70 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 1 of 267 1 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS JONESBORO DIVISION 2 3 4 CORNELIUS BENNETT, SYLVESTER ROGERS, RODNEY WASHINGTON, CLIFTON LEE, SR., OZZIE GREEN AND LARRY MCBRIDE, 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Plaintiffs, v. No. 3:04CV00291 SWW NUCOR CORPORATION and NUCOR-YAMATO STEEL COMPANY, L.P., Defendants. October 20, 2009 Jonesboro, Arkansas 9:05 a.m. TRANSCRIPT OF TRIAL, VOLUME 2 BEFORE THE HONORABLE SUSAN WEBBER WRIGHT, UNITED STATES DISTRICT JUDGE, and a jury APPEARANCES: On Behalf of the Plaintiff: MR. ROBERT L. WIGGINS, JR., Attorney at Law MS. ANN WIGGINS, Attorney at Law MR. CHARLES MICHAEL QUINN, Attorney at Law MS. SUSAN DONAHUE, Attorney at Law Wiggins, Childs, Quinn & Pantazis, LLC 301 19th Street North Birmingham, Alabama 35203 On Behalf of the Defendants: MR. PAUL D. WADDELL, Attorney at Law Barrett & Deacon, P.A. Post Office Box 1700 Jonesboro, Arkansas 72403-1700 MR. JEFF S. MAYES, Attorney at Law MR. JOHN K. LINKER, Attorney at Law MS. LISA M. GUERRA, Attorney at Law Alaniz & Schraeder, L.L.P. 2500 City West Boulevard, Suite 1000 Houston, Texas 77042 Proceedings reported by machine stenography and displayed in realtime; transcript prepared utilizing computer-aided transcription. Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 71 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 2 of 267 I N D E X 1 2 3 WITNESSES FOR PLAINTIFFS: Direct Cross Redirect Recross 4 RODNEY WASHINGTON 101 160 205 218 5 OZZIE GREEN 219 263 304 321 6 7 EXHIBITS: RECEIVED 8 Court's Exhibit 1................................P. 9 Plaintiffs' Exhibit 37...........................P. 137 10 Plaintiffs' Exhibit 86-A.........................P. 149 11 Plaintiffs' Exhibit 100..........................P. 217 12 Defendants' Exhibit 380..........................P. 181 13 Defendants' Exhibit 56...........................P. 265 14 15 16 17 18 19 20 21 22 23 24 25 Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 87 72 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 3 of 267 1 (Proceedings continuing in open court, jury not present.) 2 THE COURT: Please sit down. We are missing a juror, 3 and the juror is No. 7, {Redacted}. And for the record, 4 Mr. {Redacted} is the only African-American juror on the panel. 5 Yesterday when Court recessed, Mr. Miller, our court security 6 officer, told me that Mr. {Redacted} said he had transportation 7 problems and would bring some clothes with him to Jonesboro this 8 morning so he could take us up on our offer to put him up in a 9 hotel. And I was -- I had set in motion the process of getting 10 approval to house Mr. {Redacted} at government expense in a 11 hotel here in Jonesboro. 12 transportation to and from the courthouse because there really 13 are no hotels within walking distance. 14 And we had even discussed And this morning Mr. {Redacted} has not shown up. All of 15 the other jurors are here. 16 security officer, had a phone number Mr. {Redacted} had dialed 17 from Leo Miller's telephone yesterday. 18 number. 19 be his brother, and the brother said -- 20 21 Luckily, Mr. Miller, our court So he called that Mr. {Redacted} had borrowed the phone. It happened to And, Leo, will you tell them what the brother said. THE COURTROOM SECURITY OFFICER: The brother related 22 that Mr. {Redacted} caught a ride this morning, and his ride was 23 supposed to have left at two hours prior, about 7:00 o'clock, 24 coming from Mississippi County. 25 Johnny, knew that Mr. {Redacted} was supposed to be here by And he knew -- the brother, Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 73 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 4 of 267 1 9:00 o'clock, but as I checked last at 9:01, Mr. {Redacted} was 2 not here. 3 So as to where he is in that travel, we have no idea. THE COURT: I wanted to tell you-all what the situation 4 is. 5 appear. 6 decide what kind of motions they are going to make when I excuse 7 Mr. {Redacted} and continue the trial without him, as I told you 8 I would do yesterday. 9 10 The Court will wait until 9:30 for Mr. {Redacted} to I am announcing this to the plaintiffs so they can Okay. (Recess at 9:09 a.m., until 9:13 a.m.) THE COURT: Good morning. This is the time that the 11 lawyers make their opening statements to the jury. 12 proper for a lawyer to argue the case. 13 the trial for argument, but this is the chance for the lawyer to 14 tell what the lawyer believes the evidence will be and what the 15 evidence will prove. 16 proof, the plaintiff's attorney will go first. 17 We wait until the end of Because the plaintiffs have the burden of Mr. Quinn, are you addressing the jury? 18 MR. QUINN: Yes, Your Honor. 19 THE COURT: You may begin. 20 MR. QUINN: Thank you, Your Honor. 21 22 Good morning. First let me introduce again the plaintiffs in this case, and as I -- 23 as you are called, if you would just stand. 24 Sitting at counsel table Rodney Washington. 25 It is not Then back on the first row we have Cornelius Bennett, Sylvester Rogers, Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 74 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 5 of 267 1 Clifton Lee, Sr., and Ozzie Green, and Larry McBride. 2 the six plaintiffs who worked here. 3 These are This is Nucor-Yamato Steel's plant site, and you will 4 notice there are two buildings. Well, there weren't always two 5 buildings. 6 1988. 7 The period of time for this lawsuit begins then, and it carries 8 through until at least 2005. 9 gentlemen as they were hired, and they weren't all hired at the Building No. 1, which is here, was built in around Building No. 2, here, around 1991, finished around 1992. And the lawsuit is about these 10 same time. 11 to work in the first building. 12 second building. 13 day they walked into the plant and every day that they came to 14 work that they were not respected and that they were subjected 15 to a hostile environment. 16 They were hired at different times. Some were hired Some were hired to work in the But every single one of them noticed from the We expect the evidence to show that first off, in Building 17 No. 1, when the hiring began, even though this is in Blytheville 18 where there is a pretty high black population rate, there were 19 very few, if any, blacks even working in Building No. 1. 20 also noticed when the people were started to be hired for 21 Building No. 2, same thing. 22 Community spoke out. 23 company felt pressured to hire more blacks, something they 24 weren't doing. 25 Very few blacks. It was Things were said. Even the government spoke out, and this Shortly after that pressure, two employees, maybe more, Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 75 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 6 of 267 1 built a cross, doused it, caught it on fire, put hoods on their 2 heads, and walked through Building No. 1, setting the tone, we 3 expect the evidence to show, for what blacks were expected to 4 subject themselves to during the time that they worked at this 5 plant. 6 That was Sign No. 1. Sign No. 2, large confederate flags flying from cranes, 7 flying from stations at times. 8 is at this plant. 9 Another sign of what your place Even the company store got into the act, selling do-rags, 10 things to wear around your head while you work, that had the 11 Confederate flag on it. 12 pocket knives, and some will testify even mugs with Confederate 13 flags on them. 14 Other paraphernalia -- knives, these You will hear evidence that there were Confederate flags on 15 the toolbox that was used. 16 windows of some of the rooms. 17 sight every single day that these men worked, in one form or 18 another. 19 There were Confederate flags on the Confederate flag was a prevalent In addition to that, you will find that very early on they 20 started seeing graffiti in the bathrooms. "KKK" is the first 21 thing they remember. 22 "White man's washroom, black man's soup bowl." 23 beautiful, tan is grand, but white is the color of the big boss 24 man." 25 will hear that -- I am not going to attempt to tell you every They also remember jokes, jokes such as: The word "nigger" in the bathroom. "Black is Other jokes that you Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 76 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 7 of 267 1 single thing, but you will hear every single thing. 2 counted them. 3 something that continued. 4 I counted over 50 separate incidents. And I This was Now, I have set -- I have told you the evidence that sets 5 the tone. Well, the evidence will also show you that in this 6 plant the blacks that did work there, the few blacks that did 7 work there had the hardest and the most dangerous jobs and the 8 lowest paying jobs. 9 after this lawsuit was filed, some inroads were made, but not Finally, finally, 10 many. 11 less dangerous, and higher paying jobs, and had all the 12 supervisor jobs. The blacks were segregated off by themselves 13 from the whites. You will hear that testimony. 14 adds to the atmosphere in this plant. 15 Very few. And this continued. The whites on the other hand had the easier, And so that too You will also hear from Mike Dugan, their own witness 16 sitting at counsel table, there was no written harassment 17 policy, racial harassment policy, no policy, and there was no 18 training. 19 tone set in 1991-'92 and then you have this continuing 20 throughout the plant, throughout the time that these gentlemen 21 worked there. So you have a plant, you have no policy, you have the 22 You will hear that, in addition to the Confederate flags 23 that were constantly there, that during the day communication 24 was by radio. 25 this was both Plants 1 and 2. They would talk to each other over a radio, and And you could flip it and you Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 77 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 8 of 267 1 could talk to somebody in 1 and be in 2 or vice versa. 2 there were constant conversations over this radio. 3 hear that supervisors and co-employees alike did not mind saying 4 "lazy nigger," "black ass," "monkey" as just a few examples of 5 how they would address or refer to black employees in the 6 workplace over this radio constantly. 7 And that And you will You will also learn that in addition to that constant -- 8 Confederate flags and the radio -- comments and other actions by 9 both co-employees and supervisors alike, of which I will just 10 give you a few examples. 11 Sylvester Rogers for you. 12 testify that at one point in time he found a chicken hanging 13 from a noose. 14 he was told he needed a noose around his neck and he could get a 15 hanging. 16 One employee -- I have identified Well, Sylvester Rogers is going to Now, that wasn't all. In addition to seeing it, One example. Rodney Washington, within a year or so of his employment, 17 in around '94, had already seen KKK in the bathroom, carved, but 18 went in one day and it was painted with red paint. 19 it. 20 to him and said, "Go clean it up." 21 into the bathroom and cleaned up, because he was ordered to, the 22 graffiti. 23 the fact that it was being cleaned up, but he will also tell you 24 how it made him feel to be the one that had to clean it up. 25 Just another example. He reported A few days later, maybe a week or so, his supervisor came And so Mr. Washington went Now, I am sure he will tell you that he appreciated Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 78 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 9 of 267 1 The things that happened in this plant, the evidence will 2 show you, are something that no human being should have to put 3 up with. 4 hanging dummy at one point. 5 point. 6 of the "N" word and with others. 7 We had constant racial slurs, every day. We had a We had a hangman's noose at one We had constant referring to the employees with the use Another example, and Rodney Washington will tell you about 8 this example, when he ran up into one of the rooms to do some 9 work. It was Martin Luther King day. He will testify to you 10 that there had already been comments made about the fact that 11 some had wanted Martin Luther King day to be a holiday, but it 12 wasn't. 13 didn't work with on a regular basis, one of the gentlemen said 14 to him, "Hey, it's Martin Luther Coon day." 15 tell you how that made him feel. 16 immediately, that he went down, that he went to his work crew 17 who he had been having problems with, and he looked at them and 18 he said, "Is this what all of you think of me? 19 think of me?" 20 because he didn't know what he could do, which brings me to this 21 part. 22 And as he walked into this area where there were men he Mr. Washington will He turned and he left Is this what you And then he went off by himself and he cried I have already told you the evidence will show there was no 23 policy, but that didn't keep these men from complaining. 24 men did complain. 25 don't like this. These These men did speak up, and they did say, "I This shouldn't happen." But the evidence will Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 79 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 10 of 267 1 show you that very seldom was anything at all done and, if 2 something was done, it was minimal. 3 The evidence will also show you that never until years 4 after the lawsuit -- and I am not -- I think now maybe not, but 5 never did they stop selling the merchandise, having the do-rag 6 at the store. 7 found their workplace even more difficult. 8 scrutinized. 9 being reprimanded because his goggles had fogged up. And that these gentlemen, after complaining, They were You will hear one example of one of the plaintiffs You will 10 hear them tell you that after complaining, they couldn't do 11 anything without being scrutinized. 12 Now, I expect that what the defendants will do in this case 13 is to tell you they were poor employees, they were disciplined, 14 they deserved the disciplines. 15 evidence will show these gentlemen were scrutinized after they 16 complained. 17 to stop the harassment, they turned on these plaintiffs. 18 will hear that the harassment was so prevalent, so severe that 19 everybody knew that it was going on. 20 it was going on. 21 The supervisors were told it was going on, but many of them 22 didn't have to be told that it was going on because they were 23 doing it. 24 absolutely no doubt that the evidence will show you that 25 everybody knew what was going on in that plant. I submit to you that the Rather than the company taking appropriate action You The co-employees knew that The supervisors knew that it was going on. And they knew what they were doing. There is Even the Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 80 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 11 of 267 1 2 company -- even the plant manager. And again, Rodney Washington will tell you that it got so 3 bad and he became so frightened of losing his job that he 4 decided to bring a tape recorder to tape a conversation with his 5 supervisor. 6 already come in to him once and told him that one of the lead 7 men that he had to answer to, Mr. Despain, had a problem with 8 him because he was black. 9 Mr. Washington that he was referring to him as a "lazy ass The evidence will be that this supervisor had And the supervisor told 10 nigger." 11 Mr. Washington knew that his supervisor knew this. 12 the supervisor what was he going to do, nothing having been done 13 except that at this point in time Mr. Washington gets accused of 14 insubordination against this very same lead man, is when he 15 decides to tape. 16 Mr. Despain has called him a "lazy ass nigger" and a "dumb ass 17 nigger." 18 and he goes home and he comes back a day or two later and he is 19 confronted by his supervisor. 20 tape, bring it up here now, or you are fired." 21 Mr. Washington already knew this, but now And he asked And he gets on tape his supervisor saying that He has got the tape. And he does. He tells them he has the tape They tell him, "Go home, get that And he brings the tape up and they go and 22 they listen to it. The supervisor and that supervisor's 23 supervisor and Mr. Washington listen to the tape and, sure 24 enough, it says what Mr. Despain has been calling him. 25 looked at each other -- and this testimony is coming from Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter They 81 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 12 of 267 1 Mr. Washington -- and they decide that they have got to go to 2 the plant manager, Mr. Dimicco. 3 they go to the plant manager and they play the tape to the plant 4 manager. 5 know that the problem Mr. Despain has with you is that you are 6 black, Mr. Washington, and that he refers to you as a 'dumb ass 7 nigger' and as a 'black nigger.'" 8 after knowing that, first thing that happens, Mr. Washington 9 asks for the tape back. 10 And so they take the tape and And the plant manager hears the supervisor say, "I The evidence will be that "No, you can't have the tape back." Second thing that happens, as far as he knows and as far as 11 he is told, is nothing. 12 going to have to work with Mr. Despain and he is not going to 13 have to work with his supervisor again, but that doesn't happen. 14 He continues to work with both. 15 you will hear what happened to him after they know he has 16 reported them and he still has to work with them. 17 learn that never, at any time during any of the proceedings in 18 this case, has the tape been produced. 19 know where the tape is. 20 plant manager, what was going on, all of this time, and the 21 evidence will be that nothing was done. 22 Now, he is promised that he is not And his testimony will be and You will also To this day we don't So they knew, all the way up to the You will hear the evidence from the plaintiffs; you will 23 hear the defendant's evidence. At the conclusion of all of the 24 evidence, you are going to be asked by us to return a verdict 25 for these gentlemen and to give them back the dignity that they Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 82 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 13 of 267 1 lost while they were working there and that they still to this 2 day have trouble getting back an understanding why, in this day 3 and time, in this society, that kind of conduct has to be put up 4 with. 5 Thank you. THE COURT: I'm not able to see that. 6 what you are showing? 7 Yeah, it's working. 8 MR. WADDELL: 9 THE COURT: Oh, it's on the screen. Can you tell me I have got it. Isn't technology great, Judge? Yeah. Would you do me a favor and adjust 10 that screen a little bit so it doesn't block my view of the 11 courtroom quite as much? 12 the side. 13 14 15 MR. WADDELL: Can you -- just let me look at it from We have got the projector set at an angle too, so -THE COURT: Oh, okay. In the future I like to be able 16 to see people in the courtroom, and I can't. 17 off this time, but for the trial -- 18 MR. WADDELL: 19 THE COURT: 20 MR. WADDELL: 21 22 We will move it back. So I will let you We sure will. Would you-all like a short break? That probably would help, Judge. We apologize. THE COURT: They're having trouble apparently with the 23 technology. Court will be in recess until they are ready. 24 Leave your notes in your chairs. 25 issues in the case until the end of the trial. Keep an open mind on the Don't discuss Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 83 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 14 of 267 1 this case in any way among yourselves or within hearing of 2 anyone discussing the case. 3 get this stuff working. Court will be in recess until they 4 Thank you. 5 (Recess at 9:42 a.m., until 9:49 a.m., jury not present.) 6 7 Court is in recess. THE COURT: All right. objection. 8 MR. WIGGINS: 9 THE COURT: 10 I understand there is an Yes, Your Honor. I'm going to sit right here to watch this. MR. WIGGINS: I asked during the break why do we need 11 the technology because the only thing I understood was going to 12 be shown was the plant picture. 13 going to show an exhibit. 14 racial harassment policy, and they say that we failed to list an 15 objection to that. 16 they say we didn't. 17 THE COURT: 18 MR. WIGGINS: 19 THE COURT: 20 MR. WIGGINS: Mr. Waddell said, no, they were And they say it's the exhibit of a We believe we have listed the objection, but Regardless of that -What Exhibit No. is it? 379. 379 says "no objection" on my list. And Ms. Donahue says that is a mistake. 21 She clipped the wrong one to the file when she sent it. 22 said yesterday -- when you said something about stipulated 23 exhibits, I said, "I don't know what you mean by stipulated 24 exhibit, but we don't want any exhibit referred to until it is 25 offered in evidence and it comes in through a witness." Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter But I And 84 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 15 of 267 1 2 then we moved on. THE COURT: Well, I thought -- I had received all 3 exhibits to which you have stipulated. 4 defendants stipulated to some of yours, and I thought you had 5 stipulated to the defendants' by listing these objections. 6 These are not stipulations? 7 MR. WIGGINS: Now, I know that the We did not understand those to be treated 8 that way. We thought they were preserving objections to be made 9 when the document was tendered and a witness on the stand. We 10 did not understand that to be a stipulation. But you began to 11 refer to it that way, and that's when I asked the question, 12 "Well, that doesn't mean that they're going to have it in front 13 of the jury before a witness has sponsored it and it has been 14 explained." 15 As you recall, Your Honor, we filed a motion last week 16 laying out the very -- the dispute over this particular exhibit, 17 and Mr. Dugan and other of their witnesses have testified there 18 is no racial harassment policy in writing. 19 document has popped up in this case. 20 it doesn't need to be in the opening where the jury is going to 21 think that, just because there is a piece of paper that has 22 floated into the courtroom, that that's evidence. 23 intend by any stretch to stipulate to that exhibit, as evidenced 24 by our motion last week. 25 THE COURT: But now this It needs explaining, but We did not Would you like to respond? Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 85 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 16 of 267 1 MR. WADDELL: Your Honor, we exchanged objections to 2 exhibits, I think Your Honor referred to. 3 to. 4 which include the harassment policy. 5 parsing words that says "no racial harassment policy." 6 never said there is a racial harassment policy. 7 global harassment policy. 8 point to derail a PowerPoint presentation because we have it in 9 our PowerPoint and it's an exhibit. 10 It was not objected Yesterday the Court received exhibits without objection, THE COURT: Now, Counsel is again We have There is a This is simply an effort at this I am going to let you use it for the 11 following reasons. 12 stipulated to were received as long as they were referenced at 13 some point in the trial or otherwise not confusing to the jury. 14 I didn't mean to misspeak. 15 well with Mr. Wiggins; however, we do have this list to which 16 there are no objections to exhibits. 17 18 First of all, I said that exhibits that were I was obviously not communicating And I -- the list is here, Ms. Donahue, and I am sorry that you made a mistake. 19 MS. DONAHUE: 20 THE COURT: All right. But this is here, they relied on it, and I 21 think I am entitled to rely on it. 22 provided to the Court. 23 may, but he is going to be able to use this policy. 24 25 This is something you have If you would like to correct it, you Now, one thing he may not do is state inaccurately -- and I know Mr. Waddell. He is an officer of the Court. I don't think Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 86 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 17 of 267 1 he is going to state that this policy was something other than 2 what it was or was adopted at some time when it was not. 3 Now, is that correct? 4 MR. WADDELL: 5 6 I am simply going to refer to what the evidence will be in this case, Your Honor. THE COURT: Absolutely. I am not going to let you infer that it was 7 a policy that existed during the time of some of these 8 incidents. 9 You are going to have to say when it was adopted. MR. WADDELL: Well, our evidence, Your Honor, is this 10 policy has always been in place. 11 is the evidence, as we have always had this harassment policy. 12 THE COURT: 13 MR. WADDELL: 14 Since the mill was put into Blytheville, Arkansas, in 1988. THE COURT: 16 MR. WADDELL: 18 That How long has it been in writing? 15 17 It's not an inference. It has been a written policy since then? They have had a written harassment policy that has been posted on the company bulletin boards. THE COURT: All right. That's going to be your 19 evidence, and they can cross-examine. That's my ruling, and if 20 you are not stipulating to these exhibits, don't give me a piece 21 of paper that says you have no objection to them because, if you 22 have no objection, then that means to me that they are 23 stipulated to. 24 you-all practice in Birmingham, and this is a different circuit, 25 a different legal culture. That's what it communicates to me. And I know But I have been trying cases now for Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 87 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 18 of 267 1 almost 20 years, and this is the way I have always done it. 2 have always asked: 3 this exhibit, which I am going make -- in fact, I am going to 4 make this part of the record now, and it's entitled Plaintiffs 5 Objections to Defendants' Trial Exhibits. 6 plaintiffs' counsel, and Exhibit 379 to 380, no objection. Stipulate to exhibits to save time. MS. DONAHUE: Your Honor, could I -- 8 MR. WIGGINS: No. Your Honor, I do want to stress that is the exhibit we 10 moved in limine to exclude. 11 THE COURT: 12 no objection here. 13 limine motion. 14 15 That's fine. MR. WIGGINS: No. You say you had I think that was before. sure, but I think that was before. THE COURT: 17 MR. WADDELL: 18 THE COURT: 19 MR. WADDELL: 20 THE COURT: I am not That was about a week ago. Well, it's overruled. Anything more? No, Your Honor. Are you ready? I am ready, Your Honor. All right. 21 make this an exhibit, Cecilia. 22 THE COURTROOM DEPUTY: 23 exhibit not to go to the jury. 25 That's fine. I received this yesterday since the in 16 24 I have It is signed by 7 9 I Please bring the jury in, and Court's Exhibit 1, a trial (Court's Exhibit 1 received in evidence.) THE COURT: Because of the break, I anticipate we are Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 88 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 19 of 267 1 2 going to go right into the first witness without a break. If you-all -- Ms. Donahue, we will have a hearing 3 outside -- I am not taking up the jury's time. 4 some kind of hearing, if you want to bring up this and correct 5 this before someone else relies on it. 6 MS. DONAHUE: 7 THE COURT: 8 We will have I will do that. I am not telling you I will rule for you, but you need to make a record on it though. 9 MS. DONAHUE: Okay. 10 MR. WADDELL: If I have one other technical glitch, I 11 will go to paper and -- 12 13 Thank you. THE COURT: It is just slowing us down. (Jury enters the courtroom.) 14 THE COURT: Please be seated when you get to your 15 chairs. 16 Mr. Waddell will address the jury. 17 I believe the equipment is running now, and so MR. WADDELL: Good morning. The evidence in this case 18 will reveal that an employee at Nucor-Yamato Steel Company 19 referred to a foreign cafeteria worker as a "rag head," as a 20 "50-cent nigger." 21 was Plaintiff Clifton Lee. 22 That employee was disciplined. That employee The evidence in this case will be that an employee of 23 Nucor-Yamato Steel spoke out and said that to get black 24 employees to move along, throw a watermelon in the middle of the 25 group. That employee was disciplined. That employee was Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 89 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 20 of 267 1 Plaintiff Sylvester Rogers. 2 that there was an employee who made a comment to Plaintiff 3 Rodney Washington about "Martin Luther Coon Day." 4 the year 1995. 5 The evidence in this case will be His name was Todd Ellis. That was in He was disciplined. This case is about a hostile work environment and whether 6 or not one existed at Nucor. There are core questions that you 7 as jurors will have to ask throughout the course of this trial. 8 Did any of this conduct even happen? 9 that there was conduct, not to the degree claimed by these You will hear evidence 10 plaintiffs. Was the conduct that did occur racially motivated 11 or was it conduct participated in by plaintiffs and others? 12 this conduct random and isolated? 13 bottom, side to side, can't move away from it? 14 complained of conduct even experienced by each of these six 15 plaintiffs? 16 plaintiffs thought was offensive? 17 Nucor take action? 18 years of work life with Nucor. 19 claiming that they worked in a racially hostile work 20 environment. Was Or was it constant, top to Was the Did Nucor have notice of any conduct that these six If Nucor had notice, did These six plaintiffs represent a combined 74 They are now before this Court 21 Let me tell you a little about the Nucor facility because 22 you will see from the evidence one has to put it into context. 23 Nucor does, in fact, have two steel mills. These are separate 24 steel mills. It is NYS 1, is how 25 it is referred to. The first was built in 1985. The second steel mill was built across the Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 90 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 21 of 267 1 street in 1994. 2 were on a 750-acre campus. 3 that employees work within. 4 Mill 1 to the other end is a quarter of a mile. 5 enormous facilities. 6 It's NYS 2. Altogether, these two steel mills There is over 49 acres under roof For example, from one end of Nucor These are Nucor produces over 2 million tons of steel a year. It is a dirty place to work. It is 7 a hard place to work. 8 place that if you intend to work with Nucor, there is only one 9 requirement: Be ready to work hard. It is a I am going to give you an 10 illustration because, as of this point, you as jurors have not 11 heard any evidence. 12 lawyers think the evidence will be. 13 You have only been told a preview of what Let me show you this illustration. It's puzzle pieces. 14 You are not to decide this case on any one piece of evidence. 15 This case is not going to be handed to you for deliberation in a 16 matter of two days. 17 make up your mind and come to a conclusion in this case until 18 you have heard all of the evidence, not just pieces of it. 19 Nucor will not even have an opportunity to present its evidence 20 until late in this week and next week. 21 We will go into next week. You are not to It has been previewed to you that Nucor had no racial 22 harassment policy. That is not the evidence. Nucor has always 23 had a racial harassment policy. 24 policy. 25 posted conspicuously throughout the steel mills. It's called a harassment That's the rule at Nucor. This harassment policy is It's Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 91 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 22 of 267 1 communicated personally, as you will hear by the evidence, by 2 the general manager to each new employee that begins at Nucor. 3 Managers and supervisors have annual training on the prevention 4 of harassment, which they then take to safety meetings and crew 5 meetings for the hourly employees. 6 This is a comprehensive policy. 7 It's on the company intranet. 8 sexual orientation -- all of the protected categories. 9 rule. 10 That's the system at Nucor. It doesn't cover just race. It covers race, color, sex, Nucor doesn't stop there. It's the Nucor has an open door policy. 11 Each employee receives an employee handbook. 12 evidence that the harassment policy is not in the handbook. 13 That's correct. 14 company bulletin boards. 15 the employee handbook, which specifically tells in writing that 16 each employee is to look to the company bulletin boards for 17 important information. 18 You will hear The harassment policy is posted on all of the They will be introduced into evidence Nucor knows that it is the company bulletin boards and not 19 an employee handbook that is given on the day that employment 20 begins that will be referenced. 21 evidence will show you that at minimum an employee will be 22 expected to look at the company bulletin board at least one time 23 a week. 24 production bonus is posted on the employee bulletin board. 25 Why? How does Nucor know that? There is a money incentive. The Their weekly How does Nucor also know that its employees will be in the Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 92 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 23 of 267 1 vicinity and look at the company bulletin board? 2 meeting schedule is on the bulletin board. 3 attend. 4 The safety Mandatory. Must Employees likewise are told in writing through their 5 handbook that Nucor fosters an open door policy. It's referred 6 to in the handbook, this will be in evidence and you will have 7 an opportunity to read it for yourself, but it's referred to as 8 complaint procedures. 9 on what any employee is to do if he or she has an issue of any 10 type, and it gives each and every employee the opportunity to 11 talk to his or her supervisor or, if they choose to go all the 12 way to the top, to the general manager. And it goes step by step, item by item, 13 You will learn from the Nucor facility and the Nucor 14 climate that these employees, including the six plaintiffs and 15 all others, know who the management folks are. 16 every day. 17 practice of the general manager to walk each and every day 18 throughout these steel mills. 19 will be evidence presented to you showing time and time and time 20 again that not a single one of these six plaintiffs had any 21 problem whatsoever of talking directly to the general manager, 22 be it Dan Dimicco, be it Joe Stratman. 23 of example after example where these employees knew and had no 24 problem talking to the controller, Keith Prevost about a number 25 of issues. They see them They refer to them by their first name. It is the He knows the employees. There There will be evidence The open door policy of Nucor works Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 93 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 24 of 267 1 Let's talk about the workforce for a moment. Nucor has 2 hundreds of hourly production workers. Annual compensation is 3 anywhere from 80 to $120,000. 4 about there is one requirement that you need to have if you work 5 at Nucor? 6 pay is based on production bonus. 7 doesn't get out, the workers don't make good pay. 8 is team work. 9 other for their livelihood. Remember we talked a moment ago That is a work ethic. Work hard. 60 percent of the That means if the product The concept All employees, black and white, depend on each It works no other way. 10 Let me talk to you about the plaintiffs because the 11 evidence will show the plaintiffs are not your typical Nucor 12 employee. 13 with these six employees that have happened during their work 14 life: 15 major safety violations, physical outbursts, intimidating a 16 female cafeteria worker, verbal attack on a female roll clerk. 17 Your job as jurors is to follow the law in this case. Here are some examples of the disciplinary problems Sleeping on the job, threatening to kill a coworker, You 18 have not received the law yet. 19 hear them from this witness stand under oath and the documents 20 that are produced in this case and to decide the case based on 21 that evidence, applying it to the law as instructed by the 22 Court. 23 You are to take the facts as you It is important that you remember that we have six 24 plaintiffs in this case. 25 claims. Those are six separate and distinct You are to treat each of these six plaintiffs as though Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 94 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 25 of 267 1 2 they have six separate lawsuits. MR. QUINN: Judge, we are going to object to this line 3 of opening statement. 4 instruct the jury on and we are going to have to debate this and 5 discuss it. 6 7 8 THE COURT: This is the law, but you are going to I will direct counsel to talk about the evidence that will be in the case. MR. WADDELL: This means that each plaintiff's claim 9 will turn on their evidence. 10 MR. QUINN: Same objection, Your Honor. 11 THE COURT: All right. 12 MR. WADDELL: 13 14 15 16 17 Just -- That's fine, Your Honor. I will move past the law. THE COURT: You are instructing as to the law, and that's my job to do at the end of the trial. MR. WADDELL: That's fine. What are the plaintiffs claiming in this case? Well, there 18 are essentially four categories. They're going to present 19 evidence and make allegations of slurs, graffiti, jokes, racist 20 symbologies. 21 evidence, not innuendo and uncorroborated proof. You are to consider this case based on the 22 I am not permitted to talk about the display, and I am 23 going to flip through a slide, other than to tell you that there 24 will be necessary elements that the Court will instruct you on 25 and the Court will instruct you about burden of proof on the Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 95 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 26 of 267 1 part of these six plaintiffs. This case, through the evidence, 2 will require a description by these plaintiffs as to what they 3 personally claim that they experienced and how that personally 4 affected them. 5 reasonable interpretation of that evidence and those claims. This case, through the evidence, will require a 6 As I mentioned a moment ago, there are certainly instances 7 where there have been complaints from time to time by these six 8 employees. 9 will reflect that, in 18 years of employment, Mr. Bennett has 1 Let me show you an example of that. The evidence 10 reported complaint of offensive conduct to Nucor. 11 these other numbers. 12 years, 4; and McBride, 10 years, 2 reports; Rogers, 1 report in 13 9 years; Mr. Washington, 11 reports in 11 years. 14 events do not constitute a hostile work environment. 15 You can read Mr. Green in 12 years, 2; Mr. Lee, 14 When Nucor has notice, it takes action. Isolated Here are some 16 examples you will see from the evidence in this case. 17 Mr. McCorkle, a racial slur in 1994. 18 disciplined. 19 offensive language. You can go through the list. MR. WIGGINS: 21 ask him to take the slide down. 22 stricken. THE COURT: He was Terry Poole, Mr. Washington -- 20 23 It was reported. Your Honor, we are going to object and All the allegations have been I don't want to comment on the evidence or 24 on my prior rulings. I want counsel to remember that if the 25 Court excluded a document from evidence, it does not mean that Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 96 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 27 of 267 1 the Court is ruling that information reflected on the document 2 won't come in. 3 I did make some rulings that evidence would not come in. 4 was because of the timing that the evidence exhibits were 5 proffered, but I did not say that people couldn't testify as to 6 what they saw, heard, or experienced. 7 whether this is -- I mean, no one has brought up to me issues of 8 whether these instances will be the topic of testimony. 9 rules of evidence apply, but I just don't know. And so at this point, I overrule your objection. That So I really don't know The And I don't 10 think I ruled that information about these incidents would not 11 come in. 12 I think I just said the documentation wouldn't. Go ahead. 13 MR. WADDELL: Continue? 14 BY MR. WADDELL 15 Q 16 this case, and you will see examples we have on the screen of 17 when Nucor has notice, it takes action; Sylvester Rogers and 18 Clifton Lee included, two of your plaintiffs. 19 I was mentioning a moment ago what the evidence will be in Let me talk about the Confederate symbol. You have heard 20 plaintiffs' counsel indicate that the Confederate flag was at 21 Nucor from the minute these plaintiffs walked in and continued, 22 their representation, to present day. 23 The evidence is that, in 2001, a white employee, Bernice Gray, 24 who will offer testimony in this case, had as one of her 25 responsibilities a small company store that's on the Nucor That's not the evidence. Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 97 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 28 of 267 1 premises by the shipping department. And it was Bernice Gray 2 who noticed within an order of do-rags, what the gentlemen wear 3 under their hardhats, that mixed within that order were some 4 Confederate do-rags. 5 Stratman, the general manager, and said, "I don't think these 6 ought to be here." 7 totally agree. 8 people that we buy these things from don't put them back in our 9 orders. She brought that to the attention of Joe Mr. Stratman said, the evidence will be, "I Get rid of them, and let's be sure that our We don't want them here." Mr. Stratman will tell you 10 that he took an opportunity to then reinforce to his workforce, 11 "We're not going to have Confederate flags on our premises." 12 The Confederate flag symbol was prohibited from the premises. 13 Managers, supervisors took that message to crew leaders, to 14 safety meetings, and that was enforced and has continued to be 15 enforced. 16 With notice comes action. Mr. Stratman was serious about his message because, in 17 2004, the evidence will be that an employee by the name of 18 Terry McCulloch came to work one night, proud that his race car 19 had won over one co-employee's favorite race car driver, and he 20 hung a Confederate flag and a Nascar flag together. 21 employees didn't like that, and they complained. 22 who those employees were? 23 immediately said, "Our policy is you can't do that." 24 investigated, the flag was immediately taken down, and 25 Mr. McCulloch was suspended without pay for three days. They were white. Some Do you know The employees Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter It was 98 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 29 of 267 1 Mr. Stratman was serious about graffiti. The evidence will 2 be in this case that there are random complaints of graffiti in 3 the bathroom. 4 tell you if it was all racial or not." 5 saw some references to racial comments," and others will say, 6 "Don't know." 7 plaintiffs that have personal knowledge of graffiti was that 8 when it was reported, it was eliminated. 9 example, brought a racial graffiti remark to his supervisor's 10 attention and his supervisor said, Stop what you are doing and 11 by all means go down and get it off the walls. 12 wait until the end of the shift or sometime on your off time. 13 Do it now. 14 insulted him, but the evidence will be that Nucor immediately 15 took care of the problem when it was reported. 16 Many of the plaintiffs will tell you, "I can't Some will tell you, "I But the consistency that you will hear from the Mr. Washington, for He didn't say We anticipate Mr. Washington will tell that you they There will be confirmation from the plaintiffs that when 17 there were any random complaints and notice to Nucor of 18 graffiti, it was painted over. 19 happens when Nucor doesn't have notice? 20 evidence, can't do anything about it. 21 With notice comes action. What Nucor, without Mr. Lee, one of the plaintiffs in this case, will tell you 22 about a burning cross incident. You heard the description of 23 that a moment ago. 24 that event even occurred, based on the evidence. 25 tell you what the evidence is in the context of that complaint. You will have to conclude whether or not But we will Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 99 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 30 of 267 1 Mr. Lee, in the course of a disciplinary action, brought up that 2 he saw two white employees walking through the mill with a 3 burning cross seven years prior, didn't report it on the day it 4 happened, the week after it happened, the month or year after it 5 happened. 6 identified two white employees that didn't even work at Nucor 7 anymore. 8 not. 9 that he had no other evidence of a burning cross. 10 Seven years later, when he was being disciplined, he Nucor couldn't corroborate whether it had happened or Too much time had passed. Mr. Lee is going to tell you Without notice, there can be no action. 11 Sylvester Rogers, we anticipate that he will offer 12 testimony that at some point back around near the finishing bed, 13 years ago that he can't recall, that he saw a dummy in a corner 14 with a noose. 15 was because he doesn't know. 16 tell you who saw it. 17 was in that area, he can't tell you. 18 supervisor immediately upon seeing that and report it so it 19 could be investigated? 20 action. 21 22 When I ask when it was, he won't tell you when it When I ask who saw it, he can't When I ask who was working that night, who No. Did you go to any Without notice, there can be no So the question comes back: Is it fair to hold a company responsible for something they did not know about? 23 No. Now, we have one other claim that we need to address with 24 you. That is Mr. Lee's claim for retaliation. 25 what the evidence is. Let me tell you Mr. Lee is claiming in this lawsuit that Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 100 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 31 of 267 1 he engaged in protected activity. 2 discrimination and filed a lawsuit of discrimination and, 3 because he did that, Nucor took adverse job actions against him. 4 Let's talk about what the evidence is in that respect. 5 evidence is that, as you know, you saw in the photograph, there 6 are two roll mills, 1 and 2. 7 customary that employees are transferred back and forth for 8 cross-training. 9 both mills. 10 He filed a charge of The Each has its own roll shop. It is They have to keep up with the technology in You will learn that Mr. Lee and Mr. Bennett were both 11 transferred from 2 to 1 in 2003. However, Mr. Lee claims that 12 his transfer was in retaliation. Incidentally, the evidence 13 will show that at the same time those two were transferred, so 14 was a gentleman by the name of Larry Sanders, a white employee. 15 They went from 2 to 1. 16 to 2, two blacks and a white employee changed places with them. 17 Nothing changed with the transfer to the No. 1 mill. 18 Clifton Lee, he had the same job. 19 made more money by being moved to Mill No. 1. 20 from 84,000 to $89,000. 21 adverse employment action to Mr. Lee. 22 more money, Mr. Bennett made more money by being moved from 2 to 23 1. 24 25 The evidence will show you that from 1 Just like Mr. Bennett, Lee Earnings went Moving from 2 to 1 did not result in an Just like Mr. Lee made Lee engaged in no protected activity before his transfer to the No. 1 mill. He suffered no adverse job action because he Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 101 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 32 of 267 1 engaged in protected activity. 2 show in that regard? 3 transferred. 4 discrimination after he was transferred. 5 the charge of discrimination after Lee was transferred. 6 can't be retaliated for something that had not happened as of 7 the time of his transfer. 8 9 What is the evidence going to White and black employees were also More importantly, Lee filed his charge of Nucor was notified of Lee There is no evidence of that. So we come to what your job is in this case. Your job is to hear the evidence and decide this case based on the evidence 10 and the law as instructed by the Court. 11 whether or not this case represents one of racial harassment or 12 simply an opportunity for these men to take something from Nucor 13 that they didn't earn. 14 jurors, to be fair and impartial. 15 you have fulfilled your obligation. 16 17 THE COURT: Your question is to ask We expect you to fulfill your job as If you carry out that job, Thank you. All right if you will take down the screen, the plaintiffs may call their first witness. 18 MR. QUINN: Call Mr. Washington. 19 RODNEY WASHINGTON, PLAINTIFFS' WITNESS, DULY SWORN 20 DIRECT EXAMINATION 21 BY MR. QUINN 22 Q State your name, please, sir. 23 A Rodney Washington. 24 Q Where do you live? 25 A Columbia, South Carolina. Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 102 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 33 of 267 1 Q And how long have you lived in Columbia, South Carolina? 2 A About a year. 3 Q And where do you work now? 4 A Rooms to Go furniture. 5 Go. 6 Q How long have you worked for them? 7 A About five years. 8 Q Prior to going to work for Nucor Steel, what were you 9 doing? I am a store manager at Rooms to 10 A I was in the military. 11 Q How long were you in the military? 12 A Six years. 13 Q And what were your duties in the military? 14 A I was military police. 15 Q Was Nucor Steel the first job that you had after the 16 military? 17 A Yes. 18 Q How did you come to move to Blytheville? 19 A I was once stationed in Blytheville, and, when I got out of 20 the military, I ended up coming back to Blytheville. 21 Q 22 Blytheville? 23 A 24 roughly. 25 Q And when you came back, did you actually live in I lived in Jonesboro about a year roughly. About a year How did you learn that there were job openings at Nucor? Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 103 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 34 of 267 1 A I knew a guy that worked at Nucor; Patrick, I think his 2 name was. 3 Q Excuse me? 4 A I knew a guy named Patrick who worked at Nucor-Yamato. 5 Q Okay. 6 A I was hired in '93, about June '93 roughly. 7 Q When you got there, did the plant look like this? 8 A Not quite. 9 Q All right. And when were you hired by them? Tell the jury what it looked like when you got 10 there. 11 A 12 fabricated, built. 13 plant. 14 Q So this plant was there? 15 A Yes. 16 Q This plant was being built? 17 A Yes. 18 Q And when you went to work, where did you go to work? 19 A I went to work in the finishing department. 20 Q At which building? 21 A NYS 2. 22 Q No. 2, okay. 23 employees did you notice working there when you got there in 24 No. 2? 25 A NYS 1, this side, was there. NYS 2 were still being Putting up equipment and so forth inside the It wasn't in operation at that point. Most of the framework and everything was done. No. 2? When you started work there, how many black When I started No. 2, I was the only black in the Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 104 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 35 of 267 1 finishing department. 2 Q 3 that time? 4 A From 8 to 10 to about 15, give or take. 5 Q And were they all white? 6 A In the beginning it was about eight to ten were all white, 7 and I know I was the only black in the beginning. 8 grew, another black guy or two came aboard. 9 Q And who was that other black person? 10 A Thomas Johnson and Terry White, I believe. 11 Q So you ended up with three? 12 A Eventually. 13 Q During your employment -- and tell the jury when your 14 employment ended. 15 A My employment ended about 2003, October 2003. 16 Q And at that point in time -- and did you work all of that 17 time in No. 2? 18 A 19 Despite the fact I may have applied for other jobs, I ended up 20 in NYS 2, right there in finishing. 21 the blacks that were in NYS 2 were in the finishing or the 22 shipping department. 23 Q 24 Building No. 1? 25 A And approximately how many other employees were there at Yes. Okay. Yes. And as it I worked my entire career right there in No. 2. As a matter of fact, all Did you ever have an opportunity to go over into Occasionally. When I first came aboard, I was used Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 105 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 36 of 267 1 to run errands back and forth. When I came aboard with the 2 company, everybody else would train on the equipment, helping 3 install the equipment or bleeding hydraulics, learning about 4 hydraulics and so forth. 5 isolated to just clean and run errands. 6 several times as the water boy. 7 come to work, outside of my cleaning chores, I would have to go 8 get the cooler, fill it up with ice back over at NYS 1, and go 9 down to the receiving counter and pick up the Gatorade to make When I came aboard, I was pretty much I was referred to In the morning when I would 10 the Gatorade and come back and set it out for the crews. 11 Q 12 setup was similar to the setup in No. 2? 13 A Yes. 14 Q Okay. 15 A No. 16 entire, both operations to my knowledge. 17 the beginning as well because the more blacks that came more 18 familiar with, were the few that came on in finishing, NYS 2, 19 and the few that came on with shipping and the job associated 20 with shipping. 21 Q 22 at 2, did you have a job title that you had applied for? 23 A 24 at Nucor. 25 then we just showed up, and they told us to show up at NYS 2 in Now, when you would go over into 1, did you notice that the Definitely. There was very few black employees throughout the Okay. No. Did you notice very many black employees in No. 1? And so let's go back to 2. Not directly. And I noticed that in When you began working I was just -- you just apply for a job I was interviewed by a couple of different guys. Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter And 106 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 37 of 267 1 the middle bay or whatever. 2 started passing out assignments, I guess if you would, to my 3 understanding. 4 point. 5 And so we showed up, and they I wasn't familiar with the steel mill at that I had just came out of the military. When I came in, the guys would, you know, all huddle around 6 and whatever. And then, of course, I came in right off the bat, 7 and my supervisor at that time was Doug Patterson. 8 to the front of the building, away from everybody else, and 9 there was a stack of rolls that we used to straighten up the 10 beams with -- the steel rolls were covered with tar and real 11 nasty and messy. 12 pretty much my job in the earlier days as the plant began to 13 unveil and install equipment and start learning about job 14 positions or whatever. 15 Q How long did you do that particular job? 16 A Cleanup until -- for the most part, cleanup until we 17 actually started rolling the first beam, which is approximately, 18 I don't know, six to eight months later, give or take. 19 sure. 20 Q 21 you were given an employee handbook? 22 A 23 days I was given an employment handbook. 24 Q 25 that employee handbook? He sent me I was given a bucket of rags, and that was I am not At the time that you were hired in, do you remember whether Somewhere, not from Day 1, but somewhere in the earlier At any time did you ever see a racial harassment policy in Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 107 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 38 of 267 1 A 2 handbook or nowhere else during my entire ten years there. 3 Q 4 was a harassment policy and it was typed out. 5 entire employment, did you ever see that policy? 6 A No, sir. 7 Q Do you know where it came from? 8 A I have no idea. 9 Q Did anybody ever tell you there was such a policy? 10 A No. 11 Q When you got there, did you notice anything that you found 12 hostile? 13 A 14 I am from Mississippi originally. 15 you know, growing up, but really being in the military, you are 16 kind of sheltered, if you will, to a certain degree. 17 familiar with -- had experienced, I should say, a lot of 18 different things. 19 lot. 20 No. I haven't seen a racial policy in the employee In opening argument a policy was shown right up here and it Yes. During your When I -- I did six years in the military, you know. You hear of a few stories, I wasn't You hear stories here and there, but not a I showed up at Nucor the first day, and there were trucks 21 parked with the Rebel flags on it. 22 There were do-rags and people wearing T-shirts, plastered over 23 job boxes. 24 back of the buildings prior to the equipment being -- prior to 25 the -- all the equipment being installed, there was only one It was everywhere. I walked through a door. In the bathrooms, in the very Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 108 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 39 of 267 1 bathroom in the back that was functional. 2 Q And that would have been -- 3 A Toward the back of NYS 2. 4 Q Back here? 5 A Yes, sir. 6 Q Okay. 7 A There was a community, I guess you would say, bathroom for, 8 I guess, be it the contractors, people working in the shipping 9 department, people who worked throughout used that bathroom at 10 the time. There was racial graffiti and so forth, racial jokes 11 and things that I have noticed. 12 know, I complained about it to my supervisor, but not -- at that 13 point nothing really happened. 14 Q 15 you saw were Confederate flags or decals. 16 A Yes. 17 Q And tell the jury where you saw those decals. 18 A I saw them in the back windows of like trucks or whatever. 19 They have the big flag in the back window. 20 hardhats, underneath the straightener. 21 to as the white house, they considered it, in NYS 2. 22 tallest pulpit in NYS 2. 23 Q 24 Building 2? 25 A All right. Let's stop. My complaint about it -- you You said that the first thing that Was that from Day 1? I saw them on You may hear it referred And just so the jury understands again, we're in Building 2, finishing up front. Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter It's the 109 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 40 of 267 1 Q And that would have been right up here, right? 2 A Right up front. 3 Q It was called what? 4 A It was called the white house. 5 Q How did you know it was called the white house? 6 A I have heard several white employees refer to it as the 7 white house. 8 Q Did you know what they meant by that? 9 A Not right off the bat. 10 Q Okay. 11 A Yes. 12 Q What did they mean by that? 13 A The only people who were ever going to get those jobs and 14 ever be up there were going to be white guys. 15 Q 16 interrupted you and I apologize. 17 that you were talking about? 18 A 19 all of our tools, cleaning supplies, so forth, and we called it 20 the job box, I guess, the real big box, whatever. 21 flags posted on it as well. 22 Q Was that something you used on a regular basis? 23 A I had to use it every day because that's where I would go 24 get my cleaning supplies or things I needed to help clean the 25 rolls, the brooms, the mops, whatever I had to use when I was Okay. Did you later learn what they meant by that? So we're back, we're talking about the decals and I Underneath the straightener. Where did you see the decal In the beginning, we stored There was Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 110 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 41 of 267 1 working in the early days and throughout the career. 2 Occasionally had to go back there to get to the supplies. 3 Q Now, all right, anywhere elsewhere you saw the decals? 4 A The decals? 5 see them flying from the cranes. 6 from the cranes. 7 Q 8 want the jury to understand when you first got there what you 9 saw. Not in the beginning, but thereafter we would I have noticed them flying And we will get to that, but what I want to do now is I 10 A When I first got there? 11 Q And I think you have already said, did you -- did you see 12 the do-rag? 13 A Yes. 14 Q When you first went to work there -- 15 A Yes. 16 Q -- you didn't see it in -- was it still there in 2001? 17 A It was still there in 2001. 18 being worn in 2003. 19 Q And it was there when you got there? 20 A When I got there. 21 Q In 1993? 22 A In 1993, there were -- there was definitely do-rags being 23 worn by contractors and employees. 24 Q 25 Exhibit 37. Okay. I left in 2003. It was still Let me show you what is marked as Plaintiffs' Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 111 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 42 of 267 1 MR. QUINN: May I approach, Your Honor? 2 THE COURT: You may. 3 BY MR. QUINN 4 Q 5 it. 6 A Yes. 7 Q Is that the do-rag you saw or is that do-rag like the 8 do-rags that you saw when you went to work there in '93? 9 A Take a good look at that and tell me whether you recognize In '93, the do-rags I were seeing and the scarves I were 10 seeing, I didn't necessarily notice the NYS on it in the very 11 beginning. 12 Q 13 that? 14 A Yes, I did. 15 Q And when do you believe you noticed that? 16 A It may have been a couple of years into it. 17 Q Okay. 18 when you did go to work, you are the only black employee in 19 No. 2, right? 20 A Yes. 21 Q Were -- oh, were there a lot of the employees wearing these 22 things or just one or two? 23 A 24 had them on. 25 Q That one that is NYS, did you at some point in time notice And so did you see -- well, at the point in time The actual -- two maybe three and a bunch of contractors Extremely prevalent with the contractors. Who were the contractors? Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 112 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 43 of 267 1 A People that Nucor hired to come in. Schick Steel and other 2 places that would come in to fabricate the buildings, put in the 3 hydraulic systems, things along those lines. 4 up, put in equipment, straighteners, whatever the case will be. 5 Q 6 They're working inside? 7 A Yes. 8 Q They don't come and go? 9 A They're -- to my understanding, those assignments then, Put the pulpits And are they working -- that's their only job though? 10 they were working right there at NYS 2. 11 Q 12 something, and leaves? 13 A No, sir. 14 Q All day they were working? 15 A The entire shift, 10, 12, 14 hours, around the clock, 16 whatever the case was that we happened to be working. 17 Q 18 bathrooms. 19 back bathroom when you first went to work there. 20 A 21 jokes. 22 black man was good for was mudflaps on a truck, along with 23 something to the effect about black babies being mudflaps as 24 well. 25 Q As opposed to a contractor that comes in, delivers They worked there all day. All right. You said that there was graffiti in the Tell the jury what kind of graffiti you saw in this You would see KKK carved in the wall. A black man -- a few One in particular stands out about the only thing a Okay. At the beginning when you saw these things in 1993, Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 113 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 44 of 267 1 did you complain to anyone about them? 2 A 3 supervisor at the time, was Doug Patterson. 4 Q 5 complained. 6 A 7 and complain about different things that I saw or different 8 things that were said to me or conversations that may have been 9 overheard. 10 nonchalant. 11 the bathroom. 12 being on the walls in the bathroom. 13 didn't complain to Doug Patterson. 14 complain to Doug Patterson. 15 KKK on the wall, but this particular day, it was spray painted 16 in red on the wall. 17 throughout the mill, of course, and that was the only bathroom 18 we were using at the time. 19 and it was right there in bold. 20 Yes. Amongst the coworkers, back and forth, and also to my Tell the jury how you complained and what happened when you Well, I would go to Doug Patterson occasionally, you know, Nothing never really happened. It was just Somewhere in the early days there, I ended up in The conversation was going around about the KKK On this particular day, I I didn't get a chance to I had been complaining about seeing And the guys had been talking about it And so I had to use the bathroom, Somewhere in there, ended up talking to Doug Patterson 21 again. I didn't go to him and complain about the KKK. I didn't 22 get a chance to one way or the other. And at this point, after 23 a few complaints, you are on the job. You don't want to try to 24 make too many waves. 25 will, even though you are afraid, you are scared, you don't know You kind of suck it up, I guess, if you Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 114 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 45 of 267 1 what's going on, what's happening. 2 lot of these things. 3 terrifying to be there in those days. 4 I hadn't been exposed to a All of this was new to me. It was And then knowing -- coming out of the military, I had no 5 idea what I was going to do for a living, you know? And finally 6 you hit what's called, I guess at that point in time, the real 7 world, and this is what I was exposed to. 8 somehow or another the conversation came up, and he sent me into 9 the restroom to go clean it off the walls. Doug Patterson, 10 Q What did he -- do you remember what he said to you? 11 A I don't remember the exact conversation, but the end result 12 was I was the one ended up going into the bathrooms to clean up 13 the wall. 14 Q Take your time. 15 A It was shameful. 16 another black guy that was also working there, Thomas Johnson. 17 He was a crane operator. 18 about it. 19 Q 20 did it appear again? 21 A 22 written on the walls. 23 erecting the -- the straightener bathroom started to work or 24 whatever, if you will. 25 bathroom -- the whitehouse, the big, tall straightener up front. I felt humiliated. You felt less. By this time there was We would talk about it, but that's After he told you to go in there and to wash off the KKK, Not in the big red letters like that, but I did see it I also saw it -- later on we started We started using the straightener Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 115 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 46 of 267 1 And you would see other eventually graffiti starting to get in 2 there, and no one would use that bathroom but, for the most 3 part, the employees specific to that area. 4 Q Were those white employees? 5 A Yes. 6 Q Did Mr. Patterson's actions and response to your complaint 7 about the KKK in the bathroom stop the graffiti in the bathroom? 8 A No. 9 Q Do you know why -- do you know whether there was ever an 10 attempt to investigate and find out who had done it? 11 A No. 12 Q Did Mr. Patterson ever tell you he was going to try and 13 find out who had done it? 14 A No. 15 Q Now, you have already testified that when you got there you 16 were the only black there. Did -- how long was it before the 17 other black employee came? I know that by this time there was 18 at least one more because you said that the two of you talked 19 about it? 20 A Thomas Johnson, roughly a month. 21 Q So it wasn't that long? 22 A It wasn't very long. 23 Q And he witnessed these -- you and he would talk about these 24 things? 25 A I never know of any investigation. Never. Yes. Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter Nothing. 116 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 47 of 267 1 Q Did you also talk with the black employees in No. 1 about 2 these things that were happening to you? 3 A 4 of other blacks. 5 me get hired or told me about Nucor, and there was a couple 6 of -- I knew very few people at that time at the plant, either 7 one of them for that matter in the very beginning. 8 Q 9 noticing this beginning period of your employment that you Yes. Okay. Michael Davis, I knew, worked over there and a couple Patrick, one of the guys that kind of helped Now, is there anything else that you can remember 10 haven't told the jury about? 11 A 12 would come to work, you know, it was obvious on several 13 occasions. 14 I talked about, I would be on the other end of the building 15 cleaning, you know. 16 assignments, building equipment and so forth. 17 extremely, extremely humiliating when they started coming across 18 the radio calling me the water boy, you know? 19 Q And who, if you know, referred to you as the water boy? 20 A Jeff Hutton, Robert Despain, Robert Swearingen. 21 was a few other white guys on the crew, you know, they would say 22 it over the radio, you know, and then -- 23 Q Now -- I'm sorry. 24 A No. 25 Q When it was said over the radio, was it heard by others I don't know. Like I say, in the very beginning, when I The huddles or the meetings would exclude me. Like Guys would go in and have different And then it got I mean, it Go ahead. Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 117 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 48 of 267 1 other than the person who actually would be speaking on the 2 radio? 3 A 4 supervisor, namely, as well as the other employees. 5 Q 6 work? 7 A 8 had -- we all had the same radios. 9 for the most part, the same radios. Yes. And everybody that was tuned to the channel. Tell the jury how that would work. Our How did these radios We had a radio for different departments. The roll mill Everybody in the plant had, They had like a toggle 10 switch or a rotating switch on it that had the different 11 channels for each department. 12 Q Did you wear it on your belt? 13 A Yes. 14 lapel by your ear, was how you commonly wore it. 15 have been on -- I don't remember the channel numbers now. 16 have been on Channel 2 and the roll mill on Channel 3, whatever 17 the case may be. 18 and forth on the stations if you wanted to know what was going 19 on in the other mill, whatever conversation there may be. 20 That's when you would switch back and forth. 21 plant managers, everybody wore a radio. 22 anything to do with production wore a radio on their sides. 23 Q 24 conversation, that it wasn't limited to just those two people 25 hearing the conversation? You wore it on your belt with your mike up on your Finishing may May And occasionally the employees would flip back The supervisors, Anybody that had And so did that mean that if two people were carrying on a Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 118 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 49 of 267 1 MR. WADDELL: 2 THE COURT: Your Honor, we object to the leading. This can be answered yes or no. I am 3 overruling your objection because I think that it's not 4 suggesting the answer. 5 MR. QUINN: I am just trying to move things along. 6 THE COURT: Let me get straight on what I think a 7 leading question is. I think a leading question is something 8 like this: 9 conversation, doesn't it? This means that more than two people can hear the Now, one thing you are doing 10 sometimes, you are making comments to which there have been no 11 objection that I would have sustained. 12 particular objection, but I -- this is your witness, and I want 13 you to refrain from comments and ask direct questions. 14 you. 15 BY MR. QUINN 16 Q You can answer the question. 17 A About the could more than one person hear the conversation? 18 Q Yeah. 19 A Yes. 20 radio that's on that frequency would hear you. 21 Q 22 did more than one person refer to you by using the word "water 23 boy"? 24 A Yes. 25 Q How long and how often did that occur? Okay. But I am overruling this Thank Do you remember the question? Anytime you utilize the radio, everybody that had a And you have already told us that more than one -- Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 119 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 50 of 267 1 A The water-boy part was pretty much on a daily basis 2 because, again, every morning -- we didn't have any water 3 fountains in the beginning that we used in the front part of 4 NYS, in the finishing department. 5 extremely hot in the summers and extremely exhausting. 6 before we were running steel, it was still hot in the metal 7 building. 8 stuff to drink, but I would be the one designated -- or "go get 9 water," you know? So every morning -- and it is And it's a long, tedious day. "Shut up, water boy." And even So we had to have And that was, that was 10 one of the main jobs that I had to do in the beginning, was to 11 go get the water to make the Gatorade, you know, sometimes two 12 or three times a day. 13 Q 14 term? 15 A 16 "nigger" around me. 17 categorized myself and other blacks were categorized as "lazy 18 ass nigger" and "working class niggers." 19 Q Did you ever hear the word "monkey"? 20 A Yes. 21 Q When and how? 22 A We were -- later on, another black guy came aboard, 23 Lamar Friedman. 24 and I were on the cooling bed and, as we began to go into 25 production, we used to run, again, all the errands in the Were you ever referred to in any other type of derogatory Yes. "You black ass." "Nigger" -- they used the word "Lazy ass nigger" and supposedly Thomas Johnson ran the crane. Lamar Friedman Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 120 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 51 of 267 1 morning. And as we begin to start running steel, we would need 2 different supplies. 3 Q Was that over the radio? 4 A Yes. 5 Q Was the comment about "water boy" over the radio? 6 A Yes, it was. 7 Q After the plant had been finished, No. 2, and you moved in 8 to a job -- you have already said this, but tell the jury again 9 where you went to work. We were referred to as the "go monkeys." 10 A I went to work in -- on the cooling bed. The cooling bed 11 is extremely, extremely hot, extremely -- a lot of water, a lot 12 of steam is -- it's nasty. 13 jobs in the finishing department. 14 straightener and pulpit up high, and you go down to the cooling 15 bed. 16 of the higher pulpits. 17 cooling bed where the bars came off extremely hot, right around 18 about a thousand degrees. 19 we put them under the water. 20 they come out of the roll mill. 21 Extremely hot there. 22 Q 23 other black employees worked with you? 24 A About three blacks. 25 Q Where did they work? It's the least desired job of the It was located between the You go up on the opposite side, would be the hot saws, one But in the middle it was called the And they would start to cool down as The beams would still be red as It was extremely hot. And during your employment there, approximately how many Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 121 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 52 of 267 1 A On the cooling bed. We all worked in the cooling bed. 2 Q Where did the whites work? 3 A In various jobs. 4 referred to him earlier, was Thomas Johnson. 5 operator, but other than that, any other black that came aboard, 6 we all worked on the cooling bed. 7 other jobs in the pulpits or the not-so-scroungy jobs in repair 8 or whatever. 9 on the cooling bed and why was all the black guys on the cooling 10 bed and my supervisor, Doug Patterson, would tell us that black 11 people can handle heat better and that's why we were out there. 12 Q That was told -- who said that? 13 A Doug Patterson. 14 Q And what was his position? 15 A He was a supervisor. 16 Q What is -- you used the phrase "the pulpit" or the word the 17 "pulpit." 18 A 19 metal building where all the control, mainly the control type of 20 equipment is housed and operated at. 21 conditioned and heat, whatever the case may be, up there. 22 water fountains, and in this particular would be bathrooms as 23 well. 24 Q Okay. 25 A You asked the terms earlier, what other names I was called. There was another black guy again -- I He was a crane The white guys would have the We would complain about it, you know, about being What is the pulpit? The pulpit is the -- is where we do all your -- it is a big It would be air Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter Your 122 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 53 of 267 1 I was also called "coon." 2 Q 3 than one occasion? 4 A Yes. 5 Q Was this over the radio? 6 A Later on it became over the intercom system. 7 remember being called coon over the radio, but there was one day 8 in particular I came to work. 9 days of the pulpit, as we talked about again, the straightener All right. And what is -- were you called that on more I don't In the beginning, in the earlier 10 on one side, the cooling bed in the middle, and then up the 11 stairs in the other white house would be the cold saw operator. 12 About four, sometimes five employees -- there is two that worked 13 inside, two that worked underneath it as part of the roll mill. 14 There was about four or five people that worked over there. 15 As we were -- in the earlier days, when we started running 16 steel, the straightener would have to know which sections or 17 which sizes were being cut from the hot saws. 18 there was no way to relay that information other than via me 19 running to one pulpit, getting the information on paper, and 20 taking it back to the other pulpit. 21 back down the other side to the stairs. 22 In the beginning So you go up one stairs and Prior to -- during these times, it was around the holiday, 23 Martin Luther King Day, we had been trying -- myself and 24 Thomas Johnson, we had been trying to kind of get off and talk 25 about, you know, possibly being off for Martin Luther King, go Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 123 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 54 of 267 1 to Memphis and visit the museum and so forth. 2 controversy was going around about us getting off, and needless 3 to say, we never got off. 4 up to the straightener -- not the straightener, the saw pulpit. 5 I walked through a door. 6 guys there. 7 me, "Happy Martin Luther Coon Day." 8 huh? 9 So the But on Martin Luther King Day, I went There was about four or five white Right off the bat, first thing Todd Ellis said to And I looked at him and "It is Martin Luther Coon Day, isn't it?" I didn't -- I just turned. I was crushed. I couldn't say anything. How could I say anything? How 10 could I combat that? I couldn't 11 believe he would be that bold. 12 that bold and humiliating and everybody just bust up laughing at 13 me. 14 guys looking at me cracking up. 15 and so frustrated that I ran back down the stairs. 16 the straightener pulpit where the other white guys were, and I 17 was like, "Is this what you guys think of me? 18 think of me? 19 just ran out, and all I could do was sit on the steps and cry. I couldn't believe he would be And I am standing in this pulpit, about four or five white Is this all I am? It wasn't funny. I was so hurt I went up in Is this what you Is this what you think?" 20 I was so frustrated. 21 You can't afford to quit. 22 only job I have had when I come out of the military. 23 you do? 24 anything with all the other complaints. 25 Q And I A part of me -- you want to quit. You don't have a job. You complain to your supervisor. That's the What do He hasn't done What do you do? When did this happen; do you remember? Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 124 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 55 of 267 1 A '93, '4-ish, maybe going into '95. I believe around '94. 2 It was about -- we had been rolling for a little while, so about 3 six months after we started rolling steel, I am just guessing at 4 the time period. 5 Q Did you report that? 6 A Yes. 7 Q Who did you report it to? 8 A I reported it -- well, the guys in the straightener, I 9 complained to them when I ran in there. I reported it to 10 Doug Patterson, my supervisor. I reported it to Doug Adams, 11 Todd Ellis's supervisor. 12 Q 13 when he said that? 14 A I am not sure. 15 Q Okay. 16 A I am not sure. 17 five guys in there and you were hit with it and I was blown. 18 Q What were you told by them when you complained? 19 A Nothing. 20 Q Were you ever told that any kind of disciplinary action was 21 taken by Mr. Ellis? 22 A Not to my knowledge. 23 Q Did you ever learn during your employment or anytime that 24 Mr. Ellis had received any kind of a discipline for doing that 25 to you? Do you remember whether there was a supervisor in that room Again, I walked in and it was like four or They just kind of blew it off nonchalantly. Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 125 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 56 of 267 1 A Not the entire time I worked there. 2 Q Did Mr. Ellis ever apologize to you for making such a 3 statement? 4 A No. 5 Q Did management, on behalf of Mr. Ellis, ever apologize to 6 you for that statement being made? 7 A No. 8 Q Did you notice anything on the bulletin boards or anywhere 9 else indicating that that kind of conduct would not be 10 tolerated? 11 A No. 12 Q Did -- do you know whether other white employees became 13 aware that Mr. Ellis had, in fact, done that to you? 14 A 15 about it, you know? 16 Q 17 reprimanded in any way -- 18 A Never heard anything. 19 Q -- for what he said? 20 A Never heard anything about anything happening at the time. 21 Never heard anything. 22 Q What kind of a relationship did you have with Mr. Ellis? 23 A I knew him. 24 would have to coordinate occasionally the steel coming -- when 25 the bars came out on the cooling bed, my job was, you know, to Everybody was aware of it. You know, everybody talked It was all over. And in that talk, did you ever hear that Mr. Ellis had been I mean, just coming to work. Occasionally we Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 126 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 57 of 267 1 inspect them. 2 over the radio. 