allegations that Hawk had notice of the ADA claim against it do not create a genuine issue of fact
for trial. See Fed. R. Civ. P. 56(e).
2. Conciliation

Even if Bassett were to show that Hawk had notice that it was subject to the ADA claim,
Bassett has not established that Hawk was given an opportunity to conciliate the claim. Bassett
contends that the requirement that Hawk be presented with an opportunity to conciliate on its
own behalf is irrelevant because Sinterloy did not engage in conciliation when given the
opportunity. Bassett also asserts that Hawk was not prejudiced, and “[i]t makes no difference
anyway since Hawk solely owned Sinterloy.” Bassett does not develop these arguments nor cite
relevant legal authority. This court will not scour the record in search of evidence showing
Bassett’s assertions, nor develop his legal arguments. See Stein v. Ashcroft, 284 F.3d 721, 725
(7th Cir. 2002) (if plaintiff fails to make a minimally complete and comprehensible argument, he
loses regardless of the claim’s merits as they might have appeared on a fuller presentation).

Last, Bassett argues that fundamental fairness dictates that he should be allowed to
proceed against Hawk on the ADA claim. In support of this argument, Bassett asserts that he
filed his EEOC charge pro se. However, the exception to the rule that a party must be named in
an EEOC charge already accounts for the possibility that the complainant may have filed the
EEOC charge without assistance of counsel. See Eggleston, 657 F.2d at 905-06 (complainants
often file EEOC without assistance of counsel and are not familiar with pleading and
jurisdictional requirements); Stephenson v. CNA Fin. Corp., 775 F.Supp. 238, 239 n. 3 (N_D. Ill.
1991) (same). As such, Bassett’s fundamental fairness argument is without merit.

Viewing the facts in a light most favorable to the nonmoving party, Bassett has not

13


Bassett then filed a charge with the Equal Employment Opportunity Commission
(“EEOC”) on August 29, 2000, alleging that he had been discriminated against because of his
disability. In the box for “Employer” Bassett listed only Sinterloy. On January 31, 2001, the
EEOC sent Bassett a “Notice of Right to Sue” stating that he had the right to sue “respondent(s)
named in your charge in a court of competent jurisdiction.” Bassett commenced this action on
May 1, 2001. He filed an amended complaint on May 11, 2001.

Ill. MOTION TO DISMISS UNDER RULE 12(b)(2)

A. Standard

In ruling on a motion to dismiss for lack for personal jurisdiction, the court may consider
matters outside the pleadings, such as affidavits and other materials submitted by the parties.
See Fed. R. Civ. P. 12(b); Mcllwee v. ADM Indus., Inc., 17 F.3d 222, 223 (7th Cir. 1994). When
determining personal jurisdiction, the court must accept the allegations in plaintiff's complaint as
true to the extent that they are not controverted by the defendant’s affidavits and resolve any
conflicts in the affidavits in the plaintiff's favor. See Nelson v. Park Indus., Inc., 717 F.2d 1120,
1123 (7th Cir. 1983). The plaintiff has the burden of proving the existence of personal
jurisdiction. RAR, Inc. v. Turner Diesel, Ltd., 107 F.3d 1272, 1276 (7th Cir. 1997).

In a federal question case, the law governing personal jurisdiction parallels the rules
governing service of process. Swaim v. Moltan Co., 73 F.3d 711, 719-20 (7th Cir. 1996).
Federal statutes often provide for nationwide service of process for nonresident corporations,
however, in the absence of statutory provisions, service of process is governed by the law of the
state in which the district court sits. Jd. Because the ADA does not provide for nationwide

service of process, the court determines personal jurisdiction based on the Illinois long-arm


reflected by Hawk’s actual course of dealings with Bassett which included settlement
negotiations with Bassett and being a party to the settlement contracts. See, e.g., Burger King,
471 U.S. at 479-80 (despite defendant’s lack of physical ties to forum state, defendant
deliberately reached out and negotiated a contract in the forum). Hawk’s actions in Illinois were
not random and the parties’ negotiations were not a unilateral act. See id. at 475-76 (where
defendant deliberately engaged in activities in forum, actions not random). Also, Bassett’s
claims in his federal complaint relate to Hawk’s contacts with the State of Illinois.
b. Due Process

Because minimum contacts with Illinois have been established, the court addresses
whether exercising jurisdiction over Hawk is reasonable and does not violate traditional notions
of fair play and substantial justice. See Burger King, 471 U.S. at 476. Applying the
reasonableness factors as set forth by the Supreme Court in Asahi Metal, the court concludes that
exercising jurisdiction over Hawk is reasonable and fair. See Asahi Metal, 480 U.S. at 115.

