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Category: Commentary & Opinion

Posted on December 16, 2019June 29, 2023

Court Finds That the ADA Does Not Protect Employee’s Dormant Genetic Condition

Genomic Medicine EmployersSherryl Darby has the BRCA1 gene, otherwise known as the breast cancer gene, the best known gene associated with breast-cancer risk. Approximately two months after she started working as an administrative assistant at Childvine, an early childcare provider, Darby opted to have a double mastectomy to decrease her risk of developing breast cancer in the future. Two weeks later, Childvine fired her.

Despite the close-in-time link between Darby’s surgery and her termination, the district court dismissed her ADA lawsuit.

While “normal cell growth” is a major life activity the ADA protects, the court could not find that the BRCA1 gene is a physical impairment that substantially limits normal cell growth.

Although mindful that the ADA is to be broadly construed, the Court concludes that Plaintiff fails to state a claim upon which relief can be granted. Plaintiff has offered no statutory, regulatory, or caselaw support for her “legal conclusion couched as a factual allegation” that the BRCA1 gene, like cancer itself, is a physical impairment that substantially limits normal cell growth. And the Court’s own research has found none.

It is true that the Sixth Circuit has held that some conditions, even when dormant, may constitute a physical impairment.… But this is not a circumstance akin to remission of cancer. Rather, it is, presently, the absence of cancer.

The Court’s decision should not be read to trivialize Plaintiff’s legitimate fear of developing breast cancer or minimize the transformative measures she took to avoid it. It merely recognizes that this Court’s role is to interpret, not legislate. To expand the definition of physical impairment to include a condition that might lead to a disability in the future effectively puts every employee under ADAAA protection.

Whatever issues I have issues with this decision (and I have some big ones) could have been cured by pleading this case differently. I question why Darby pleaded her protected disability as an actual disability instead of a regarded as disability. I think she would have a had a much better chance at surviving dismissal if she framed her claim as one in which her employer terminated her based in its perception of her having a disability (which does not require any proof of any actual disability) instead of any actual disability itself.

Moreover, in many cases its largely irrelevant whether the ADA covers a dormant genetic disorder because another statute already does—GINA, the Genetic Information Nondiscrimination Act. GINA prevents employers from using genetic information in employment decisions. GINA likely wouldn’t have helped Sherryl Darby, because it does not appear the issue of her having the BRCA1 gene arose until her lawsuit (and long after her termination).

This case will be often be cited for the proposition that the law does not protect an employee’s dormant genetic condition. While that is true based on how Darby pleaded her claims in this case, employers should not treat Darby as a license to discriminate, as doing so will likely violate both the ADA and GINA in many cases.

Posted on December 11, 2019December 12, 2019

Vote Now for the Worst Employer of 2019 — Polls Are Open

Jon Hyman The Practical Employer

All year long, I’ve been sharing examples of the worst employers in America. My goal? Compile them at the end of the year and then turn it over to you, my readers, to pick the worst of the worst.

Today is your opportunity to help pick the Worst Employer of 2019.

I’ve narrowed this year’s preliminary list down to my choice for the top 10 naughty employers.

Voting will take from today until December 17, at 11 p.m. You will be able to vote for up to 3 choices.

I will then tally the votes, and, announce the highest recipient as the very worthy winner of the Worst Employer of 2019.

Vote, share this post with your friends, colleagues, and social networks, and most importantly, learn something from the mistakes of these 10 very cringe-worthy nominees.

Posted on December 5, 2019June 29, 2023

Does It Violate the ADA to Work an Employee in Excess of a Work Restriction?

Jon Hyman The Practical Employer

Rita Morrissey is a licensed practical nurse who worked for 15 years for The Laurels of Coldwater, a skilled nursing and rehabilitation center.

In 2012, she injured her back outside of work and submitted a note to her employer from her primary care physician limiting her to no more than 12 hours of work per shift. Coldwater refused the accommodation, telling Morrissey that it would not accommodate any medical condition that did not stem from a work-related injury.

Over the next three-plus years, Morrissey worked more than 12 hours eight different times, but it does not appear she was mandated to do so. Indeed, on each occasion, she worked no more than 15 extra minutes.

