0263 TRIBUNAL  EXTENDED REASONS & REVIEW part 3

[this is part of the extended reasons, together with the response I provided to the Tribunal for review] 

The Tribunal's Findings of Fact 

26. Having heard all of the evidence, and considered the relevant documents before us, we make the following findings of fact:

 

26.1 Mr Mercer had joined the Open Business School as a lecturer on 1 April 1988, after 26 years in senior professional and management roles in industry. 

26.2 In 1989 Mr Mercer had set out on the Ethiopian Project to teach the MBA to members of the Ethiopian Government. He had been elected the First Head of the Centre for Strategy and Policy on 1 April 1993, at the same time as David Asch had been elected as Dean of the Open University Business School.

In fact my main role was as Director of this project, though I did also teach on it. Whilst in this role, and under the guidance of the Foreign & Commonwealth Office, I was also made the Presidential Adviser responsible for coordinating communications with the Western ambassador group.

26.3 On 21 April 1993 Mr Mercer had "whistle blown" on breaches of copyrights in Blackwell's Human Resource text. In May 1993 he entered a grievance about workload stress. By 1994 the workload had been reduced: but it increased again in 1995.

In May 1993 I had indeed complained to my manager about my workload and the stress this was causing, but this was not pursued further as a grievance.
 

26.4 On 1 August 1998 Mr Mercer had submitted a whistle blowing grievance to his line Manager, Alan Lawton, which Mr Mercer sent onto the Vice Chancellor. The Dean, David Asch, resigned soon afterwards.

 

26.5    In June 1999 Mr Mercer's angina was diagnosed, but he did not inform his employers of this until the following year (October 2000).

This is not true, since I immediately informed my line manager (Alan Lawton) of this fact by memo on 16^th June 1999. This was included in the combined bundle (doc 40) but not short-listed. The OUBS management systems were so poor, however, that the Dean and Katie Stocks apparently were unaware of this until my memo of October 2000. 

26.6 There were difficulties in September 2000 in respect of an MA in marketing on which Mr Mercer had been working. The University had not promoted this satisfactorily and as a result the MA course was seen as a failure.

26.7 In October 2000 Mr Mercer disclosed the 1998 whistle blowing dossier to the new Dean, Roland Kaye. We accept Mr Kaye's evidence that he did not read that dossier at that point, and indeed has not done so since he was given the documents by Mr Mercer in October 2000.

It is true that the Dean stated as much in his evidence, however it is difficult to see how this can be reconciled with para 26.16; where the Tribunal’s ‘Reasons’ accept that ‘Mr Kaye refers to the 1998 dossier’. It simply would have been not possible for him to refer to its contents with such claimed authority without ever having seen them unless he had relied on Katie Stocks (who had been given the dossier and read it – despite its private/confidential designation) to provide him with the necessary abstracted information (as she did for other OU staff involved in the later grievance); in which case the effect would have been much the same as if he had read it directly. The dossier, which was allegedly held in my OUBS file (though illegally withheld from me on at least two occasions), was never produced nor was any record of access to it; so it was not possible to say what had really happened to it. In any case, in the Dean’s email of 20 September 2001 (which was produced from his own illegally held files during the hearing; page 1025) he quite clearly stated ‘David M gave me sight of a file which he claimed reflected his battles with David A…’; where this could only have been the dossier in question and the context shows that he must have read at least some parts of it. In terms of the Dean’s veracity, in addition to this issue, it was pointed out that he had conspired with Mr Tulitt to issue a gross libel, and had then conspired to destroy the evidence of this; that he had breached the Data Protection Act both by transferring crucial files to his own PC (and had deleted some of this material) and the failed to provide a copy of my ‘Personnel File’ when requested (and had also failed to do this as part of the disclosure process). The failure to mention these aspects, especially where I had asked the Tribunal to make the CPS aware of them, was a surprising omission. 

26.8 However, it did become apparent at Mr Mercer's meeting with the Dean that Mr Mercer had medical problems. This came as a surprise to the Respondents, as up to that point Mr Mercer had been a prodigious worker, and there was no record of him taking any sick leave. He was now reporting that he was an insulin dependent diabetic, and that he suffered from angina. This resulted in the Dean making the first medical referral on behalf of the OU on 26 October 2000. Dr Sorrell's Medical Report of 16 November 2000 indicated that the conditions were under control.