First, Illinois has an interest in providing a forum in which Bassett may litigate his
employment discrimination claims — the state has an interest that its citizens are treated fairly and
equally in the workplace. Second, the burden on Hawk to appear in an Illinois court is slight,
given that Hawk has already appeared in Illinois to negotiate the various legal agreements
pertaining to Bassett’s worker’s compensation claim. The burden on Bassett to appear in
Delaware or Ohio is higher because it is unlikely that Bassett has a reason to appear in Delaware
or Ohio, whereas Hawk already conducts business with Sinterloy and its other Illinois ;
subsidiaries. Lastly, if this court did not hear this case, there would be multiple suits to resolve

the same issue — suits against Sinterloy in Ilinois and suits against Hawk in Delaware or Ohio.


interests located in Illinois.” Jd. Other than the Rollins court’s reasoning, Illinois courts provide
little guidance as to how Illinois due process protections differ from federal due process in the
context of personal jurisdiction. RAR, Inc.,107 F.3d at 1276.

Here, the parties themselves have not addressed the scope of Illinois’ due process
protections. Instead, they have concentrated on whether Hawk falls under the Illinois long-arm
statute by “transacting business” in Illinois. Absent argument from either Hawk or Bassett, this
court is unwilling to determine whether Illinois due process differs from federal due process. See
RAR, Inc., 107 F.3d at 1277 (federal court hesitant to venture “unguided” into Illinois
Constitutional law); see also Central States, 230 F.3d 934, 940 (7th Cir. 2000) (because
defendants did not argue that state constitutional law prohibited exercise of jurisdiction, court
assumed that personal jurisdiction did not violate Illinois Constitution). Therefore, this court
turns to the federal inquiry.

2. Federal Inquiry

Federal due process requires that a nonresident defendant have “minimum contacts” with
the forum state and that the nonresident defendant “purposefully availed itself” of the privilege of
conducting activities within the forum state. Hanson v. Denckla, 357 U.S. 235, 253 (1958);
International Shoe Co. v. Washington, 326 U.S. 310, 315 (1945). The “purposeful availment”
requirement ensures that a nonresident defendant will not be forced to litigate in a jurisdiction as
a result of random contacts with the forum or the unilateral activity of another party. See Burger
King v. Rudzewicz, 471 U.S. 462, 474-75 (1985). Federal due process also requires that the
exercise of personal jurisdiction over a nonresident defendant must be reasonable and that

exercising jurisdiction does not violate traditional notions of fair play and substantial justice.


statute. See id. at 720 (court applied Illinois long-arm statute because ADEA did not provide for
nationwide service of process).

Under the Illinois long-arm statute, general jurisdiction is proper where the defendant has
continuous and systematic general business contacts with Illinois. RAR, Inc., 107 F.3d at 1277;
Borden Chem. and Plastics, L.P. v. Zehnder, 312 Il.App.3d 35, 41 (1st Dist. 2000). On the other
hand, specific jurisdiction arises out of, or is related to, a defendant’s contacts with Illinois.

RAR, Inc., 107 F.3d at 1277; Borden Chem., 312 Ill.App.3d at 41.

In order to determine whether personal jurisdiction is proper, the court must consider: (1)
whether the Illinois long-arm statute grants jurisdiction; and (2) whether this court’s assertion of
jurisdiction is consistent with the Illinois and United States Constitutions. RAR, Inc.,107 F.3d at
1276. Because the Illinois statute authorizes “jurisdiction on any other basis now or hereafter
permitted by the Illinois Constitution and the Constitution of the United States”, see 735 ILCS
5/2-209(c), these considerations collapse into two constitutional inquiries — one state and one
federal. RAR, Inc.,107 F.3d at 1276.