Morrissey’s situation escalated in January 2016, when Coldwater mandated her to work a 13.5-hour shift. Morrissey testified that she reminded her manager about her 12-hour work restriction, but the manager responded that she had “no control” over the situation. Five days later, Coldwater management again told Morrissey she had to work more than 12 hours, this time a 16-hour shift to cover for another nurse who had called off from work. Morrissey walked off the job and never returned.

In Morrissey v. Laurel Health Care Co. (6th Cir. 12/3/19) [pdf], the 6th Circuit concluded that Morrissey had presented more than sufficient evidence to overcome her ex-employer’s motion for summary judgment on her failure to accommodate claim.

Viewing the evidence in the light most favorable to Morrissey, it shows that: (1) Coldwater had a blanket policy of denying accommodations for all non-work related disabilities, (2) Coldwater knew that Morrissey was under a twelve-hour work restriction, (3) Morrissey requested an accommodation, (4) Coldwater forced her to work beyond that restriction on January 31, 2016, and (5) Coldwater attempted to do so again five days later. On these facts, Morrissey’s overages from 2012-2015 are inconsequential. But, Coldwater’s argument improperly ignores the fact that it forced Morrissey, a disabled employee, to stay and work in excess of her physician instituted medical restriction—and attempted to do so again five days later. The record shows that Morrissey asked Coldwater for an accommodation due to her disability, and Coldwater did not accommodate her. She was not required to establish anything more for her claim to ripen.

What can we learn from this decision?

    1. An employer’s obligation to provide reasonable accommodation under the ADA is not limited to work-related injuries. The ADA’s definition of disability extends to work and non-work injuries and illnesses. An employer who refuses to accommodate an employee’s non-work injury because it’s not work-related is asking for a lawsuit.
    2. Blanket policies are risky under the ADA. The ADA calls for flexibility and reasonableness. Applying a blanket, across-the-board policy does not per se violate the ADA, but it should be done with caution and counsel.
    3. An employer violates the ADA when it requires a disabled employee to work outside the bounds of their work restrictions.
Posted on December 3, 2019June 29, 2023

The 20th Nominee for the Worst Employer of 2019 Is … the Malignant Mogul

Jon Hyman The Practical Employer

The 20th (and final) nominee for the Worst Employer of 2019 is Alki David, heir to the Coca-Cola bottling fortune and owner of several media firms.

The evidence?

This week, a jury awarded over $58 million to a female employee who accused him of thrusting his pelvis into her face, simulating oral sex, moaning and zipping up his pants and walking away saying, “Thanks, M.K.”

It’s the third massive sexual abuse verdict leveled against David just this year.

In April a jury ordered David to pay another employee more than $11 million, fired after she refused to have sex with him. And in October, yet another jury awarded another employee over $5 million for allegations that David put his hands on her throat and pushed her chair into a wall, and for telling her that she needed to get supplies for his “rape room.”

For his part, David does not seem to have learned his lesson. “This trial proves that not only is the system broken. It’s in a state of emergency.”

Quite a worthy nominee to end this year’s list.

Come back one week from today, when voting will open to name this year’s Worst Employer. I have a feeling Alki David will have a very nice showing when the votes are counted.

Previous Nominees:

The 1st Nominee for the Worst Employer of 2019 Is … the Philandering Pharmacist

The 2nd Nominee for the Worst Employer of 2019 Is … the Little Rascal Racist

The 3rd Nominee for the Worst Employer of 2019 is … the Barbarous Boss

The 4th Nominee for the Worst Employer of 2019 is… the Flagrant Farmer

The 5th Nominee for the Worst Employer of 2019 is… the Fishy Fishery 

The 6th Nominee for Worst Employer of 2019 Is … the Diverse Discriminator

The 7th Nominee for Worst Employer of 2019 Is … the Disability Debaser

The 8th Nominee for the Worst Employer of 2019 Is … the Lascivious Leader

The 9th Nominee for the Worst Employer of 2019 Is … the Fertile Firing

The 10th Nominee for Worst Employer of 2019 Is … the Exorcising Employee

The 11th Nominee for the Worst Employer of 2019 Is … the ****y Supervisor

The 12th Nominee for the Worst Employer of 2019 Is … the Disguised Doctor

The 13th Nominee for the Worst Employer of 2019 Is … the Excoriating Executives
The 14th Nominee for the Worst Employer of 2019 Is … the Horrible Harasser
The 15th Nominee For The ‘Worst Employer of 2019’ Is … The Disability Demoter
The 16th Nominee for the “Worst Employer of 2019” Is … the Shameful Wall Builder
The 17th Nominee for the Worst Employer of 2019 Is … the Mauling Manager
Posted on December 2, 2019June 29, 2023

As Sure as Today Is Cyber Monday, Your Employees Are Shopping From Work

Jon Hyman The Practical Employer

Today is Cyber Monday, the biggest online shopping day of the holiday season. In fact, it is estimated that today will be the biggest online shopping day ever, with over $9.4 billion in sales.

