Provided to The Enquirer

Michael A. Moses

Attorney At Law
330 South High Street Columbus, Ohio
4321 S Telephone:
August 12, 2004

CONFIDENTIAL, INADMISSIBLE PRIVILEGED CORRESPONDENCE PURSUANT TO
FEDERAL AND OHIO EVIDENCE RULE 408 Michael K. Allen, Esq. Hand-delivery
Hamilton County Prosecuting Attorney
Taft Law Center
230 East Ninth Street, Suite 4000
Cincinnati, Ohio 45202

Re: Rebecca Collins v. Office of the Hamilton County Prosecuting Attorney and Michael K. Allen

Dear Mr. Allen:

Please be advised I represent Rebecca Collins, an employee of the Hamilton County Prosecuting Attorney's office since 1999. Ms. Collins indicates that she has been the subject of sexual harassment and sex discrimination over a several year period by virtue of the conduct of you, Michael K. Allen, who has been her superior since June 1999, when she first began work as an intern with the Prosecuting Attorney's office. Per the office Policy k Procedures Manual, she has reported this sexual harassment which she has suffered over the past several years under separate cover in a communication to Carl Stich, her immediate supervisor.' (See attachment). From the commencement of her employment with the Hamilton County Prosecuting Attorney's office, Ms. Collins has been forced to submit to sexual advances, requests for sexual favors, and verbal and physical conduct of a sexual nature as a term and condition of her employment. Such advances, requests and conduct have created an intimidating, hostile, humiliating and sexually offensive work environment, and have unreasonably interfered with Ms. Collins' work performance.

Obviously, Ms. Collins had a great fear of making this formal complaint while she is employed as an Assistant Prosecuting Attorney. This does not mean that assistants, division chiefs and others in management or Human Resources were unaware of this harassment. Your conduct toward Ms. Collins was so conspicuous that a significant number of your employees were well aware of your harassment.

'It is noteworthy that Ms. Collins attempted to utilize the Office complaint procedure by complaining to you, when an assistant prosecuting attorney, Christian Schaeffer, sexually harassed her, and you disregarded her complaint and took no corrective action against Mr. Schaeffer.

This correspondence should be treated as privileged under Rule 408 of the Federal and Ohio Rules of Evidence. I intend to file a civil action regarding the discrimination, harassment, and retaliation which persists to the present. A draft of the complaint to be filed is attached hereto along with a copy of a discrimination charge which we intend to file with the Ohio Civil Rights Commission and the United States Equal Employment Opportunity Commission. Nothing was done to correct or alleviate the sexual harassment and hostile work environment which she suffered. Ms. Collins has been the subject of discrimination on the basis of sex and tortious conduct by you and the Hamilton County Prosecuting Attorney's office.

It appears that Ms. Collins has been employed at the Hamilton County Prosecuting Attorney's office continuously since June 1999', was never disciplined during that time, and received pay increases for good performance. However, during her employment, Ms. Collins was subjected to sexual harassment and a hostile work environment in violation of federal and state civil rights laws. It is difficult to imagine that an elected official could engage in such manipulative and outrageous acts of harassment. Yet Ms. Collins can document and support the allegations contained in the attached complaint, not the least of which is the offensive, unwelcome sexual exploitation of Ms. Collins.

You engaged in numerous acts of unwelcome physical and verbal advances toward Ms. Collins. Your actions and comments created a hostile work environment for Ms. Collins and other female employees. I will attempt to depict here the sexual harassment which she suffered over the past several years at your hands, but note that no such correspondence could comprehensively reflect each instance of harassment.

Ms. Collins began working for your office in June 1999 as an intern prior to her completion of law school and her appointment as a full-time assistant prosecutor with the Office of the Hamilton County Prosecuting Attorney. On or about June 21, 1999, during the course of her employment with your office as an intern, you contacted Ms. Collins and asked her to go to lunch. She agreed to go to lunch with you and went to the Plaza 600 restaurant in Cincinnati a few days later. At the lunch you asked Ms. Collins if she wanted to be a judge and said that most of the judges come from the prosecutor's office, and that she "should stick around." You began to tell her a story about your military service in the Judge Advocate General's office, then stopped and said, "Well, that's a story I'll have to tell you over a beer sometime." You subsequently admitted to Ms. Collins in the context of your eventual relationship with her that you had tried at this luncheon to make her laugh so you could look at her breasts and that you were glad she didn't "catch" you looking.