B. State and Federal Analysis

1, The State Inquiry

The Illinois Supreme Court has indicated that when exercising jurisdiction over a
nonresident defendant, the Illinois courts go beyond federal due process guarantees and the
“literal textual descriptions” in the Illinois long-arm statute. Rollins v. Ellwood, 141 Ill.2d 244,
274 (1990). The Illinois Supreme Court reasoned that “[jJurisdiction is to be asserted only when
it is fair, just, and reasonable to require a nonresident defendant to defend an action in Illinois,

considering the quality and nature of the defendant’s acts which occur in Illinois or which affect


nonresident defendant, include the parties’ negotiations, the future consequences contemplated
by the parties, the terms of any contracts at issue, and the parties’ actual course of dealings.
Burger King, 471 U.S. at 479.

This court first examines Hawk’s minimum contacts with Illinois for evidence of
“purposeful availment” and if Bassett’s causes of action arise out of or relate to Hawk’s
minimum contacts. Because Bassett’s claims relate to his workplace injury, the court examines
Hawk’s contacts with Illinois in the context of Bassett’s injury that occurred on the job and its
consequences.

Bassett filed a worker’s compensation claim after he was exposed to toxic substances
while working as a plant manager at the Springfield, Illinois, Sinterloy plant. An Illinois attorney
filed an appearance with the Industrial Commission of Illinois on behalf of “Hawk/Sinterloy” in
the worker’s compensation case pursuant to the IHinois Workers’ Compensation Act and
Occupational Diseases Act. After the parties held negotiations, the Hawk/Sinterloy attorney sent
Bassett’s attorney a letter with an executed Settlement Contract Lump Sum Petition and Order
(“Contract”) and a Worker’s Compensation Settlement Agreement (“Agreement”). The Contract
lists “Hawk/Sinterloy” as Bassett’s “Respondent/Employer.” The Settlement Agreement
unequivocally lists Hawk, not Sinterloy, as the “Respondent/Employer.” The check that
Fireman’s Fund, Hawk’s insurer, issued as part of the settlement Agreement and Contract listed
Hawk, not Sinterloy, as the insured.

Viewing these contacts with Illinois in a light most favorable to Bassett, this court
concludes that Hawk’s participation in the negotiations and settlement of Bassett’s worker’s

compensation claim satisfy the minimum contacts requirement. Hawk’s contacts with Illinois are


Order Form (06/97)

United States District Court, Northern District of Illinois

Ni f Assigned Jud, ; Sitting Judge if Othe
soe Magistrate Judge Blanche M. Manning than Assigned Judge
CASE NUMBER 01 C 3141 DATE August 13, 2002
CASE Bassett v, Sinterloy Corp., and Hawk Corp.
TITLE

MOTION:

[Ln the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the

nature of the motion being presented.}

Defendant Hawk’s Motion to Dismiss/Defendant Hawk’s Motion for Summary Judgment

DOCKET ENTRY:

(i) im) Filed motion of [ use listing in “Motion” box above.]

(2) Qo Brief in support of motion due

(3) im Answer brief to motion due___. Reply to answer brief due___.

4) oO Ruling/Hearing on setfor__ at

(5) o Status hearing[held/continued to] (set for/re-set for] on__ set for at

(6) a Pretrial conference{held/continued to] [set for/re-set for] on setfor at.

() Q Trial[set for/re-set for] on at

(8) Oo [Bench/Jury trial] [Hearing] held/continued to_ at

9) im} This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OO FRCP4(m) OGeneral Rule 21 OFRCP41(a)(1) © FRCP41(a)(2).

(10) @ [Other docket entry] Defendant Hawk’s motion to dismiss for lack of personal jurisdiction [21-1]

is DENIED. Hawk’s motion to dismiss Count II of the Amended Complaint [21-1] is GRANTED.

a)

Z [For further detail see order attached to the original minute order]

No notices required, advised in
open court.

No notices required. swumber of notices

Notices mailed by judge’s staff.
Notified counsel by telephone.
Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magisteate judge.

courtroom
deputy’s
initials

RTS

Date/time received in
central Clerk's Office

sailing deputy initials



admitted omission.