Again my line management, though apparently not the Dean or Katie Stocks, had been made aware of the medical facts much earlier than this. Whilst Dr Sorrell commented that the conditions currently were under control he also insisted that my condition be closely monitored.

26.9   On 23 March 2001 Mr Mercer had his cardiac results, and has continued under treatment for that condition ever since.

26.10 During the course of 2001 the University was seeking to appoint for the new Chair in Marketing sponsored by Beneficial Bank. They were initially unsuccessful in finding a suitable candidate, and so they appointed a consultant, Mark Tulitt, to prepare a short list. Mr Mercer submitted an Application for the Chair, but he was rejected for the shortlist by the consultant after a meeting in an hotel on 5 September 2001.

There was no evidence that the University itself followed its normal rules in appointing a consultant – and this was queried by Personnel department during the grievance procedure - though it is accepted that, without clear authority having been given, the Dean did make this appointment. 

26.11 Shortly after this rejection, on 18 September 2001, Mr Mercer sought help from his union, and had a meeting with them on 20 September. However, the union do not appear to have taken any active part in the history of this matter since then.

26.12 Mr Mercer had not been unduly surprised that he had not been short-listed. Realistically, he did not expect to be appointed to the post, but he had hoped that he would prove a significant enough candidate to make the shortlist.

The truth was that – due to the political situation within the OUBS - I did not expect to be appointed to the post, but – along with a number of others – I was very surprised (indeed shocked) that I had not been shortlisted; since my referee (Prof. Malcolm McDonald, who later was a member of the appointment panel) had stated that I was the best qualified academic in the UK for the post.
 

26.13 It is now apparent that Mr Tulitt went about the appointment process in a somewhat idiosyncratic manner. Having produced details of the relevant job and person specification for the new Chair, Mr Tulitt had identified that the real issue was whether the candidate would fit into the existing organisation. Personality and diplomacy were therefore important issues. This was why Mr Tulitt had interviewed all of the candidates in informal circumstances, without informing them of the true nature of the person specification until after the informal interview had taken place.

It should be pointed out that the OU accepted that his approach clearly breached OU procedures. In any case, there are very clear OU guidelines as to what should be expected of a Professor, and it was not up to Mr Tulitt to unilaterally decide that the ‘real issue was whether the candidate would fit into the existing organisation’; especially where, in this context, my regular appraisals clearly showed that I had ‘fitted in’ very successfully for more than a decade
 

26.14 In the event, Mr Mercer had fallen considerably short of the personality requirements for the post. It is now clear that this was hardly surprising, because over the 13 years of his employment with the OUBS, Mr Mercer had lodged a number of grievances, and had fallen out with his colleagues, often to the point of threatening libel proceedings against them. Mr Mercer himself produced a list of six incidents connected to harassment charges made against him in the period 1993 to 1994.

This should state that Mt Tulitt believed that I had fallen short of the requirement. In view of the disputed nature of this decision (where I had been in OUBS management in various forms for more than a decade, without any adverse reports in my appraisals, and had been accepted by the Foreign and Commonwealth Office as a suitable person to conduct diplomatic negotiations on its behalf with the President of Ethiopia), it was not up to the Tribunal itself (or indeed to Mr Tulitt) – without investigation of the evidence in considerably more detail - to simply say that I fell short. In respect of ‘grievances’ I only ever submitted one formal and one informal (confidential) grievance; not a ‘number’ of these. I had only threatened libel proceedings once, and certainly had not done so ‘often’. Over 13 years I had had only had something around half a dozen major disagreements with my academic colleagues; and, apart from those with Tony Stapleton who saw me as a competitor within the marketing group, these were always with members of the management committee about matters of OUBS policy. The list of incidents connected to harassment (from 1993 to 1994, ten years previously) was in fact produced by the Respondent (doc 137) as part of their attempts to vilify me during the hearing. My own list, in response, merely made clear the fact that these unsubstantiated charges were untrue and had been – as per my 1998 dossier – in fact used to bully me, rather than the other way around, and destroy my reputation. In any case, despite the promises at the time not to document this material, the OUBS list came from my ‘Personnel File’; which was illegally withheld when I asked to see it under the Data Protection Act – explained by Katie Stocks as an ‘administrative error’ – and not disclosed when requested as part of the disclosure process.
 