And, guess what? Given that most of those doing the shopping will be spending the majority of their prime shopping hours at work, from where do you think they will be making most of their Cyber Monday purchases.

Consider these statistics:

  • 68% of employees use time at work to shop online.
  • 81% of millennials shop online at work.
Should you turn a blind eye toward your employees’ online shopping habits, not just today, but across the board? Or, should you permit more open access?

I am big believer in open internet access for employees (within reason). I advocate for fewer restrictions for personal internet use at work (including Cyber Monday shopping) for two reasons: it provides a nice benefit to employees, whom we ask to sacrifice more and more personal time; and it’s almost impossible to police anyway.

We no longer live in a 40 hour a week, 9-to-5 world. Employees sacrifice more and more of their personal time for the sake of their employers. Thus, why not offer some internet flexibility both to recognize this sacrifice and to engage employees as a retention tool?

Moreover, it is becoming increasingly difficult for employers to control what their employees are doing online during the work day. Even if an employer monitors or blocks internet traffic on its network, all an employee has to do to circumnavigate these controls is take out his or her smartphone (which employees are doing anyway). By trying to control employees’ internet habits, employers are fighting a battle they cannot win. The iPhone has irreparably tilted the field in favor of employees. It not worth the time or effort to fight a battle you cannot win.

Instead of fighting a losing battle by policing restrictive policies, I suggest that employers treat this issue not as a technology problem to control, but a performance problem to correct. If an employees is otherwise performing at an acceptable level, there is no harm is letting him or her shop online from work, on Cyber Monday or on regular Wednesday.

But, if an employee is not performing, and you can trace that lack of performance to internet distractions or overuse, then treat the performance problem with counseling, discipline, and, as a last resort, termination. Just like you wouldn’t bring a knife to a gun fight, don’t bring a technology solution to a performance problem.
Posted on November 26, 2019June 29, 2023

Please Tell Me Why Worksite Wellness Programs Are a Waste of Time and Money

My father passed away in October 1986 from a heart attack at age 49.

That was his last in a series of major and minor cardiac events. I was 21 years old when he died. At the time I perceived my father to be old (as do most children).

Now, at age 53, it’s an odd perspective to look back at his passing and reflect on where he was in his stage of life and career and consider his outlook on the future.

Gary Cassidy

My family has a history of heart disease and my father was no exception. As an engineer for General Electric, he worked long, hard hours and traveled frequently.

Physical activity, nutrition and doctor’s visits were not high on his priority list. I call this attitude the “I feel fine so I must be fine” mentality.

He enjoyed eating the crispy skin off the Thanksgiving turkey, fat from a well-cooked steak and ladles of cream sauces — all the good-tasting stuff that was loaded with calories, fat, cholesterol and sodium.

When my father had his first heart attack, the doctors found he had extremely high blood pressure and major blockages in all four of his arteries. By that time, too much damage had been done to his heart and there was nothing they could do for him. Still, my father started eating better, took up golf, spent less time at work and focused on reducing his stress.

It’s important to remember that during my father’s lifetime, 1937 to 1986, company wellness programs did not exist. He grew up with exercise guru “The Jack LaLanne Show,” hula hoops, calisthenics, the sauna suit, vibrating belts and other early fitness trends and fad diets. Most centered on the external appearance of fitness but lacked a focus on inner fitness, the biometric and lifestyle measurements that truly determine if one is healthy.

You would think I learned something from his experience, but you’d be wrong. When I was young I felt indestructible.

I had a high metabolism and didn’t gain weight no matter what or how much I ate. The good news: I was physically active in soccer, aerobics, long-distance running, weight lifting, competitive Taekwondo and many other activities.