The Seventh Circuit recently reiterated the well-established principle that if a party is not
named in an EEOC charge, it cannot be sued under the federal discrimination laws. See Olsen v.
Marshall & Isley Corp., 267 F.3d 597, 604 (7th Cir. 2001); see also 42 U.S.C. § 2000e-5(f)(1).
Specifically, the Olsen court held that if a parent organization is not named in a plaintiffs EEOC
charge, the parent must be dismissed from the suit unless the plaintiff can show: (1) the parent
had notice of the claim against it; and (2) the parent had the opportunity to conciliate on its own
behalf. Olsen, 267 F.3d at 604.

The issue here, then, is whether Bassett has presented sufficient evidence to create a
genuine issue of material fact as to whether: (1) Hawk had adequate notice of Bassett’s claim
against it; and (2) Hawk passed upon an opportunity to conciliate the EEOC claim on its own
behalf.

1. Notice

Bassett must establish more than that Hawk had notice of the EEOC charges against
Sinterloy, he must show that Hawk had notice that it was subject to suit. See Olsen, 267 F.3d at
604; see also Bright v. Roadway Servs., Inc., 846 F.Supp. 693, 697 (N.D. Ill. 1994) (decisive
factor in determining if unnamed parent company is proper party is whether the parent had notice
that it, not the subsidiary, was subject to the lawsuit).

Bassett does not provide specific facts supported by evidence that Hawk had notice that it
was subject to the ADA claim. Instead, Bassett contends that because Sinterloy is Hawk’s
wholly owned subsidiary, the court would be “splitting hairs” to conclude that Hawk did not have

notice of the EEOC charges against Hawk itself. However, Bassett cannot rest solely on the

il


Therefore, it is in the interest of judicial economy that this claim be heard in this forum. See
Asahi Metal, 480 U.S. at 113; In re Oil Spill by the Amoco Cadiz, 699 F.2d 909, 917 (7th Cir.
1983),

This court concludes that its exercise of personal jurisdiction over Hawk is reasonable
and fair under the federal due process clause. Therefore, Hawk’s motion to dismiss pursuant to
Rule 12(b)(2) is denied.

IV. MOTION FOR SUMMARY JUDGMENT

A. Standard

Summary judgment is appropriate when the “pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Carrett, 477 U.S. 317, 322-23 (1986). The court
must evaluate the admissible evidence supporting the motion in a light most favorable to the
nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The party
opposing the summary judgment motion “may not rest upon the mere allegations or denials of
the adverse party’s pleading”; rather, it must respond with “specific facts showing that there is a
genuine issue for trial.” Fed. R. Civ. P. 56(e).

B. Analysis

Hawk argues that because Bassett did not list Hawk on his EEOC charge, Bassett cannot
bring the present ADA claim against it. The parties do not dispute that Bassett listed only
Sinterloy, not Hawk, on his EEOC charge. Therefore, the issue before this court is whether

Bassett’s suit against Hawk for alleged violations of the ADA can proceed despite Bassett’s

10


Burger King, 471 U.S. at 476; International Shoe, 326 U.S. at 316.

Factors which courts consider when determining the reasonableness of exercising
personal jurisdiction over a nonresident defendant, include the state’s interest in providing a
forum to the plaintiff, the burden of defense on the defendant, the burden of prosecution
elsewhere on the plaintiff, the extent to which the claim is related to the defendant’s local
activities, and avoidance of a multiplicity of suits. See Asahi Metal Indus. Co. v. Superior Court
of California, 480 U.S. 102, 115 (1987).

a. Minimum Contacts

Because Hawk does not directly employ anyone in Illinois or own real estate or maintain
an office in Illinois, this is not a general jurisdiction case. See RAR, Inc., 107 F.3d at 1277
(general jurisdiction appropriate when party has continuous and systematic general business
contacts with Illinois). Instead, Bassett’s claims relate to Hawk’s contacts with Illinois in the
context of Bassett’s workplace injury, making this a specific jurisdiction case. See id. Specific
jurisdiction applies when the court asserts jurisdiction over a defendant in a suit “arising out of or
related to the defendant’s contacts with the forum.” Helicopteros Nacionales de Columbia y.
Hall, 466 U.S. 408, 414 n.8 (1984).

