Page Title

Always Be Closing

  • Published on Apr 22, 2019
  • by Jack Wisdom, JD

Human beings are complex and amazing. We are capable of artistic brilliance (consider, for example, George Jones) and low-down ridiculousness (consider, for example, George Jones). 

As employers and employees, we are capable of turning personal foibles into federal lawsuits. Read below a preview of Jack Wisdom’s Spring Accounting Expo presentation. Be sure to register today for the Spring Accounting Expo May 22-23 at the NRG Center. His presentation will offer no artistic brilliance, but it will feature true stories of low-down ridiculousness - all for educational purposes. It will discuss real cases from the last 12 months, and we will try to learn (and possibly be entertained by) other people’s mistakes. 

In Glengarry Glen Ross, a 1992 movie based on David Mamet’s Pulitzer Prize-winning play, the corporate office sends in a slick, aggressive sales expert to motivate a rag-tag ensemble group of real estate agents. His message is blunt: sell more property or be fired. The message is packaged in a profanity-laced tirade. As he accuses the salespeople of being spineless and ineffectual, he boasts about his own wealth and success. To drive home his point, he flips over a blackboard to show the words “Always Be Closing.” He repeats the phrase multiple times. If you are not easily offended, take a moment and watch this amazing scene here. The salespeople got the message with predictably sorrowful consequences. They ignored conventional business ethics and legal requirements, and they started doing whatever they had to do to sell because “coffee is for closers only!” A recent case, Davenport v. Edward D. Jones & Company, tests the limits of the “always be closing” ethos. Tyanne Davenport worked as a Branch Administrator for a financial planning office. Her boss was a high-strung, highly motivated individual named Brendan (“always be closing”) Coyne. Coyne learned that a wealthy potential client, Harry (“the Big Fish”) Fisher, wanted to “date” Davenport. Coyne had a brilliant idea. He told Davenport that she should “date” Fisher, and he promised her “big bonuses” if she did so. She declined. Coyne reiterated his proposal three times in 30 days, but Davenport did not date Fisher. Davenport received no bonus. 

Subsequently, during an informal meeting with Coyne and Fisher, Davenport suggested that Fisher should move his account to Coyne. Coyne, a masterful persuader and tactician, mused to Davenport: “Maybe we can get some nudie pictures of you…that might entice him.” Davenport was offended and embarrassed. 

Davenport, following her doctor’s advice, resigned and found another job. She also filed an Equal Employment Opportunity Commission (EEOC) charge, alleging sex discrimination and sexual harassment. The EEOC issued a right to sue notice, and Davenport filed suit in federal court, alleging quid pro quo sexual harassment and invasion of privacy. To support her quid pro quo claim, Davenport argued that she was subjected to a “tangible” adverse employment action (being denied a bonus) because of her refusal to “date” Fisher. 

The company argued that the denial of a bonus was not a tangible employment action and that Davenport’s claim fails because the purported beneficiary of the “dating” was not her supervisor “always be closing”Coyne, but “Big Fish” Fisher. The court rightly rejected these two company arguments. Bonuses are tangible and Coyne’s conduct was “sexual in nature,” even though Coyne was not personally seeking to “date” Davenport. However, the court did identify one fatal flaw in Davenport’s sexual harassment case. She had no evidence to prove that, under the company’s bonus policy, she was eligible for a bonus that Coyne could approve or disprove. She had no evidence that she was denied a bonus because she refused to “date” Fisher. Davenport’s invasion of privacy claim was dismissed because she conceded that the “nudie” picture comment was merely an “unsuccessful joke.” 

You may or may not be disappointed that Coyne “got away” with his boorish behavior. I suspect/hope that the company took steps to address his misconduct, which almost certainly would have violated the company’s policies, even though Davenport was not able to prove her case in court. When we get together for the Spring Accounting Expo May 22-23 at the NRG Center, we will talk a bit more about this case and others as we further consider “man’s inhumanity to man.” I look forward to seeing you then! Be sure to register today.

This is an article from TXCPA Houston's Online Magazine called the Forum. Read the full magazine here. 

About the author: 

Jack Wisdom, JD leads the Labor and Employment section at Martin, Disiere, Jefferson & Wisdom, L.L.P.