In early December 1999, shortly after both Ms. Collins' grandfather and father had died, you telephoned Ms. Collins and insisted on coming to see her at her apartment, and on December 16, 1999, you went to her apartment, were under the influence of alcohol, made sexual overtures to her, and refused to leave until she had intercourse with you. From that point forward, you used your significant power and authority by virtue of your office, political influence, and superior age, experience, and economic advantage to insist upon and maintain a sexual relationship with Ms. Collins. From that point on to the present, you have used your disparate power and economic influence over Ms. Collins to obtain and/or attempt to obtain sexual favors and companionship from her, and withheld promotional and other employment benefits and opportunities from her. It can be clearly demonstrated that you sent Ms. Collins numerous letters, gifts, food, flowers, cards, and candy at the office, as well as at her residence. From December 1999 through January 2004, you would frequently summon Ms. Collins to your office for the purpose of engaging in sexual intercourse.

From December 1999 through the present, you have repeatedly made numerous, unannounced and unsolicited to Ms. Collins' office on numerous occasions even though your presence was not invited, to the point that she would sit in her office with her door closed and locked. For more than four years, you have made numerous unsolicited phone calls to her office phone, her home phone, and her cellular phone, to the point that she would no longer answer. You have thwarted Ms. Collins in her career path by discouraging her from taking other positions, and interfering in the offering of other positions to her.

For example, in January 2003 Ms. Collins was told by Thomas Longano, First Assistant Prosecuting Attorney, that she could advance directly to either the Municipal Division or the Common Pleas Division from her position in the Appellate Division. Because she was interested in the opportunity and excited about the fact that she apparently was being permitted to "skip" the Juvenile Division, the normal next step, she informed you of the opportunity. You were concerned that you would be seen as favoring Ms. Collins, and thus blocked this promotion and forced her to accept a position in the Juvenile Division.

In April 2004, you forced Ms. Collins to accept a position in the Civil Division instead of the Municipal Division, the usual next step for her career path, because of your fear that your wife, a Municipal Court judge, would discover your relationship. You have entered Ms. Collins' residence numerous times without her knowledge or consent, causing her to feel afraid in her own apartment, such that she had her locks changed in order to maintain some semblance of safety and security. You coerced Ms. Collins to maintain her office on the 7" floor after her move to the Civil Division; because of this, she has been physically ostracized from her co-workers and been deprived of the benefits of working closely with more experienced attorneys. She is the only litigation attorney in the Civil Division on the 7th floor.

In 2004, after Ms. Collins terminated the relationship with you, you mouthed the words "I love you" as you passed her in the 7th floor back hallway, causing her extreme anxiety, discomfort and distress. After that time, you kissed Ms. Collins without her consent or invitation on the west stairwell landing between the 7th and 8th floors, and she immediately chastised you. In April 2004, during the time period in which you were coercing Ms. Collins to accept a lesser position, you repeatedly urged her to come up to your office to "talk," reminding her that you had gotten her "out of juvenile (prosecutor's division)."

When Ms. Collins came to your office as you directed, you began to fondle her and attempted to become intimate with her, urging her to expose her breasts to you, at which point you masturbated in front of her. Your conduct has deprived Ms. Collins of an equitable salary, bonuses, and promotional opportunities on account of her sex and in retaliation for her rejection of your sexual advances and unwillingness to continue in the affair with you. Your policies and practices as described above have deprived Ms. Collins of equal employment opportunities, and she is now being deprived of income in the form of wages and of prospective retirement benefits, and other fringe benefits due her, solely because of her sex and rejection of your sexual advances.

It is noted that you have the reputation of being an extremely intimidating person with vindictive tendencies, and neither the Hamilton County Prosecuting Attorney's office or any other county official has offered any real protection for Ms. Collins or other relief from harassment while she has been employed there.

Since Ms. Collins has terminated her relationship with you, she has been forced to divert her career path from an appointment to the Municipal Division of your office, and take a lesser position in the Civil Division Also, her compensation and promotional opportunities have been negatively affected since she has terminated the relationship with you, leading to the inescapable conclusion that sexual favors were clearly a term and condition of her employment. In addition, she also has suffered retaliation because of your deceptive attempts to mischaracterize and/or conceal your relationship with Ms. Collins from your wife, Lisa Allen, a judge in the Hamilton County Municipal Court.

An objective view of the circumstances of Ms. Collins' employment leaves no doubt that Ms. Collins has been subjected to grossly offensive, unlawful discrimination as well as tortious and retaliatory conduct. She is also the victim of sex-based discrimination, which we believe can be corroborated by other individuals as well as by your letters to Ms. Collins and tape recordings of your conversations. In addition, the treatment of Ms. Collins arising out of the discriminatory conduct she suffered and complained about makes it clear that she was retaliated against for exercising her rights to be free from sex discrimination and sexual harassment under 42 U.S.C. Sec. 2000e and O.R.C. Sec. 4112.02.

No doubt you are aware that Chapter 4112 of the Ohio Revised Code makes an employer liable if its employees discriminate against another employee. In addition, supervisors and management officials are jointly and severally liable for discriminatory acts. See Genaro v. Cent. Transport, Inc., 84 Ohio St.3d 293 (1999). Civil actions under such facts pursued in state courts entitle victims of such discrimination and tortious conduct to damages, injunctive relief, and other appropriate remedies such as awards of attorney fees.