3 getting cracks." 4 whatever defects. 5 gauging it, using the gauge, seeing how long the flanges were, 6 we might talk briefly. 7 out of whack," whatever the case may be. 8 Q Did you and he ever joke to one another on a regular basis? 9 A No. 10 Q Did you and he ever tell jokes back and forth to each other 11 that would have made him feel like that he could have said that 12 to you? 13 A 14 else for that matter. 15 Q 16 what the company had been told had happened? No. We're Or the flanges or whatever the case would be, Occasionally, if Todd was out in the bed You know, "Hey, we're getting flanges I never swapped jokes of any such with Todd or anybody MR. WADDELL: Your Honor, we object to leading. He is suggesting the answer before it's given. 19 20 "Hey, this is what we're getting. Did you ever learn before this case that, in fact, that's 17 18 And sometimes certain defects would have to tell THE COURT: question. 21 Well, I don't know how else he can ask the Can you suggest a way to ask the question? MR. WADDELL: My suggestion is ask the witness what his 22 knowledge is in a certain category instead of telling him what 23 the response should be. 24 25 THE COURT: know?" All right. You can say, "What do you I will sustain the objection. Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 127 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 58 of 267 1 BY MR. QUINN 2 Q 3 have you learned about that incident? 4 A 5 today going through some paperwork was my first time even seeing 6 or hearing anything about something happening to Todd Ellis or 7 there was an incident. 8 Q Okay. Did you ever hear that word on other occasions? 9 A Yeah. Later on down the line, Robert Swearingen and Since the filing of this lawsuit, what do you know and what Nothing. To my understanding, clean up until -- just to 10 Jack Macon referred to him as a coon. 11 Q When was that; do you remember? 12 A No. 13 because he didn't work very much longer after that. 14 Q Did you ever hear racial jokes in the workplace? 15 A Yeah. 16 group or whatever the case may be -- or they even call you over 17 sometimes and start telling you Little Johnny jokes. 18 Little Johnny jokes over the radio -- I mean over the intercom 19 system. 20 Q Explain to the jury what a Little Johnny joke is. 21 A A Little Johnny joke would be something that they would say 22 derogatory. 23 jokes, and it would be something racially derogatory about 24 Little Johnny. 25 getting -- the punchline was Little Johnny getting a free lunch Robert Swearingen was during those same time periods I mean, all the time. I mean, you walk into the They tell In the later years we also had an intercom system. Little Johnny represented the black guy in these One they would tell was about Little Johnny Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 128 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 59 of 267 1 in school, something about Little Johnny being clowning or 2 acting a fool. 3 Johnny, and Little Johnny was the black guy. 4 Q 5 before I do, the -- during your entire time that you were 6 employed, was there ever a time when there were no do-rags in 7 the plant? 8 A Never. 9 Q During -- yeah. It was always something negative about Little I want to move forward in time, and let me just ask you And I am sorry. He corrects me. 10 Confederate do-rags. 11 A No. 12 Q At any time while you were employed, was there a time when 13 occasionally there was not a Confederate flag either by decal or 14 being flown in the plant? 15 A Ask that question again. 16 Q At any time from the time you began your employment to the 17 time you ended your employment, was there a time when there were 18 no decals of the Confederate flag? 19 A 20 were decals of the Confederate flag being flown. 21 the mugs, it was always something. 22 anything. 23 Q 24 flag flying in the plant? 25 A There was always Confederate do-rags. I am sorry. From the time I started work until the time I ended, there The T-shirts, The decals more than Decals and do-rags more than anything. How many times do you remember seeing an actual Confederate I saw a Confederate flag flying at least twice. Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter One at 129 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 60 of 267 1 NYS 1 while visiting and one at NYS 2 hanging from the crane. 2 Q Was this later on in your employment or do you remember? 3 A This was later on in my employment. 4 employment. 5 Q 6 occasions. 7 A 8 5 by 7, not 5 by 7 -- yeah. 9 Q Was it as big or bigger than the blackboard? 10 A About that size, give or take. 11 Q And was that the same kind that you saw on the other 12 occasion or was it smaller or bigger? 13 A Both occasions I saw huge flags about that size. 14 Q When you saw them, can you remember, sitting here today, 15 about how long they were up? 16 A 17 NYS 1 mill. 18 for a few days. 19 Q Did you say anything when you saw it? 20 A Yes. 21 Q Let me ask you this. 22 A Yes. 23 Q And now let's talk about actual racial slurs that you 24 heard. 25 would like for you to tell the jury, during your employment from Later on in my And describe for the jury what you saw on each of those Just the overhead crane flying had a huge -- I don't know, I guess 5 by 7 or 8 feet, whatever. Maybe slightly bigger. The one I saw, I just saw it that one day passing through The one at NYS 2 was up for a few days. It was up I complained to my supervisors. Did you always complain? I always complained. You have talked about some other things, but I want -- I Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 130 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 61 of 267 1 '93 until 2003, approximately ten years, tell the jury the types 2 of racial slurs that you heard and who you heard them from. 3 A 4 wouldn't say a gentleman, but a guy that would always give me a 5 hard time. 6 me, just be mean to me, I mean, for whatever reason. 7 would complain to my supervisor at the time, which was 8 Doug Stacy and Doug Patterson, but Doug Stacy was my immediate 9 supervisor. 10 11 As time went on in the mill, Despain was a gentleman -- I He would always bully up to me, always talk down to And I I would always complain, but nothing would ever be done about it. On this one occasion, Robert Despain and I -- Robert was 12 working down in the repair area for whatever reason, and we used 13 to have to send steel from my station down to his. 14 whatever reason there was an argument about the steel going down 15 the roll line, you know, and he just got all over me, you know, 16 just going off on me, you know. 17 "That's enough." 18 And for And eventually Doug Stacy said, Well, Robert flew out of the back pulpit in back of the 19 mill, made a beeline all the way up to the front of the mill, 20 and I got on the squawk box, the intercom system if you will. 21 Doug Stacy worked across from me on this particular day, just 22 like four shacks. 23 south operator had one and the repair unit. 24 by an intercom system, along with having a radio as well. 25 I was in one. He was on the right. The We all communicated Robert and I was going back and forth over the radio and Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 131 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 62 of 267 1 whatever, and then Doug Stacy eventually came across the radio 2 and said, "Okay, that's enough." 3 believe, and he said, "I will be down there," or something. 4 don't know. 5 squawk box -- as we called it -- and told Doug Stacy, "Here come 6 Robert, you know. 7 through this, Doug Stacy. 8 Doug said was, "There is nothing I can do." 9 Robert got on the intercom, I I He took off, making a beeline, and I got on the You need to stop it. I can't keep going You need to stop it." And only thing Robert came down from the front of the building to the back 10 of the building -- and at this time I had became a pile 11 operator. 12 "You mother" -- and just going on and started cursing me and 13 whatever. 14 Q Tell the jury what he said. 15 A "You motherfucker," you know, just going on and on, you 16 know, "You black ass nigger this," and yatta yatta yatta and 17 screaming at me about the incident in hand with this bar, you 18 know. 19 know, hey, you know, can you come over and stop this, you know? 20 So Robert and I begin to get into a big argument and He came into the piler and snatched my door open and, And the whole time I am looking at Doug Stacy like, you 21 eventually he steps out of the pulpit and he goes up to the 22 straightener or whatever the case may be. 23 behavior, this wasn't the only time. 24 Doug Stacy -- we were all sitting there and watching it and 25 witnessing it. This type of This time in particular, Nothing ever happened to Robert, and Doug Stacy Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 132 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 63 of 267 1 later on would come in to my pulpit and talk about how Robert 2 treating me. 3 with you is that you are black." 4 telling me this. 5 And he said, "The only problem Robert Despain has MR. WADDELL: 6 And this is my supervisor Your Honor, we need to approach. (Bench conference reported as follows:) 7 THE COURT: Ladies and gentlemen, we're going to have a 8 lot of these bench conferences because the evidence in this case 9 is hotly contested. And I would ask that you not try to watch 10 us while we're talking because we're up here so you can't hear 11 us. 12 tell a few things that we say. 13 and I will alert you when we're ready. 14 among yourselves, don't talk about the case. 15 And if you try really hard, you will probably be able to 18 If you want to whisper Don't -- Do you need a break? 16 17 So please just divert your eyes, THE COURTROOM SECURITY OFFICER: We have -- we need a break. THE COURT: I understand you need a break. Court will 19 be in recess. Keep an open mind on the case, and don't talk 20 about it with each other. 21 this bench conference outside the hearing of the jury. Court is in recess, and I will have 22 You can take a break too, but I want to have -- I want 23 you-all to go on and have this objection outside the hearing of 24 the jury, you know. 25 (Jury exits the courtroom.) Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 133 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 64 of 267 1 MR. WADDELL: Your Honor, with plaintiff 2 Rodney Washington in the middle of testimony now, and he is 3 getting into an area of Robert Despain and Doug Stacy, without 4 objecting in opening counsel did violate the Court's order on 5 limine to make any intimation or, as they did in opening, just a 6 outright direct representation that Nucor destroyed that 7 recording. 8 said that was moot in our first conference. 9 object, which is kind of the Arkansas style of opening That was a motion in limine, and actually counsel And so we didn't 10 statements; but nevertheless, we are objecting because we're in 11 evidence at this point. 12 And so we raise that at this time. Second is, again in opening statements, counsel, in 13 violation of the Court's prior ruling, referred to that the 14 county officials and government officials had to get involved to 15 get blacks employed out there. 16 covered that in motions in limine. 17 Court's prior ruling. 18 time and cover those two things. 19 20 21 THE COURT: That's not in this case, and we And counsel went beyond the So we would like to bring it up at this As I recall, you said that you would make no intimation that evidence was destroyed. MR. QUINN: He doesn't know what happened to it. His 22 testimony is going to be that he does not know what happened to 23 the tape and it was never given back to him. 24 THE COURT: That's all I am going to let you say. 25 MR. QUINN: That's all he knows. Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 134 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 65 of 267 1 THE COURT: But I am not intending on giving any 2 adverse inference instruction or spoliation instruction. 3 covered a whole lot of territory in these telephone conferences 4 and motions in limine, but that's the best I remember. 5 MR. WIGGINS: My recollection is that that motion in 6 limine went to documents. 7 the tapes. 8 9 THE COURT: We I didn't understand anything about The motion in limine also went to inferences that you might make with respect to evidence that has 10 disappeared, and we have a spoliation instruction I guess -- I 11 know it's in AMI, and I know I have given it before where things 12 have kind of disappeared or -- in other words, I will let 13 lawyers use it, but I thought that you-all were dropping that. 14 You are allowed to say he taped it, he showed it to his 15 supervisor, and he doesn't know where it is. 16 that. 17 18 Was there something else? MR. WADDELL: I will let you say Was there another objection? The representation that it wasn't until 19 government officials became involved did Nucor start adding 20 black employees. 21 THE COURT: 22 MR. WIGGINS: 23 MR. QUINN: I think -- 24 MR. MAYES: Used the term "pressure," pressure from the 25 Frankly, I don't remember that. I don't remember that. community. Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 135 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 66 of 267 1 2 MR. QUINN: community, pressure from the government. 3 4 That is what I said: THE COURT: Pressure from the That is what I said. Well, I don't remember that that was a subject of a motion in limine. 5 MR. QUINN: It wasn't. 6 THE COURT: I don't recall that it was and, of course, 7 he may put on evidence of pressure. 8 point out that he has not. 9 MR. WADDELL: If he doesn't, you can Well, Your Honor, that goes to the hiring 10 claims and, I guess coincidentally maybe, the promotion claims 11 too that aren't a part of this case. 12 THE COURT: But this is a race discrimination case 13 involving racial harassment, and I find that other instances -- 14 and I don't want to try these instances, but any other 15 indication, including racial segregation and job assignments, 16 are relevant to the racially hostile environment that the 17 plaintiffs are trying to establish. 18 19 MR. WADDELL: We have no other motions at this time, Judge. 20 THE COURT: 21 All right. (Recess at 11:22 a.m., until 11:38 a.m.) 22 THE COURT: 23 BY MR. QUINN 24 Q 25 over the radio? All right, Mr. Quinn. Mr. Washington, were the black employees ever ridiculed Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 136 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 67 of 267 1 A Yes. A lot of times -- I remember in the earlier days 2 there was a guy named Terry, Terry Hall or -- Terry Hall, I 3 believe his name is, instead of Terry White. 4 Terry Hall. 5 times -- he wasn't the only one, but especially when he got on 6 the radio, a lot of times when he get off the radio, you would 7 hear noises over the radio like making monkey noises like 8 "oo-oo-oo" and like "da-da-da-da," whatever the case would be. 9 Little noises like that over the radio sometimes after he would I believe it was Especially when he would get on the radio a lot of 10 get on the radio. 11 Q After who would get on the radio? 12 A Terry Hall, the other black gentleman that worked there 13 with us for a short spell. 14 Q Did you ever go to the company store? 15 A Yes. 16 Q When you went to the company store, did you ever see any of 17 these do-rags there? 18 A 19 paraphernalia. 20 Q 21 good look at that because I have got two questions to ask you 22 about that -- the do-rag that's in front of you. 23 A Okay. 24 Q And were there some that had the logo on it? 25 A There were -- all the ones in the store that I seen had the Yes. There were do-rags, coffee mugs, other different And I want you to -- I want you to open that up and take a Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 137 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 68 of 267 1 logo on them. There was contractors that wore some that didn't 2 have logos, but there were also contractors that actually had 3 logos on theirs. 4 they can't buy them. 5 the Nucor Wal-Mart. 6 Q 7 bought payroll deducted? 8 A 9 one lump sum or over a period of three or four paychecks or how 10 they stretched it out, but you could have it deducted over your 11 paycheck. 12 Q 13 Nucor Steel logo on it? 14 A 15 also had the Nucor Steel on it. 16 Q Did the coffee mugs have the Confederate flag logo on it? 17 A Yes. 18 Q And so is this a do-rag that would have been sold in the 19 company store? 20 A Now, how they got them, I don't know, because You have to be a Nucor employee to shop in And if you shopped the store, could you have anything you Yes. That's for the most part how you paid for it, be it But this particular do-rag that is there does have the Yes. Along with the, like I said, coffee mugs and so forth Yes. 21 MR. QUINN: 22 MR. WADDELL: 23 THE COURT: 24 25 We offer Plaintiffs' Exhibit 37. We have no objection, Your Honor. All right. It's received. (Plaintiffs' Exhibit 37 received in evidence.) THE COURT: I want to tell the jury something. Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter This is 138 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 69 of 267 1 the first time I have received an exhibit. Any exhibits that 2 are received into evidence throughout the trial will be sent 3 back to the jury room with you, so you will have reference to 4 them during your deliberations. 5 things that exist but that are not exhibits. 6 not be sent back to you to the jury room with you. 7 to know that. 8 that is agreed, to some exhibits, and the Court has already 9 received those. You might hear references to Those things will I wanted you Another thing is the parties have stipulated, And it will save us time not having to go 10 through the motions of being offered and a response. 11 occasionally you will hear me just receive an exhibit that we 12 have already talked about. 13 MR. QUINN: Okay. So Go ahead. Your Honor, one question to you. Because 14 it's kind of hard to see what this is and it's -- it is actually 15 not a piece of paper, could we publish it to the jury now? 16 THE COURT: You may only publish items like that to the 17 jury if you are the attorney conducting the questioning. 18 are not to hand something to the jury right before your opponent 19 questions a witness. 20 21 22 MR. QUINN: You That's my answer. Okay. So since he is testifying to this and it has been introduced, I may publish it then. THE COURT: But you must collect it when you are 23 through with your direct examination because I don't want -- I 24 mean, surely you have had this experience -- 25 MR. QUINN: Oh, yes. Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 139 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 70 of 267 1 THE COURT: -- publishing something to the jury and 2 then handing over the witness to cross-examination and the jury 3 is busy -- 4 MR. QUINN: And they're sitting there looking at this. 5 And I don't want that done to me, and so I don't want to do it 6 to anyone. 7 THE COURT: 8 BY MR. QUINN 9 Q I won't let anyone do it to anyone else. And I know at the break we were talking about something 10 else and we are going to get back to that, but before we do, 11 just a couple of questions and then we will move on and get 12 finished. 13 hear the racial slurs? 14 A 15 there. 16 Q And how often did you hear the actual word "nigger"? 17 A Several times. 18 Q And was -- I guess ask it this way. 19 that you worked in that plant that you were not subjected to the 20 things that you have testified to before the break? 21 A 22 was -- as we were -- I guess just before the break we were about 23 to get into some of those things as far as several people 24 referred to me and other blacks as "lazy-ass nigger" and 25 "working class niggers." Other -- how often during your employment did you It would be sporadic, sporadic throughout the years I was No. Several times. Was there any time I mean -- throughout my entire career, you know, I Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 140 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 71 of 267 1 Q 2 towards blacks? 3 A 4 out. 5 to Franky Griggs, which was the department manager at this point 6 in time. 7 complained about Robert Despain and his behavior toward me. 8 Later on he ended up sending an e-mail which was intended to 9 Franky Griggs, but somehow or another it hit the loop to other 10 Okay. Absolutely. There was an e-mail in particular that stands It was a coworker, Robert Despain, in 2001, sent an e-mail This was after several other instances where I had computers. 11 Did you ever see any e-mails that were derogatory And it was brought to my attention, and I saw it. And it was a picture of Bill Clinton leaving the white 12 house, and on that picture of him -- Bill Clinton leaving the 13 white house, it was a bunch of -- it was a couple of trucks with 14 a bunch of field hands or slaves, if you will, hanging off the 15 trucks and a picture of the white house House in the background 16 and, I guess, Bill Clinton leaving the white house taking all 17 his slaves and black employees with him. 18 Q 19 depictions on the computer? 20 A 21 e-mails, but that's the only one that I physically -- 22 Q What did you hear about? 23 A I don't remember the details of it. Did you see any other types of e-mails or other types of That was the only e-mail that -- I heard about other 24 MR. WADDELL: 25 THE COURT: Your Honor, we object on hearsay grounds. He did not answer, so your objection is Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 141 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 72 of 267 1 denied as moot. 2 BY MR. QUINN 3 Q 4 interviewed the employees about discrimination? 5 A I don't think so. 6 Q Now, let's talk -- let's go back and let's talk about the 7 incident that you were referring to regarding Mr. Despain, and I 8 believe where you were, you were describing the incident and the 9 reaction of your supervisor. Were you still employed in 2003 when the managers 10 A 11 and I had gotten into an argument over the radio and Robert 12 coming down to my pulpit, snatching the door open, and cursing 13 me out and whatever, and continuing the argument after Doug 14 Stacy asked us to stop. 15 you know, "He needs to stop," he said there is nothing he could 16 do. 17 Yes. I think we were talking about the fact that Robert When he came up and I asked Doug Stacy, Robert went on to go up to the straightener after leaving 18 my pulpit and, you know, that day and days after, Doug Stacy 19 would come in and out of my pulpit for different reasons -- he 20 was a supervisor -- to make his rounds or whatever he was going 21 to do. 22 only problem Robert had with me was the fact that I was black, 23 and he began to, you know, to relay that, you know, Robert, that 24 he had -- this one particular day that he came to me and told me 25 that he had just left the pulpit up there with Robert Despain And he would start the conversation telling me that the Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 142 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 73 of 267 1 and a couple of other guys and said that Robert Despain is 2 referring to us again as lazy ass and working class niggers. 3 And this is my supervisor telling me this. 4 know, gosh, you know? 5 know, something needs to be done about this because one day, you 6 know, something is going to happen. 7 one day, you know, and it's going to seem like, you know, I am 8 crying wolf. 9 these incidents, these incidents. And I am like, you So I would always tell him that, you Nothing ever happens. Something is going happen Nothing is ever done about 10 So eventually, one day I was working -- volunteered to work 11 on my day off for whatever reason, be it for the extra money, to 12 cover a shift, or whatever it may have been. 13 work on my day off. 14 will, and I showed up for work that evening to run the pilers. 15 I believe the piler must have gone down or went down to one 16 piler operating. 17 to one, a one-man operation. 18 we go to repair. 19 think we prearranged the fact that, when I came in, I would go 20 to repair because we anticipated the piler -- only running one 21 piler that night. 22 I volunteered to Robert Despain was acting lead man, if you We normally run two pilers, and we went down And typically when that happens, If I am not mistaken, that's probably -- I When I came in and went to repair or attempted to go to 23 repair, Robert Despain came across the radio in a forceful way 24 and said: 25 and I called him and I wanted to talk to him and I wanted to Get on I-bed where you belong. And I called him -- Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 143 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 74 of 267 1 explain to him that I was supposed to be going down to repairs 2 this night, to my understanding, and that's what the agreement 3 was. 4 repair. 5 Volunteer on my day off; I was going to work down in So I tried to call him several times, and I didn't get 6 ahold of him. So I walked back up to the straightener where he 7 would normally go up and called him, and he didn't come at 8 first. 9 bottom of the straightener. I called him a few times, and finally he met me at the And he said: Why aren't you on the 10 I-bed where you belong? 11 me and one way or another. 12 the damn I-bed or you can go to the house. 13 reason with him and explain, you know, and he told me to 14 basically -- fine, go to the house or whatever. 15 All right, that's fine. 16 house. 17 And he started going off and cursing at And he said: You can either walk And I kept trying to And I said: Just remember you told me to go to the I go home that day, which would have been my day off 18 anyway, and came back. I didn't want to go at first. I was 19 skeptical about going, but I knew the way I felt, the way things 20 was going and the way he was talking to me and how heated it had 21 gotten -- it was pretty heated. 22 It got pretty heated -- that if I had stayed there, I was going 23 to be subjected to more of this. 24 building because the incident I was talking about earlier had 25 just happened like two weeks prior to this, and it was getting He was in my face like this. And this had been building and Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 144 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 75 of 267 1 pretty thick. I felt that it was in my best interest to take 2 him up on that offer to go back to the house because it was 3 going to get out of hand. 4 knew it was. 5 Q And then what happened after that? 6 A I went to the house that day, which was my day off anyway. 7 When I came back to work, be it the next day or however many 8 days I had off, I got suspended. 9 I am like -- I didn't think that was right, you know? It was going to get out of hand. I I got suspended, you know, and I came 10 in, you know. 11 am, you know, I'm suspended. 12 Doug Stacy. 13 him. 14 in whatever kind of acting position he had at that time. 15 Patterson used to be the supervisor, but Doug Patterson, I don't 16 know, there was a little stage and restructuring in there 17 somewhere -- somewhere in there. 18 supervisor. 19 he was still over Doug Stacy. 20 like I said, they were going through some structural changes 21 there. 22 Doug Stacy was my supervisor. 23 He jumps all over me, you know, and now here I So I talked to -- I was talking to He was the lead man. And Doug Patterson was over Doug Stacy was supervisor, and Doug Patterson was over him Doug But Doug Stacy was the Doug Patterson wasn't the department manager, but I am not quite sure how that -- I am not sure how that part was at that time, but So I came back, you know, and I was talking to Doug Stacy 24 somewhere in there and he was reiterating again -- and I felt 25 that -- and I told Doug Stacy, well, I was going to say Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 145 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 76 of 267 1 something about it because I didn't think it was fair. 2 Doug Stacy was like, if you say something, if you take it to 3 the -- if you take it to Doug Patterson, if you say something, I 4 will back you up. 5 all the other things that he had said and done, I knew that he 6 wouldn't. 7 get this on tape at this point. 8 was getting way out of hand. 9 I didn't think that he would. And I just -- from So I felt it was in my best interest that I need to I mean, it was too thick. It So somewhere in there, I brought a tape recorder to work, 10 and Doug Stacy came to my pulpit again. 11 up about Robert Despain, and he started telling me again, you 12 know, that he had just recently left the straightener and this 13 is the type of conversations that was going on. 14 specifically that, "Robert Despain does not like you because you 15 are black, you know, and he refers to you and other blacks at 16 lazy ass and working class niggers." 17 whatever, and I went to complain to Doug Patterson about it. 18 Doug Patterson started yelling and screaming at me and said I 19 was just coming up with some BS and whatever, and yatta yatta 20 yatta, and I didn't want to work -- however the conversation 21 went, something along those lines. 22 The conversation came And he said I got it on tape or And I kept telling him that it was, and I let him read the 23 statement that I prepared. And let me back up. 24 the statement, I told Doug Stacy, "I am going to go forward with 25 this now. Are you going to back me up?" As I prepared "Yeah," you know? Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 146 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 77 of 267 1 As a matter of fact, I let him read the statement before I 2 gave it to Doug Patterson and I -- he even made little 3 corrections on it as far as the grammar and so forth on it. 4 he was very well aware what was in this statement, you know, and 5 he got -- you know, corrected a couple of misspelled words or 6 whatever the case may be, you know, and I said, All right. 7 took it to Doug Patterson, you know. 8 Doug Patterson got through yelling at me initially and I said, 9 "Well, you can just ask Doug Stacy." So I Like I say, after And of course, he 10 called -- I was in his office, and he called Doug Stacy into his 11 office. 12 him and initially Doug Stacy admitted to it, yes. 13 Patterson's eyes got super big like, you know, how could you, 14 why would you, or something along those lines. 15 put me out of the room, and they continued to talk. 16 And Doug Stacy came to the office and Patterson asked And Doug And then they Doug Patterson came and got me and took me over to 17 Franky Griggs' office. 18 Q Who is he? 19 A Let me back up. 20 me up to the office then. 21 statement that I had written or whatever, and he says he was 22 going to talk to Frank. 23 Q 24 include the things that had been said? 25 A He got with Franky Griggs. He got with Franky Griggs with the It was that day or the next day -- Let me stop you and ask this question. Yes. He didn't take Did the statement The statement included -- Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 147 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 78 of 267 1 Q By Despain? 2 A Yes. 3 lazy ass and working class niggers. 4 all the other harassment he had been doing along with the 5 cursing at me. 6 to work and being sent to the house or whatever, or me going 7 back to the house, and me being suspended, should I say. 8 statement included all of that. 9 thought. The statement had included that he referred to us as The statement also included The statement revisited the night of me coming The It was pretty lengthy, I It was at least a page, at least a page and if not a 10 page and a half. 11 Q 12 86-A. Let me show you what I have marked as Plaintiffs' Exhibit 13 MR. QUINN: May I approach, Your Honor? 14 THE COURT: You may. 15 BY MR. QUINN 16 Q Do you recognize that? 17 A Yes. 18 Q Is that the statement that you wrote up to present in your 19 defense? 20 A Yes. 21 MR. QUINN: We offer Plaintiffs' Exhibit 86-A. 22 MR. WADDELL: Your Honor, we just simply want the 23 Court's ruling to be consistent on this and this would be a part 24 of his personnel file, which our position is all documents in 25 the personnel file should be admissible if this is admissible. Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 148 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 79 of 267 1 2 3 4 If the Court is going to exclude others -THE COURT: Are you going to come up here? (Bench conference reported as follows:) MR. WADDELL: Counsel can't have it both ways. They're 5 cherrypicking the personnel file with any favorable information, 6 but this Court has prohibited defendants, at least up to this 7 point, from introducing specifically any other documents from 8 the personnel records, but -- so we have no problem with it 9 being entered so long as we can -- 10 11 12 MR. QUINN: There is no information in the personnel file -- he made a complaint, and this is the complaint. THE COURT: This is the way I look at it. I am going 13 to receive this exhibit without receiving right now the rest of 14 the personnel file. 15 in that personnel file is in the total control of Nucor and I 16 don't believe that -- let me make my ruling. 17 I don't believe that rule -- I think it's 104 which concerns 18 receiving part of a -- all of a document in the event that part 19 of it is received applies to something like a personnel file 20 which contains numerous and various documents. 21 would apply if only part of the statement were being received 22 and the defendants wanted the entire statement received. 23 my ruling. 24 25 This is a document he created. Don't leave yet. And Rule 104 (Return to open court.) THE COURT: Whatever is Court has received 86-A. Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter That's 149 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 80 of 267 1 (Plaintiffs' Exhibit 86-A received in evidence.) 2 BY MR. QUINN 3 Q 4 want to ask you a couple of questions about that document. 5 First of all, what is the date of that document? 6 A November '97. 7 Q Okay. 8 A Yes. 9 Q And in this statement, do you make reference to the terms And -- well, you are not going to be able to read it. I And you did this; is that correct? I wrote this. 10 that were used by Mr. Despain towards you as working class and 11 lazy ass niggers? 12 A Yes. 13 Q And do you also in this talk about other incidents 14 involving you and Mr. Despain as well as the one that you are 15 writing this about? 16 A Yes. 17 Q And basically, why did you write this? 18 A This was my way of showing them and complaining to my 19 manager that -- what I was being subjected to. 20 it was fair, and I definitely didn't think it was fair that I 21 had gotten three days off behind it, that I was put in this 22 position. 23 Q 24 towards the end of the -- on the first page -- I'm sorry -- 25 first page, last three lines and towards the end of the third I didn't think And if you look down to the last three lines and at the -- Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 150 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 81 of 267 1 line up where it says, "He followed behind." 2 A Yes. 3 Q You say, "He followed behind me. 4 leave for fear of losing my job, but at that time I thought it 5 was best rather than to stay and the situation escalate to a 6 possible fight?" 7 A Yes. 8 Q Is this the first time that you had ever felt that way 9 about Mr. Despain? No. No. Do you see that? I really didn't want to 10 A Robert, like I say, he would bully me on a 11 regular -- he would get into confrontations with me on a 12 regular. 13 Q 14 Stacy and Patterson. 15 A Yes. 16 Q Were you able to? 17 A No, sir. 18 things had kind of escalated and Robert was still coming behind 19 me, yelling and screaming, one way or the other. 20 if I am not mistaken -- to my car, in the office, one or 21 another. 22 before I actually went home because I didn't know how this was 23 going to be spinned. 24 twist it one way or the other. 25 but it was out of hand. And this says that you attempted to get in touch with both Before I actually left the plant as, you know, I went out -- But nevertheless, I did try to contact both of them I didn't know how he was going to possibly I didn't want to lose my job, It had gotten way out of hand. Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 151 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 82 of 267 1 Q And you couldn't remember when you were trying to recall in 2 your memory about what Mr. Despain said to you during this 3 particular incident, but if you will look down, oh, about a 4 third of the way through where it says, "Robert jerked the door 5 open." 6 A About a third of the way down? 7 Q Not quite a third. 8 A I see it. 9 Q Using this, does this refresh your recollection as to what Do you see that? Robert jerked the door open. 10 he said? 11 A He called me a motherfucker. 12 Q All right. 13 A Told me: 14 Don't say shit to him, and he won't say shit to me -- or don't 15 say shit to me, and I won't say shit to you. 16 Q 17 were is you have -- they have seen the document. 18 conferred, and Mr. Patterson comes back to you? 19 A 20 there. 21 the piler and Doug Patterson came to me -- 22 Q 23 presented the paper and after they had conferred, did they tell 24 you any action was going to be taken? 25 A Read on. Don't say another mother fucking thing to him. Now, you have carried this document, and I believe where we Right. It was that day, maybe the next day. They have Somewhere in It may have been a day or so, give or take. I was in Let me stop you and let me ask you, at the time that you No. Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 152 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 83 of 267 1 Q Did they do anything that particular day? 2 A No. 3 Franky's office for a minute. 4 Q 5 days or one day later? 6 A 7 tape or whatever. 8 day, and this all happened so quick. 9 Doug Patterson came in my pulpit and it was like, you know, Only thing he told me he was going to -- going over to Okay. All right. I'm sorry. Somewhere in there. So you know it's a couple of And I told them, you know, about the Doug Patterson came down to my pulpit one It was like (indicating). 10 those are some pretty strong allegations. 11 know, if I didn't -- if I didn't have any proof of it or 12 whatever, if I couldn't prove that, you know, I was going to be 13 terminated. 14 when I told him I had the tape. 15 needed to go home and get it. 16 and told me I needed to go home and get it and come straight 17 back and, if I didn't have that tape, I was going to be fired. 18 He told me that, you And that's when I told him I had the tape. That's And at that time he told me I And he gave me "X" amount of time I went home and got the tape. It was a 8-millimeter, 19 little small little tape, little 8-millimeter tape. 20 my -- first thought was to make a copy of it, but I didn't have 21 anything to reproduce it with. 22 because he took me out of my work station and sent me home to go 23 get it and gave me "X" amount of time to get back. 24 25 My first, Plus, I was in a time line At this point in time, I was more or less, you know, I got to have this tape and, if not, I am going to be fired, you know? Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 153 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 84 of 267 1 So, I mean, I rushed home. You know, I mean, in and out, in and 2 out. 3 Griggs' office, and we played it for Franky Griggs. 4 plain as day. 5 Q What was plain as day? 6 A The conversation on the tape saying that -- with Doug 7 Stacy, my supervisor, telling me that the only problem 8 Robert Despain -- the only problem that Robert Despain has with 9 me is that I am black and referring to me as a lazy ass and I came back with the tape. We took it over to Franky It was It was clear, the conversation. 10 working class nigger. 11 Q Go ahead. 12 A And part of another incident, part of what an incident -- 13 that part was the very beginning, and it was clear. 14 clear. 15 THE COURT: It was I am having trouble understanding 16 everything Mr. Washington is saying. I don't know. 17 jury understand? 18 BY MR. QUINN 19 Q Why don't you put that mike closer to you. 20 A I can talk a little louder. Can the All right. 21 THE COURT: That's good. 22 THE WITNESS: Okay. I took the tape. 23 BY MR. QUINN 24 Q It's okay. 25 A I took the tape over to Mr. Griggs' office, myself and You will get used to it. Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 154 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 85 of 267 1 Doug Patterson, and we played the tape in the room, myself -- 2 Franky Griggs, myself, and Doug Patterson. 3 day. 4 them, you know, so it was -- I was a little nervous about it or 5 whatever, making sure they -- it was obvious and clear to them, 6 and they understood it. 7 over to Dan. 8 Q Who is Dan? 9 A Dan Dimicco, CEO of the company. And it was clear as That was my first time hearing it, you know, in front of One of them said: We need to take this At that particular time, 10 he was the plant manager. 11 Q Is he still the plant manager? 12 A No. 13 Q Okay. 14 A We took it over to Dan's office and played it. 15 got up out of the office and said, you know -- 16 Q Let me stop you. 17 A Yes, it was played for Mr. Dimicco. 18 Q Were you present when it was played for Mr. Dimicco? 19 A Yes. 20 Q Did you hear it being played to Mr. Dimicco? 21 A Yes. 22 Q Was it as clear then as it was when it was heard earlier? 23 A Yes. 24 them got up out of the room and went to go contact counsel, as 25 they said, the attorney or whatever the case may be. He is the CEO of Nucor now. One of them Was it played for Mr. Dimicco? Myself, Franky Griggs, and Doug Patterson. Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter One of Somewhere 155 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 86 of 267 1 in there Dan began to tell me, "Don't you know this is wrong for 2 you to be recording on Nucor" -- on company property or Nucor's 3 property or whatever the case may be, you know? 4 time I am extremely fearful again of my job, and he said, "Don't 5 you know this is wrong?" 6 this." 7 know? 8 yourself briefed." 9 So, okay. And at this He said, "You can be terminated for So I asked him, you know, "What's my punishment," you And he said, "Nothing at this time. Just consider So I am sitting here sweating. So then I asked 10 him, "Well, can I have my tape back?" And he said no, they need 11 to save it for counsel. 12 over to me and had me to put my initials on it, RLW, so I would 13 know that it would be mine if it came back -- the tape, I 14 assume. 15 Q 16 as a result of what he had heard? 17 A 18 expressed my concerns about continuing to have to work with 19 these guys, and he told me I wouldn't have to work with them 20 anymore. 21 Q 22 to take against any of them to you? 23 A Not at the time. 24 Q Was anything else said at that point in time that you 25 remember? And one of them had passed the tape And that was that. Did Mr. Dimicco indicate that he was going to do anything Yes. He told me, as far as I was concerned that I We wouldn't be on the same crew. Did he indicate any kind of a discipline that he was going Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 156 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 87 of 267 1 A No. At that point in time, I think they were going to go 2 talk to Stacy -- Doug Stacy again and Robert Despain again. 3 Q 4 indicate to you that anything at all had been done to either 5 Mr. Despain or to Mr. Stacy? 6 A 7 wouldn't have to work with him again, he wouldn't be a lead man, 8 he wouldn't be over me again. 9 Q Did you continue to work with him, though? 10 A Yes. 11 still remained in the same crew, same -- with Robert Despain and 12 Doug Stacy. 13 Q 14 with both of them on a continuous basis for the rest of your 15 employment after that meeting with Mr. Dimicco? 16 A Yes. 17 Q Now, the seeing the Confederate flag that you have 18 described, how did that make you -- first of all, what did it 19 stand for to you? 20 A 21 you know, a lot of guys would say in the plant. 22 hatred and the hateful feelings that come along with that flag. 23 Q And seeing it, how did it make you feel? 24 A Initially, when they first put it up at the plant, I was 25 scared. Okay. Did anybody ever come back to you after that and Nothing happened. Robert Despain, again they told me I I ended up, through the course of my entire career, I And that was my next question. Did you continue to work To me, it represents slavery and the south will rise again, It's a lot of My background coming out of the military, this is my Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 157 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 88 of 267 1 first job in the real world. It was my first job in the real 2 world. 3 you know? 4 six years, and I never had to deal with it. 5 Q 6 testified to here today, the graffiti and -- well, first -- and 7 I think you have already described it -- how you felt when you 8 had to remove the KKK. 9 the racial slurs, how did they make you feel? A lot of that, I never had to deal with in the military, I never had to deal with it in the military. I did And the other things that you witnessed that you have Less than a man. But the other graffiti that you saw and 10 A Less than a person. Embarrassed. 11 Shamed. 12 didn't want to. 13 Q 14 with Mr. Dimicco when he actually heard what was being said 15 about you, the inaction, how did that make you feel? 16 A 17 going to get worse at that time. 18 fearful because I didn't expect to have to go back and work with 19 these guys again. 20 leadership again, but it happened. 21 happened again. 22 Q And how did it affect you on the job? 23 A It made it really hard to do your job, you know? 24 it real hard. 25 know, it was just -- I mean, because I still came to work even though I I mean, it was just demeaning. It was hurtful. And the incidents involving Mr. Despain and the incident Nothing was going to ever change. I felt, again, it was I felt that it was. Again, I didn't expect to be under Robert Despain's It happened again. It It made Sometimes self-doubt and self-confidence, you Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 158 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 89 of 267 1 Q Did you have discussions with any of your supervisors about 2 how difficult it was to come to work and work with these people? 3 A 4 issues and other issues with Doug Patterson, Keith Fowler, 5 Glenn Ellis, Mike Dugan, Joe Stratman, and Dan Dimicco. 6 Q 7 know what it was that was causing you these problems? 8 A At different times. 9 Q And did it include the racial slurs and the other Yes. I discussed the different phases, I discussed those During the course of those discussions, did you let them 10 harassment? 11 A Yes. 12 Q Were there, did that -- did what you witnessed and what 13 happened to you at work affect you at home? 14 A Yes. 15 Q How? 16 A I don't want to say I took it out on anybody in my 17 household so to speak, but when you go home and you easily are 18 irritable, I guess, it cause arguments or whatever which 19 causes -- leads to relationship problems or whatever the case 20 may be. 21 Q 22 were discussing the difficulty it was causing you? 23 A Yes. 24 Q Sitting here today, tell the jury what you feel today 25 coming here and testifying. And did you also bring that up to your supervisors when you To Glenn Ellis definitely. Definitely to him. Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 159 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 90 of 267 1 A It took a lot. It took a lot for me to get up here, to 2 relive a lot of those hurtful things. 3 was going around the mill, it took everything in me to come to 4 work. 5 to work. 6 afford to leave. 7 embarrassing to sit here and refer to myself or refer to them, 8 should I say, referring to me with some of these comments. 9 hurts. You know, even when it There were some time periods I just didn't want to come I didn't want to be there, but I couldn't financially It's hurtful. It's shameful. It's It 10 Q 11 time from work? 12 A 13 point in time I had to start seeing a doctor. 14 a doctor, and I started wanting time off to just get away from 15 it all to gather my thoughts to, I don't know, just -- I needed 16 to -- release. 17 Q 18 And were there times that you, in fact, did ask off some Yes. You know, things got -- I got to the point at one Thank you. I started seeing That's all -- just a second, yeah. You mentioned some people, and I need to identify who those 19 people are. Who is Glenn Ellis? 20 A 21 supervisor. 22 Q And Joe Stratman, who is he? 23 A Joe Stratman, during that time, was a controller, but 24 during the later years I was there, he became the plant manager. 25 Q Glenn Ellis, at a later time after Doug Stacy, was my And Franky Griggs, who is he? Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 160 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 91 of 267 1 A Franky Griggs was a department manager over the rolling and 2 finishing mill. 3 Q And Mike Dugan, who is he? 4 A Mike Dugan, I am not sure his first job when he came, but 5 he at one point in time was the manager. 6 Q And now what is his position? 7 A I don't know what Mike Dugan's position is at this time. 8 Q Okay. 9 10 All right. THE COURT: We're going to start cross-examination. We're going to break at, oh, about 12:30 or a little after. 11 CROSS-EXAMINATION 12 BY MR. WADDELL 13 Q 14 break, but let's see what we can get through at this point in 15 time. 16 Mr. Washington, we're going to get started and take a Let's talk a little about your background. You began work 17 at Nucor, as I understand, in 1993? 18 A '93. 19 Q Before that time you said that you had had -- been in the 20 military for about six years? 21 A Yes. 22 Q And you will have to speak up so I can hear you as well. 23 A Yes. 24 Q Okay. 25 understand, you worked as a military policeman at times? Thank you. And during your military career, as I Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 161 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 92 of 267 1 A Yes. 2 Q And so were trained to essentially not only look out for 3 yourself and protect yourself, but protect others? 4 A Yes. 5 Q And that's the background that you brought into the Nucor 6 atmosphere in 1993, correct? 7 A Yes. 8 Q You have never been one to shy away from standing up for 9 your own rights, have you? 10 A Have I ever shied away from standing up for my own rights? 11 Q Yes. 12 A I wouldn't say I was the one that would always just jump up 13 and say, you know, you violated my rights. 14 I guess my mom told me along the way, you have to pick and 15 choose your battles. 16 Q 17 that at Nucor. 18 wrote to the company. 19 your personnel file? 20 A The memo that I wrote? 21 Q Yes, sir. 22 A Yes. 23 Q So the company put your own words into your permanent 24 personnel file where you recounted the problem you were having 25 with this one employee, Mr. Despain, correct? Sometimes, you know, Well, when it was time to stand up for your rights, you did We have talked about your 1997 memo that you Were you aware that that is a part of Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 162 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 93 of 267 1 A After the point it went on for so long, yes. 2 Q I understand that you said it went on for a while, but the 3 point is that not only did you complain, you complained in 4 writing. 5 take that seriously. 6 put it in your permanent file. 7 8 And your expectation would be that your employer would MR. QUINN: knows that. That's represented by the fact that they Would you agree with that? I am going to object to that unless he I object. 9 THE COURT: I think he -- 10 MR. QUINN: Unless he personally knows. 11 THE COURT: I think he testified that he knew it. 12 He acknowledged that he knew it, didn't he? 13 MR. WADDELL: 14 THE COURT: That was his testimony, Your Honor. All right. 15 BY MR. WADDELL 16 Q 17 wanted to ask you about that. 18 We're going to talk about that after lunch, but I just Let's talk about Nucor in general. Am I understanding you 19 to tell this jury that from the day you walked on the premises 20 at Nucor that you considered it to be a racially hostile work 21 environment? 22 A 23 first day I showed up for work, I was afraid. 24 Q And you didn't turn around and walk back out the door? 25 A No. What I am telling you is when I walked into Nucor, the Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 163 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 94 of 267 1 Q And continued to work there for ten years? 2 A Yes. 3 Q You have not worked at Nucor since September, the end of 4 September 2003; is that correct? 5 A Yes. 6 Q You are not telling this jury that every day at Nucor was a 7 bad day, are you? 8 A Was every day a bad day? 9 Q Yes, sir. 10 A No. 11 Q As a matter of fact, you were telling this jury about your 12 progress at Nucor, as I understood it, of -- you were talking 13 about the cooling beds where you started, correct? 14 A Yes. 15 Q That was a Grade 2 position? 16 A Grade 3, I believe. 17 Q Grade 3? 18 A I believe it was. 19 Q And the way it works at Nucor, if you are an employee, part 20 of your pay is based on your grade, correct? 21 A Yes. 22 Q And then part of your pay is based on production? 23 A Yes. 24 Q And you weren't kept as a cooling bed, Grade 3 operator or 25 employee for ten years, were you? Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 164 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 95 of 267 1 A No. 2 Q As a matter of fact, you were promoted and became a piler 3 operator in the finishing department, correct? 4 A Only after we complained. 5 Q You became a piler operator in what year, sir? 6 A Rough guess, '94. 7 Q Well, you started working in 1993. 8 A I'm sorry. 9 years afterwards. I say rough guess. I got the years -- it was about a couple of Two to three years afterwards roughly. 10 Q I am not following you, sir. So in what year did you 11 become a piler operator, if you recall? 12 A I don't recall the exact year. 13 Q Was it in the 1990s? 14 A Yes, it was in the '90s. 15 Q So in the 1990s, you were promoted and had an increase in 16 pay because of that; is that correct? 17 A Yes. 18 Q As of the time that your employment ended at Nucor, you 19 were assigned to a piler position, which had you in a pulpit, 20 working controls for some pretty complicated equipment, correct? 21 A Yes. 22 Q There was a south piler and a north piler position, as I 23 understand? 24 A Yes. 25 Q And you would agree that the north-end piler position on Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 165 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 96 of 267 1 most days was a busier position and a harder position than the 2 south piler position? 3 A Say that one more time. 4 Q You would agree that when you compared those two pulpit 5 positions, south pulpit versus north pulpit, north pulpit 6 position was generally considered the busier of the two 7 positions? 8 A That's incorrect. 9 Q Okay. Do you not recall getting into a dispute in 2003 10 involving Doug Stacy because he requested that you work the 11 south piler pulpit? 12 A Yes, I do. 13 Q And he wanted you to work the south piler pulpit position 14 because it was a busier position than the one you were in? 15 A That's correct. 16 Q And that upset you, did it not? 17 A Yes. Part of it. 18 MR. WIGGINS: 19 THE COURT: 20 21 Your Honor, may we approach? You may. (Bench conference reported as follows:) MR. WIGGINS: In a motion in limine, I think theirs and 22 ours said that we were not getting into his termination, which 23 you have already granted summary judgment on, and that's what he 24 is about to get into, the fact that he was on -- 25 MR. WADDELL: I don't intend to ask him whether he was Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 166 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 97 of 267 1 terminated. 2 THE COURT: All right. 3 MR. WADDELL: Where are you going with it? Well, my line of questions, Your Honor, 4 at this point is establishing that he is indicating that the 5 black employees, including himself, were put in the worst of the 6 positions. 7 piler positions, he had the piler position that was not 8 considered the busiest of the two positions. 9 fairness, I am intending at some point -- I won't do it before He has been promoted and, when you compare the two Now, in all 10 lunch, and I suppose we can take it up -- is to get into his 11 violent outburst without saying it led to termination. 12 does have relevance to this lawsuit and his claims that are 13 pending. 14 THE COURT: But it Well, I am not going -- I will let in other 15 circumstances, but not that he is terminated because we all 16 agreed. 17 how he has acted. I will let in other circumstances of his employment and I will let that in. 18 MR. WIGGINS: 19 THE COURT: The discharge incident itself? Yeah, the incident. I am not going to let 20 the fact that he was fired in, and you can tell him that he 21 doesn't have to say he was fired. 22 MR. WADDELL: 23 after the lunch hour? 24 25 THE COURT: Okay? You understand that? Do you want me to wait to get into that Why don't you do that. (Return to open court.) Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 167 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 98 of 267 1 BY MR. WADDELL 2 Q 3 with Mr. Despain. 4 resented the fact that he was wanting you to come down and work 5 a busier position than you generally had to work; is that 6 correct? 7 A That is incorrect. 8 Q So it didn't make you any difference what piler position 9 you worked in? Mr. Washington, back to my question. No. Back to the dispute The genesis of that dispute was that you That's what Mr. Despain said. Is that your testimony? 10 A You just asked me about Mr. Despain. Mr. Despain 11 wasn't involved in that. 12 piler being busier, and that wasn't the case either. 13 Q Fair enough. 14 A Okay. 15 Q Do correct me when I am wrong. 16 A Okay. 17 Q So Mr. Stacy wanted you to come down and work in his pulpit 18 position sometime in September of 2003? 19 A Yes. 20 Q And you considered the pulpit position where Mr. Stacy was 21 on that shift to be busier than the piler job position you were 22 assigned to? 23 A Yeah. 24 Q And we're going to come back to that after the lunch hour 25 and spend a little time talking about that particular incident, You also mentioned about the north It was Mr. Stacy. Sometimes, yes. Sometimes. Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 168 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 99 of 267 1 but let me go into a different area with you again before we 2 take a break. 3 this jury that essentially from 1993 until 2003, you constantly 4 saw all of these Confederate symbols as represented by flags, 5 do-rags, coffee mugs, stickers. 6 mentioned that I have forgotten? 7 A Not right off the top of my head. 8 Q And certainly before the year 2003, I imagine that you 9 started contemplating that you were thinking about taking legal It's -- as I understand, it's your testimony to Is there anything else that you 10 action against your employer for being treated unfairly. 11 A Yes. 12 Q You have a military police background, do you not? 13 A Yes. 14 Q You do not have to offer to this jury a mug that has a 15 Confederate symbol, do you? 16 A No. 17 Q Do you have a sticker that you removed from the company 18 premises that was on a toolbox, helmet, or anything else that 19 you could show to this jury? 20 A No. 21 Q Did you ever take a picture of any of the graffiti that you 22 have told this jury that you saw in the restrooms? 23 A No. 24 Q With a military police background, did you keep notes, 25 dates of all of these instances starting in '93 up to 2003 so Yes, sir. Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 169 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 100 of 267 1 that you could specifically document the things that you are 2 telling this jury about today? 3 A There were some notes. 4 Q Do you have those notes with you today, sir? 5 A Only notes I would have had were turned over to the 6 attorneys in the beginning. 7 Q Really? 8 A Yes. 9 Q Does your -- do your attorneys have those notes? 10 A That's a question for them. 11 12 MR. WADDELL: There were some notes. Your Honor, we have requested that in discovery and, if they have them, we would like to see them. 13 MR. WIGGINS: 14 in open court. 15 he just asked for. 16 Your Honor, that's not a proper statement They have been given every note and every date THE COURT: It's time to go to lunch. 17 And you get a break too, Mr. Washington. 18 And the jury gets a break. Keep in mind, ladies and 19 gentlemen, not to discuss the case with anyone, including each 20 other. 21 be in recess until 1:45. 22 Keep an open mind on the issues in the case. Please try to be prompt. Court is now in recess, and I will talk to the lawyers 23 outside the hearing of the jury. 24 (Jury exits the courtroom.) 25 Court will THE COURT: All right. The witness testified he had Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 170 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 101 of 267 1 notes, and I don't want anyone else talking to me in front of 2 the jury about what you have asked for in discovery. 3 MR. WADDELL: 4 THE COURT: I apologize, Your Honor. And Mr. Wiggins has said, as an officer of 5 the Court, he has turned over everything that was available, 6 everything that he had. 7 been -- was filed in '04, and it's one of the oldest cases I 8 have, if not the oldest, and I really have -- I have no 9 recollection back, you know, about any notes. And so I don't know -- this case has I haven't 10 reviewed every document in the file, but I don't have any 11 recollection about it. 12 it is? 13 MR. WADDELL: Do you-all want to just leave it where Well, Your Honor, no. I mean, we asked 14 in deposition: 15 record any of these incidents contemporaneous with it happening? 16 His testimony was he turned over everything he had to his 17 counsel. 18 break if necessary, but at that time we asked that they provide 19 those to us. 20 over, save from what we have in the personnel file that was an 21 exhibit before this jury. 22 Mr. Washington, have you ever taken any notes to I will find the Q and A in the deposition over the And there have been no notes of incidents turned THE COURT: Well, was his deposition inconsistent with 23 his testimony? You may impeach him with anything he said in the 24 deposition that was inconsistent, but that's -- I have no idea, 25 you know -- now that the jury has heard this, the best thing I Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 171 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 102 of 267 1 know to do is just let it go. 2 wanted it. 3 everything they had. 4 it. You have heard Mr. Wiggins say that they handed over And so that's where I would like to leave 5 MR. WADDELL: 6 THE COURT: 7 8 9 They have heard you say that you Okay. Unless he said something different. If he said, No, I didn't take notes or -MR. WADDELL: Well, Your Honor, I -- with the Court's permission, what I would like to ask him is: Except for the 10 1997 notes that have been made an exhibit in this case, does he 11 have any other written notes recording any events or complaints 12 he had at Nucor during his employment? 13 THE COURT: Well, he said -- you asked him that, and he 14 said he had written down a few things and given everything to 15 his lawyer. 16 17 MR. WADDELL: We requested any other information from counsel, and it's not been produced. 18 THE COURT: That has been covered. 19 MR. WADDELL: I understand, but the representation by 20 counsel in front of the jury was, "We turned it all over." 21 that's why I made a speaking objection out of turn, and won't do 22 it again, but the implication in front of the jury is: 23 give you his notes. 24 THE COURT: 25 And We did And that's not correct. Well, he said to me -- Mr. Wiggins said to me that he had given everything to you, that he did not have any Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 172 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 103 of 267 1 notes from Mr. Washington except anything that you might already 2 have. 3 exchange of discovery, and I have already ruled that the 4 plaintiff may not -- and this was pursuant to your motion in 5 limine -- may not infer that you have destroyed the tape. 6 so I am going rule that you not infer that they destroyed the 7 notes. 8 one is going to infer, make the inference, I am going to let the 9 other one do it. Of course, I was not around for exchange, for the initial And Both of them are, you know, missing apparently, and if So if I were both of you, I would just drop 10 it. 11 now they're hearing about notes that he purportedly gave to 12 counsel. 13 They're hearing that the tape -- that he left the tape, and MR. WADDELL: But the counsel has represented in front 14 of the jury that they in turn were given to us. 15 problem where it's left. 16 17 THE COURT: 19 No, what he said -- he didn't say -- he said, "We gave everything we had to them." 18 That's the Let's go back, Cheryl. I don't know -- Let's go back to right before the jury left. 20 COURT REPORTER: (Reading back.) "MR. WIGGINS: 21 Honor, that's not a proper statement in open court. 22 been given every note and every date he just asked for." 23 24 25 THE COURT: Your They have Every note and every date he just asked for. Do you have any other notes that you have not given him? Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 173 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 104 of 267 1 MR. WIGGINS: We have given them everything, Your 2 Honor. 3 have given them everything. 4 THE COURT: 5 MR. WIGGINS: 6 There has never been a motion to compel anything. We And there is nothing -I will check at lunch to see if there is something that -- 7 THE COURT: Why don't you ask -- spend the lunch hour 8 with your client. Ask Mr. Washington what he might have written 9 down and given to you. 10 MR. WIGGINS: 11 already expressed it. 12 have a concern that they make the spoliation statement to the 13 jury in open court like that. 14 do that. 15 THE COURT: I have a concern, and the Court has I don't want to beat a dead horse, but I I thought we weren't supposed to Well, you're not and, of course, they filed 16 a motion that you not do that with respect to the tape. 17 what I might do is give a limiting instruction, after -- after 18 determining what you might have that you have not turned over, I 19 will just tell the jury that they're going to hear and they have 20 heard evidence -- what did -- oh, they heard in opening 21 statement that the tape is nowhere to be found. 22 they heard in opening statement. 23 evidence that the tape has not been found. 24 25 MR. QUINN: Right. And That's what They haven't heard any Because you told me I couldn't go into it or mention it. Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 174 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 105 of 267 1 THE COURT: And so I have just -- this is what I will 2 do. 3 whether -- and you can go through whatever you have to see what 4 else might be -- might have been -- you might have and try to 5 refresh his memory, Mr. Washington's memory, about what he might 6 have given you. 7 the jury back in how Mr. Quinn might deal with this on redirect 8 because, you know, I -- I don't know what has happened to these 9 things. 10 I will let you talk to your client and then you can tell me I am trying to be fair to both sides, and I know what the -- what did he testify to in the deposition? 11 12 And you can -- we can determine before we bring MR. WADDELL: Do you recall? I'm going to pull those answers, Your Honor. 13 THE COURT: Mr. Waddell, you should not have suggested 14 this in front of the jury. 15 to. 16 other than in opening, that no one knows where the tape is. 17 so I just feel very uncomfortable, but I think both of you have 18 something on the other now with respect to this. 19 best guess is to let Mr. Washington discuss with his lawyers 20 what he might have given them, for them to look through their 21 materials to make sure they have given you what they think they 22 have given you, and then take it up right after lunch. 23 24 25 That's what Mr. Wiggins is objecting They did not make the suggestion in front of the jury, And And I -- my Ms. Wiggins has something. MS. WIGGINS: I think I found in Mr. Washington's deposition where he speaks about notes, unless Mr. Waddell is Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 175 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 106 of 267 1 aware of some other pages. 2 deposition where they are asking if you brought any documents to 3 the deposition. 4 Mr. Washington that he had given notes to his attorneys. 5 said that he scribbled a few things down and threw them away, 6 and it's about jobs he didn't get, which is not a part of this 7 case. 8 9 10 I don't see at a quick glance any statement by MR. WADDELL: THE COURT: can go over that. 13 recess. We I will try to be back here by 1:30 so we The jury is coming back at 1:45. THE COURT: 16 hear? 17 of the jury. 20 That was We're in (Recess at 12:41 p.m., until 1:41 p.m., jury not present.) 15 19 He asked very clearly did he take any notes about incidents. 12 18 That was taken out of context. deposition notes on a day before he sat for deposition. 11 14 It's on pages 15 and 16 of his All right. What do you want the Court to And let the record reflect that we're outside the hearing MR. WADDELL: I don't know where we left it, Judge, on who is making the record. THE COURT: Well, we're talking about -- why don't 21 you -- I will ask Mr. Wiggins. 22 MR. WIGGINS: All right. We object to the deposition 23 and the production request response. Production Request No. 12 24 reads this: 25 notes kept by you and/or your relatives and/or your friends Any and all diaries, calendars, and other lists or Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 176 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 107 of 267 1 regarding or related in any way to any allegation against 2 defendants. 3 known to exist that are not protected by an attorney-client 4 privilege or that are not part of an attorney's protected work 5 product. 6 protected from disclosure. 7 The answer was the following: None are currently Plaintiffs object to producing anything that is And then it goes on to say the same thing several different 8 ways again, and we have determined at lunch that that is a true 9 and correct reflection that what he was referring to were notes 10 given to counsel that were privileged notes simply to get the 11 counsel ready because we don't live in the same state. 12 THE COURT: 13 MR. WADDELL: 14 responses dated May 13, 2005. 15 Mr. Washington, on August 22, 2005, in response to the question 16 about interrogatory said: 17 times you reported racial harassment or discrimination to any of 18 the individuals you listed in Interrogatory 10, "Did you take 19 any notes during those reportings? 20 "ANSWER: 21 "QUESTION: 22 "Answer: 23 attorneys already. 24 25 Go ahead. Your Honor, in -- those were discovery In deposition testimony, Regarding any meetings or any of the I may have. Do you still have a copy of those notes? Any notes that I have, I have turned over to my "Did you believe that you turned over your notes to your attorneys? Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 177 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 108 of 267 1 "I turned over whatever I had to them 2 "Do you believe those documents included your notes? 3 "Yes." 4 THE COURT: 5 MR. WADDELL: 6 Do you what? I'm sorry. Do you believe those documents included your notes? 7 ""ANSWER: 8 That was the basis of the question, and I don't think we 9 Yes." still have gotten the proper response. 10 THE COURT: Well, this is what I would rule, even 11 though I have not researched it. 12 a communication from a client to a lawyer for the purpose of 13 receiving legal advice, and that would be a privileged matter. 14 Now, if he -- I would permit you to see those notes if he were 15 using them to aid his testimony, and I am ruling from the seat 16 of my pants. 17 that were prepared as financial records would not be privileged 18 because they weren't testimony at the time they were prepared, 19 and the Eighth Circuit reversed me and said they were testimony 20 and that I should not have made Web Hubble turn them over. 21 so -- 22 It appears to me that this was One time I ruled in a grand jury matter that notes MR. WADDELL: And We're not asking for the attorney 23 communications. The question was: 24 during those reportings? 25 notes. Did you take any notes We are talking about contemporaneous Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 178 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 109 of 267 1 THE COURT: I know what you are saying and they weren't 2 made -- he made them. 3 communicate with Mr. Wiggins. 4 had said with regard to these other documents that the grand 5 jury wanted. 6 they were made at a time when no one was under investigation and 7 they were not privileged, and the Eighth Circuit said that I was 8 wrong, that making him turn them over was an act -- was a 9 testimonial act and it was privileged. 10 They were not necessarily made to And that's consistent with what I And I said that they should be turned over because MR. WADDELL: Just out of curiosity, was that on 11 self-incrimination grounds? 12 THE COURT: Yeah. It was self-incrimination grounds, 13 but I don't -- I mean, I have to rule without looking anything 14 up. 15 privilege -- a broad definition of privilege is a communication 16 between an attorney and his client made for the purpose of legal 17 advice. 18 communicating with his attorney for the purpose of receiving 19 legal advice. 20 I did not prepare for this, but I am just saying that a And this was a -- he handed over these notes by way of Now, that might be an inaccurate statement or inaccurate 21 conclusion, but that's the best I can do now. 22 were using these to aid his testimony, I would certainly require 23 you, as I always do, require the witness and Mr. Wiggins to let 24 you see what he is reading from. 25 MR. WADDELL: And, again, if he We understand the ruling. Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 179 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 110 of 267 1 THE COURT: All right. All right. Bring them in. 2 by the way, I will just say on the record, I think this is a 3 very small matter. 4 think you're making much more out of this than it's worth. 5 6 I just want to tell both of you that. MR. WADDELL: And I I have been accused of that many times, Judge. 7 THE COURT: But if I were the finder of fact, it 8 wouldn't make a hoot to me frankly. 9 probably talking about recent fabrication, and you are trying to 10 look for that probably. 11 to me. 12 I just wouldn't -- it wouldn't matter Isn't that what it's called, recent? (Jury enters the courtroom.) 13 14 I think that you're THE COURT: Good afternoon, and please be seated when you get to your chairs. 15 All right. Mr. Waddell, you may proceed. 16 BY MR. WADDELL 17 Q 18 asking you before the lunch hour about the fact that you had 19 been moved from an I-bed position to a piler position, and you 20 said that was probably in 1994? 21 A 22 three or four years into it. 23 Q All right. 24 A Possibly, yes. 25 Q That represented a grade up in pay, right? Mr. Washington, we will conclude with our questions. That was about -- that was when I started. I was It was about So it could have been 1996, 1997 possibly? Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 180 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 111 of 267 1 A Yes. 2 Q And you were talking about how unpleasant it was to work in 3 the cooling bed area because of heat. 4 A Yes. 5 Q When you were moved to the piler pulpit position, you were 6 actually put into an air conditioned console surrounded with 7 glass and a door, correct? 8 A Not originally. 9 Q Air conditioning was added to all the pulpits, was it not? 10 A Years later. 11 Q So you enjoyed that same accommodation as any other 12 employee once Nucor moved to air conditioning for the pulpits; 13 is that correct? 14 A Yes. 15 Q As far as where other employees worked or did not work, you 16 are not in position to tell this jury which employees applied 17 for what positions, what their qualifications were for any open 18 position, and whether or not they even bidded for positions. 19 You just don't have that information, do you? 20 A 21 information with me. 22 Q 23 began your employment with Nucor -- and it may not have been in 24 the first year, but sometime shortly into your employment, you 25 did receive an employee handbook? Remember that testimony? Eventually. I know of people applying for jobs, but I don't have that Okay. You have acknowledged that at some point when you Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 181 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 112 of 267 1 A Yes. 2 Q And within the handbook, there was quite a bit of 3 information that Nucor provided to you about your status as an 4 employee. 5 A Indirectly. 6 Q Do you recall that? 7 Do you recall that? MR. WADDELL: And, Your Honor, this has been introduced 8 as Defendants' Exhibit 380. 9 THE COURT: 10 Is that one of the ones? 11 12 Is that already in? MR. WADDELL: It's a collective exhibit, employee handbook, Defendants' Exhibit 380. 13 THE COURT: 14 All right. It's received. (Defendant Exhibit 380 received in evidence.) 15 BY MR. WADDELL 16 Q 17 employee handbook which you say that you received. 18 recall that Nucor-Yamato was telling you in writing that it was 19 an equal opportunity employer and did not distinguish between 20 race and other protected categories? 21 A I don't remember this. 22 Q You don't remember that being in the handbook? 23 A No, sir. 24 Q Do you remember your handbook also made reference to the 25 fact that important company information would be posted on the Referencing to Defendants' Exhibit 380, this was an Do you I don't recall it. Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 182 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 113 of 267 1 company bulletin board? 2 A 3 details in the handbook at this time. 4 Q Again, I am having trouble hearing you. 5 A I don't recall all the details of the handbook at this 6 time. 7 Q 8 don't remember all the details about the handbook is because in 9 reality you got a handbook, but that's not something you carry I don't recall this information. I don't recall all the Well, let's talk about that for a moment. The reason you 10 with you every day as an employee, did you? 11 A No. 12 Q I mean, if you wanted information and quick reference to 13 information, the company bulletin board was the place to get it, 14 correct? 15 A 16 didn't look at the bulletin board on a daily basis either. 17 Q 18 because it would have information about your weekly production 19 bonus. 20 A 21 different things. 22 mail on it. 23 Q 24 production pay information? 25 A You could get information off the bulletin board, but I You would have looked on it on at least a weekly basis There were multiple bulletins boards, but they had I mean, people selling items to just junk Within the company bulletin board, there would be weekly The bonus or something like that. Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 183 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 114 of 267 1 Q Is it your testimony that there was no weekly production 2 bonus pay information on the NYS 2 bulletin boards? 3 A I wouldn't say that there never was. 4 Q Okay. 5 NYS 2 to find out when you had a safety meeting? 6 A 7 on the bulletin board? 8 Q 9 but in addition to your supervisor giving you important I wouldn't say that. And you would also consult the bulletin boards at The supervisor also would let us know. Have I ever seen it Yes. And I understand there were many lines of communication, 10 information, you could also consult the company bulletin board 11 likewise for important information? 12 A Yes. 13 Q Now, you are not representing to this jury that Nucor did 14 not have posted on its bulletin boards a harassment policy that 15 forbid race discrimination and other forms of discrimination? 16 A I don't recall ever seeing it on the bulletin board. 17 Q I understand you don't recall seeing it. 18 for it? 19 A Not specifically. 20 Q Still referencing to collective Exhibit 380 introduced by 21 defendants, another page out of your employee handbook, a 22 complaint procedures policy. 23 known generally as the open door policy at Nucor, correct? 24 A I am aware of us having an open door policy. 25 Q As a matter of fact, you exercised that policy on more than Were you looking You were familiar with what was Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 184 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 115 of 267 1 one occasion when you would take a complaint to your 2 supervisors, correct? 