26.15 When Mr Mercer asked Mark Tulitt for feedback as to the reason why he was not short-listed for the Beneficial Bank Chair, Mr Tulitt required a signed waiver from Mr Mercer before he would release the written feedback to Mr Mercer. In view of the blunt nature of the comments in Mark Tulitt's draft letter, it is understandable that he would wish to seek such a waiver from Mr Mercer. However, Mr Tulitt did send a draft of the letter to Roland Kaye.

I recognise that the Tribunal cannot be expected to be expert in the laws of defamation, but I made it clear that (based on expert legal advice) the ‘blunt’ comments were in fact gross libels; and that in Mr Tulitt sending these to the Dean, and him then republishing them, they and the OU as a whole were guilty of gross defamation. To say that his behaviour was understandable is to undermine the Laws of Defamation. 

26.16 This led to Mr Kaye's e-mail of 11 October 2001, in which Mr Kaye expresses his dissatisfaction with Mr Tulitt, but also his frustration with Mr Mercer himself. Mr Kaye describes Mr Mercer's behaviour as "poisonous". He questions his "mental state". Mr Kaye refers to the 1998 dossier and to other incidents in which Mr Mercer had been involved. Mr Kaye points out in his e-mail to the Personnel Manager, Mr Marsh, that he himself is hardly the best person to provide feedback to Mr Mercer in view of his own anger at Mr Mercer's conduct, and adds: 

"I am thinking of bringing legal action against him for defamation as possibly the only way to shut him up is to empty his pockets".

In fact Mr Tulitt’s ‘letter’ (doc 98), though undated, must have been sent at least three weeks previously, certainly before 20 September; when the email to the Dean from Mr Tulitt, disclosed in the hearing as page 1039 and illegally held on the Dean’s own PC, said ‘…officially you have not seen…my written response (although of course you have)’. There is no evidence that this ‘led to Mr Kaye’s email of 11 October. The sole point of dissatisfaction with Mr Tulitt’s actions reported in the Dean’s email came in an extended quote about an agreement reached in an unspecified meeting which took place some time previously. In reality, the chain of emails which directly led to this response from the Dean concerned the perceived threat of whistle-blowing arising initially from my involvement of the AUT and then my declared intention of taking the matter to court. OU counsel initially claimed the reason for the Dean’s expressed anger was my ‘defamation’; though the evidence, from the Dean’s files illegally held on his PC (page 1026), indicates that sometime prior to 3^rd October (where the some part of the trail of evidence has been, for whatever reason, been deleted) the Dean had clearly been told by OU Personnel that there was no evidence of such defamation. The Dean himself, in his oral evidence, claimed instead that it had been the incident with David Parker (a month before) which had caused his anger. The conflicting reasons for the Dean’s anger, and their removal in time from his astonishing display of anger, would seem to indicate that the immediate reason was indeed – as might reasonably be expected – that of my whistle-blowing to the AUT and the threat of legal action. It is surprising that the other elements of this crucial email are not discussed. 

26.17 The Two Centres Meeting took place on 24 October 2001. A newly appointed professor, David Parker, attended the meeting. He subsequently withdrew his acceptance of the appointment, and told Mr Kaye that he did so as a result of comments made to him at that meeting by four existing members of staff, one of them Mr Mercer. However, Mr Mercer denied saying anything that would have led to Mr Parker withdrawing his acceptance. Nonetheless, Mr Mercer had covertly taped some part of this meeting.

The Two Centres Meeting did indeed take place on 24 October, after the Dean’s email of 11 October, and I did tape-record this (and the Tribunal listened to selected parts of this recording, though they were not required to read the related transcript). However, this was not attended by David Parker. Instead, he had been invited to the OUBS Workshop on 13 September; more than a month before the Dean’s email of 11 October. As I said earlier, this day long review of the OUBS position was attended by something like 100 members of the School Board. In his oral evidence, the Dean made the unsubstantiated claim that around 20 of these had personally made adverse comments to David Parker. When challenged he reduced this number to 5 members, and insisted that I had not merely been one of these but had been their leader. I had never met David Parker previously, but respected him and thought he was a great catch for the OUBS to which I was still very loyal. Accordingly, I had actually tried very hard to sell him on life in the OUBS. As such, I would have been very surprised that he was so confused that – as claimed by the Dean – the next day he had selected me as the leader rubbishing the OUBS. I definitely did not tape this meeting as asserted by the Tribunal; since there was no reason to – there were plenty of witnesses present (none of whom were called to give evidence). 