It is noted that the work environment is so hostile and the discrimination so oppressive that Ms. Collins has been subjected to adverse employment action in violation of public policy prohibiting sex discrimination and sexual harassment. This adverse employment action has been determined by the Ohio Supreme Court to constitute tortious conduct in violation of public policy, which would support a civil action for adverse personnel action in violation of public policy. See Painter v. Graley,70 Ohio St.3d 1477 (1994).

Further, the remedies for acts of discrimination include reinstatement, back pay, and attorney's fees for wrongful discharge in violation of the provisions of Title VII and O.R.C. Chapter 4112. Recently, the Ohio Supreme Court decided that punitive damages may be awarded under Ohio law for acts of employment discrimination upon the showing of evidence of actual malice. Rice v. Certain Teed Corp., 84 Ohio St.3d 417 (1999). Title VII, 42 U.S.C. Sec. 2000e, also contains penalty provisions which can subject employers who violate this law to payment of compensatory and punitive damages.

While my client intends to file the attached complaint for employment discrimination and the torts arising out of the discriminatory and retaliatory conduct, I have, of course, discussed with Ms. Collins the costs of litigation, including the many depositions necessary in a case of this sort, the extensive documents discovery and investigation of similarly situated employees and their treatment, the need for an expert actuary on lost wages and benefits, and the cost of assembling a jury. The cost to Hamilton County and yourself, will, of course, be significant. Naturally, once a complaint has been filed in court, your desire as well as that of the county to prove you acted properly will fuel a willingness to spend even greater amounts on vindication.

Your exposure as well as the county's exposure also includes compensatory and punitive damages and the costs and attorney's fees expended by Ms. Collins. The risks should be assessed in addition to the costs and fees which are a guaranteed expense.

Proposal

We believe that informal resolution of these allegations would thus benefit all parties and that resolution now rather than on trial's eve would be highly preferable. If there is a potential for settlement, then please carefully weigh the following proposal. If not, please let us know so that we may proceed.

Ms. Collins would enter into a mutual release absolving all the parties of any and all liability arising out of the discrimination she has suffered. Ms. Collins would receive Three Million ($3,000,000.00) Dollars in damages and Five Thousand ($5,000.00) Dollars for attorney's fees in this regard. The total settlement would, thus, amount to Three Million Five Thousand ($3,005,000.00) Dollars. This figure is based on an estimate of Ms. Collins' damages, excluding interest.

We would seek much more in damages from a jury; however, these amounts comport with our understanding of what has been awarded and upheld on appeal in other cases.

One point about the attorney's fees might also be considered. Fees are awarded at the current rates, which several years of litigation would probably change. Moreover, fees are awarded apart from the amount of monetary relief secured. For example, you and/or the county might end up paying more in fees than in damages. Such disproportionality has been upheld by the United States Supreme Court in civil rights litigation. City of Riverside v. Riviera, 477 U.S. 561 (1986).

This offer will remain open until August 26, 2004, at 4 p.m., at which time it will automatically be rescinded and rendered null in force and effect.

In the event that litigation is necessary, please be advised that under Rule 11 of the Rules of Civil Procedure, counsel is under an obligation to make a reasonable inquiry into the facts before filing a pleading with the Court.

To carry out that obligation, I am requesting that you provide us with copies of the following documents, in that you, rather than my client have possession and control of same:

1. Rebecca Collins' personnel file;

2. All performance reviews, evaluations, or similar assessments ever done on my client;

3. All personnel manuals, employee guides, employee handbooks, or the like, including amendments and updates which have been in effect from January 1, 1999 to the present;

4. A general organizational chart of your Office; and a specific organizational chart which would identify the section in which my client worked for your Office;

5. All forms commonly used for discipline in personnel matters by your company;

6. All forms commonly used for the investigation of sexual discrimination and/or sexual harassment matters by your Office;

7. Personnel files (including disciplinary and performance evaluations) of any female employees who were employed by the Hamilton County Prosecuting Attorney and worked with Michael K. Allen from January 1, 1999, to the present;

8. Personnel files of any other present or former male employees who have been charged with sex discrimination and/or sex harassment in the past ten years;

9. Personnel files of any other present or former female employees who have made charges or complaints of sex discrimination and/or sex harassment in the past ten years; and

10. Any and all correspondence, communications and/or other inter-office memoranda, in whatever form maintained, electronic or printed, involving and/or pertaining to Rebecca Collins.

When you provide us with these documents, we would also request that you advise as to whether or not you or the Hamilton County Prosecuting Attorney's office have insurance coverage and the limits of liability for such coverage.

Your thoughtful response to this letter, preferably through counsel, is invited.

Very truly yours,

Michael A. Moses

MM:hje
Enclosures
cc: Rebecca Collins