3 A Yes. 4 Q I have heard the name Doug Patterson mentioned by you 5 numerous times in your direct examination. 6 supervisor that you are telling this jury you went to on 7 multiple occasions to register various complaints. 8 A Yes. 9 Q And you know Mr. Patterson, of course, has passed away? 10 A Yes. 11 Q And when you would make these complaints to Mr. Patterson, 12 that was one-on-one conversation, as I understand? 13 A 14 to him together. 15 Q 16 two over a ten-year period of employment? 17 A 18 up. 19 Q 20 least seven years? 21 A Yes, sir. 22 Q So a time or two in a seven-year period? 23 A He wasn't my direct supervisor after a while. 24 Q I understand that. 25 Doug Patterson and your contact with him a time or two as you Mr. Patterson was a There was a time too, when myself and Lamar Friedman went And when you say a time or two, you are saying a time or No. Doug Patterson passed away way before my ten years was Doug Patterson was around during your employment for at I am asking you about, though, Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 185 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 116 of 267 1 recall. 2 A With Lamar Friedman, yes. 3 Q All other occasions, it was one-on-one conversation as you 4 are telling this jury? 5 A Yes, yes. 6 Q Did I understand your testimony to this jury to be that 7 essentially from the time you started at Nucor until 2003, you 8 were, on a very regular basis, complaining of comments or visual 9 things that you had seen to supervisors and management level 10 employees? 11 A Yes. 12 Q And so is it your testimony that that essentially happened 13 over your ten-year tenure of employment? 14 A That I complained often? 15 Q That you complained. 16 A Yes. 17 Q I want to draw your attention to Defendants' Exhibit 242. I complained over ten years. 18 MR. WADDELL: 19 THE COURT: Which has been introduced into evidence. All right. 20 BY MR. WADDELL 21 Q 22 working with your attorneys on giving written responses to 23 questions about your complaints in this lawsuit? 24 A Yes. 25 Q Do you remember specifically in response to Interrogatory These are your answers to interrogatories. Do you remember Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 186 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 117 of 267 1 10 that is a part of Exhibit 242 that you represented in 2 writing, under oath, that most of your complaints occurred 3 between 2000 and 2004? 4 A 2000 and 2004 is probably when it got more heated. 5 Q And you weren't even employed at Nucor in 2004? 6 A 2003. 7 Q So it's 2000 to 2003 when you were making complaints? 8 A I left Nucor towards the end of 2003. 9 2004 came in. I assumed you meant 2003. That may be why the 10 Q The reason I have asked is you told the jury about a 11 seven-year period leading up to 2000 where you were repeatedly 12 complaining. 13 You say that you started making, "I don't remember the specific 14 dates, but I believe most of the complaints occurred between 15 2000 and 2004." 16 A Yes. 17 Q So at best can we agree that, if you had a complaint 18 between 1993 and 2000, it was sporadic? 19 A Yes. 20 Q I understood your testimony on direct examination to be 21 that this conduct happened almost every day you were there. 22 A 23 bad days and I told you yes. 24 Q 25 good days. It's not mentioned in your discovery response. It wasn't on a daily basis. You asked me earlier also was there good days and was there Well, apparently between 1993 and 2000, there were a lot of It's not mentioned in your discovery response, is Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 187 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 118 of 267 1 it? 2 A 3 between the time I started to the time I ended. 4 Q 5 here, and you can read it on the monitor. 6 Defendants' 242. 7 I don't know what all is listed in there, but I complained Let's talk about your response. I am going to put it up Interrogatory 10 in Mr. Washington, can you see the screen and the document I 8 have before you? 9 A Yes. 10 Q Have I correctly read that the time period you identified 11 for most of your complaints occurred between 2000 and 2004? 12 A Yes. 13 Q We have established that you weren't even employed in the 14 year 2004; is that correct? 15 A Ending the year of 2003. 16 Q You were not employed in 2004? 17 A Yes, that's correct. 18 Q And you went on to spell out for us things that you 19 complained about, and you say you complained to supervisor 20 Doug Patterson "telling me that he had kept the blacks on the 21 cooling bed because they can handle the heat better." 22 one complaint, correct? 23 A Yes. 24 Q Todd Ellis referring to Martin Luther King Day as Martin 25 Luther the Coon Day. That's two complaints, correct? Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter That was 188 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 119 of 267 1 A Yes. 2 Q And, of course, as I think we have discussed -- if not, I 3 will reference it to you, Defendants' Exhibit 435 that is in 4 evidence. 5 disciplined for making that comment? 6 A I wasn't aware. 7 Q You would expect Nucor to discipline an employee if they 8 made a comment such as that? 9 A They should have. 10 Q And if Nucor, in fact, disciplined Mr. Ellis for making 11 that comment, that would be appropriate? 12 A Depends on the degree of the discipline. 13 Q Third complaint, Little Johnny jokes being told over 14 intercom system. 15 correct? 16 A Yes. 17 Q And when you reference to the intercom system, are you 18 talking about your squawk boxes? 19 A Yes. 20 Q Your next complaint, racist e-mails. 21 jury, over ten years of employment, one e-mail that you consider 22 to be racist? 23 A One that I saw; the others I heard about. 24 Q I am talking about what you saw and experienced. 25 A Yes. You were aware that Mr. Ellis, in fact, was You told your attorneys today about that, You identify for this Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 189 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 120 of 267 1 Q So you experienced one e-mail that you perceived to be 2 racist? 3 A Yes. 4 Q That was as you interpreted -- 5 MR. WADDELL: 6 THE COURT: 7 THE COURT: 9 have stipulated to? 11 12 13 Do you have a list of exhibits that you MR. WADDELL: I will have to ask somebody else who is qualified. THE COURT: Do you have a list of exhibits, the plaintiffs' exhibits that you have stipulated to? 14 MR. LINKER: 15 THE COURT: 16 You may. (Bench conference reported as follows:) 8 10 Your Honor, may we approach? like to have it. I will get that. You don't have to right now, but I would I have theirs from you, but -- 17 MR. LINKER: I will get it, Judge. 18 MR. WADDELL: Your Honor, I don't think it's 19 intentional, but Mr. Wiggins is talking verbally behind my 20 question and adding additional things and his remark was, "Well, 21 you heard about" -- 22 THE COURT: 23 MR. WIGGINS: 24 25 Yeah. You can't -- I was talking to Mr. Quinn, but I didn't know that anybody could hear me. THE COURT: Well, and sound carries in this courtroom. Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 190 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 121 of 267 1 Just be very careful because, quite frankly, your talking has 2 disturbed me too in chambers. 3 trying to talk to somebody. 4 It just distracts me when you are (Return to open court.) 5 BY MR. WADDELL 6 Q 7 the Clinton White House; is that correct? 8 A Yes, sir. 9 Q That e-mail was not sent to you? 10 A No, sir. 11 Q And you had a choice whether to look at it and to read it 12 or not; is that correct? 13 A I guess that would be accurate. 14 Q You have mentioned in addition Confederate flags being 15 flown from the crane and worn as headscarves, and you have 16 talked about that today with this jury, correct? 17 A Yes. 18 Q And it is your testimony, sir, that you were seeing 19 Confederate do-rags all the way up until your employment ended 20 in 2003, as I understand? 21 A Yes. 22 Q You talked about a period when you first came to work and 23 were referencing to contractors, people that were involved in 24 building the steel mills located there in Blytheville, correct? 25 A We were talking about the one e-mail, and that pertained to It was given to me. Yes. Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 191 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 122 of 267 1 Q And one other complaint is racist graffiti? You went 2 through a description with your attorney today involving you 3 observing on a bathroom wall, and was this within the stall of 4 where a commode would be located? 5 A Both. 6 Q Both? 7 this jury before lunch was that you saw in bold red letters the 8 symbols KKK? 9 A Yes. 10 Q And took that to the attention of Doug Patterson, who was 11 your supervisor? 12 A 13 remember. 14 Q 15 Mr. Patterson's attention, and he sent you down to clean it off. 16 A 17 Doug Patterson and I did talk about it. 18 from someone else, obviously, because I didn't get a chance to 19 tell him about the red KKK that was on the wall. 20 came up in the conversation, it eventually amounted to him 21 sending me in there to clean it. 22 Q 23 stayed in your mind, you saw KKK? 24 A Yes. 25 Q I want to direct your attention to the deposition that you Well, you talked about the incident you described to I didn't take it to his attention then, the red KKK, you Any my understanding is you told this jury you took it to I said other guys had been discussing it, and eventually He had heard about it And when it One thing that is something certainly in your mind that has Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 192 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 123 of 267 1 gave in this case on August 22, 2005, and I am going to 2 reference to page 197, lines 17 through 24. 3 4 Mr. Washington, this is from your sworn testimony August 22, 2005. Let me take you through that. 5 "QUESTION: Where was the racist graffiti located? 6 "Your answer: In a couple of bathrooms right off the bat 7 that I am aware of. 8 "QUESTION: 9 "ANSWER: 10 in our department. 11 straightener, the bathroom back by the repair, and it may have 12 been other bathrooms that I have seen." 13 Which bathrooms were those? In the only two bathrooms at the time that we had And that was the bathroom in the We will go to the next page, lines 1 through 14. 14 A Can you make those a little larger? 15 Q Okay. I am going to continue your answer. 16 "And it may have been other bathrooms that I have seen." 17 We come to the next page: 18 It's just, you know -- 19 "My question: 20 graffiti that you saw?" 21 "But you see it all the time. Now, what was the exact wording of the What was your answer? 22 A Where are you at? 23 Q We're at line 5. 24 A "I don't know, but I've definitely seen the word 'nigger' 25 on the wall on more than one occasion." Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 193 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 124 of 267 1 Q "QUESTION: Which bathroom was that written?" 2 A "That was written, I know one of the ones in the 3 straightener and I know in the one down in repair because 4 Doug Patterson had me go clean it off the wall." 5 Q 6 graffiti, correct? 7 A Yes. 8 Q What was your answer? 9 A Yes. 10 Q On that particular day? 11 A Yes. 12 Q When you were asked in that question and answer, under 13 oath, what specific graffiti you saw, your answer is that you 14 didn't recall other than you could recall one word, the "N" 15 word, correct? 16 A At that time. 17 Q No mention of this KKK emblazoned in red that you have 18 talked quite a bit about today in your direct examination? 19 A Yes. 20 Q Although, that's something that you would never forget? 21 A There is a lot of other graffiti on the wall that I 22 couldn't recall right then that I can remember. 23 Q 24 complaint. 25 Day, right? So your supervisor asked you to clean off that racist Let's talk about those instances where you did make a We have covered the remark about Martin Luther King Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 194 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 125 of 267 1 A Yes. 2 Q You complained about that. 3 that Mr. Despain had been talking to you and acting toward you 4 and actually put that in writing in 1997? 5 A Yes. 6 Q And I think you verified for the jury that you understand 7 that he was disciplined? 8 A 9 operator and a acting lead man, and he still remained a You complained about the way I don't recall -- Robert Despain was a straightening 10 straightening operator. 11 Q 12 about Mr. Despain? 13 disciplined for that? 14 A I am not sure if anything happened to him. 15 Q Let me draw your attention to your deposition August 22, 16 2005. My question was: 17 Do you recall making a complaint in 1997 You understood that, in fact, he was MR. WADDELL: This will be at page 123. 18 1 through 11. 19 BY MR. WADDELL 20 Q 21 involved in any altercation with you?" "QUESTION: 22 23 Was Mr. Despain ever disciplined for being MR. QUINN: time. Enlarge lines Your Honor, there was an objection at that Objection to the form. 24 MR. WADDELL: 25 THE COURT: Asked and answered. Could I complete the Q and A, Your Honor? You may. Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 195 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 126 of 267 1 BY MR. WADDELL 2 Q 3 You are talking about verbal, correct? "WITNESS: You're not talking about a physical altercation. 4 "QUESTION: That's fine. 5 "ANSWER: 6 You understood that Mr. Despain was, in fact, disciplined? Yes. To my understanding." 7 A 8 at it now, I'm not quite sure how that's been answered with all 9 the back and forth. 10 Q 11 I am a little confused on this questioning here. We'll re-read it. MR. QUINN: Looking That's fine. Could we request that he go a page up and 12 read the page up, and then it might be more clear, which is why 13 the plaintiff objected in the first place? 14 THE COURT: I'm going let you cover it on redirect. 15 Go ahead. 16 BY MR. WADDELL 17 Q 18 gentleman you wrote the memo about -- 19 A I know who Mr. Despain is. 20 Q -- for your verbal altercation, remember? 21 screaming at you, using the "MF" word, the intimidation that you 22 talked about? 23 A Yes. 24 Q "Was Mr. Despain ever disciplined for being in any 25 altercation with you?" And again, Mr. Washington, was Mr. Despain -- that's the In the pulpit, Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 196 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 127 of 267 1 Your answer, at line 11 was: 2 Correct? "Yes, to my understanding." 3 A Again, I can't quite decipher this, but I am not sure if 4 Robert Despain was ever disciplined before. 5 straightener operator and he was only acting as lead man and he 6 was told he couldn't act as lead man again. 7 began acting lead man again. 8 Q 9 types of discipline other than being moved from a position to a His position was But he, of course, Mr. Washington, there is certainly a lot more different 10 position. 11 A 12 being done to Robert Despain, if there was anything being done 13 to him, was during the taping incident. 14 not aware of anything ever happening to Robert by any complaint 15 ever made about him. 16 Q 17 were placed under oath and deposed, at that time you had 18 knowledge Mr. Despain had been disciplined. 19 answer. 20 A 21 here on the screen now. 22 answer was going back and forth. 23 Q 24 you can go through it then. 25 That was the only time anything along the lines of anything Other than that, I am Well, suffice it to say, as of August 22, 2005, when you That was your I am not understanding that answer as to how it was related I am not sure if the question and I am sure your attorney will read the other questions, and Let's talk about Mr. Doug Stacy. You understood Doug Stacy Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 197 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 128 of 267 1 was likewise disciplined. 2 you up and talk about Mr. Despain being a difficult person to 3 work with and then, as it turned out, it was your belief he 4 didn't do so, right? 5 A I think somewhere in there he changed his wording. 6 Q And you understood that, after all of that played out in 7 1997, that Mr. Stacy went from a lead man back down to a 8 nonsupervisory position? 9 A Eventually. You said that he was going to back I think I was told that. I am not quite sure, 10 but I believe I was told because of several incidents. 11 Q 12 his asking you to come to his piler position -- 13 A 14 him to do it and not me. 15 Q 16 time? 17 A Yes. 18 Q Meaning that he had been demoted? 19 A Yes. 20 Q All right. 21 that Doug Stacy acted racist towards you, are you? 22 A Yes. 23 Q Now, you took the time -- and it has been introduced as an 24 exhibit in this case -- to submit written documentation, 25 Plaintiffs' Exhibit 86-A, dated November Well, you knew Mr. Stacy was demoted because you resented I didn't go to his piler job because the supervisor asked So again, you considered him to be a co-employee at that You're not telling this jury that you contend -- in the period of Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 198 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 129 of 267 1 November of 1997. Nowhere within your typed statement did you 2 make any complaint about Mr. Stacy making racist remarks toward 3 you or treating you in a racist manner; would you agree? 4 A 5 that time. 6 Q He was right in the middle of that. 7 A Robert Despain got me suspended. 8 Robert Despain at that point. 9 Q That statement was between me and Mr. Robert Despain at It wasn't about Mr. Stacy. You went to him -- It was about You are suspended in 2002 for insubordination. I am 10 talking about in 1997 when you had the confrontation with 11 Mr. Stacy where you said that he called you an -- Mr. Despain 12 where he called you an MF -- 13 A Ask the question again. 14 Q In 1997, when you were trying to write up anything and 15 everything that was happening to you by a co-employee acting 16 racist towards you, did you say anything in 86-A about 17 Doug Stacy being racist toward you? 18 A 19 between me and Robert Despain. 20 Q 21 from 1997, did you make any complaint about Doug Stacy acting 22 racist towards you? 23 A 24 didn't get suspended in 2000. 25 Q In '97, if I am not mistaken, that was just a difference In your typewritten statement, Plaintiffs' Exhibit 86-A, No. Because that was about me being suspended in '97. I After year 1997 until 2003, did you ever submit any written Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 199 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 130 of 267 1 complaint to Nucor in which you stated that Doug Stacy was 2 treating you in a racist manner? 3 A No, I did not. 4 Q And that was despite the fact that you knew that the 5 documentation you submitted in 1997 got results. 6 was disciplined, correct? 7 A 8 there being any discipline to Robert Despain. 9 recall those results when I still had to work with those guys Not in writing. Mr. Despain You weren't demoted? Again, when you said disciplined, I mean, I don't recall And I don't 10 and I still had to be subjected to the things they were doing to 11 me. I don't call that results. 12 Q At some point before 2003, you had a side business where 13 you would sell tamales? 14 A That wasn't a side business. 15 Q Would you sell tamales for pay? 16 A I did it once or twice at, like, a fair with another 17 friend. 18 Q As a matter of fact, sold some to Nucor once? 19 A I sold about seven or eight dozen, give or take or so, to 20 the cafeteria guy. 21 Q 22 your house to buy tamales from you? 23 A Doug Stacy came to my house to buy tamales? 24 Q Yes. 25 A No. And you remember that Doug Stacy actually had come over to I don't recall that. Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 200 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 131 of 267 1 Q That never happened? 2 A No. 3 Q Don't remember Doug Stacy coming to your house with his 4 minister to see if you wanted to go to his church? 5 A 6 one night. 7 remember a minister stopping, yes. 8 Q 9 at different points in your employment in late 2002. I remember Doug Stacy coming to my house with a minister I don't know about the going to church or not. I You talked about the stress and strain that you were under What was 10 happening in your personal life was that you were having all 11 kinds of financial trouble, right? 12 A 2002? 13 Q Yes, sir. 14 A I was having financial trouble, yes. 15 Q They were more than just a few. 16 bankruptcy? 17 A Absolutely. 18 Q You had started a nightclub that didn't work out, correct? 19 A I am trying to make sure -- yeah. 20 that I got out of. 21 Q It wasn't making you any money, correct? 22 A Well, I would say no. 23 Q And so you had the financial problems going on and were 24 under quite a bit of stress and strain at that time to the point 25 you filed bankruptcy and were trying to get some relief, You had to file I started a nightclub The nightclub still ran. It was successful. I wasn't losing anything. Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 201 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 132 of 267 1 correct? 2 A 2002, yes. 3 Q Went to the general manager, Joe Stratman, whom you knew 4 through the open-door policy, and he counseled you about that 5 stress and strain, didn't he? 6 A Joe Stratman talked about my financial status. 7 Q He tried to help you with your stress caused by your 8 personal life. 9 not? No. He even recommended a doctor for you, did he 10 A Not about my personal life. Joe and I did talk about 11 some of the stress and things I was dealing with at work, but we 12 never talked about my financial status. 13 Q 14 all the personal stress in your personal life? 15 A 16 was after the EEOC complaints and so forth, by the way. 17 Q 18 sir? 19 A I don't know that he did. 20 Q Well, Joe Stratman hasn't changed before your EEOC charge 21 or after and he worked out an unprecedented leave for you so you 22 could take off from scheduled work and have time off? 23 A 24 picture. 25 Q Joe Stratman even prayed with you at one time because of Joe Stratman prayed with me once at the very end. All this Does that have anything to do with him praying with you, He cared about you, didn't he? That's not quite accurate how you are painting that Did Mr. Stratman assist you in getting time off from work? Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 202 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 133 of 267 1 A Yes. 2 Q Did Mr. Stratman assist you with getting off work during 3 the time and for a time that otherwise wasn't allowed for any 4 other employee? 5 A 6 two. 7 Q 8 racially offensive and derogatory. 9 A I have talked about some racial things that I have seen. 10 Q You would agree that any employee, whether they're black or 11 white, who refers to a foreign employee as a 50-cent N, that 12 would be derogatory in anybody's book, wouldn't it? 13 A Yes. 14 Q Anybody that referred to a foreigner as a rag head, that 15 would be derogatory in anybody's book, wouldn't it? 16 A I believe so. 17 Q You would agree that any employee, black or white, that 18 suggested that to get employees to move -- black employees to 19 move, you need to throw a watermelon in the middle of them would 20 be a derogatory comment? 21 A Yes. 22 Q Were you aware that Plaintiff Sylvester Rogers made that 23 comment? 24 A No. 25 Q Were you aware that Clifton Lee made the comments about the Other employees got off for the same thing. I can name You told this jury about things that you considered to be Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 203 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 134 of 267 1 foreign person in the cafeteria that I have just referenced? 2 A No. 3 Q You would agree that if someone refers to a black employee 4 as Uncle, that would be derogatory? 5 A 6 uncle. 7 Q 8 that they're playing to white employees? 9 A It depends on how that was used because someone can be your Someone you look up to, you can call them your uncle. It can also be used in a derogatory fashion, indicating If -- I am assuming you are saying Uncle with another word 10 behind it? 11 Q Uncle Marty, for example. 12 A I never heard that. 13 Uncle Marty would have meant to whoever said it. 14 Q 15 employee Marty Orr as Uncle Marty, that could be a derogatory 16 term as well? 17 A It could have been someone he looked up to. 18 Q You think it's a compliment? 19 A I have no idea the connotation it was used in, if it was 20 used. 21 Q 22 draw your attention back to the written response that we read to 23 the jury, and I am not going to put it back up; but you read it. 24 Here is my question. 25 written response to us asking you to identify all instances that Uncle Marty Orr. Don't know what connotation If Plaintiff Sylvester Rogers referred to supervisory Mr. Washington, I am about to conclude, but I do want to Can we agree that nowhere within your Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 204 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 135 of 267 1 you had complained about on harassment, and I had a total of six 2 categories you mentioned. 3 being flown from the crane and worn as headscarves. 4 mention of Confederate mugs, Confederate stickers on toolboxes, 5 helmets. 6 you? 7 A 8 response, but recapping everything, I didn't remember everything 9 right then. You talk about Confederate flags There is no You didn't put that in your original response, did I don't know if the stickers are there on my original 10 Q I understand you have talked about that. I am talking 11 about, in a written response under oath, you didn't mention 12 stickers, coffee mugs, T-shirts. 13 was it? 14 A I don't know if that was in there or not. 15 Q Let's look at it again then. 16 Just give me a moment, and I will find it. 17 A Not a problem. 18 Q You mention Confederate flags being flown from the crane 19 and worn as headscarves and racist graffiti; is that correct? 20 A Yes. 21 Q Is there any mention of the mugs and the T-shirts and the 22 stickers? 23 A No. 24 Q Any mention of the symbols KKK? 25 A No, it does not. That wasn't in the response, I have got too many papers. No, there is not. Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 205 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 136 of 267 1 MR. WADDELL: 2 We will pass the witness. REDIRECT EXAMINATION 3 BY MR. QUINN 4 Q 5 out of your deposition; do you remember? 6 A Yes. 7 Q I am going to show you page 50 of your deposition, a 8 question that -- let me get the page right here. 9 up one more page. Page 50. 10 we're on page 50. Can you see that? 11 A Okay. 12 Q You were asked the question: 13 other named plaintiffs, please describe any specific incident 14 when an African-American employee was subjected to a hostile 15 work environment because of racial discrimination at 16 Nucor-Yamato between December '99 and the present. You also gave a deposition, and he asked you some questions I'm sorry. I will back it Now we have got it, and "Other than yourself and the 17 "Ask that question again, please." 18 They read it back and then read what you said. 19 A In my opinion every African-American that worked there 20 through the years of '99 to 2003 or whatever was subjected to 21 it. 22 e-mails coming across the system, noises across the radio. 23 can't -- you circle something right there. 24 Q It says -- 25 A Making racial slurs, jokes and graffiti on the walls, You had to look at all the flags flying from the crane, Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter I 206 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 137 of 267 1 scarves, paraphernalia being sold over the Nucor Wal-Mart. 2 Q So you did say paraphernalia? 3 A Yes. 4 Q And what did that paraphernalia include? 5 A It included coffee mugs, T-shirts, and what have you. 6 Q And -- 7 A Do-rags. 8 Q And while we have got the deposition, let's go to what he 9 was asking you about earlier. 10 MR. WADDELL: 11 12 13 14 On the page before -- Just a minute. May we approach for a minute and pull that out for a second? THE COURT: You may. (Bench conference reported as follows:) MR. WADDELL: We would ask before counsel puts it up on 15 the screen to tell me a page and line because, if it's not read 16 in response to a question I asked, it's our position that it's 17 improper. 18 19 THE COURT: Right. It has to be related. It has to be within the scope. 20 MR. QUINN: It is. 21 THE COURT: Well, he wants you to state before you put 22 it up there. This is a procedural thing. I anticipate that 23 this is a question about Despain, whether he knew that Despain 24 had been disciplined, and so I believe it's probably around 25 page 121. Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 207 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 138 of 267 1 MR. QUINN: 2 MR. WADDELL: 3 122. I am just asking before he puts it down if I can get to my page and read the lines. 4 MR. QUINN: Got you. 5 THE COURT: Thank you. 6 (Return to open court.) 7 BY MR. QUINN 8 Q 9 incident. Okay. We're on page 122, and this is on the Despain Before being asked the question that you were asked 10 by defense counsel to read, you were asked the question: 11 Mr. Despain ever disciplined for being involved in any 12 altercation with you?" 13 line 11, please. 14 A 15 times Robert Despain was -- to my understanding he was." 16 Would you read the answer starting on "To my understanding he was. THE COURT: "Was On one -- there were multiple Just read slowly, please, so the court 17 reporter -- 18 BY MR. QUINN 19 Q Yeah. 20 A "On one there were multiple times when Robert Despain was 21 involved in an argument with myself, and I felt that he provoked 22 it or started it. 23 about it, and I felt that nothing was done about it. 24 major incident that happened included the recording, and that 25 led to Robert Despain losing his -- I mean, lead man position." And then read on. And I complained on more than one occasion Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter And the 208 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 139 of 267 1 Q Right. Well, did he have a permanent lead man position? 2 A No. 3 Q And afterwards, was he a lead man? 4 A Yes. 5 Q And when he became a lead man again, did he become your 6 lead man? 7 A 8 he became a lead man, but another department, I believe. 9 Q He was acting lead man. His permanent -- Later on he became a lead man. He was acting lead man for me later on. Okay. And then later on And I think I asked you this in your direct, but I 10 will ask it again so that it will be clear. Did anybody ever 11 come to you during that incident or after that incident with 12 management and actually tell you that he had been removed as a 13 lead man as a discipline for what you reported? 14 A Absolutely not. 15 Q And did anybody ever come to you and say: 16 what you have reported that Mr., was it -- who was it -- 17 Mr. Stacy had ever been disciplined as a result of what you 18 reported? 19 A No. 20 Q If you are disciplined, is there supposed to be a written 21 record? 22 A Well, when I am disciplined, there is. 23 Q Is it your understanding that if, in fact -- well, let me 24 ask you this question. 25 Mr. Despain was, in fact, disciplined, in your opinion should As a result of If what you have been asked is true and Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 209 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 140 of 267 1 there be a written discipline of that? 2 A Yes. 3 Q And the same would go for Mr. Stacy. 4 written discipline of that? 5 A Yes. 6 Q You were also asked questions about your interrogatory 7 answer, Interrogatory No. 10. 8 down on there, and you listed many of the things that you talked 9 about in your direct examination, correct? Should there be a And I just want to quickly look 10 A Yes. 11 Q How many times -- how many different times were you asked 12 to tell about the hostile work environment, do you believe? 13 A Ask the question again. 14 Q All right. 15 A Yes. 16 Q The deposition was after the interrogatory answers, 17 correct? 18 A Yes. 19 Q And then later on, you gave other statements, a 20 declaration, things like that, correct? 21 A Yes. 22 Q And let me just ask you, every time that you did that, 23 would you remember things that you had not remembered before? 24 A Yes. 25 Q And here you say, "Graffiti." How many times? You gave a deposition, right? Sometimes I would. Do you see where I have Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 210 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 141 of 267 1 boxed it, graffiti, and that would be what happened in the 2 bathroom? 3 A Yes. 4 Q And that would include the KKK? 5 A Yes. 6 Q That would include the N word? 7 A Yes. 8 Q All of those things that you were talking about, right? 9 A Yes. 10 Q You were asked questions about what you actually saw and 11 witnessed and about the gap in the years? 12 A Yes. 13 Q During that period of time that you were seeing things, 14 were you also learning about other instances that were happening 15 to other blacks in the workplace? 16 A Yes. 17 Q What -- what were some of the things during this same 18 period of time that these things were happening to you that you 19 were learning were happening to other blacks, either in the 20 No. 1 or the No. 2 building? 21 A I -- 22 23 24 25 MR. WADDELL: Your Honor, we object. It calls for hearsay. THE COURT: explain this. I will overrule the objection. Let me I will overrule the objection to hearsay for this Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 211 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 142 of 267 1 reason. He may state that he has heard about other instances. 2 He may not say what those instances are. 3 involve. 4 received for the purpose of -- for the truth of the matter 5 asserted. 6 and for what he heard. 7 I said is somewhat technical, but I will let him testify whether 8 or not he heard of other instances. 9 is a racial harassment case, and the plaintiffs have the burden He may say whom they The reason -- and this is not being introduced or It is, however, being received for his state of mind And, ladies and gentlemen, that is what And that just goes -- this 10 of proving that there was what we call a racially hostile 11 environment at Nucor-Yamato. 12 And the law has been and is -- Courts have ruled that what 13 another -- what a witness has heard about a racially charged 14 incident can come in, but I am not going to let them testify 15 that So-and-so said such-and-such. 16 was another alleged racial incident and who it involved and when 17 it was and where it was, but that's it. 18 19 I will just let him say it Now another problem I have, though, with the question is I think it might be outside the scope. 20 MR. WADDELL: 21 THE COURT: It is. But I am not going to overrule -- I will 22 overrule your objection on the basis of hearsay, and I will 23 permit it, but with limited information from the witness stand 24 and with the understanding that the jury is only to consider it 25 not for whether these incidents actually happened, but for the Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 212 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 143 of 267 1 fact that he did hear about them. 2 3 MR. WADDELL: Your Honor, though, we would also make our objection it is outside of the course of cross. 4 THE COURT: I think it is, and I am being very strict 5 with the lawyers in this case. They may -- they may ask 6 questions based on the scope of the previous examination. 7 other words, when a plaintiff's lawyer asks questions, the 8 defense lawyer may cross-examine, but only on the matters that 9 were covered in the direct examination. In And in a similar vein, 10 Mr. Quinn may ask questions on redirect that are within the 11 scope of the questions Mr. Waddell asked on cross-examination. 12 And that's a -- is a rule of procedure that courts follow to 13 control the flow of evidence. 14 on that basis because we were not -- I mean, I don't believe he 15 testified as to other instances that he heard about. 16 think that's been covered. 17 other witnesses about that -- 18 MR. QUINN: I understand. 19 THE COURT: -- as long as you are asking them on direct 20 for the first time. 21 BY MR. QUINN 22 Q 23 grade was that? 24 A Grade 4. 25 Q And did you receive that by way of promotion? And I will sustain the objection I don't But my ruling means that you may ask You were asked about the piler position that you got. Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter What 213 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 144 of 267 1 A Yes. 2 Q How many other promotions did you ask for that you never 3 got? 4 A Plenty. 5 Q How many? 6 A Rough -- eight, nine, ten. Plenty. Can you -- 7 MR. WADDELL: 8 THE COURT: We're outside the scope of cross. I am going permit this because you asked 9 him about promotions. 10 MR. WADDELL: I will. Fair enough. 11 BY MR. QUINN 12 Q 13 that were at a higher grade than a Grade 4? 14 A Yes. 15 Q Did you ever receive any of those promotions? 16 A No. 17 Q Grade 4, where was that in relation to what grade you were 18 when you were working in the previous job? 19 A It was one grade above it. 20 Q Okay. 21 in 2, that same piler position, did it exist over in 1, 22 Building 1? 23 A 24 were a lot different over there at 1. 25 Q Did you -- you say "many." Yeah. Did you apply for positions And others that -- as it, as that job that you got The technical position existed, but the conditions How were they different over in 1? Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 214 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 145 of 267 1 A Over in 1, the pilers were a lot more hectic, a lot more 2 greasier or grungier. 3 understanding, over there in 1, in NYS 1 as opposed to NYS 2. 4 Q And who held those positions over in 1? 5 A Most of the blacks. 6 Q The position that you had, was it a lower grade than others 7 who were working in pulpits? 8 A Yes. 9 Q You were asked whether or not you had any documents to They didn't have air conditioning, to my Some of them. 10 corroborate testimony. 11 written documentation for whether you had kept any of the 12 scarves, whether you had kept -- had a mug, those things. 13 you remember those questions? 14 A 15 16 17 I believe you were asked whether you had Do Yes. MR. WADDELL: Can we approach? (Bench conference reported as follows:) MR. WADDELL: Counsel is rampantly leading. I said, 18 "Do you have notes and complaints?" 19 in those notes in, and then saying: 20 is that so that we can know because we're in Alabama -- 21 MR. QUINN: 22 MR. WADDELL: 23 MR. QUINN: He is now putting what's Turn them over to us. And That's wrong. It's an improper question. He asked, Did you bring so-and-so, and it 24 goes directly toward this. And so I have one that I brought and 25 this is -- and it has been listed as an exhibit. This is the Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 215 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 146 of 267 1 Bush e-mail. 2 MR. WADDELL: 3 MR. QUINN: 4 original. 5 original. Clinton. And I want to ask him if he brought the This is a copy. You have a copy. This is the 6 THE COURT: That's what else he brought to you? 7 MR. QUINN: No. This is what he brought, the original 8 with him, when he came to town this week. 9 copy. 10 11 THE COURT: like that. 12 13 We have given them a Well, you were asking about mugs and stuff He didn't ask about that, did he? MR. QUINN: No. He didn't ask about that, but I thought it could be within the scope. 14 THE COURT: He did ask about the e-mail. I will let 15 you ask because he asked about the e-mail and he didn't have to 16 open it, which reminds me of a woman who had a two-hour obscene 17 phone call. 18 MR. WADDELL: 19 20 I have to hear about that sometime. Your Honor, I didn't open it. We did cross him on the e-mail, single e-mail. 21 (Return to open court.) 22 BY MR. QUINN 23 Q 24 There is a copy that is exhibit -- oh, it's the same number? 25 Okay. We have marked this as another exhibit. I'm sorry. It's Exhibit 100. This is just the original picture. Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 216 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 147 of 267 1 You talked about the e-mail involving President Clinton? 