The bad news: my diet was significantly less than stellar. It wasn’t unusual for me to have fast food for breakfast, lunch, dinner and a late-night snack all in the same day. I inherited my father’s “I feel fine so I must be fine” mentality.

In 1993, after eight years in the Air Force, I returned to civilian life to work at a large insurance carrier, where I learned about health care claims, annual employee benefit renewals and risk management, which drive and control an employer’s health insurance costs. I began to understand that the overall health of a workforce can affect an employer’s health care costs.

I learned about the decisions that organizations must make about health insurance cost sharing, like imposing premium increases, and that employee benefits are a large part of the workforce’s total compensation. I observed how employees who do not take responsibility for their personal health can cause others who do to pay more for their own health care benefits, something that always struck me as unfair.

At age 35, I finally visited my doctor for an annual physical, and the results were not good. My total cholesterol was over 300, my HDL was low and my LDL and triglycerides were high. I was also diagnosed with hypothyroidism.

While this was an “aha!” moment, I should have seen it coming. I knew that I had a family history of high cholesterol and most men on my father’s side of the family died young from cardiac-related causes. But “I felt fine so I must be fine.”

My doctor prescribed cholesterol and thyroid medication. I began to focus on nutrition and continued to be physically active. After one year, my numbers started to improve, but even now I still have work to do. Progress, not perfection.

While conditions like these may take years to produce symptoms and can initially go unnoticed, they are still incrementally causing damage to one’s health and well-being. This is why it’s so important to focus on preventive measures to manage a disease before it has the chance to cause a major medical event.

After my father had his first heart attack, he was released from the hospital and sent home. He walked slowly so as not to raise his heart rate. One day I watched him spend 20 minutes walking up 15 steps in our house. When we lose our health it’s the simple things we take for granted that are impacted the most.

Seeing first-hand the impact of how an undiagnosed heart condition affected my father’s health helps me stayed focus on wellness. In every wellness program participant, I see someone whose life can be positively impacted.

I often reflect on what would have happened if my father’s company had a wellness program. Knowing him, he would have been one of those people who wouldn’t want to participate. Because he was too busy. Because he didn’t have the time. Because it didn’t make sense; he “felt fine.” Because he had too many other things to do. Because it was his choice how he managed his health, not the company’s.

While all of this may be true, I think that if he had participated in a wellness program, gotten his blood work done and learned about his high blood pressure and high cholesterol before he had a heart attack, he would still be here today.

So I ask you, what’s the downside of participating in a wellness program?

Gary Cassidy is the director of employee education, communication and wellness for Camden, New Jersey-based insurance broker Corporate Synergies.

Posted on November 25, 2019June 29, 2023

How to Hire Your First HR Leader

So, business is good, growth is strong and you’re ready to hire your first HR leader. That’s great news. Congrats!

Now comes the hard part.

This column is not meant to help those looking for their first HR hire, which is generally an individual added by small to medium-sized business when transactional items like payroll and compliance overwhelm an office manager or similar administrative employee with another job to do.

That was your first HR hire. You’ve likely made that hire at least a year or so ago. You thought that person was going to shore up your recruiting issues and get to needed projects in performance, training and other areas. You were wrong.

So here we are. You just posted an opening for an HR manager/director — your first HR leader. If you’re going to invest the money, you need the person to innovate and deliver the return in all your areas of need related to talent.

Finding the right hire in this situation is hard, and misses occur often. Here are ideas to assist in your search:

Experience matters, so prepare to dig. If you’re looking for someone to come in and build your next-level HR platform, you’re going to need to make sure they’ve done it before. The biggest lie the devil ever told the world about HR is that titles equate to ability. That’s not only false in the world of HR, it’s dangerous.

There’s a high degree of variability across HR manager/director candidates. To ensure you end up with what you need, pick your top three HR areas of need, then prepare to interview candidates purposefully on how they have built strong programs in those areas.

Ask candidates to bring a portfolio of examples of their work in each domain. Make sure the experience is real, not hypothetical or you’re going to be less than satisfied in under a year.

Company size of current and past employers is important. As a growing company, you’re going to be naturally attracted to HR leaders in small companies. While that’s one path to success, you shouldn’t discount HR pros who want to downshift from a mega-company existence to the SMB life.

There’s a high degree of variability across HR Manager/director candidates. Pick your Top Three areas of need, then interview purposefully.