26.18 On 6 November, there was a meeting between Mr Mercer, Mr Kaye and Miss Stocks, to discuss Mr Mercer's grievance about the failure to shortlist him for the Beneficial Bank Chair. This meeting was taped by Mr Mercer without the knowledge of either Mr Kaye or Miss Stocks. However, we have no reason to doubt the authenticity of the recording, which we have listened to. We do not accept Mr Mercer's assertion that at this meeting Mr Kaye has forced Mr Mercer into a breakdown. On the contrary, it is evident from listening to the tape that the dominant voice throughout the recording is that of Mr Mercer. The recording and transcript also demonstrate that both Mr Kaye and Mr Mercer are threatening defamation proceedings against each other. It is apparent from Mr Mercer's reference to the "discovery process" that he is familiar with this sort of action.

As I have not been given access to the tape the Tribunal heard, I cannot comment on it – except in terms of what I said in response to para 7 – but I am surprised (in view of its importance to the Tribunal’s decisions) that such a basic mistake as claiming that both the Dean and myself were ‘threatening defamation proceedings against each other’ could be made. It is clear that the Dean was indeed threatening defamation proceedings, one of the bullying tactics he employed against me. On the other hand, I never threatened any such action, and indeed – at that time – had no evidence of any defamation. As my reference to a ‘discovery process’ shows, I was indeed aware of what was involved (from my much earlier research into the mechanisms of defamation proceedings), and would not have been as stupid as to threaten such an action without any evidence to support it. In terms of being the dominant voice I was of course much closer to the microphone; and in any case, being deaf, normally speak loudly. In terms of my breakdown, if the Tribunal do not accept my own words recorded on the tape then they should consider that immediately after the meeting I saw a doctor at my local practice who diagnosed severe depression and prescribed accordingly. As the evidence clearly shows, that diagnosis has since been confirmed by a number of medical experts. 

26.19 During the course of the meeting on 6 November Mr Kaye suggested to Mr  Mercer that he should make an application for a personal chair.

What was not reported was that this was a meaningless offer, since I had already applied twice for such a personal chair and had been rejected by management. 

26.20 Mr Mercer's contract of employment provided both for 33 working days annual holiday each leave year (1 October to 30 September), and for 2 months study leave each year. Up to 33 working days holiday could be carried forward to the next year. Study leave was intended "to provide facilities for research and other approved academic purposes". It was accepted that study leave could be carried over from one year to another, subject to a maximum accumulation of 12 months. Both the taking of study leave and the annual carrying over of study leave was to be arranged with the prior written agreement of the Dean: and where agreement was withheld the reasons were to be stated in writing. It is apparent from the contract of employment that the accrual and use of study leave was to be monitored. However, this did not happen in practice, largely because of the pressure to use both holiday and study leave to prepare new courses and to maintain existing courses. By November 2001 Mr Mercer had accrued a substantial amount of study leave over a number of years. In a note shortly before the meeting of 6 November 2001 (and at the meeting itself) Mr Mercer announced his intention of taking study leave for a period of about three years, running up to his intended retirement date. Mr Kaye was not prepared to agree these plans without investigation, but did accept that Mr Mercer should have a 14-month period of study leave.

I had agreed the length of the study leave with management a number of times previously and had also communicated this to the Dean, without any dissent, several times over the previous year.

26.21 On 8 November 2001 Mr Mercer was once more referred back to Dr Sorrell by the Respondents. On 13 November 2001 Mr Mercer commenced a period of sick leave because of anxiety and depression, from which he was never to return, and which continued up to the date of Mr Mercer's resignation on 4 February 2003. During this period of sick leave the University continued to pay Mr Mercer full pay beyond his contractual entitlement, which was limited to 6 months full pay and 6 months half pay. The University in fact paid Mr Mercer in full from November 2001 to 3 December 2002. In a letter of 18 October, Mr Mercer was told that his pay would be reduced to half pay after 3 December.

As the evidence clearly shows, I actually went on sick leave immediately after the 6 November meeting. I was not however required to submit a sick note until the 13^th; which I duly did.
 