2 A Yes. 3 Q Okay. 4 A Yes, it is. 5 Q And this particular e-mail, even though I think you were 6 asked whether it was sent to you, you said it was not sent to 7 you? 8 A 9 Franky Griggs. Is this that e-mail? Robert Despain sent it to the department manager, 10 THE COURT: Scoot it down a little bit so you can see. 11 MR. QUINN: Sorry. 12 BY MR. QUINN 13 Q The e-mail, how did you find out about it? 14 A Robert Despain sent to Franky Griggs, the department 15 manager. 16 Franky Griggs, and we would go back and forth over there for 17 different reasons one way or the other. 18 went over there, this was there. 19 Q 20 21 22 23 Pat Strickland would be the secretary, I guess, to Okay. And, of course, when I This e-mail was there. Now, you also -- MR. QUINN: Well, we would offer Plaintiffs' Exhibit 100, Your Honor. THE COURT: Counsel, I don't have my list from you yet about whether you have stipulated to these. 24 MR. WADDELL: 25 THE COURT: We have no objection. All right. It's received, Plaintiffs' 100. Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 217 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 148 of 267 1 (Plaintiffs' Exhibit 100 received in evidence.) 2 BY MR. QUINN 3 Q 4 deceased? 5 A Yes. 6 Q Others who you have named, such as Mr. Stratman, 7 Mr. Griggs, Mr. Ellis, Mr. Fowler, are they deceased? 8 A No. 9 Q Mr. Despain, is he deceased? 10 A No. 11 Q And Mr. Stacy, is he deceased? 12 A No. 13 There was also some reference made to Mr. Patterson being Not to my knowledge. MR. QUINN: Give me just a minute. 14 BY MR. QUINN 15 Q 16 that you bid on? 17 A Yes. 18 Q And was that after they knew about the racial slurs that he 19 had called you? 20 A Yes. 21 Q What position was that? 22 A One of the lead man positions. 23 Q And that was after supposedly, according to their 24 testimony, he had been disciplined? 25 A And do you know whether Mr. Despain was ever given a job Yes. Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 218 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 149 of 267 1 MR. QUINN: That's all. 2 Thank you. RECROSS-EXAMINATION 3 BY MR. WADDELL 4 Q 5 to you directly, was it? 6 A No. 7 Q And you could choose to either open it, read it, or not 8 read it, correct? 9 A Mr. Washington, one e-mail in ten years, and it wasn't sent It was given to me. I could see it even if I didn't read 10 it. 11 Q 12 not read it, correct? 13 A Yes. 14 Q Okay. 15 A That I got my hands on. 16 Q You were talking about piler positions. 17 No. 2? 18 A Yes. 19 Q And you were talking about the piler position over at Mill 20 No. 1? 21 A Yes. 22 Q Sounded to me like what you are telling the jury is that 23 you had the best of the positions. 24 air conditioning, and they were not, correct? 25 A And you could choose to keep it, not keep it, read it, or One e-mail, ten years? You were at Mill You were at 2, you were in Of the two positions, yes. Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 219 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 150 of 267 1 MR. WADDELL: 2 THE COURT: 3 Nothing further. All right. Thank you, Mr. Washington. You may stand down. 4 And it's not quite time for a break. Is the jury okay to 5 stay in here just a while longer to wait for an hour and a half 6 break? 7 but an hour and a half -- okay. 8 wait that long. 9 All right. Is that okay? I don't mean an hour and a half from now, I don't think any of us could You may call your next witnesses. 10 MR. WIGGINS: 11 THE COURT: We call Ozzie Green, Your Honor. All right. Mr. Green, I will swear you 12 before you're seated, and you know the -- where the witness 13 stand is. 14 OZZIE GREEN, PLAINTIFFS' WITNESS, DULY SWORN 15 DIRECT EXAMINATION 16 BY MS. WIGGINS 17 Q Good afternoon, Mr. Green. 18 A Ozzie Harold Green, Jr. 19 Q And have you been employed by Nucor? 20 A Yes. 21 Q Beginning when? 22 A September of '92. 23 Q All right. 24 A High school, a little vo-tech, a little trade school, 25 mostly on-the-job training. State your name for the record. And what's your educational background? Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 220 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 151 of 267 1 Q Did you have prior experience before coming to Nucor in the 2 steel business? 3 A Yes. 4 Q What was it? 5 A I worked at a processing plant. 6 behind Nucor Steel. 7 I worked at ASP across from Nucor processing steel for about two 8 years. 9 Q All right. I worked at a scrap yard At the time, it was Alexander Mill Service. And when you came to Nucor, what was your first 10 job? 11 A I-bed inspector. 12 Q And what pay grade is that? 13 A It was a entry level; Grade 3, I believe. 14 job the first 90 days, I believe. 15 Q And did you say what department that is? 16 A Finishing. 17 Q All right. 18 A Finishing was included in the roll mill. 19 Q All right. 20 A At that time, Pat Brewer. 21 Q And who was your first supervisor? 22 A Terry Dennis. 23 Q And how long did you have Mr. Dennis as your supervisor? 24 A From '92, I believe, to 2002. 25 Q All right. It was an hourly And is that part of the roll mill department? And who is the department manager? And when you began work at Nucor-Yamato, was Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 221 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 152 of 267 1 there any racial hostility? 2 A Yes. 3 Q What was it? 4 A The white employees were -- there was only three of us, 5 three black employees. 6 was in the pilers, I believe. 7 everywhere. 8 as I was working, I saw the attitude that the white employees 9 had towards the black employees, you know, calling, you know, Michael Davis, Marty Orr. He was a floater. And Marty Orr He just was And Michael Davis was making the tags and, as soon 10 names over the radio and just really disrespectful and degrading 11 to black employees. 12 Q Tell us what the radio is. 13 A The radio is a communications system that we use out at 14 Nucor at both of the mills that you are connected together. 15 Each crew has their own design, you know, distinguished channel 16 so that you can be able to be contacted all the time in your -- 17 when you are on the mill property and stuff. 18 Q What's it for? 19 A It's for communicating to each and every one of us. 20 know, it's for the process. 21 them -- letting them know where you are at at all times, if you 22 have to fix the equipment or jump in a situation where it's kind 23 of dangerous because, you know, it's very dangerous out there. 24 Q Is it very loud? 25 A Very loud. It's for safety. You You know, telling Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 222 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 153 of 267 1 Q Is it very hot? 2 A Very extremely hot. 3 Q Are you pouring molten steel? 4 A Not in that area, but the area that the piler -- is called 5 the melt shop, but we're in the same enclosure. 6 transfer all over the mill. 7 Q And what do you use, in doing your job, the radio for? 8 A The radio is used to basically communicate with the 9 operators, safety. So the heat Once again, communicate with maintenance, 10 communicate with the roll mill, letting them know if we have 11 problems, communicating with other operators. 12 Q 13 instructions and be warned of safety problems and that type of 14 thing? 15 A Yes, sir. 16 Q Was this radio supposed to be used strictly for business? 17 A Yes, sir. 18 Q You said you heard racial slurs. 19 the radio? 20 A 21 Michael was a -- he was older than I was. 22 was and he just -- I was on I-bed. 23 they would call him, you know, refer to him as "big lip" because 24 he was African-American. 25 lips, you know. And did you keep your radio on so that you could get What did you hear over Operators were calling, you know -- especially Michael. He was there before I He was making tags. And He had some nice -- he had some big But they was just derogatory towards him, and, Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 223 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 154 of 267 1 you know, they were just focusing on him. He would wear his 2 shirts, his T-shirts and -- you know, he was a proud black man. 3 Let's say that. 4 him. 5 Q Did they call him other names over the radio? 6 A Yes. 7 Q What? 8 A They would call him like coon, you know, and they would 9 call him, you know, Martin Luther King because he wore And they was a little bit intimidating towards 10 Martin Luther King and Malcolm X shirts. And that kind of drew 11 attention to him. 12 Q Did you hear Mr. Davis or other black employees called DAN? 13 A Yes, sir. 14 Q What is DAN? 15 A This is later on down in my employment. 16 while. 17 listening to the employees, you know, the white employees 18 talking and they're communicating with each other and stuff and 19 I saw that they was speaking towards Marty. 20 "Oh, here come this DAN, here come this damn DAN." 21 like -- I always thought they were referring to Dan Dimicco, and 22 I never saw Dan. 23 jumping in-between the roll lines or going across the catwalk, 24 and I didn't pay it any attention until another white employee 25 explained to me that DAN means a dumb ass nigger. I had been there a And I was up in the pour pit and, you know, just I was looking for him. And they were like, And I am I thought he might be And I was Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 224 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 155 of 267 1 like -- when he told me that, it, it just -- it just made me 2 boil because they were just using it so loosely in front of me, 3 but I wasn't aware of what that phrase was until this other 4 employee enlightened me about it. 5 Q 6 radio? 7 A Yes. 8 Q Did you hear that in relationship to any of the plaintiffs 9 in this case? Did you hear black employees referred to as a DAN over the 10 A I have heard them speak of Sylvester over the radio, using 11 some slurs over the radio, but DAN, I can't really say that. 12 But I was present when they were doing it to Marty. 13 Q 14 a down time and C.J. Bennett was called a DAN? 15 A 16 cobble. 17 everybody is down there trying to get it situated. 18 the mills straightened out and everything, C.J. and Truck, which 19 is Clifton Lee, was down on the other end, on the south end of 20 the roll line. 21 back to my station. 22 product running or anything. 23 I went into the break room where everybody kind of merged 24 together in the break room. 25 roll mill discussing C.J. and using some derogatory words Do you recall when there was a -- an occasion dealing with At that time I transferred over to NYS 2, and we had a That's when the bar is messed up in the middle and After we got And I just got through speaking to them, walking Like I said, we was down. There was no And I -- you know, it was hot, and And it was five employees from the Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 225 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 156 of 267 1 towards him. 2 Q Were they racially derogatory? 3 A Yes. 4 you know, lazy ass nigger and he need to get his ass in gear, 5 you know, and I been calling him and stuff. 6 made me kind of shocked that they was doing it, C.J. and Truck 7 was the only one down there working. 8 room. 9 Q They was calling him all kinds of lazy ass nigger, And what kind of They was in the break C.J. is Cornelius Bennett, a plaintiff in this case, and 10 Truck is the plaintiff in this case, Clifton Lee? 11 A Yes. 12 Q And the five white employees, do you recall who they were? 13 A Well, I just got over there to NYS 2, so the only one I 14 really knew was Shaggy, Mark Huff, I wasn't really familiar with 15 Mark Huff. 16 Shaggy, which was Cameron Strong, and I wasn't really familiar 17 with the other three. 18 Q Mark Huff was a supervisor, though, correct? 19 A I couldn't say. 20 really didn't know a lot of people when I got over there. 21 Q What is his current position? 22 A I couldn't say. 23 Q When you left, did you know if he was the head supervisor? 24 A I think he was the head supervisor of both of the 25 departments. He wasn't department manager then. But Mark Huff, Like I say, I just got over there. I I have been gone a long time. Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 226 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 157 of 267 1 Q Okay. Now, how often would you hear racial slurs being 2 used about other African-American employees? 3 A Towards other African-American employees? 4 Q Yes. 5 A It would be off and on. 6 would be -- it wasn't consistently all the time, but it would be 7 off and on. 8 Q Did you observe the Confederate flag? 9 A Yes, sir. 10 Q Was there a time when a cross was taken down the plant? 11 A I heard of that. 12 Q Okay. 13 the cross burning with the hoods over the head? 14 A Yes, sir. 15 Q And how long after this cross burning was this? 16 A About three days. 17 Q And tell us what you learned. 18 A A bunch of the guys was just talking about it, I couldn't 19 believe -- I can see the guy's face, but like I say it's been a 20 long time and a lot of people have come and gone. 21 remember his name, but he was a big guy. 22 they called him Big Country. 23 out there, and they called him Big Country, and he was a young 24 guy. 25 couldn't believe what they did and stuff and they was going down It would be off and on. It, it I was off then, but I have heard of that. When you got back to work, did you find out about They was talking about it. I can't As a matter of fact, That's what -- we had nicknames And a older guy and they -- they was saying that you Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 227 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 158 of 267 1 the roll mill from the roll shop all the way down the roll line 2 to the back door with this cross burning and hoods on. 3 Q How did that make you feel? 4 A I was extremely mad. 5 out in the mill it's very dangerous, and we got to trust each 6 one another to do their job and do their job safely. 7 got some guy walking over here with a hood on his head and I am 8 being an African-American and I am thinking this guy is cool and 9 here he is having something against me just because I am black 10 or he just don't like the way I look, then that makes me very 11 nervous to be around folks like that. 12 Q 13 statements that cross burnings should not be paraded down 14 through the plant? 15 A No, sir. 16 Q Did you ever hear of anybody being disciplined for parading 17 a cross burning with hoods through the plant? 18 A No, sir. 19 Q Did you ever see any reaction by the company that would let 20 people know that there will be no cross burnings with hoods over 21 the head at Nucor-Yamato? 22 A No, sir. 23 Q What about Confederate flags? 24 them? 25 A I was really mad because out here, And you Did you ever see the company post any admonitions or I have seen one actual flag. How many times did you see It was over on the crane Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 228 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 159 of 267 1 boom. 2 Q Did you go into the Nucor store? 3 A Yes, sir. 4 Q Did you see Confederate-related materials being sold to the 5 employees? 6 A Yes, sir. 7 Q Through the payroll deduction plan? 8 A Yes, sir. 9 Q Did they help people buy it by taking it out of their 10 checks over a period of time? 11 A Yes, sir. 12 MR. LINKER: 13 THE COURT: I will object to the leading. I will sustain that. Just ask direct 14 questions and, if he needs help recollecting, then you can lead 15 a little bit. 16 MR. WIGGINS: All right. 17 BY MS. WIGGINS 18 Q 19 the employees by the company? 20 A 21 maintenance shop. 22 the morning times. 23 there would be people lining up to get this material. 24 Q And how long is that? 25 A Years, years. How often did you see Confederate materials being sold to Every time I went to the Wal-Mart in the back of the Whoever -- you know, I would go back there in I would go back there with my wife, and Was that a matter of years or days? Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 229 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 160 of 267 1 Q Was it throughout your employment? 2 A Yes, sir. 3 Q Was it there at the time you left your employment? 4 A Yes. 5 Q When did you leave your employment? 6 A 2004. 7 Q Why did you leave your employment? 8 A I just got fed up with all their harassment. 9 MR. LINKER: 10 THE COURT: 11 Your Honor, may we approach? You may. (Bench conference reported as follows:) 12 MR. LINKER: 13 item on this matter. 14 for Mr. Green's departure. 15 that he had separated his employment with Nucor. 16 THE COURT: 17 Mr. Green. 18 was terminated. I believe we have had a motion in limine We were not going to get into the basis We agreed to talk about the fact I don't remember what happened to I know Mr. Washington was fired, right? What happened to Green? 19 MR. WADDELL: 20 MR. LINKER: He left on his own terms. He had family in South Carolina, and he 21 left voluntarily. 22 testimony that Plaintiff Ozzie Green -- 23 24 25 Washington And motion in limine item, page 2D, specified MR. WIGGINS: I don't remember that being granted. that the order? MR. WADDELL: Yes. Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter Is 230 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 161 of 267 1 THE COURTROOM SECURITY OFFICER: Excuse me, Judge. 2 This would be a good time to take a break. 3 that have to go. 4 (Return to open court.) 5 6 7 THE COURT: admonition. 10 Court's in recess. 15 minutes. THE COURT: Apparently, that was one of those -- I remember a series of things that we took care of quickly because you said you wouldn't -- he is not asking for damages. 11 MR. WIGGINS: 12 THE COURT: 13 You know the You-all just stay up here. 8 9 There is a couple No. Do you want me to tell the jury just to disregard his statement, just strike it from the record? 14 MR. LINKER: That -- maybe, Your Honor, I think the 15 jury needs to understand that his separation from employment had 16 absolutely nothing to do with the claims for hostile work 17 environment. 18 19 20 THE COURT: Yeah. I don't want them giving damages for that. MR. WIGGINS: We would agree that he hasn't made a 21 claim for that, but I wouldn't go so far as a fact to say, 22 factually, it was unconnected. 23 THE COURT: It said you have no plans to offer evidence 24 of Ozzie Green's separation of employment; in other words, 25 "separation from" I guess is better. But I think that what you Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 231 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 162 of 267 1 need to make clear or what I can make clear is that Mr. Green is 2 not going to ask for damages for separation from employment. 3 MR. WADDELL: Your Honor, that is misleading. I would 4 ask the Court to instruct the jury that Mr. Green -- "before our 5 break, Mr. Green testified that he left Nucor because he 6 couldn't take it anymore. 7 He has no claim that he is asserting for termination of 8 employment related to hostile work environment" because 9 otherwise it's pretty damaging testimony. 10 THE COURT: 11 MR. WIGGINS: You are to disregard that statement. Yeah, it is. I agree. He has no constructive discharge claim. 12 I agree with that. 13 constructive discharge. 14 so far as to say it had nothing to do with why he left, that's a 15 different matter. 16 THE COURT: It's perfectly -- he has no claim for We conceded that right there, but to go Well, I am going to tell the jury that 17 Mr. Green -- that this lawsuit does not concern any damages 18 suffered by Mr. Green because -- by way of his separation. 19 that's what I am going to say, that his damages are for the 20 racially hostile environment. 21 resulting from his quitting work. 22 MR. WADDELL: And He is not asking for damages Your Honor, with all due respect though, 23 he has already told the jury that that's why he left, and to say 24 he doesn't want to be paid for it doesn't cure the violation of 25 your order. Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 232 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 163 of 267 1 THE COURT: Well, the order was that the plaintiffs 2 have no plans -- I will just tell them to strike it, to strike 3 it from the record. 4 MR. WIGGINS: Well, the fact that he felt strongly 5 enough about it to leave his employment is relevant to what he 6 felt up to that moment. 7 THE COURT: But we should have said that or you should 8 have made that clear because in the law we do recognize 9 constructive discharge, and the elements are it is so 10 miserable -- the employee is so miserable that he is discharged 11 even though he quit so-called voluntarily. 12 that is a claim and it's treated as a termination claim and back 13 pay and what have you would be recoverable. But that's there -- 14 MR. QUINN: But we don't have a claim for -- 15 THE COURT: No. 16 MR. QUINN: What we have -- 17 THE COURT: But I don't want the jury thinking that. But I -- I 18 am just going to say that they are to strike -- that the -- 19 Mr. Green is not claiming extra damages for separation from 20 employment, that they are to disregard what he said about why he 21 left. 22 miserable, but he just shouldn't have testified to that because 23 of that order. 24 25 That's -- he can testify that all this stuff made him It's -- I want your copy of plaintiffs' exhibit list that you have no objections to. Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 233 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 164 of 267 1 (Recess at 3:13 p.m., until 3:26 p.m.) 2 THE COURT: 3 MR. WIGGINS: 4 THE COURT: Yes, ma'am. Oh, I'm sorry. I know what I was going to 5 say. 6 You have -- we agreed when you were out that you should strike 7 from your memories and just disregard the testimony from this 8 witness, Ozzie Green, concerning why he quit his job. 9 for damages is one for a racially hostile environment, has 10 nothing to do -- in other words, he didn't ask for anything 11 about quitting his job, and they agreed not to talk about that. 12 That was just a slip-up. 13 your memories. 14 course, for what the plaintiffs are alleging with respect to the 15 racially hostile environment that is their burden to prove. 16 I forgot. All right, Mr. Wiggins. It's just late in the day, I guess, for me. His claim So you are just to strike that from And all he is claiming for damages is, of So thank you. Go ahead. 17 BY MR. WIGGINS 18 Q 19 plant? 20 A I don't understand the question. 21 Q Did you see hangman's nooses hung in Nucor's facilities? Were there other lynching scenes or enactments in the 22 23 24 25 MR. LINKER: Say that again, please. Your Honor, I am going to object to leading. THE COURT: I overrule the objection because he didn't understand the question. I will allow it. In other words, I Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 234 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 165 of 267 1 don't believe the witness understood the question, and so I am 2 allowing that question. 3 the witness didn't -- He asked a proper question, and then 4 MR. LINKER: I understand. 5 THE WITNESS: Yes, I have. 6 BY MR. WIGGINS 7 Q All right. 8 A I have seen one in a utility box over by the repair bed 9 inside the box, and I seen one on the conduit down from the And where did you see the hang man's nooses? 10 repair bed. 11 Q Where is the repair bed in relationship to your work? 12 A When I was over in NYS 1, I had to go by the repair bed to 13 get to the I-bed. 14 Q Is it part of your area of work? 15 A Yes, sir. 16 Q And you have always worked in finishing? 17 A Yes, sir. 18 Q And was there occasion where a chicken was lynched over 19 next to one of the black employees? It was in finishing. 20 MR. LINKER: 21 THE COURT: 22 23 24 25 Your Honor, leading. I'm going to permit that question because -- I am just going permit it. Go ahead. Overruled. THE WITNESS: Yes, it was. BY MR. WIGGINS Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 235 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 166 of 267 1 Q And did you see it? 2 A Yes, I did. 3 Q What did you see? 4 A I saw a chicken lynched by the neck. 5 heater connected to a boom between the repair bed and the I-bed 6 across from the roll line. 7 Q And was it lynched near one of the plaintiffs in this case? 8 A At that time it wasn't because it was, he wasn't up on the 9 bed. All right. There was a boom on a 10 Q 11 radio as to the lynching of the chicken? 12 A 13 who it was, but they was laughing about it. 14 was over in NYS 2, so I came across to see it. 15 Q And was this, what kind of chicken was this? 16 A It was a rubber chicken. 17 Q All right. 18 that the chicken was lynched in relationship to another 19 employee? 20 A 21 about it. 22 know, it was something like you couldn't even believe would be 23 happening out here at this plant. 24 took a break to go over there to look at it, and that's when I 25 saw it. Yes. Yeah. Was this the subject of a discussion over the A few of the employees, I couldn't -- I didn't know All right. And at this time I And did you learn over the radio They was -- they were laughing about it and kidding Maintenance was talking about it and I just, you And I went over there. Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter I 236 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 167 of 267 1 Q Was it lynched in relationship to an African-American 2 employee? 3 A Lynching is lynching. 4 Q Who was the lynching done in relationship to? 5 A I believe it was Sylvester Rogers. 6 THE COURT: Yes, sir. Mr. Green, I think you're speaking a little 7 too close to that mike because it's reverberating a little bit. 8 I would rather it be that than not be able to hear you, but -- 9 THE WITNESS: 10 THE COURT: Yes, ma'am. Is that better? Yes, that's better. 11 BY MR. WIGGINS 12 Q Was the lynched chicken in secret or in open view? 13 A It was in open view. 14 Q The other occasion you saw a hang man's noose, describe 15 that. 16 A 17 and it had about maybe 5 or 6 knots in it, little rings, I 18 guess. 19 Q 20 by Nucor about lynchings in the plant? 21 A No, sir. 22 Q Did you ever see anything posted or announced in 23 relationship to the chicken lynching being an improper act? 24 A No, sir. 25 Q Did you ever see or announce -- or see or hear announced an It was probably a 5 to 6-foot rope and it had a noose in it All right. Did you ever see anything posted or announced Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 237 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 168 of 267 1 apology for lynching a chicken in that situation? 2 A No, sir. 3 Q Did you ever see or hear of anything that Nucor did in 4 relationship to the other hang man's noose there in the 5 workplace? 6 A No, sir. 7 Q What -- as an African-American, what is a lynching to you? 8 A It's a sign of hatred. 9 of that if a person takes the time to make that type of thing, It's a sign of murder. It's a sign 10 what -- what's in his mind? You know, that's -- that's the 11 thing here is that the rope isn't the problem. 12 the attitude behind the rope. 13 this guy. 14 are with our family. 15 who would think this was funny, whether -- funny, intimidating, 16 whatever, it just no excuse for it. 17 fair. 18 it just -- it's just devastating. 19 Q 20 lynchings? 21 A No. 22 Q Did you ever learn who did the lynching? 23 A I was told that Durrell Warren did the chicken. 24 Q Durrell Warren, is he a supervisor? 25 A Yes, sir. The problem is You know, we got to work with We got to be here more -- we are there more than we And for you to be working beside a person There is not -- it's not We're not fair to be subjected to that type of thing, and Did you ever learn that anyone was disciplined for the Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 238 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 169 of 267 1 Q Is he Sylvester Rogers' supervisor? 2 A Yes, sir. 3 Q Is Sylvester Rogers a plaintiff in this case? 4 A Yes, sir. 5 Q Was Durrell Warren your supervisor? 6 A At one time he was my lead man. 7 Q What effect did it have to have a lead man of your own and 8 now a supervisor lynching a chicken in this situation? 9 A Once again, it's just a attitude about it. This guy is 10 over us, you know? How can you think, even possibly think 11 you're going to get a fair break with this guy having the 12 mentality of what he is doing, you know? 13 you just don't do in the workplace, and I think this was one of 14 them. 15 really shocked at him when I found out he would do this, stoop 16 this low to do this. 17 Q 18 known that he was sorry that he had done that? 19 A No. 20 Q Have you seen the word "KKK" in the plant? 21 A Yes, sir, I have. 22 Q What does the word "KKK" mean to you? 23 A Once again, it's an organization that has a low opinion of 24 African-Americans, a low opinion of a lot of other races. 25 Q There is some things And I considered Durrell Warren as a friend, so I was Did you ever hear Durrell Warren announce or otherwise make Does it have a connection to lynchings? Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 239 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 170 of 267 1 A Yes, sir. 2 Q What? 3 A It has a history of riding up under the Confederate flag, 4 riding into the -- my granddaddy used to tell us stories about, 5 you know, friends and family members being pulled out of their 6 homes and strung up, kids were having to run for their lives and 7 stuff. 8 we was past that. 9 Q Where did you see KKK in the Nucor plant? 10 A I saw it in the NYS 2 bathroom, and I saw it into our main 11 locker room bathroom. 12 Q 13 particularly concerned about Ku Klux Klan activity? 14 A And that, you know, that's just, it's just -- I thought Were there things going on in the community that made you Yes, sir. 15 MR. LINKER: 16 THE COURT: 17 18 May we approach? You may. (Bench conference reported as follows:) MR. LINKER: Your Honor, my concern is I know he is 19 trying to develop testimony, but a lot of these questions are 20 really leaning towards leading the witness and giving him the 21 information and just letting him respond yes or no. 22 want to keep jumping up and down. 23 THE COURT: Yeah, I understand. 24 sometimes -- maybe I am too thick. 25 another witness. I didn't I don't -- Mr. Waddell helped me on Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 240 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 171 of 267 1 I don't like leading questions. On the other hand, if you 2 ask too general a question, I don't know whether his memory will 3 be jogged. 4 questions and, if he doesn't respond, I will permit -- But I will direct that you try asking him general 5 Over your objection. 6 -- some prodding. 7 MR. WADDELL: Here is an example. 8 have you witnessed any racial graffiti. 9 see KKK. If he would ask, Don't say, did you ever Of course he is going to say, "I saw it." He needs to 10 tell what he saw, not answer what he told him he saw. 11 the problem. 12 THE COURT: I agree. That's And if he doesn't say -- I am 13 going to permit leading if he can't remember what he has 14 testified to before. 15 object because sometimes witnesses forget and -- okay. 16 I will. I will just permit it and you can (Return to open court.) 17 BY MR. WIGGINS 18 Q 19 concern about these matters? 20 A 21 between 2002 and 2003 -- that the Klan came to Blytheville, 22 Arkansas. 23 they had a march and there was an incident two days after that 24 that me and my neighbor was riding -- we four-wheel ride. 25 trail ride, and we was riding down probably 2 miles from Nucor, What was going on about the Ku Klux Klan that gave you Well, there was an incident in 2000 -- I would say 2003, And they was on the federal courthouse building and Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter We 241 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 172 of 267 1 Nucor Steel melt shop on the levee. 2 on -- they had a meeting, and it was like a organization get 3 together. 4 something had caught on fire. 5 we started hearing voices and seeing shadows moving and stuff 6 and, you know, then we kind of got a little cautious about it 7 and stuff. 8 9 And we had -- we had ran up And we thought it was a fire, you know, maybe And we kind of investigated until And we got off our four-wheelers, and we kind of crawled up the levee. We saw they had a meeting going on, and I am like: 10 This is the Klan. And it -- it frightened me because I have 11 never seen them that close in that kind of process before. 12 we -- we just fled back and got on our four-wheelers and got out 13 of there and headed to the house. 14 Q What did you see specifically? 15 A Oh, I saw members and -- in white clothing, hooded 16 clothing. 17 He looked like -- it looked like a choir robe, but he had a red 18 suit on. 19 forget. 20 Q What was burning? 21 A It was a cross. 22 had torches all the way around. 23 thought it was maybe, you know, somebody burning trash and 24 letting it go, you know, but it was, it was -- it was something. 25 It was something. And I saw a man speaking in a red suit with gold trim. And it was -- it was an experience that I would never Never forget. They had one big cross burning, and they That's why we thought -- we Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 242 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 173 of 267 1 Q Did you see racial graffiti in and on Nucor's walls? 2 A In the bathrooms. 3 Q What did you see? 4 A I would see, you know, little things like: 5 beautiful, tan is grand, but white is the color of the big boss 6 man. 7 stuff. 8 of the jokes that was on the wall of the bathroom. 9 realized I didn't, you know, I didn't go -- I didn't go in there Black is And, you know, you would see jokes, colorful jokes and And I have had a Nucor employee, you know, tell me one I guess he 10 and see it. I guess he didn't think I saw it, and he had told 11 me a joke that was on the bathroom. 12 wrote it, but I wasn't for sure if he did or not. 13 Q Did you see any symbols of hatred? 14 A Yes, sir. 15 and stuff, you know. 16 there. 17 seems like it's everywhere. 18 Q 19 see it? 20 A On the bathroom in the main locker room. 21 Q How often did you see it? 22 A It was etched in like someone took a screwdriver and cut it 23 in there. 24 Q How long was it there? 25 A Somebody tried to paint over it once, but it was like you So I thought he might have I have seen crosses, pentagrams, the Nazi signs It just -- it has just been thrown out You know, when you start opening your eyes, it just When you said you saw KKK on Nucor's walls, where did you Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 243 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 174 of 267 1 could still see it. 2 Q Did you discuss these matters with the other plaintiffs? 3 A I spoke to Truck about some things that was going on. 4 asked them, you know, are you seeing some of the stuff that's 5 going on out here because, you know, I was seeing -- I was 6 asking him was he seeing it. 7 out of it and stuff. 8 am seeing it." 9 Q Did you ever see Nucor do anything about it? 10 A No, sir. 11 Q Now, you were telling us about the Confederate flag. 12 did you see the Confederate flag on Nucor's premises? 13 A 14 the -- in finishing bay. 15 Q And how big a flag was it? 16 A It was about a normal flag. 17 the street, you know. 18 Q And describe the Crane 10. 19 A Crane 10 is in the finishing bay. 20 Q Is it up high? 21 A It's up high, about 70 feet up in the air. 22 Q When the flag was there, was it -- could it be seen? 23 A Yes. 24 of effort to go up there to hang that flag. 25 Q I Maybe I was making something big And he agreed, "Yeah, I am seeing it. It was out there. I There was no fear in it. Where I have saw the Confederate flag flown off of Crane 10 in About a 5 by 7 flag you buy on You had to go up on the top. It's the repair bed bay. You had to take a lot How long was the flag hanging from Nucor's crane? Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 244 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 175 of 267 1 A I would say it was up there maybe two, three days. 2 Q All right. 3 announce that that was not to happen again? 4 A No. 5 Q Did you ever see any acknowledgment by Nucor on that 6 subject? 7 A No, sir. 8 Q Did you ever learn of anyone being disciplined? 9 A No, sir. 10 Q Were you ever questioned about what you knew of the 11 incident? 12 A No, sir. 13 Q Did anyone ever to your knowledge try to find out anything 14 you knew in order to identify the person that did it? 15 A No, sir. 16 Q Where else have you seen, if any, the Confederate flag? 17 A I have seen them stickers, hardhat stickers, stickers on 18 the windows of the crane -- I peeled them off. 19 lockers, automobiles -- personal automobiles. 20 the back of the windows of their trucks, tinted, mobile 21 maintenance guys wearing the scarves, the bandannas. 22 plates on the front of their vehicles. 23 everywhere. 24 Q How often? 25 A It was quite a bit. Was there ever anything done by Nucor to Toolboxes, They got them in License You know, it was just It was just everywhere. It was probably -- it was out there Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 245 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 176 of 267 1 about the time I was leaving that I noticed. You know, you kept 2 noticing things. 3 Q 4 was it? 5 A I think I would say it was constant. 6 Q Was it hidden or was it in the open? 7 A It was out in the open. 8 Q Who did it involve? 9 A From maintenance, roll shop, melt shop, you know you would They were, you know, they -- they didn't care. When I say how often, was it sporadic or constant or what What type of employee? 10 see the melt shop and the maintenance guys over in the cafeteria 11 when we do roll changes, you know. 12 roll shop, and I had a bird's-eye view. 13 on their hardhat. 14 them by their hardhat, you know, what stickers they have on 15 their head. 16 Q Were there supervisors that displayed the Confederate flag? 17 A Yes, sir. 18 Q How? 19 A They would have them on their hardhat. 20 Q What does the Confederate flag mean to you? 21 if any, does it have on you? 22 A I don't -- I really don't understand the question. 23 Q Do you have -- I may have asked this question. 24 sure, but how does the Confederate flag, when it's displayed in 25 your place of employment, make you feel? I was in the crane in the I looked down on them Sometimes it would be so bad you would know What effect, Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter I am not 246 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 177 of 267 1 A It makes me feel unsafe. It makes me mad. It makes me 2 feel unsafe that, you know, I trust these guys. 3 working out there, I was in some bad situations, you know. 4 There was always times when you work you had to get off on a 5 piece of equipment while production was going, and to see these 6 guys displaying these things made me think that they had a 7 different attitude towards me and how could I work with someone 8 who didn't like me because I was black or didn't like me because 9 of my race? When I was 10 Q Have you ever seen anything posted, announced, or made 11 known that the Confederate flag is not to be displayed or used 12 in the plant? 13 A No, sir. 14 Q When you saw the Confederate flag that you told us about 15 earlier being sold in the store, did it have a Nucor logo on it? 16 Do you know what I am speaking of, a logo? 17 A Yes, sir. 18 Q Let me show you an example, Exhibit 37. 19 this type of item being sold by -- in the Nucor store? 20 A Yes, sir. 21 Q Does it have a logo on it? 22 A I believe everything in the Nucor store had a Nucor-Yamato 23 logo on it. 24 Q And what is the logo on that particular Exhibit 37? 25 A NYS. Did you ever see Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 247 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 178 of 267 1 Q What does that stand for? 2 A Nucor-Yamato Steel. 3 Q How did it make you feel to see the company logo being sold 4 in the company store on the company payroll system? 5 A 6 was displayed with these other gentlemen's. 7 Q 8 or anything that would disassociate itself from its logo being 9 put on Confederate related items? It made me feel like the company had the same attitude that Have you ever known Nucor to issue a statement, a policy, 10 A Not that I know of, no, sir. 11 Q Did you ever learn from any source that Nucor said: 12 doesn't represent us? 13 A No, sir. 14 Q Did you ever see any occasion that Nucor said: 15 these back in so you can't wear them? 16 A No, sir. 17 Q As of the time you left, were this type of Confederate 18 materials with the company seal of approval on it still being 19 worn? 20 A Yes, it was. 21 Q And in your life experience, does a Confederate flag have 22 some connection to the Ku Klux Klan? 23 A I always thought so. 24 Q What did you think? 