Big company HR pros have the benefit of growing up with great tools and resources in the areas important to you. The best ones (who are a motivational fit for life in a smaller company) can use that experience to build your HR platform in a meaningful, progressive way.

Consider recruiting backgrounds as an alternative. Most growing businesses seek to add their first HR leader at around the 100-employee mark. You’re likely adding this leadership team member due to growth, which means recruiting is almost always a pain point. For best results, look to add candidates to your hiring process that have been pure recruiters in their past in addition to holding pure HR positions. Interview to understand their success and satisfaction in the former recruiting role. If your first HR leader has past success as a recruiter and enjoyed that life, you’ll be set up for success.

Of course, all of those tips are related to candidate backgrounds and what you’ll see on résumés. To truly win with your first HR leader hire, you’re also going to have to be brutally honest with yourself related to your company environment and the behavioral DNA you need in a candidate that provides the best match.

My new book, “The 9 Faces of HR,” digs deep into the behavioral DNA of HR pros. Here’s the must-haves I’d recommend for anyone seeking to hire their first HR leader:

Quick on the draw. Taking in large amounts of data/feedback and making quick, accurate decisions is key. Things move pretty fast at a high-growth company, and the right candidate for you will need to match the speed.

Fearless. Your new HR leader needs to be naturally inclined to deal with challenges head on. The right candidate for you will have a bias toward action.

Loves chaos. Let’s face it, you have a cool company but it’s a freak show, as all high-growth organizations are. The right candidate is going to view chaos as a ladder, not a barrier.

Successfully hiring your first HR leader is about finding a candidate in the sweet spot — the intersection of hustle, hard work, innovation and the ability to create product and services others will use to move your company forward.

The right one is out there, but only if you go into the search with a clear plan of what you are looking for. Don’t settle!

Posted on November 19, 2019June 29, 2023

Avoid Political Discussions in the Workplace? Riiiiiiiight …

Jon Hyman The Practical Employer

According to a recent survey conducted by SHRM [pdf], American workers cannot hide from politics at work.

  • 42% of U.S. employees say they have personally experienced political disagreements at work
  • 44% say they have witnessed political disagreements at work
  • 34% believe that their workplace is not inclusive of differing political perspectives
  • 12% report they have personally experienced political affiliation bias or discrimination based on their political views
  • 56% state that political discussions at work have become more common over the past four years
Some will tell you that employees should avoid political discussions at work at all costs. I am not one of those people.
It’s simply not realistic to eliminate all political discourse from the workplace. Thanks to CNN, the internet and round-the-clock news cycles, politics has invaded every crevice of our existence (and it’s only going to get worse between now and 11/3/20). How can we expect employees simply to ignore conversing about these issues for the eight-plus hours a day they are at work?

Instead of banning these discussions, remind employees of your expectations regarding all workplace conversations — that they be civil, professional and respectful. And, if a co-worker violates these precepts you have the right to disengage and to go to a supervisor, management or HR to address the problem.

Political discussions need not be nasty, uncivil, or contemptuous, as long as we respect the rights of others to think differently, and hold them accountable when they fall short of this standard.

Posted on November 19, 2019June 29, 2023

A Pox on Ban the Box

I am a podcast fanatic. It’s the best way to spend time on my daily commute and to fill the speakers of my car stereo, I have an unending list of podcasts to which I subscribe.

They run the gamut from music related (“Wheels Off With Rhett Miller”), human interest (“Terrible, Thanks for Asking”), travel (“Bittersweet Moment”), and technology (“Reply All”). But my favorite is “Ear Hustle.”

“Ear Hustle” is a podcast about “the daily realities of life inside prison shared by those living it, and stories from the outside, post-incarceration.” One of its recent episodes discussed the realities and difficulties the incarcerated face trying to find employment upon their release from prison.

Bottom line? Once an employer finds out you committed a felony and spent time in prison, your employment prospects drop dramatically. And most learn of this information by an applicant checking the “Yes, I’ve been convicted of a felony” box on their employment application.

Earlier this year, the 5th Circuit Court of Appeals upheld an injunction that blocked the EEOC’s guidance on criminal background checks as unlawful and banned its continued implementation or use.

That injunction is significant for many reasons, not the least of which is that the EEOC’s guidance opined that employment applications that ask whether an applicant has ever been convicted of a felony violate Title VII on their face. Why? Because blacks and Latinos are incarcerated at a rate that is statistically significantly higher than whites.