26.22 Mr Mercer was not satisfied with Mr Kaye's response to his grievance about study leave, and escalated his grievance to the Vice Chancellor on 21 January 2002. The Vice Chancellor nominated Professor Thompson to investigate and report on Mr Mercer's grievance. Professor Thompson took the view that Mr Mercer should be allowed to take all of the study leave that he sought. This was confirmed, on behalf of the Vice Chancellor, by an e-mail from Professor Bassindale of 21 April 2002. On 23 April 2002 Miss Stocks made an offer by email in the following terms: 

"Alan (Bassindale) has approved 14 months study leave together with 10 days carry forward of annual leave. In addition Alan has indicated that further study leave could be approved subject to you developing a work plan outlining the aims for your leave, outcomes and timescales. This you would need to agree with your Centre Head and Roland. Should you wish to discuss the study plan, I am sure either Susan or Roland would be happy to meet with you." However, Mr Mercer interpreted this letter as restricting his entitlement to 14 months and so he rejected the proposal altogether. 

As the Dean admitted in his oral evidence, he knew that the email from Professor Bassindale (which is not quoted here) – backed up by the copy of Professor Thompson’s report – represented the VC’s agreement that I should be given my total (3 year) entitlement. As the Dean also said, he changed the terms of this offer because he did not think I deserved to be given this. For my part, the legal advice I received said that if I accepted the 14 months unconditionally, with only a vague promise of a review later, I forfeited my rights at law. 

26.23 In the meantime Mr Mercer had been referred once more to Dr Sorrell, who produced a further report on 16 May.

In fact, after the initial referral, of 8 November 2001, the OUBS took no interest in my health. The later meetings with Dr Sorrell were at his own initiative.
 

26.24 On 26 July 2002 (whilst Mr Mercer remained on sick leave) there was a telephone conference between Mr Mercer, Angus Laing and Miss Stocks It was evident from that conference and from correspondence between Miss Stocks and Mr Mercer that the Respondents were continuing to address the issues of detail relating to the approval of David Mercer's study leave. However, Mr Mercer rejected Mr Laing's insistence on imposing conditions on that leave. Mr Mercer wanted unconditional study leave so that he could spend the remaining time before his retirement preparing a book.

This was not the telephone conference. That was with the Dean and Katie Stocks, on 23 May 2002 (doc 160) and contained a number of key points which are not recorded in the ‘Reasons’. The meeting with Angus Laing and Katie Stocks was a face to face meeting at OUBS. As I have stated many times (doc 175), I never refused to accept the normal conditions which would be applied to my study leave. I simply objected to the unusually harsh (indeed impossible) objectives he was insisting on – and continued to insist on at the hearing. My witness Alan Plath confirmed that these targets were effectively impossible. At the hearing even the ‘textbook’ examples introduced by Angus Laing did not meet this level of target. Angus Laing indeed went on to suggest that – to meet this level - I would be provided with a research assistant(s) in order to meet the targets – as he himself had been when achieving such results. Unfortunately the Dean had earlier ruled out any idea of me receiving such assistance. As stated above, I did not ever ask for unconditional study leave. The leave was to be used, as per the proposal already submitted (docs 55, 56), for leading edge research into Future Economics; exactly as such study leave was intended to be used. It was going to be difficult to even get a paper published in the three years. I had never considered producing a book; especially as this would not meet RAE objectives. I do not know where the Tribunal got this idea from. In any case, after my study leave was finished I would have had a further year of normal employment before my retirement.

26.25 Mr Mercer had asserted from the outset that the question of his study leave had been resolved by an agreement between himself and Paul Dixon, a member of the University's Personnel Department. However, when pressed, Mr Mercer accepted that there had been no explicit agreement.

This is untrue. I had asserted that Paul Dixon had telephoned me to say that the VC had approved my leave; as was supported by Professor Thompson’s report and Professor Bassindale’s email. In fact, in his oral evidence, the Dean admitted that he knew that the VC had given such approval, with the aforementioned documents being her way of recording that, but he unilaterally had not implemented this since he felt I did not deserve this. At no time did I accept that there been no legal agreement. 