25 A I always thought that the Klan was represented by hatred Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter That Please turn 248 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 179 of 267 1 and they -- everything they did they did it up under the 2 Confederate flag. 3 it was their heritage, their history, which their history, you 4 know, the heritage of the Klan was raping and killing and 5 destruction. 6 Q 7 their private time? 8 A What they do in their own home is their own business. 9 Q But do you feel the same way when they're there in the They was proud of it, you know? They thought Do you really care what other employees do at home or on 10 workplace? 11 A 12 me as their equal, which I am. 13 Q 14 as an hourly employee that touched on issues of racial 15 harassment? 16 A No, sir. 17 Q Or racial discrimination? 18 A No, sir. 19 Q Or racial attitudes? 20 A No, sir. 21 Q Or racial sensitivity? 22 A No, sir. 23 Q Or respect for your fellow employee? 24 A No, sir. 25 Q Have you ever had any training about the need to show and I feel when they're in the workplace, they need to respect Do you -- have you ever received any training of any kind Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 249 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 180 of 267 1 allow each person to have some personal dignity? 2 A Does that include my mother? 3 Q No. 4 A No, sir. 5 Q Did you complain about what you were experiencing in 6 relationship to a hostile environment? 7 A Yes, sir. 8 Q What did you do? 9 A I have complained to Joe Stratman several times. 10 Q Who is he? 11 A Joe Stratman at that time was our GM. 12 Q Did you complain just for yourself? 13 A No, sir. 14 Q What did you complain? 15 A I told Joe -- Joe used to make -- periodically make 16 walk-throughs through the mill like Dan used to do. 17 pulled him aside over on NYS 2, and I just broke it down to him. 18 I said, "Joe, this is getting out of hand." 19 Joe. 20 getting out of hand. 21 They're displaying these flags. 22 this junk on the radio and, you know, it's like -- it's just 23 like nobody is in control over here. 24 do." 25 Q Nucor. He called me Ozzie; we called him Joe. And I And we call him I said, "This is These guys are going out of control. You know, they're talking all They do what they want to Did you mention the racial abuse on the radio? Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 250 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 181 of 267 1 A Yes, sir, I did. 2 Q Did you mention the Nucor store selling Confederate flags? 3 A Yes, I did. 4 THE COURT: Just ask him what he mentioned. 5 BY MR. WIGGINS 6 Q What did you mention to him specifically? 7 A I told him about the headbands. 8 stickers. 9 The guys are wearing these headbands. I told him about the I said we have got stickers all over the pulpits. And it was to me like 10 they knew each other from the stickers, you know, because when 11 you see one sticker, you see two. 12 Confederate stickers, you see three. 13 that's how they communicated to themselves, and I mentioned that 14 to Joe. 15 it." 16 Q Did you feel good about that at first? 17 A Well, when he said he was going to look into it, I took the 18 man at his word. 19 Q And was his word good? 20 A Well, no. 21 Q What did you observe after you talked to Mr. Stratman about 22 all this going on in terms of the Confederate flag? 23 stop? 24 A No, sir. 25 Q Did any of the racial hostility you have told us about stop You see two, you know, And to me it seemed like And Joe said, "Well, I know about it. Okay, sir. I will look into Thank you. Nothing ever changed, so -- Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter Did that 251 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 182 of 267 1 after you talked to Mr. Stratman? 2 A Well, it seemed to me to get worse. 3 Q Tell us what you saw and heard. 4 A Well, it just, it was just like after, you know, you 5 speaking your mind, it seemed like now, okay, I have a target on 6 my back. 7 performance now is bad, my attitude is bad, I am a troublemaker 8 now. 9 slander, the slurs, they're getting worse. It was like nothing I can do, nothing -- now my work So, you know, now the hostility, the jokes, the abuse, the They are coming from 10 everywhere now. 11 Q 12 complained? 13 A I feel. 14 Q How? 15 A I feel that the supervisors were -- basically had a target 16 on my back and, instead of them coming to me, telling me they 17 had a problem with what I said, they was using the other 18 employees to get at me. 19 Q 20 personally? 21 A 22 year of my employment at Nucor-Yamato 1. 23 doing my job as usual and Robert Rayburn was having a problem 24 with -- he was the cold saw operator. 25 of problems that night and with the straighteners, was having a Were you treated differently by management after you Was there a time that a racial slur was directed at you Yes, sir. This is probably about the third maybe fourth I was on the I-bed And he was having a lot Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 252 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 183 of 267 1 lot of problems. And I was calling out adjustments to the 2 straightener, and he was trying to get the length right. And we 3 was trying to coordinate, but he was getting frustrated. And he 4 called on the radio and told me -- told my supervisor to tell 5 this black bastard to shut his damn mouth and when he said that, 6 it was like -- it was like I was in another world. 7 believe that he would say that on the radio. 8 tell you, I swallowed my tongue, and I asked Durrell Warren 9 because Terry Dennis wasn't there that night. I couldn't And, now, I got to I asked Durrell 10 Warren, I said, "Durrell, what are you going to do about this?" 11 Q What was Darrell's job? 12 A Durrell was -- I believe Durrell was the lead man at that 13 time, I believe. 14 Q What was Terry Dennis's job? 15 A Terry was the supervisor. 16 Q All right. 17 Warren? 18 A 19 was on the radio. 20 Q 21 him about what are you going to do about it. 22 communicate with him? 23 A 24 the radio, and I said, "Durrell, what are you going to do about 25 this?" And how did you report this to Mr. Durrell Well, I didn't really have to report it. He heard it. It Did you talk to him -- you said something that you said to How did you I got on the radio because it was just silence. And he didn't respond. He didn't respond. Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter I got on At that 253 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 184 of 267 1 time -- excuse me, I'm sorry -- at that time. 2 Q Was he on the line? 3 A Excuse me? 4 Q Did he respond enough to know that he was on the line? 5 A I knew that he had his radio on. 6 Q Okay. 7 A Well, when all was said and done, it was me that got 8 punished. 9 Q What did they do to you for reporting that? 10 A They wrote me up for being, for playing on the radio, and I 11 couldn't understand why I was playing on the radio. 12 my job, which was getting the bars straight, calling out the 13 adjustments. 14 Q 15 said, black what? 16 A Robert Rayburn. 17 Q What word did he use? 18 A He called me a black bastard. 19 Q Robert Rayburn did that. 20 A No, sir. 21 Q But you got disciplined for telling on him? 22 A Yes, sir. 23 Q Did you after that notice anything that was different with 24 the way management treated you? 25 A Who got punished when that was reported? I was doing The person that had called you, I don't remember what you Yes, sir. Did he ever get disciplined? I started getting wrote up. Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 254 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 185 of 267 1 Q What were you being wrote up for? 2 A Every little thing. 3 Q Were these things that previously you have been written up 4 for? 5 A No. 6 Q Were they major things, minor things, in-between things? 7 What were they? 8 A 9 like in the mill it would be hot or it would be cold, but either Little knickknack things. Like I will remove my hat -- 10 way, the steam will come off the bars and they will steam up 11 your glasses. 12 Well, I would take my glasses off to wipe the steam off my 13 glasses. Guess what? I got wrote up without having my glasses 14 on, safety violation. 15 the hardhat off to wipe the sweat out of my hardhat. 16 Technically my hardhat is off in the mill, but guess what? I 17 got wrote up because I don't have any safety equipment on. So 18 it was just like they was trying to paper trail me, you know? 19 Q 20 Mr. McEntire calling you a black bastard on the radio? 21 A Mr. Rayburn? 22 Q Mr. Rayburn, I am sorry. 23 A No, sir. 24 Q We have heard here today about an open door policy. 25 you disciplined for following that policy? I got them in my hands. Or I would take And do you know of anything that Nucor did about Not to this day. Nothing happened to him. Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter Were 255 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 186 of 267 1 A I think I was. 2 Q What happened? 3 A It's like every time I would go and make a complaint about 4 another employee, it seem like it would always be turned around 5 that I was the troublemaker or the complaint would be turned 6 around that I was the offender. 7 turn around, I was being wrote up for something. 8 turn around that, you know, crossing the roll line when the mill 9 is down. And it was like every time you Every time you There is no bars, no production going on, you would 10 cross the roll line. Everybody would cross the roll line, but 11 for some reason when I crossed the roll line, Ozzie got written 12 up. 13 about the bonuses or instructions about what the cut sheets are 14 going to be, when they say instructions, they talking to the 15 crew. 16 am like, okay, I guess I needed special instructions or 17 something. 18 Q Do you look -- keep up with things on the bulletin board? 19 A No, sir. 20 Q Do you know whether you have ever seen or heard of or 21 learned about in any way a racial harassment policy at 22 Nucor-Yamato Steel? 23 A I have not known about any racial policies like that. 24 Q Have you ever been trained or instructed to keep up with 25 things on a bulletin board? For some reason when the instructions came across the radio But a few minutes later, "Ozzie, that means you too." I It was like they were singling me out. Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 256 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 187 of 267 1 A No, sir. We got our information over the radio. 2 Q Did you have a handbook, an employee handbook? 3 A Yes, sir, we did that. 4 Q Was it pretty thick? 5 A It was average. 6 Q Did it have a lot of rules in it? 7 A Yes, sir. 8 Q Did it tell you what you could do and could not do? 9 A Yes, sir, it did. 10 Q Did it tell you what would happen to you if you did certain 11 things? 12 A Yes, sir, it did. 13 Q Did it say a word about racial harassment? 14 A No, sir, it didn't. 15 Q Have you ever known of any of the other plaintiffs in this 16 case that have had racial slurs used against them? 17 A 18 You know, I have heard -- they're talking derogatory about 19 Sylvester. 20 calling him Uncle Marty. 21 Q 22 Sylvester Rogers? 23 A 24 coon. 25 was -- it's connected to some of the pulpits. I have heard of Sylvester being called out of his name. You know, I have heard them talk about Marty Orr, What racial terms were used in relationship to I have heard them call him -- I have heard them call him I have heard the boys on -- see, the squawk box, which OP5 and OP6 was Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 257 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 188 of 267 1 connected. I worked in OP6 as a power operator, and I worked on 2 Sylvester's crew for a while. 3 call him out his name over the squawk box, and he wouldn't know 4 exactly who would be in OP6. 5 them things, the negatories. 6 Q Does John Mays have a nickname? 7 A Gravy. 8 Q And have you ever known John Mays to say anything about 9 lynching? And John Mays had a tendency to And I would be hearing some of 10 A Yes. 11 Q What did he say? 12 A He told Sylvester -- he had mentioned to Sylvester that a 13 good rope would do him good. 14 Q And Mr. Mays, what race is he? 15 A He is white. 16 Q And Mr. Rogers, what race is he? 17 A He is African-American. 18 Q And did you learn even though you may not have heard it 19 directly, did you know about the incident between Mr. Despain 20 and Mr. Washington when Mr. Despain had apparently used the N 21 word in relationship to Mr. Washington? 22 A 23 connected by radios. 24 like wildfire. 25 and it probably, within five minutes of this incident, that we I heard about the incident because, like I said, we was And when something like it goes down, it's It's like grass. It's going all over the mill, Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 258 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 189 of 267 1 heard it at NYS 1 or 2. It was just everywhere. 2 Q All right. 3 A Yes, it did. 4 Q How? 5 A Because like I said, we're working with these guys. 6 there -- or I was there just as much as I was there with my 7 family. 8 once again, Nucor is a very dangerous place. 9 out there, and you got to know that you got to trust the other And did that affect you? We're And we're working in close proximity of these guys and, You can get killed 10 individual, you know? People are talking about teamwork, but 11 how can you trust your teammate when he is thinking differently 12 about you and having a different attitude about you? 13 Q 14 address Mr. Despain's use of the "N" word against 15 Rodney Washington? 16 A Not that I know of, sir. 17 Q Or any of the words that were used against 18 Sylvester Rogers? 19 A Not that I know of, no, sir. 20 Q Have you ever seen anything Nucor said or did to attempt to 21 redress or do something about what you had described that 22 Marty Orr had experienced? 23 A No. 24 Q Were these matters said about Marty Orr behind his back or 25 to his face? Did you ever hear of anything that Nucor said or did to Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 259 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 190 of 267 1 A It was said on the radio. In fact, Gravy was the one who 2 started calling him Uncle Marty. 3 Q And what type things would they say about Marty Orr? 4 A They would say he was lazy. 5 and normally this stuff happens when Marty was trying to advance 6 himself. 7 Q Was he eventually able to advance himself? 8 A Not that I know. 9 there a while. They would call him Sleepy, I don't know. Not that -- I haven't been 10 Q Is he a supervisor today? 11 A I couldn't tell you, sir. 12 Q The persons that were saying these things about Marty Orr, 13 who were they? 14 A 15 is May. 16 just pretty much OP5, OP5 -- the guys in OP5 and, you know, and 17 the repair bed. 18 Q 19 Mr. Orr? 20 A Oh, yes. 21 Q Who? 22 A Durrell Warren, Don Burns. 23 free-for-all. 24 Only person getting punished is if you stood up and say: 25 not going to take this anymore. I would say there was Steven, Murphy, Gravy, John -- which I forgot his first name. James May, I believe. It was They would just jump in, you know. Did you hear any of the lead men or supervisors degrade Yes, sir. It was just like a It wasn't -- there was no fear or repercussion. I am You are on the chopping blocks Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 260 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 191 of 267 1 then. 2 Q 3 derogatory about him? 4 A 5 at a shutdown, and he called him a SOB -- a stupid SOB or 6 something like that. 7 unnecessary. 8 Q Was this on the radio or otherwise? 9 A It was on the radio. 10 Q Is Mr. Burns a supervisor? 11 A Yes, sir. 12 Q Is he Mr. Banks' supervisor? 13 A No, sir. 14 Q Do you know of anything that was ever done about that by 15 Nucor? 16 A No, sir. 17 Q What effect did the various things you have described here 18 today as racial hostility have on your mental health or physical 19 health? 20 A 21 under a doctor's care for anxiety and stress, Dr. Dye. 22 adverse effect on my family life. 23 marriage. 24 the gate -- we drove through a gate, and it seems like you 25 had -- you was going into another world. What about Johnny Banks? Have you ever heard anything said Racially derogatory? I heard something about John Banks from Don Burns. We was I caught the end of it, but that was still We were on shutdown. At that time when I was at Nucor, I was going to a doctor, It had a It had a adverse effect on my Just, just the strain of, you know, walking through You knew that you was Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 261 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 192 of 267 1 going to get wrote up. You knew that you was going to get 2 reprimanded for something. 3 wasn't just the supervisors. 4 older senior operators that had a free hand in running the 5 place. 6 Q Did you have to take medication on doctors' orders? 7 A Yes. 8 Q And did you ever receive a diagnosis of a particular kind? 9 A It was -- I had anxiety. And the thing was, it was -- it It was the employees. Is that the question you are 10 asking me? 11 Q Yeah. 12 A I was diagnosed with anxiety and hypertension. 13 14 MR. WADDELL: THE COURT: 16 MR. WADDELL: 18 Your Honor, can -- we are already there, so we will sit down. 15 17 It was the All right. Your Honor, we would ask to avoid leading. THE COURT: I will ask counsel to ask direct questions 19 rather than make your questions so detailed that they suggest 20 the answer. 21 you do that. 22 not understand your question, then you may ask a more detailed 23 answer -- question, I mean. In accordance with my prior ruling, I direct that And then, if the witness is not answering or does 24 MR. WIGGINS: 25 THE COURT: Do you understand my ruling? Yes. Thank you. Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 262 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 193 of 267 1 BY MR. WIGGINS 2 Q 3 harassment? 4 A Not that I know of. 5 Q You have told us about talking to the plant manager, 6 Mr. Stratman. 7 experiencing in terms of racial hostility? 8 A 9 was down. Did Nucor have any procedures or forms to report racial Did you ever report to others what you were I mentioned it to Dan at one time. He come visiting. We We had a real bad cobble, and we was down for a 10 couple of weeks. And Dan popped up by the repair bed and I 11 cornered him and I said, "Dan, what is going on?" 12 Dan was our CEO, and I had mentioned to him what was going on, 13 you know, with the harassment and intimidation and, you know, 14 just some of the things that was going on with me and the other 15 guys that was on the crew or in the mills. 16 checking into it, but, after talking to Joe Stratman, I really 17 didn't have that much faith in him because he was CEO. 18 left, he wasn't coming back. 19 Q 20 Mr. Dimicco? 21 A No, sir. 22 Q Do you know of anything else you could have done that you 23 didn't do to bring all of this you have told us about to Nucor's 24 attention? 25 A At this time And he said he was When he Did you ever see any changes after you talked to No, sir. I feel in my heart that I couldn't do anything Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 263 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 194 of 267 1 else. 2 I have complained several times to supervises, but the 3 supervisors -- half the time the supervisor was in on the event. 4 So, you know, it was just like -- it was just like, you know, 5 you didn't have nowhere to go and you either accept that and 6 dealt with that or you leave. 7 I couldn't do anything else, you know, so I just, I -- you know, 8 you just complain and complain until you can't complain no more 9 and you just start getting sensitized, desensitized or whatever. 10 Q I have complained and I have been retaliated against and And I couldn't go nowhere else. Thank you. 11 THE COURT: 12 MR. LINKER: Mr. Linker? Yes, Your Honor. 13 CROSS-EXAMINATION 14 BY MR. LINKER 15 Q 16 just testified about, but one thing kind of caught my attention. 17 When you are talking about this Klan meeting and the town of 18 Blytheville, you are not representing to this jury that was 19 somehow organized or established by Nucor-Yamato Steel, are you? 20 A 21 a rally in the middle of Blytheville and it was just a 22 coincidence that their next rally I saw in two days was behind 23 Nucor. 24 Q 25 telling this jury or representing to the Court that you Mr. Green, I want to cover a number of the things that you No, sir, I am not. I just wanted to mention that they had I understand that, sir, but to be clear, you are not Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 264 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 195 of 267 1 recognized anybody from Nucor-Yamato there in attendance at that 2 Klan meeting or that somehow Nucor-Yamato or its management 3 somehow authorized or put on that meeting in the town, are you? 4 A 5 if I could. 6 Q No, sir. Okay. They all had hoods. That's a no. I couldn't recognize anybody Thank you. 7 Let me go back, Mr. Green, and just cover a few dates 8 relating to your employment and make sure we're all on the same 9 page here. You worked from September of 1992 to March of 2004; 10 is that correct? 11 A Yes, sir. 12 Q Would you agree that -- then, that your start date was 13 September 16th, 1992? 14 A I believe so, yes, sir. Yes, sir. 15 MR. LINKER: 16 THE COURT: May I approach, Your Honor? You may. 17 BY MR. LINKER 18 Q Do you recognize that document? 19 A Yes, sir. 20 Q That's your signature, Mr. Green? 21 A Yes, sir. 22 Q This is a change of job status. 23 24 25 MR. LINKER: And I will move at this time that it be admitted into evidence. THE COURT: Can you identify the exhibit number? Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 265 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 196 of 267 1 MR. LINKER: Defendants' 56, Your Honor. 2 MR. WIGGINS: No objection, Your Honor. 3 THE COURT: 4 All right. It's received. (Defendants' Exhibit 56 received in evidence.) 5 BY MR. LINKER 6 Q 7 at Nucor-Yamato Steel. 8 testimony correctly, in the roll mill the entire time you were 9 employed; is that correct? All right. Let's talk a little bit about where you worked You worked, if I understood your 10 A The finish department of that, sir. 11 Q Well, I understand that, but the finishing department is 12 under the roll mill, is it not? 13 A Yes, sir. 14 Q In other words, the roll mill employees, including the 15 finishing employees, all have one department manager, correct? 16 A Yes, sir. 17 Q And during the time that you were employed, that department 18 manager was either Pat Brun, Franky Griggs, or Mike Dugan; is 19 that right? 20 A Yes, sir. 21 Q And you worked at various times at NYS Finishing 1, and 22 then you were transferred or you were promoted into a position 23 over at NYS 2; is that correct? 24 A Yes, sir. 25 Q And after you left Nucor-Yamato's employment in March of Roll mill department? I agree with that. Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 266 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 197 of 267 1 2004, is it fair to say that you really don't have any personal 2 knowledge regarding anything relating to the work or work 3 environment at Nucor-Yamato Steel? 4 A 5 of friends there and probably knew more about what was going on 6 than some of them who worked there. 7 Q 8 out there after you left, correct? 9 A That's not really necessarily true because I have had a lot Okay. But my question, Mr. Green, is that you didn't work I thought you was talking about the knowledge I had out 10 there. 11 Q 12 weren't collecting a paycheck, so you really can't tell this 13 jury that you were out there at any the time under any other 14 capacity to actually see something? 15 A True. 16 Q Okay. 17 statements? 18 A Yes, sir. 19 Q And did you see, Mr. Green, the diagram that was put up, I 20 believe by the defense and also the -- some of your lawyers, 21 too, that showed the aerial shot of the various layout of 22 Nucor-Yamato Steel. 23 A Yes, sir. 24 Q And if you will recall back to just a minute ago, some of 25 the questions I was asking in relation to where you worked, that No. Just your experience. You weren't working, you And you were -- were you here for the opening Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 267 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 198 of 267 1 aerial shot also encompassed other departments that make up 2 Nucor-Yamato, correct? 3 A 4 there when I was there. 5 Q 6 cafeteria, you recognized or understood that there were other 7 departments that were part of Nucor-Yamato Steel; is that 8 correct? 9 A Yes, sir. 10 Q And you never worked in the maintenance department, did 11 you? 12 A Yes, sir. 13 Q And who was your supervisor in the maintenance department? 14 A I forgot his -- excuse me -- Ramsdell. 15 Q And when were you employed in the maintenance department? 16 A On shut down. 17 Q But you're -- the entire time, I thought you just said, the 18 entire time that you worked at Nucor-Yamato and collected a 19 paycheck there, you were considered to be a roll mill employee; 20 is that right? 21 A Yes, sir. 22 Q But when I am talking about who was your department manager 23 and who you reported to, that would have been the three 24 gentlemen I mentioned: 25 A Yes, sir. Some of it was new to me. Some of it wasn't I understand, but being out there and eating lunch in the I worked in the maintenance department. But on shutdowns, we worked in different areas. Pat Brun, Franky Griggs, or Mike Dugan? If I worked in my maintenance, I would report to Ramsdell, Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 268 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 199 of 267 1 sir. 2 Q 3 considered to be a maintenance employee? 4 A 5 department. 6 Q 7 employee and with a change of job status that reflected that? 8 A 9 considered part of maintenance. Are you saying that you actually worked and you were I was working for lubricator, sir, in the maintenance Were you actually considered to be a maintenance department As long as I was in shutdown, I worked there and was 10 Q How often does Nucor-Yamato have shutdown? 11 A Two weeks every six months. 12 Q If there is testimony in this trial that indicates there is 13 shutdown for two weeks in the year, one in the spring and one in 14 the fall, would you have any reason to disagree with that? 15 A 16 with the mill, they will go into a shutdown. 17 the problem fixed, they will start rolling. 18 Q 19 periods, whatever those are -- and the jury will hear testimony 20 about those later. 21 a roll mill employee? 22 A Yes, sir. 23 Q Okay. 24 apologize if I have. 25 shutdown periods, but during the time that you worked in the It varies. It varies because it depends on -- if they have trouble And when they get It just varied. You will agree with me that other than the shut down Other than those shutdown periods, you were And I am not sure if I covered it, so I will During the times not including the Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 269 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 200 of 267 1 roll mill or every other day that you were employed at Nucor, 2 you had supervisors, and I believe you said Terry Dennis, 3 Steven Jackson, and Craig Pryor, your supervisors. 4 be an accurate statement? 5 A Would you repeat that again? 6 Q Absolutely. 7 were either Terry Dennis, Steven Jackson, or Craig Pryor? 8 A Yes. 9 Q You recognize those names, don't you, sir? 10 A Yes. 11 that. 12 Q 13 asking you. 14 in the maintenance department. 15 shipping employee, were you? 16 A No, sir. 17 Q You never worked in the melt shop where they melted the 18 steel and rolled into the roll mill, right? 19 A No, sir. 20 Q You were never in the quality department; is that right? 21 A Yes, sir. 22 Q Okay. 23 A I was in quality control and finishing. 24 Q I understand, but still considered to be a roll mill 25 employee? Would that Your supervisors when you were at NYS 1 or 2 On paper. They was the people there in charge. Okay. I will say But you were never -- let me go back to what I was You said on shutdowns occasionally you would work You were never considered a But you never were a quality department employee? Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 270 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 201 of 267 1 A Yes, sir. But that was my title: Quality control. 2 Q But that was in NYS finishing, correct? 3 A And 2. 4 Q And you still reported to the roll mill department manager, 5 right? 6 A Yes, sir. 7 Q All right. 8 issues that you saw out there. 9 cross, Mr. Green. Let's talk about some of these claims and Let's go back to this burning To be clear now, that's not something that 10 you saw, is it? That is something that, if I heard you 11 correctly, you were told about? 12 A Yes, sir. 13 Q Yes, sir, you did not see it, right? 14 A I did not see it. 15 Q And you were told about that on one occasion, correct, sir? 16 A Yes, sir. 17 Q Do you recall the year that was or the date? 18 A I don't recall the year, but I was told that through a 19 Nucor employee. 20 that time when that incident happened, yes. 21 Q 22 you didn't see it, but when you were told about it, you were a 23 contract employee? 24 A 25 Alexander Scrap Service. But I was working for Alexander Mill Service at So you are saying when you were told about that and, again, Yes, sir. Working for the melt shop at that time, Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 271 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 202 of 267 1 Q Working in the melt shop, not for the melt shop? 2 A Yes, sir. 3 Q So your paycheck was by Alexander Mills Service, not 4 Nucor-Yamato? 5 A Yes, sir. 6 Q All right. 7 policies that your lawyer covered with you. 8 Nucor-Yamato for approximately 12 years. 9 the handbook; is that right? Mr. Green, let's talk about some of the You were at You received a copy of 10 A Yes, sir. 11 Q Did you read it thoroughly? 12 A Yes, sir. 13 Q And you signed an acknowledgment for it, did you not? 14 A I believe I did. 15 Q But you do recall having received a copy of Nucor-Yamato's 16 handbook, which is in evidence here. 17 You recall getting a copy of it probably when you first started 18 your employment, right? 19 A MR. WIGGINS: 21 THE COURT: 23 What's the exhibit? 380. Yes, sir. 20 22 It's been a long time, sir. Can we approach? You may. (Bench conference reported as follows:) MR. WIGGINS: Your Honor, this Exhibit 380 is for a 24 particular point in time, and there has been no testimony what 25 point in time. But it's not the one that's actually physically Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 272 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 203 of 267 1 handed to the employee. 2 computer printed -- an electronic printout. 3 or this. 4 object to them, just because that got into evidence over our 5 mistake, that they represent to the employee that this was in 6 force when they were there and lead them into saying something 7 like that when there is no testimony to that effect. 8 from the depositions, this particular exhibit is later. 9 It's -- the one they have got is a It's not like this This is a double-faced copy of this. MR. LINKER: So I don't -- I In fact, Your Honor, it's first and foremost, 10 it's -- the Court has already accepted this. 11 the record. 12 of the handbook and, if he doesn't recall certain aspects of it, 13 he is certainly free to tell me. 14 This has been in Mr. Green himself testified that he received a copy THE COURT: If you know that that's not the handbook 15 that was given to him, you can't use that -- if that's a 16 different edition of the handbook that was given. 17 MR. LINKER: I am not -- the one that we produced to 18 you is the one that you stipulated was the handbook that was in 19 existence at the time of the issues in this lawsuit. 20 MR. WIGGINS: 21 THE COURT: I have not stipulated to that. He stipulated to the admission of that 22 and -- because it was on, we were on the brink of opening 23 statements and you had prepared your opening statement based on 24 that, I was going to let you use it to show the policy. 25 don't want you representing to this jury that that was the Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter But I 273 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 204 of 267 1 handbook that he received when he became an employee. 2 not the handbook, you cannot pretend that it was. 3 MR. LINKER: If it was Well, Your Honor, and, again, I certainly 4 don't want to pretend and misrepresent anything to the jury or 5 the Court, but I think I should have some latitude to show him 6 copies of the handbook and see if he recognizes that. 7 has already acknowledged -- 8 THE COURT: 9 No. And he What you -- you may not lead this jury to believe that that handbook is the one that was in existence 10 when he signed his document that he had received it. 11 is, if it's that, if -- I know you have in his file he received 12 a handbook, but don't show him a different edition. 13 the copy he received. 14 received. 15 this policy was in the handbook when he signed off as having 16 received a copy. 17 you do that. Show him Show him the copy of the edition he That is not right to lead the jury to believe that That's just not right. 18 MR. LINKER: 19 MR. WADDELL: 20 Now, if it I am not going to let And that's not my intention, Judge. Is this a copy of what you have in that notebook? 21 MR. WIGGINS: No. 22 MR. WADDELL: I wanted to see that one, the time 23 24 25 That's the one you're using. reference and what the difference is because -MR. WIGGINS: I will show that. All this was fleshed out in the depositions, Your Honor. Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 274 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 205 of 267 1 THE COURT: Of course, I haven't reviewed the 2 depositions, but I just don't -- if he, in fact, signed -- I am 3 sure he said that he thinks he signed for a handbook, but I have 4 to let you cross-examine him on the basis of what he received, 5 not on what was issued later when he has not acknowledged that 6 he has -- 7 MR. LINKER: 8 make sure I don't step over -- 9 10 THE COURT: Just to be clear, and I want to -- because I don't know what you are trying to do. 11 12 Okay. MR. LINKER: I can establish that he received a handbook. 13 THE COURT: 14 MR. LINKER: That's already been done. And I can ask him to establish what he 15 recalls being in that handbook and -- maybe I won't show him the 16 handbook. 17 the handbook unless I can establish it is the one he received? 18 19 You are saying I can't show him physically a copy of THE COURT: That's right, because that's what he signed off on. 20 MR. WADDELL: Is he saying this is the one he got, Bob? 21 MR. WIGGINS: No, no, no. 22 MR. WADDELL: This is the 1988 version. 23 MR. WIGGINS: This is one version y'all gave us for one 24 25 period of time. THE COURT: Let me give them a break. Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 275 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 206 of 267 1 2 (Return to open court.) THE COURT: I'm going to give the jury a break again 3 while we discuss this, and they know the admonition. 4 be the last break of the day before we go home. 5 6 7 8 9 This will Okay? (Jury exits the courtroom.) MR. LINKER: I really wasn't trying to get into anything and misrepresent something. THE COURT: That's -- but Mr. Wiggins is afraid that's what's going to happen, and so I want to make clear, the 10 evidence so far is that he has testified that he acknowledges he 11 probably signed for a handbook. 12 said, no, he didn't, you have a file where you could show him a 13 signature. 14 MR. LINKER: 15 MR. WIGGINS: 16 MR. LINKER: 17 THE COURT: Correct. That's correct. But I think he has testified he has. And then, Mr. Wiggins, what is the problem 18 with showing him one of these? 19 different year? 20 MR. WIGGINS: 21 THE COURT: 22 23 And I am sure that if he had Yes. It's a different edition? A They're different. And are you taking the position that the one he received did not have the EEO policy in it? MR. WIGGINS: It didn't have the anti-harassment policy 24 in any of the versions, but I think all of them had a general 25 EEO statement. Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 276 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 207 of 267 1 MR. LINKER: And I agree with that, and we're not 2 taking the position that the handbook that he received had the 3 no-harassment policy in it. 4 THE COURT: 5 MR. LINKER: That's not where I was going. Where are we going? I was going to get him to establish, as 6 counsel has already recognized, that there are certain 7 consistent policies in it, including the EEO policy, complaints 8 procedure, and other things relating -- that have already come 9 up in this testimony. I was not going to represent that this 10 handbook, the one he received, had the no-harassment policy in 11 it. That is not our position. 12 MR. WIGGINS: 13 of him. 14 one in front of him. 15 MR. LINKER: 16 THE COURT: I want him to have the right one in front Whatever it is, it will be in it. But I want the right I understand. Or you can pull a page out of a different 17 one and, as long as you know competently that the page that you 18 show him from the one you have is the same page as was in the 19 one he received. 20 MR. LINKER: 21 THE COURT: It is. But that's -- and you are not going to 22 represent their written anti-harassment policy was in the book 23 he received. 24 25 MR. LINKER: No, ma'am. Absolutely not, Judge. was not where I was going with that. That I am sorry if I misled the Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 277 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 208 of 267 1 Court. 2 THE COURT: 3 MR. LINKER: That's what you thought I was going to MR. WIGGINS: In the opening you had this policy up 4 That's what he was afraid of. say? 5 6 there that we very much dispute, and I don't know if you are 7 going to put something in front of him that has that page or 8 not. 9 MR. LINKER: 10 MR. WADDELL: 11 14 15 16 17 18 19 20 We clearly represented that it was posted on the bulletin board. 12 13 I wouldn't do that personally. THE COURT: You just said it was posted on the bulletin board. MR. WADDELL: I certainly didn't represent it was in the handbook because it never has been. THE COURT: You didn't say it was or was not in the handbook. MR. LINKER: Nor would I try to slip one in on a witness at all. MR. WADDELL: And I cross-examined Mr. Washington and 21 made no insinuation it was in the handbook. 22 EEO policy, the bulletin board policy, and the complaint 23 procedure, and didn't try to suggest to him that there was a 24 harassment policy in the handbook. 25 THE COURT: I asked about the When you have him on redirect, you may ask Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 278 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 209 of 267 1 a question about whether this anti-harassment policy was in the 2 handbook. I will let you clear that up. 3 MR. LINKER: 4 pages that I have -- 5 THE COURT: That's -- Then may I show the -- put on the ELMO the If you -- if you are very clear about this 6 and I -- and I want you to show opposing counsel before you put 7 up there what -- so he can go back and check. 8 something on that ELMO and represent that it was in the handbook 9 he received, make sure it in fact was. 10 MR. LINKER: 11 THE COURT: 12 MR. LINKER: 13 If you put Absolutely, Judge. Not a different version, but that wording. I understand. (Recess at 4:31 p.m., until 4:42 p.m.) 14 THE COURT: 15 MR. LINKER: All right, Mr. Linker. Thank you, Judge. 16 BY MR. LINKER 17 Q 18 about the handbook, and I will try to see if I can't get through 19 this quickly. 20 received a Nucor-Yamato handbook when you started your 21 employment with Nucor; is that correct? 22 A Yes, sir. 23 Q Do you recall from that handbook that it had within it a 24 certain complaint procedure that you could take to your 25 supervisor? Mr. Green, before we broke, we were talking a little bit I believe your testimony was you do recall having You could take something to your department Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 279 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 210 of 267 1 manager, the GM, et cetera? 2 A 3 say what was in the book now because it's been a good while. 