In other words, to exercise specific jurisdiction, the plaintiff's cause of action must arise
out of or be related to the defendant’s minimum contacts with the forum state. See RAR, Inc.,107
F.3d at 1277. “Crucial to the minimum contacts analysis is showing that the defendant ‘should
reasonably anticipate being haled into court’ [in the forum state] because the defendant has
‘purposefully avail[ed] itself of the privilege of conducting activities there.’” Jd. (citations

omitted). Factors that indicate purposeful availment making litigation in a forum foreseeable to a


allocates the cost of administering these services and overhead to its subsidiaries on a per use
basis.

B. Arthur Bassett

Sinterloy hired Bassett in May of 1998 as a maintenance mechanic. In October of 1998,
Bassett was diagnosed with restrictive airway disease and occupational asthma. At that time,
Bassett was working as a plant manager for Sinterloy in Springfield, Illinois, where he was
allegedly exposed to toxic substances. Consequently, Bassett filed a worker’s compensation
claim.

On January 31, 2000, an attorney from an Illinois law firm filed an appearance with the
Industrial Commission of Illinois on behalf of both Hawk and Sinterloy in Bassett’s worker’s
compensation claim under the Illinois Workers’ Compensation Act and Occupational Diseases
Act. On January 22, 2001, after the parties negotiated a settlement, the Illinois attorney
representing Hawk and Sinterloy mailed Bassett’s attorney a letter with an executed Settlement
Contract Lump Petition and Order (“Contract”) and a Worker’s Compensation Settlement
Agreement (“Agreement”), The Contract listed “Hawk/Sinterloy” as Bassett’s employer. The
Agreement listed only Hawk as the employer. The Agreement was approved by Fireman’s Fund,
Hawk’s insurer, and on January 31, 2001, Fireman’s Fund issued Bassett a settlement draft for
the lump sum settlement portion of the worker’s compensation claim. Hawk was listed as the
sole insured on the draft.

In September of 1999, Bassett filed a complaint with OSHA, alleging various workplace
violations. On February 8, 2000, Bassett requested that he be reassigned because of his

disability. Three days later, Sinterloy denied Bassett’s request and terminated his employment.


presented any evidence that Hawk had notice of the ADA claim against it and that Hawk had the
opportunity for conciliation. Therefore, the court grants the defendant’s motion for summary
judgment and dismisses the ADA claim, Count II of the Amended Complaint, against Hawk.
Vv. CONCLUSION

For the foregoing reasons, Hawk’s motion to dismiss for lack of personal jurisdiction [21-
1] is DENIED and Hawk’s motion to dismiss Count II of the Amended Complaint [21-1] is

GRANTED.

ENTER: Blank. Mh MWe surg

BLANCHE M. MANNING
U.S. DISTRICT COURT © (DOE

pate; &/3-GA

14


for summary judgment as to the ADA claim against it, Count II of the Amended Complaint, is
granted.
L BACKGROUND’

A. Hawk and Sinterloy

Hawk is a Delaware corporation maintaining its principal place of business in the State of
Ohio. Hawk is the parent company of Sinterloy and two other subsidiaries in the State of Illinois,
all of which are incorporated in Delaware. Hawk and Sinterloy maintain separate facilities,
corporate records, and bank accounts. Hawk does not have a payroll or directly employ anyone
in Illinois. Hawk does not own real estate or maintain an office in Illinois.

Hawk and Sinterloy’s officers and directors overlap. From February 1998 to February
2000, the Board of Directors of Hawk and Sinterloy were the same individuals. With the
exception of Sinterloy’s President, the officers of Hawk and Sinterloy were also the same.

On a daily basis, Hawk provides Sinterloy with operating loans through a main
concentration account in the name of Hawk Corporation. Sinterloy borrows from or pays back
the concentration account on a daily basis, but does not execute a new demand note with each
loan. Sinterloy uses these monies for daily operations.