26.26 Following consultations with Dr Sorrell on 28 September and 30 October 2002, Mr Mercer accepted that it might be that the only practicable course for him was to take early medical retirement. Dr Sorrell was satisfied that there was no adjustment that could be made to ameliorate Mr Mercer's predicament, other than the resolution of all of Mr Mercer's grievances to his satisfaction: and such an outcome seemed unlikely. It also seemed unlikely that the USS pension providers would accept that Mr Mercer should be granted early retirement. Nonetheless, Mr Mercer agreed with Dr Sorrell that it was worth investigating, and authorised Dr Sorrell to make appropriate enquiries.

Though there still three possible alternatives open to me, I accepted that the intractable position of OUBS management (rather than my medical condition) made two of these unlikely. Even then it was thought that early medical retirement was unlikely, though I did authorise Dr Sorrell to investigate the possibilities and signed the necessary forms for my medical records to be released (which the OU later mistakenly took as an ‘alternative consent form’). 

26.27 We are satisfied that at this point there is an ambiguity in the understanding between Mr Mercer and Dr Sorrell: whilst Mr Mercer was seeking only to investigate the possibility of early medical retirement, Dr Sorrell pursued the matter as a substantive application. Not only Mr Mercer and Dr Sorrell, but also the Respondents were taken by surprise when USS wrote on 13 November 2002 confirming that early retirement would be granted to Mr Mercer. At no stage had Mr Mercer signed the form (ME5) which was required to instigate early medical retirement. The Respondents, accordingly, wrote to Mr Mercer on 21 November 2002, asking him to confirm the date on which he wanted to retire.

In fact all the records, including Dr Sorrell’s notes (obtained as a result of the Interlocutory Order), show that there was no ambiguity at this time. Dr Sorrell clearly then believed that I was asking ‘for a case to be put to USS’ and not making an application. It seems that some time later the communications prepared by his staff, and others at the OU, mistakenly altered this to an application; even though no approval for this had been given by me. Unfortunately, despite all the emails exchanged, nobody has ever asked Dr Sorell himself what he thought had happened. This crucial omission was why I asked – as part of the Interlocutory Order – for him to give evidence. Regrettably the Tribunal refused this. The Respondent’s then – again mistakenly (and presumably realising this was a solution to the problems which had been dogging them) - assumed that I had chosen (applied to) to retire, and sought to regularise this by asking for the date on which I would so retire. Despite the lack of the relevant documents having been signed by me, they still did not check whether I had in fact agreed to retire.

 

26.28 Apparently on legal advice, Mr Mercer took the University's letter of 21 November as amounting to an explicit dismissal. When questioned by the Chairman, however, Mr Mercer accepted that the letter did not amount to an explicit dismissal: Mr Mercer's argument was that it amounted to an assumption that he would retire (or had already done so) and therefore amounted to constructive dismissal.

In fact, during the in-camera session before the hearing started I was persuaded by the chairman  to change my claim, that the letter of 21 November 2002 effectively amounted to dismissal, to it being a ‘threat of dismissal’ which represented an anticipatory repudiatory breach of contract (Harrison v Norwest Holst 1985) which was never withdrawn despite my (and my solicitor’s) strenuous attempts to obtain such withdrawal. The alternative stated by the Tribunal Chairman was that otherwise the case would have been immediately dismissed. I never agreed that this was merely an ‘assumption’ (as quoted in here), but insisted that it still represented a real ‘threat of dismissal’, and as such was an anticipatory repudiatory breach of contract. In fact, the Open University Business School never withdrew this threat, despite being offered a number of opportunities to do this, and indeed made the claim that I had actually retired in this way a central plank in their defence. 

26.29 Mr Mercer's solicitors wrote to the Respondents at length on 22 and 28 November, but received no response. Mr Mercer told the University on 29 November that he was not retiring. On 17 December Miss Stocks e-mailed Mr Mercer "To clarify the situation" regarding the Respondents' letter of 21 November: 

"I am sorry that Maureen's letter was a surprise to you. I would, however, confirm that following your recent consultation with Dr Sorrell, the Occupational Health Department contacted USS in accordance with the wishes you expressed at the time. We were subsequently notified by USS in their letter dated 13 November that ill health retirement had been approved and I believe a copy of their letter was also sent to you. The letter from USS advised us that your retirement and thus pension should be put into immediate effect. As we understood that this was in line with your wishes, Maureen contacted you to confirm an appropriate date."

The crucial point is that, despite my very clear denials, Katie Stocks never withdrew the threat of ‘retirement’ and OU counsel was still arguing that I had indeed retired in his closing statement.