The movement against employers asking this question on job applications is called “ban the box” — cleverly titled after the box applicants are asked to check if they’ve been convicted of a felony. Nationwide, 35 states and over 150 cities have adopted ban the box laws.

So what’s wrong with laws that are intended to give those with felony convictions in their background a chance at getting past the application stage of their employment search? The laws don’t work.

As illustrated on “Ear Hustle,” ban the box merely moves the criminal background check from the application stage to the formal background check stage. Employers that are predisposed not to hire felons are not going to hire felons. They will just ding them later in the hiring process — after the expense of a formal criminal background check. These laws aren’t changing employers’ minds or attitudes. They are just giving felons false hope.

Moreover, according to two recent studies, ban the box laws are causing more racial discrimination by improving the hiring prospects for whites, while making them worse for blacks and Latinos. The conclusion drawn by these studies is that when employers can’t see who has a criminal record, they still avoid people they think are likely to have criminal records by resorting to guesswork.

As a result, racial discrimination against black and Latino job applicants (especially men) replaces discrimination based on criminal record. In other words, banning the box doesn’t just fail to help those its intended to help, but it also might hurt anyone who happens to be black or Latino.

Thus, if ban the box laws either create a more damaging reliance on unconscious racial biases (as these studies suggest) or push the consideration of criminal backgrounds to later in the hiring process, where employers will still use them to disqualify candidates (albeit with higher transaction costs in the hiring process), why do we have them?

If ban the box laws aren’t working toward their intended results of opening job opportunities for ex-cons, then what should we do to achieve this laudable goal? I suggest a three-pronged approach:

• Job training within the prison system to provide the incarcerated with transferable real-world job skills and a certification they can provide to a prospective employers upon their release.

• Tax credits to incentivize businesses to hire these felons.

• A privilege from negligent hiring and other liabilities for employers that hire certain felons for certain positions (i.e., We still don’t want sex offenders working in schools, but they might able to work in a manufacturing facility if they are otherwise qualified and sufficiently rehabilitated).

We need something to break the cycle of crime, and that something is jobs. Stable employment and steady income will help stem recidivism and keep people from returning to crime as a means of support.

If ban the box isn’t working toward this goal, then local, state and federal governments need to abandon ban the box and look for other solutions to this problem.

Posted on November 18, 2019June 29, 2023

Gay Man Claims He’s the Victim of Discrimination Because of His Sexual Orientation; It’s the Least of His Employer’s Problems

Wesley Wernecke, an ex-employee of New York event planning company Eventique, claims in his recently filed suit that the company intentionally alienated him, ostracized him and shut him out of the business after its CEO learned Wernecke was gay.

NBC News shares the details of the allegations in Wernecke’s lawsuit.

Wernecke had just begun to work for Eventique …when [CEO Henry Liron] David began to push him out of his role … .

A week after he was hired, Wernecke’s co-workers commented on his “girly” engagement ring. When a co-worker asked if his wife wore a similar ring, Wernecke replied that his partner, Evan, did.

From that point on, tension developed between Wernecke and his co-workers and David that had not existed before, according to the complaint.

In the interim months, the complaint alleges, Wernecke was ostracized and excluded from professional meetings and office social events, passed over for assignments with large commissions and subject to discriminatory remarks.

David … would exclude Wernecke from company lunches and frequent after-work drinks with “the fellas” in his office, the lawsuit states, and at one point, David gave an account Wernecke had been working on to another employee without consulting Wernecke.

These allegations, however, are the least of Eventique’s problems. According to Wernecke’s lawsuit, David significantly cut his salary (from $145,000 to $58,000.) David’s justification (again, according to the lawsuit): so that Wernecke’s pay would be on par with “the other females in the office.”

That’s not just an admission of sex discrimination against Wernecke, but also an admission of wage discrimination against the company’s female employees.

My advice to Eventique? Get out ahead of this issue, conduct a pay equity audit as soon as possible, and adjust salaries and wages as needed. Because if I’m a woman working at Eventique, I’m interviewing employment lawyers this week.

My gut, however, tells me that if a CEO is brazen enough to (allegedly) make those statements, he’s brazen enough to take this lawsuit head on.

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