Hawk also provides administrative services to Sinterloy. These services include

professional insurance, medical benefits, life insurance, and a 401(k) retirement plan. Hawk

2 This court may consider matters outside the pleadings, such as affidavits and other
materials submitted by the parties, when determining a motion to dismiss for lack of personal
jurisdiction. See Fed. R. Civ. P. 12(b); Mcllwee v. ADM Indus., Inc., 17 F.3d 222, 223 (7th Cir.
1994). In addition, the court treats Hawk’s second motion as one for summary judgment under
Fed. R. Civ. P. 56, Therefore, the background section is based on the pleadings and outside
materials submitted by Hawk and Bassett, including the parties Local Rule 56.1 statements. See
Schultz v. Serfilco, Ltd., 965 F.2d 516, 519 (7th Cir, 1992).

2


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
ARTHUR BASSETT, )
)
Plaintiff, )
) The Hon. Blanche M. Manning
v. )
) Case No. 01 C 3141
SINTERLOY CORPORATION, a Delaware _)
corporation, and HAWK CORPORATION, )
a Delaware corporation, )
Defendants. ) nse
) ‘D

4% 7 & 2009
MEMORANDUM AND ORDER

Plaintiff Arthur Bassett brought this action against Hawk Corporation (“Hawk”) and its
wholly owned subsidiary, Sinterloy Corporation (“Sinterloy”), pursuant to the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., alleging that Sinterloy and Hawk
discriminated against him based on his disability. Also, Bassett alleges retaliatory discharge
claims against both Sinterloy and Hawk based on his filing of a worker’s compensation claim
and a complaint with the Occupational Safety and Health Administration (“OSHA”).

Defendant Hawk brings the present motion to dismiss based on this court’s lack of
personal jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2). Hawk also moves to dismiss the ADA
claim against it pursuant to Fed. R. Civ. P. 12(b)(6) for failure to a state claim. In the alternative,
Hawk moves for summary judgment pursuant to Fed. R. Civ. P. 56.' For the following reasons,

Hawk’s motion to dismiss based on lack of personal jurisdiction is denied, and Hawk’s motion

' Because Bassett did not comply with the “safe harbor” provisions under Fed. R. Civ. P.
11(c)(1)(A), this court will not consider Bassett’s request for sanctions. See Divane v. Krull
Elec. Co., Inc., 200 F.3d 1020, 1026 (7th Cir. 1999); Corley v. Rosewood Care Ctr., Inc., 142
F.3d 1041, 1057-59 (7th Cir. 1998).


parent-subsidiary relationship to demonstrate that Hawk had adequate notice that the EEOC
charges were also against it. See, e.g., Schnellbaecher v. Baskin Clothing Co., 887 F.2d 124,
126-27 (7th Cir. 1989).

Without citing any controlling legal authority, Bassett contends that Hawk and Sinterloy
overlap to the extent that notice for one fulfills the requirements for both corporations. In
support of his argument, Bassett points to Hawk and Sinterloy’s overlap in officers, directors,
and its lending practices. In Bassett’s EEOC charge, however, there is no mention of Hawk or
any of Hawk’s overlapping officers, directors, or lending practices, There is nothing in the
charge that would implicate Hawk in any way — the charge does not allude to Hawk or its
directors or officers. Compare Eggleston v. Chicago Journeymen Plumbers Local Union, 657
F.2d 890, 906 (7th Cir. 1981) (EEOC charge clearly complained of discriminatory conduct by
labor organization committee as well as labor organization itself), Therefore, the fact that there
is overlap between the two corporations does not fulfill the requirement that Hawk had notice
that it was subject to the ADA claim.

Besides self-serving allegations without factual support, Bassett does not provide any
evidence indicating that Hawk was put on notice that the ADA claim was against it. Bassett’s
statements alone cannot create a genuine issue of material fact for trial. See Albiero v. City of
Kankakee, 246 F.3d 927, 933 (7th Cir. 2001); see also Drake v. Minnesota Mining & Mfg. Co.,
134 F.3d 878, 887 (7th Cir. 1998) (Rule 56 requires more than a bald assertion of the general
truth of a particular matter — it requires affidavits that cite specific concrete facts establishing the
existence of the truth).

As such, viewing the facts in a light most favorable to Bassett, his unsubstantiated

12