the company's general counsel and I did so two days later.Brandywine's human resources department investigated the incident and ultimately sent a letter reprimanding both Dan and his secretary.

Jerry [to himself]:I know all of this.I don't see what that has to do with his resignation.[Jerry continues to read the letter.]

John:On August 18, 2006, Dan learned that I was the one who had turned him in for cheating.He almost immediately began retaliating against me.On August 22, Dan called me to tell me he knew that I was the one who had reported him.On August 28, Dan summoned me to his office to discuss the matter, during which Dan became irate and verbally abused me.He also said "I should have terminated you the last time."Later that same day, Dan came to my office and told me:"We can't make it going forward.If I offend you in a month or three months from now, we'll just be back in the same spot."After Dan told me again that he doubted that the two of us could continue to work together, and said he might have to leave, I told him that I could leave instead.I further told Dan that I thought my departure could be called a "retirement" so that it was not directly linked to the cheating incident.Dan raised the possibility of financial compensation for my resignation, but no specific terms were agreed upon.I left that meeting with the clear impression that I had been targeted by senior executives, including you, because I had exposed Dan's cheating.

Jerry [to himself]:Now that's just a lie.

John:In any event, I left the meeting with the realization that I clearly was going to be out the door.Consequently, over the next several weeks, I tried to negotiate the terms of a separation agreement with Dan, but the two of us were unable to finalize the details.In late September, I met with Don Denzin, the head of our HR department, to discuss my retirement.During that meeting, I mentioned the cheating incident and observed that it would not look very good for Dan or the company if the matter were disclosed to the public, such as through litigation.

Jerry:That's blackmail!

John:So I attempted to negotiate a severance package with Don, again with no success.It was clear that Don understood that my conflict with Dan was central to my desire to leave the company.During the next couple of months, Dan tried to force me out of the company by putting obstacles in my way that made it all but impossible to do the job.For instance, Dan began attending meetings he had never attended before, as well as holding additional meetings, in order to familiarize himself with my projects and duties.He then began outright taking over my responsibilities.On one occasion, he led the company's Board of Directors on a tour of downtown Oakland.That is something he knew I normally would have done.On another occasion, Dan gave a presentation at an analysts' meeting that you attended.I wasn't even allowed to participate meaningfully in the meeting, depriving me of the opportunity to make a good impression on you.In addition, throughout this entire time period, Dan adopted a cold and formal attitude towards me.

Jerry:So what?How could he possibly believe he is entitled to a severance package?

John [continuing]: I believe these actions give me ample cause to leave the company and, indeed, have really left me with no other choice.Since these actions, and my resignation, are all coming within one year of the acquisition of Prentiss Properties, where I had been working, by Brandywine, I feel I am entitled to a full severance plan, including a full year's salary with full benefits.Under the terms of the Prentiss benefits plan, executives in the company, including me, are entitled to a severance package if they leave for "good reason" within one year of a change in control of the company.One part of the definition of "good reason" particularly applies.This is the part that makes a resignation for "good reason" where there is "a material adverse alteration in the nature of his or her position, provided that:(1) a change of title or (2) a change of reporting and, in either case, a concomitant change in duties, shall not be considered a material adverse alteration unless the duties are materially inconsistent with the participant's duties at the time the change in control took place."Therefore, I respectfully request payment of full severance benefits.That will allow both the company and me to move past this ugly episode without undue attention being brought to it.

Jerry:Well, we'll just see about that.[Stands up and leans out of his office.]Joanne, could you please come back in here?I need you to take a letter.[Jerry returns to his desk and Joanne returns to Jerry's office.]This is a letter to John Sutton by hand delivery."Dear John:I received your letter of today's date and hereby accept your voluntary resignation.I must reject your demand for severance benefits as it is clear to me that the circumstances under which you are leaving do not constitute "good reason" under the terms of the Prentiss benefits plan.I do not consider a deterioration in your relationship with Dan Cushing and the isolated incidents you mentioned to be a "material alteration" in your job responsibilities.I also note that your resignation comes a full four months after you reported the incident that you say led to this change in your relationship with Cushing.On behalf of the company, I wish you well in your future endeavors.Signed, Jerry Sweeney."

Joanne:I'll get this typed up right away, Mr. Sweeney.Do you think this will end the matter?

Jerry:I certainly hope so, Joanne.I certainly hope so.

[They exit]

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