4 Q It's been a long time. I have to see it, sir. I couldn't Okay. 5 MR. LINKER: 6 THE COURT: May I approach, Your Honor? You may. 7 BY MR. LINKER 8 Q 9 and ask if you recognize that. I'm going to show you a copy from a Nucor-Yamato handbook 10 A I can't recall if I remember this or not, sir. 11 long time. 12 Q 13 there and you understood that you had the right and, in fact, I 14 think you testified that on some occasions you did, in fact, 15 complain. 16 A Yes, sir. 17 Q And you had that right to take any issue of concern in your 18 work experience to your supervisor, your department manager, the 19 general manager, and I think you even testified on one occasion 20 you maybe even have spoken directly with the CEO of the company. 21 Would you agree with that? 22 A Yes, sir. 23 Q Is it fair to say that you were on a first-name basis not 24 only with the general manager but with the CEO of the company? 25 A Okay. It's been a Well, bottom line, Mr. Green, is that you worked out You had a right to complain, and you did? Yes, sir. Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 280 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 211 of 267 1 Q And you called them by their first -- 2 A Yes, sir. 3 Q -- names, Joe and Dan? 4 take it to them directly, right? 5 A Yes, sir. 6 Q There is some testimony that you discussed with your 7 counsel about the bulletin boards throughout the mill. 8 agree that Nucor-Yamato has bulletin boards in various areas 9 throughout each department, correct? And if you had something, you would You will 10 A Yes, sir. 11 Q And based on what you have testified, you worked at NYS 1 12 and NYS 2 and some various other areas and each of those areas 13 had a bulletin board, right? 14 A Yes, sir. 15 Q And on that bulletin board it had important information, 16 correct? 17 A Yes, sir. 18 Q And you have been hearing some of the testimony in this 19 trial and some of that testimony was that there is information 20 about your pay on there, there is information about safety 21 meetings, and other information that's important to all the 22 employees out there. 23 A Yes, sir, I agree with that. 24 Q And, in fact, it was your obligation as an employee to 25 check that bulletin board frequently; would you agree? Do you agree with that? Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 281 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 212 of 267 1 A I wouldn't agree with that. 2 Q Well, did you, in fact, check the bulletin board? 3 A I wouldn't check it every week or -- probably once a month. 4 Q Can you tell this jury everything that you recall having 5 been on that bulletin board? 6 A 7 the bid sheets and what bonus we wrote that week and probably 8 eight out of ten, we would get that information off the radio 9 from our supervisor. Only thing I was interested about the bulletin board was I understand. I would. 10 Q And as I think we have established, there 11 are multiple ways to communicate out there, right? 12 A Yes, sir. 13 Q Bulletin board is just one other means of communication, 14 correct? 15 A Correct. 16 Q But if I heard you correctly, when you would check the 17 bulletin board you were only looking at some very specific items 18 that were important to you; is that right? 19 A Yes, sir. 20 Q And can you -- as we sit here today, can you tell this jury 21 with specificity everything that was on that, the four corners 22 of the bulletin board? 23 A Explain that again. 24 Q What I am trying to find out from you, Mr. Green, are you 25 testifying that you know 100 percent for certain everything that I didn't catch the first word. Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter What? 282 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 213 of 267 1 was on that bulletin board? 2 A Not 100 percent. 3 Q Let's talk about some of these issues that you claim to 4 have experienced while you were working out there. 5 mentioned something about a chicken being lynched by the neck. 6 And just to be clear, you are talking about a rubber chicken; is 7 that correct? 8 A Yes, sir. 9 Q And were you in the vicinity when that happened? 10 A Not when it happened. 11 Q Did you talk with any of the minority employees that were 12 in that area following that incident? 13 A No, sir. 14 Q And in fact, Marty Orr, who you have testified quite a bit 15 about, was a lead man, an African-American lead man in that 16 area, was he not? 17 A I couldn't say at that time because that wasn't my area. 18 Q But you are not telling this jury that Marty Orr, black 19 employee, was not working in that area, are you? 20 A 21 saying I didn't know if he was a lead man or not. 22 Q 23 area? 24 A 25 working in that area, that specific area at that time, sir. You I am not saying he wasn't working in that area. I am But you understood -- you understand that he worked in that Marty worked in a lot of areas. I don't know if he was Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 283 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 214 of 267 1 Q 2 Marty Orr, knows, has some personal knowledge about this chicken 3 issue? 4 A I have never spoken to Marty about this incident. 5 Q I guess you answered my question. 6 Have you ever heard, as we sit here today Mr. Green, that Thank you. Do you know who Greg Lark is? 7 A Excuse me? 8 Q Greg Lark. 9 A No, sir. 10 Q Do you have any reason to -- have you ever spoken to him at 11 all for any reason? 12 A I don't know who he is. 13 Q Okay, fair enough. 14 speaking with one of the plaintiffs, or anybody else that you 15 may have visited with about this chicken issue, that it was 16 really a goof-off prank that was pulled and wasn't directed at 17 anybody? 18 A To any of the plaintiffs? 19 Q Have you ever heard that, sir? 20 A I haven't spoken to any of the plaintiffs about that, sir. 21 Q So the only thing -- you just heard about this chicken 22 issue, correct? 23 A 24 maintenance channel, that the incident had occurred. 25 a break to come over there to check it out, you know, just to Have you ever learned from either Has that ever come across to your attention? Is that what you said? I heard over the radio through, I believe it was the Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter And I took 284 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 215 of 267 1 see was they that stupid to do something like that. 2 Q 3 either Durrell Warren or anybody else, that would have been in 4 the vicinity? 5 A No, sir. 6 Q So you really don't have any personal knowledge about the 7 circumstances behind that; is that fair to say? 8 A Only thing is what I have seen and what I was told. 9 Q That's what I am trying to figure out. But my question is, did you specifically talk to anybody, You didn't talk to 10 anybody that was in that area about the circumstances behind 11 that? 12 A No, sir. 13 Q Let's talk a little bit about these issues that you have 14 addressed concerning the times that you approached either 15 Joe Stratman or Dan Dimicco, if I heard you correctly, 16 Mr. Green, you spoke to Mr. Stratman on one occasion about 17 having seen a Confederate flag in the workplace. 18 correct? 19 A 20 if I spoke to him once about the flag or twice. 21 I spoke to him twice. 22 hand, and then I believe I might have done a follow-up. 23 when I realized it really wasn't -- you know, there was nothing 24 being done. 25 Q Is that I spoke to Joe on several occasions, but I can't remember Okay. But I remember I spoke to him once about the problem at That's You're absolutely certain you spoke to Mr. Stratman Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 285 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 216 of 267 1 on two separate occasions? 2 A I believe so. 3 Q You are not 100-percent certain though? 4 A I can't be 100-percent certain. 5 Q I understand. 6 one occasion you actually talked to the CEO and reported 7 something of a discriminatory concern to you? 8 A 9 the mill concerning a few of the employees, you know, Yes. And are you also testifying that on at least I spoke to Dan about a situation that was going on in 10 harassment, you know, unfair practices and stuff. 11 Q 12 Dan Dimicco, did you make a written record of that? 13 A 14 to anyone else or make a record of it. 15 with Dan, he would give me a reply in three days. 16 just the norm. 17 Q 18 Dan Dimicco or Joe Stratman, the general manager, did you make a 19 written record or record in writing your visit with them and 20 what you described? 21 A I didn't feel I had to do that. 22 Q Some of these other incidents that you have said you 23 witnessed -- the Confederate paraphernalia, the Confederate 24 flags, the graffiti on the bathroom walls -- do you have any 25 evidence, do you have any photos that would reflect the fact After these conversations with either Mr. Stratman or I have talked to the CEO. I wouldn't think I have to talk Again, sir, my question is: Every other time I spoke So that was After you spoke to either Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 286 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 217 of 267 1 that that existed? 2 A No, sir. 3 Q Let's talk about that just a minute. 4 receiving in this case some written questions that were typed 5 and you, your lawyers were -- gave you some assistance and you 6 provided them with the answers and responses and those questions 7 were under oath? 8 A 9 lawyers about many things. Just my word. What was the questions? I understand. Do you recall What -- I mean, I spoke to my I can't really say. 10 Q Let's talk about -- what I am referring to 11 specifically, sir, are Ozzie Green's Answers to Defendants' 12 Interrogatories. 13 A I think so, yes, sir. 14 Q All right. Does that term ring a bell? 15 MR. LINKER: 16 THE COURT: May I approach, Judge? You may. 17 BY MR. LINKER 18 Q 19 specifically, sir, if you would turn to page 4. 20 Interrogatory -- are you there, Mr. Green? 21 A Yes. 22 Q Okay. 23 asking you to identify all specific instances in which you 24 complained or reported any harassment or discrimination because 25 of your race? I'm going to hand you what is Defendants' Exhibit 4, and I am on page 4. Would you agree with me that Interrogatory No. 7 is Would you agree with that? Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 287 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 218 of 267 1 A Yes. 2 Q And if you would, sir, follow along with me a little bit. 3 In your response to this -- and, again, these are sworn 4 statements that you provided, correct? 5 A Yes, sir. 6 Q And in it you list a number of complaints. 7 complaining to Terry Dennis about Robert Rayburn calling you a 8 black bastard over the radio in 1994. 9 A Yes, sir. 10 Q You complained of Franky Griggs about Terry Dennis 11 harassing you, correct? 12 A Yes, sir. 13 Q And you made these complaints up until the time you left 14 Terry Dennis's crew; is that right? 15 A Yes, sir. 16 Q And that would have been in 1999, correct? 17 A I believe so. 18 Q Okay. 19 about a job, right? 20 A I believe so. 21 Q Is that what's on that page? 22 A Yes, sir. 23 Q And if you would, sir, turn to page 5. 24 complain that you complained to Durrell Warren about the lynched 25 chicken; is that right? You remember Do you see that, sir? And you complained to Mike Dugan in 2003 and 2004 And lastly, you Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 288 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 219 of 267 1 A Yes. 2 Q Now, there aren't any other names in here. 3 not mentioned. 4 me? 5 A Yes. 6 Q So nowhere in this sworn statement where it's asking you to 7 specifically identify each and every person that you reported a 8 discriminatory concern to you, those names aren't in here, 9 right? Dan Dimicco is not mentioned. Joe Stratman is Do you agree with 10 A Yes. They're not. 11 Q One more point on this and I will put it down. 12 are those names not in there, there is nothing in this issue 13 right here that would have you identify nor did you ever 14 identify anything about Confederate paraphernalia, Confederate 15 bandannas, anything about a cross burning. 16 aren't noted in this, correct? 17 MR. WIGGINS: Those instances Objection, Your Honor. The question is 18 did he ever, and that goes beyond the interrogatory. 19 the deposition. 20 MR. LINKER: Not only It's in It's asking him, Your Honor, to identify 21 specifically all the issues that he complained about, and I 22 think he has represented that he complained to management about 23 these incidents. 24 25 And -- THE COURT: You may -- the questions at trial which he was asked earlier by counsel are a matter of record now, and the Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 289 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 220 of 267 1 interrogatory, I assume, is in evidence. 2 in evidence or is this being used as a prior inconsistent 3 statement? 4 MR. LINKER: 5 THE COURT: Have we received that Prior inconsistent statement, Your Honor. I'm not going to make a ruling. I will 6 just permit Mr. Wiggins to revisit this on redirect and let the 7 jury decide. 8 9 MR. LINKER: Thank you. BY MR. LINKER 10 Q Would you like me to repeat it, Mr. Green? 11 A Yes, please. 12 Q Okay. 13 in your sworn statement here, that you didn't -- that we failed 14 to mention, that you never mentioned that you supposedly 15 complained to, right? 16 A Right. 17 Q What I am also asking, sir, is nowhere in this sworn 18 statement of yours is there any reference or mention to 19 Confederate flags, burning crosses, or anything relating to 20 graffiti in the bathroom, correct? 21 A No, there is nothing in this statement about that. 22 Q Okay. 23 A Can I add to that statement? 24 25 We have talked about individuals that are not named THE COURT: I don't let -- are you saying add to something? Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 290 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 221 of 267 1 THE WITNESS: 2 THE COURT: About the Dan Dimicco and Joe Stratman. I'll tell you what, your lawyer -- if you 3 think something is misleading, your lawyer is going to have an 4 opportunity to ask you questions one more time. 5 THE WITNESS: 6 THE COURT: 7 Okay. Thank you. And so I never let a witness just volunteer things. 8 THE WITNESS: 9 THE COURT: 10 Okay. Thank you. Go ahead. 11 BY MR. LINKER 12 Q 13 said that you saw KKK written on a bathroom wall from time to 14 time? 15 A Yes, sir. 16 Q And if I heard you correctly, that graffiti was -- you 17 would see it after the shutdown period? 18 A 19 regular days. 20 Q 21 basis, Mr. Green? 22 A 23 day, sir. 24 Q Then I guess the answer to my question is yes, right? 25 A Yes, sir. Let's go back to this graffiti that you saw. No, sir. I believe you I said I saw it when I go to the bathroom on So is it your testimony that you saw this on an everyday It was in the bathroom. I had to go to the bathroom every Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 291 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 222 of 267 1 Q 2 that it offended you. 3 in your sworn statement. 4 A 5 like anything, you know, when we -- when we was preparing this 6 here, you know, you just forget something. 7 long time ago and, you know, you tend to forget and things come 8 back to you and -- you know, as you go and refresh your memory. 9 Q 10 11 Nevertheless, you saw this, and I believe you testified Yes, sir. But, again, it wasn't referenced anywhere The sworn statement was, you know -- it's just This has happened a I understand that, sir, but you understand that a lawsuit -MR. WIGGINS: Judge, I am going to object unless he 12 lays a predicate that a question was ever asked in the document 13 about the different instances of racial harassment. 14 at the questions, the question was never asked. If you look 15 THE COURT: I do not have the document before me; 16 although, I could look it up. 17 question for the jury to decide whether his testimony today is 18 consistent with the answers to interrogatories that you are 19 referring to. 20 consider it or not as they like. 21 I will instruct the jury that it's up to the jury whether to 22 believe a witness or whether to believe all of what a witness 23 says or some of it, and it's also up to the jury to put weight 24 on testimony; in other words, how important testimony is. 25 some testimony the jury might find is more important than I think that it will be a And if there is an inconsistency, the jury may That's -- that's up to them. Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter So 292 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 223 of 267 1 others, but I do not have the interrogatory in front of me. 2 I know that it has not been received in evidence, but 3 Mr. Linker is properly using it, he says, as a prior 4 inconsistent statement and certainly on the same topic. 5 say that. 6 thinks that he is not using it properly or he is confusing the 7 jury, you may clear things up on redirect. 8 prefer to do it rather than take time up with an objection right 9 now. 10 It involves reporting incidents. I will But if Mr. Wiggins And that's the way I Go ahead. 11 MR. LINKER: Thank you, Judge. 12 BY MR. LINKER 13 Q 14 guess what I want to make sure I understand and to be clear for 15 the jury is that when -- a lawsuit is serious business, isn't 16 it, Mr. Green? 17 A Yes, sir. 18 Q And when you sue the company and the other side is asking 19 you to give information under oath, I presume that you did your 20 very best to be truthful in responding to that. 21 assumption? 22 A 23 information to come up on and to remember, and there was some 24 things left out, some things wasn't recalled. 25 with that. All right. And I will leave this topic, I promise. I Is that a fair When I gave this information, sir, it was a lot of But, yes, I agree Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 293 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 224 of 267 1 Q You are not testifying that you were hiding the ball on us, 2 were you? 3 A 4 human. 5 knew I had to write it down, I would have written it down. 6 Q 7 assistance with your lawyers to prepare, it was under oath, you 8 had a chance to review it, they typed it, and you adopted it as 9 your own statement; is that correct? No, sir. I am saying that there are some things that we're We forget things, and I can't recall everything. I understand, but this is a sworn statement. But I You had 10 A Yes, sir, I did. 11 Q All right. 12 testifying that you ever witnessed a Nucor employee write 13 something racist in a bathroom, are you? 14 A No, sir. 15 Q In fact, you don't know the origin of that graffiti or how 16 it might have gotten there, do you? 17 A No, sir. 18 Q And you have never taken a complaint to a Nucor manager or 19 a department manager accusing somebody, a white employee, of 20 writing something racially derogatory on any of the bathrooms, 21 have you? 22 A 23 and that's the norm. 24 you tell your supervisor, and where he took it then, that's -- 25 that was the procedure at that time. Let's go back to this graffiti. You are not I have complained to my supervisor and I told my supervisor That's how we did the procedure. Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter We -- 294 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 225 of 267 1 Q I understand that. 2 their responsibility to decide what complaints were made or what 3 events happened or not. 4 a department manager, a supervisor, or anyone else and said: 5 have evidence or I know of this person or that person writing 6 something racially derogatory on the bathroom wall. 7 happened, did it? 8 A 9 the wall. No. And the jury will -- it's going to be But my question was, you never went to I That never I just told my supervisor there was some graffiti on I couldn't tell them who it was, but I let them know 10 that it was graffiti on the wall. 11 Q And who was your supervisor at that time? 12 A Steve Jackson at that time. 13 Q Mr. Green, have you ever heard Mr. Jackson use a racially 14 derogatory remark or slur? 15 A Absolutely not. 16 Q For that matter, have you ever heard Joe Stratman or 17 Dan Dimicco use a racially derogatory slur in your presence? 18 A No. 19 Q Have you ever heard Mike Dugan say anything racist to you? 20 A I wasn't around Mike that much. 21 Q But the times that you were, my question is, did you ever 22 hear him say anything racially derogatory? 23 A No. 24 Q You mentioned, Mr. Green, that at least on -- at one point 25 in your career, you witnessed a supervisor wearing a Confederate Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 295 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 226 of 267 1 flag sticker. Did I hear you correctly? 2 A Yes, sir. 3 Q Who was that? 4 A Don Burns. 5 Q Do you know when that was? 6 A It would be the time that I was at NYS 1, in that time 7 frame. 8 Q So that would have been before 1999, correct? 9 A Yes. 10 Q And I think we have just established that you never went to 11 any specific manager to complain about Don Burns wearing a 12 Confederate flag sticker that you saw? 13 A Complaining on a supervisor? 14 Q Did you ever take your concern over Mr. Burns supposedly 15 wearing a Confederate sticker to your department manager or the 16 general manager? 17 A No, sir. 18 Q And you have never seen any other supervisor wearing 19 anything with the Confederate emblem or sticker on it, have you? 20 A 21 they was Confederate or what, but I have seen other stickers, 22 sir. 23 Q 24 what have you. 25 jury as we sit here today under oath that you know of any other That wouldn't be wise. We didn't do stuff like that. I have seen supervisors wear stickers. I can't tell you if I am sure there are stickers out there, oil stickers or My question is, though, are you telling this Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 296 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 227 of 267 1 occasion where you personally witnessed a Nucor supervisor 2 wearing a Confederate sticker? 3 A I think Durrell Warren might have had one. 4 Q You know that for certain? 5 A I couldn't say 100 percent because he come in OP6 where we 6 were, he would put his hat down. 7 Q 8 two individuals -- you think Don Burns and you think 9 Durrell Warren -- are there any other names that you want to The jury will hear from Mr. Warren, but other than those 10 bring to our attention? 11 A Right now, that's all I can recall. 12 Q And again with Mr. Burns, I presume, you never reported 13 your concern over him possibly wearing a Confederate sticker to 14 your department manager or general manager; is that a fair 15 assumption? 16 A 17 work under them. 18 Q Is that a no? 19 A Yes, sir. 20 Q Mr. Green, you testified earlier in response to your 21 lawyers' questions, on occasion you thought you were being 22 written up and disciplined for what you perceived to be minor 23 offenses. 24 A Yes, sir. 25 Q As a general principle, would you agree that two employees Once again, we don't report supervisors, sir. Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter We have to 297 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 228 of 267 1 in a workplace, a black and white employee, can have a conflict 2 without race being the source of the issue? 3 A I think it depends on the employees that are in conflict. 4 Q I understand, but are you -- is it possible for two 5 employees in the workplace, a black employee and a white 6 employee, to have an issue between them without race being a 7 part of it? 8 A 9 workplace. Once again, I think it depends on the employee and the 10 Q So in some instances, is it reasonable to assume that two 11 employees may just have a personality conflict and race may not 12 have anything to do with it? 13 A 14 things, sir. 15 Q So it's not possible for that to have happened? 16 A It might be possible. 17 Q Okay. 18 supervisor can have an issue with an employee without race being 19 the source of the confrontation? 20 A If it doesn't get personal. 21 Q Is it possible for that to happen? 22 A Anything is possible, sir. 23 Q Let's talk about your work performance while you were at 24 Nucor. 25 were counseled or received any disciplinary warning? Is that possible? I think race has a lot of things to do with a lot of Along the same lines, is it safe to say that a Do you recall offhand the total number of times that you Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 298 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 229 of 267 1 A 2 I have been counseled, if you call that counseling. 3 Q 4 have any idea of what that number might be, sir? 5 A I have no idea. 6 Q Does 16 sound about right? 7 A Once again, I don't know. 8 Q And is it safe to assume or to say that you were 9 disciplined -- part of that group of 16 counselings were from 10 I can't really recall all the times that Well, I understand. I am looking for a number. Did you Help me, sir. Maybe. Possible. different supervisors? 11 12 Not off the hand. MR. WIGGINS: Object to the form of that, Your Honor. It's assuming something he hasn't established. 13 MR. LINKER: 14 THE COURT: I will restate it, Your Honor. All right. 15 BY MR. LINKER 16 Q 17 Nucor-Yamato, you have had three supervisors; is that correct? 18 A Yes, sir. 19 Q Terry Dennis, Steve Jackson, and Craig Pry? 20 A Yes. 21 Q And Mr. Pry, for the record, is black; is that correct? 22 A Yes, sir, he is. 23 Q Okay. 24 different disciplinary counselings, they involve every one of 25 those supervisors at one time or another? I think we established earlier that during your tenure at Would you agree, Mr. Green, that out of your 16 Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 299 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 230 of 267 1 2 MR. WIGGINS: Objection. He has not established there are 16. 3 THE COURT: All right. This is what I am going to 4 permit. The witness, Mr. Green, has acknowledged that he has 5 been counseled or disciplined. 6 will permit -- I will direct Mr. Linker, instead of referring to 7 the 16 times, you may ask whether all three supervisors have 8 counseled him or disciplined him and you may go through, if you 9 have them, if you have a good faith basis -- this is He cannot say how many times. I 10 cross-examination -- that the Court will allow, you may go 11 through some of the incidents. 12 objects -- when you encompass in your question "16 times," he 13 objects because you -- presumptively the witness is 14 acknowledging and agreeing with you that it's 16 times if he 15 answers. 16 acknowledged that he has been disciplined and counseled several 17 times. 18 19 But I think when Mr. Wiggins So just don't refer to the 16 times. He has He has acknowledged that. MR. LINKER: I will refrain from using any numbers, Judge, if it will speed things up a little bit. 20 THE COURT: 21 MR. LINKER: Yeah, it will. I am all for that. 22 BY MR. LINKER 23 Q 24 Would you at least agree with me -- and we won't get into every 25 one of your disciplines and that's not my intent. Let me see if I can bring this full circle here, Mr. Green. And if we Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 300 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 231 of 267 1 need to, we certainly can. 2 have been disciplined for a variety of infractions? 3 that's what you were told. 4 A Yes, sir. 5 Q And some of those infractions include attendance, abuse of 6 the radio, safety, and on one occasion speaking very harshly to 7 your supervisor. 8 of your counseling? 9 A Yes, sir, that's what I was told. 10 Q And in fact, one of those write-ups involves a situation 11 where you were counseled by Mike Dugan, and you received a 12 written warning for talking very abusively to a roll mill clerk 13 that you used to be married to. 14 a reasoning for your counseling. 15 basis? 16 A 17 that the write-up was about. 18 Q 19 Craig Pry, is it your testimony here today, sir, that those 20 write-ups were discriminatory? 21 A 22 which is a black man, was extended from -- I'm trying to answer 23 this very delicately. 24 retaliation by the orders of Mike Dugan. 25 Q Yeah. But would you agree with me that you At least At least that's what you were told as a result That was what you were told was Would you agree with that I would agree with that. That's what I was told And the write-ups that you were given by your supervisor, They were based on your race? I would say that the write-ups I received from Craig Pry, Okay. Craig Pry wrote me up, I feel, in Well, the jury will hear from both Mike Dugan and Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 301 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 232 of 267 1 Craig Pry, but is it your basis along the lines of what you just 2 said that you felt it was discriminatory? 3 A 4 it because I have had a long history of, you know, being 5 targeted by them. 6 Q Okay. 7 A Yes, sir. 8 Q But you acknowledge that that write-up was given to you by 9 a black supervisor, correct? Yes. I feel that they couldn't do it -- they couldn't do So Craig was a tool for them to use. And Craig will speak for himself when he is here. 10 A Yes, sir. 11 Q And included within the number of disciplinary reprimands 12 that you have received -- and, again, we will stay away from 13 numbers for now -- you were suspended as a result of the 14 infractions on two separate occasions? 15 A 16 altercations were. I can't remember. 17 MR. LINKER: 18 THE COURT: 19 MR. LINKER: I might have. I don't know what the May I approach, Your Honor? You may. I am going to show you Defendants' 20 Exhibit 21. 21 BY MR. LINKER 22 Q 23 February 13, 1997, you were suspended and the reason for that 24 suspension was radio abuse? 25 A Mr. Green, Exhibit 21, does that not state that on That's what it says. Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 302 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 233 of 267 1 MR. LINKER: 2 THE COURT: May I approach, Your Honor? You may. 3 BY MR. LINKER 4 Q 5 Defendants' Exhibit 14. 6 before you reflect that you were once again suspended, again 7 for, as it states, yelling at supervisors on the radio? 8 A 9 if this is a true write-up because this signature isn't mine's, I'm going to show you what has been marked, sir, as Now, Mr. Green, does that document I can't be sure if this is the write-up that I received or 10 and the other one you gave me don't even have my signature. So 11 I can't agree to that. 12 Q 13 while at work, do you not? 14 A Yes, sir. 15 Q And you recall having signed various disciplinary forms 16 from time to time? 17 have signed one of those, but there are disciplinary counseling 18 forms that you have signed? 19 A 20 probably would have signed it. 21 Q 22 the fact that you were suspended. 23 agree with it or not; that document is showing that you were 24 suspended on that date? 25 A Well, you recall being suspended on at least one occasion I know you have indicated that you may not If I felt that I was wrong, I would admit it, and I But going back to that exhibit, 14, that document reflects Yes, sir. I am not saying whether you But we had a saying: You can't win against the Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 303 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 234 of 267 1 pen. So they can write anything they want to write. I don't 2 have control of that. 3 Q And that was a suspension without pay, was it not? 4 A All -- yes, sir. 5 me to sit at home. 6 Q 7 through the mill as a general manager? 8 A Yes, sir, I do. 9 Q Is it a fair statement to say that Mr. Dimicco was one of They were never -- they would never pay Mr. Green, do you recall Dan Dimicco on occasion walking 10 the general managers who, at least to the extent he could, would 11 get out there as often as he could? 12 A At first he did. 13 Q You saw him out in the mill at least more than once; is 14 that a fair statement? 15 A Yes, that's a fair statement. 16 Q And would you say that Dan Dimicco was an approachable 17 person? 18 you not? 19 A Yes. 20 Q And would you say the same thing about Joe Stratman? 21 was an approachable GM? 22 A Yes, I would say that. 23 Q Was there ever any occasion that you saw Mr. Stratman, 24 either in the office out in the mill, and they refused to talk 25 with you about anything? In fact, you were on a first-name basis with him, were He was very approachable at first. He When he came out. Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 304 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 235 of 267 1 A No, no. 2 Q On those occasions that you would run into Mr. Stratman or 3 Mr. Dimicco, did they tell you or make any statement whatsoever 4 that they tolerated a hostile work environment? 5 A No. 6 Q Did Mr. Stratman or Mr. Dimicco ever tell you that wearing 7 or displaying the Confederate flag on company premises was okay 8 with them? 9 A No. 10 Q Thank you. 11 MR. LINKER: 12 THE COURT: I pass the witness. All right. I want to tell the jury 13 something about exhibits. 14 rulings at pretrial hearings that we had last week, many 15 exhibits you will not see because the Court will not receive 16 them. You will hear about them. 17 them. You will see lawyers with them in their hands, but you 18 will not be able to see them yourselves because, at least at 19 this juncture, the Court hasn't received them. 20 mean that the lawyers can't use them for questioning witnesses. 21 In accordance with the Court's You will hear reference to That doesn't Go ahead. 22 REDIRECT EXAMINATION 23 BY MR. WIGGINS 24 Q 25 you, Exhibit 14 and Exhibit 21. Let's look at these two exhibits that were put in front of Exhibit -- let's take Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 305 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 236 of 267 1 Exhibit 21 first. February 13th, 1997. It shows the supervisor 2 being whom? 3 A Terry Dennis. 4 Q Was he your supervisor? 5 A He was. 6 Q Shows the abuse of radio or finishing radio channel as the 7 infraction, correct? 8 A Yes, sir. 9 Q Now let's look at Exhibit 14. That also there says that 10 you were being disciplined for using the radio, correct? 11 A Yes, sir. 12 Q You have earlier told us that you were trying to use the 13 radio for a certain purpose, correct? 14 A Yes, sir. 15 Q And what were you trying to use the radio for again? 16 A Well, we used the radio to communicate problems, safety, 17 situations that's going on in the mill, and just communicating 18 back and forth with each other in situations that can be 19 dangerous or hazardous, you know. 20 talking on the radio. 21 Q 22 your supervisors? 23 A Yes, sir. 24 Q And they suspended you for it? 25 A Yes, sir. And I guess he didn't want me And had you reported racial harassment over the radio to Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 306 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 237 of 267 1 Q Now, you were asked some questions about talking abusively 2 to your wife. 3 think he showed you an exhibit on that. 4 going through a divorce with your wife? 5 A At that time we were separated. 6 Q Separated. 7 A She was a roll clerk. 8 Q She did work at Nucor-Yamato as a roll clerk? 9 A Yes, sir. 10 Q That's in the roll mill department? 11 A Yes, sir. 12 Q Did you, in fact, talk abusively to your wife during 13 that -- 14 A 15 matter of fact, her friend, which was another roll clerk for 16 NYS 2, called me on my job station and begin to tear into me 17 about how I'm treating my wife and go on about this and that and 18 she just really disrespected me. 19 going over there and confronting her about getting into our 20 business, and that's when Don Burns come in. 21 abusive. 22 that she is stepping out of her place. 23 comes, it was twisted around on me and I am the only one getting 24 wrote up with that situation. 25 Q I don't remember the exhibit number. I don't Did you -- were you Did she work for Nucor-Yamato? At that time. No, I didn't. I did not talk abusive to my wife. As a Now, I made the mistake about But I was not I was not disrespectful to her, but I did tell her But after that situation Were there occasions that there were multiple write-ups for Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 307 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 238 of 267 1 the same incident on the same day? 2 A 3 just -- 4 Q 5 over? 6 A 7 Getting out of the crane, going to the bathroom, crossing a roll 8 line, anything that Terry Dennis -- Terry had a personal 9 vendetta against me. I have been written up for -- five times in one day for For five incidents or just rewriting one incident over and For different things. For five different incidents. And anything -- I have been searched in my 10 crane, I have been patted down publicly, in front of everybody 11 in OP5, because that was my parking station when I got out of 12 the crane, was crossing the roll line over to OP5. 13 been searched in front of guys looking at me by Terry Dennis. 14 He just made -- he just made my -- my experience at Nucor a 15 personal hell. 16 Q 17 that it had something to do with your race? 18 A 19 black. 20 Michael Davis was on his crew. 21 harassment. 22 took the harassment. 23 the spot. 24 ended up leaving. 25 Q And I have And your, in your interaction with him, did you perceive Yes. I really believe that he didn't like me because I was He just had something in for black guys because Michael Davis took the When Michael bidded out, I took Michael's place. I When I bidded out, Sylvester Rogers took And he still -- he lucky he survived Terry because he Who is that? Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 308 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 239 of 267 1 A Terry Dennis. 2 Q Now, Terry Dennis, did he -- did you see how he interacted 3 with your white coworkers? 4 A 5 going over to their house, fish fries, and everything. 6 know, we wasn't the one to go -- they was getting together, you 7 know, working on his house, doing whatever, you know. 8 Q 9 interacting with people? Oh, they was buddy-buddies, you know. They was -- I mean, You Did you observe Terry Dennis having another problem in 10 A I think he just, he just, he would just, he just didn't 11 like -- he was just racist. 12 believe he had a drug problem. 13 destruction. 14 Q Why do you say the drug problem was his destruction? 15 A Because I told -- before Terry got -- well, after he got 16 fired -- he was fired for using prescription painkillers, 17 codeine. 18 that time, and I said, "Franky, now we know why I am going 19 through -- why I was going through all the stuff I went 20 through." 21 let him know: 22 had a bad mood swing. 23 Q 24 time where you had no disciplines and no problems of a 25 disciplinary nature? I believe he was a racist. I That was ultimately his He failed a drug test. And I went to Franky Griggs at And it was nothing else said about it. Now we know the truth. But I had to Now we know, because he Once Mr. Dennis was gone, did you go through a period of Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 309 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 240 of 267 1 A Yes, I did. I had about two, three years with no write-ups 2 at all. 3 Q And when did that change? 4 A I believe it started changing after I got into this 5 lawsuit, with the EEOC. 6 Q What year was that? 7 A I can't remember. 8 Q Did you file an EEOC charge alleging the racial harassment 9 that we are here on today? It was just like night and day. 10 A Yes, sir. 11 Q And were you a part of a group of employees asking the 12 government to look into that? 13 A Yes, sir. 14 Q You say it changed like night and day. 15 A The company attitude. 16 harassment, the hostility, it just -- it just went crazy. 17 Everything, everything that I did was under a microscope. 18 knew when I came through the gate. 19 work station. 20 me. 21 a lead man. 22 straightener operator. 23 something that they thought I could get in trouble with, they 24 was on the radio. 25 office. What changed? The company attitude. I mean, the They They knew when I got to my And it just wasn't supervisors they had watching It was employees. It wasn't even a supervisor, wasn't even It wouldn't matter if it was a power operator, If they saw me coming in or doing You know, my supervisor would be in the If I was five minutes late, "Ozzie coming in late." Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 310 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 241 of 267 1 Then he is jumping on it. He haven't even seen me, and he is 2 jumping on the radio, you know, berating me and, you know, "I am 3 going to take a grace day, I am going to take a grace day, come 4 to my office." 5 like about it. 6 Q 7 discrimination, do you know of any supervisors at Nucor-Yamato 8 Steel that were African-American? 9 A No. 10 Q Mr. Pry, when did he become a supervisor for the first 11 time? 12 A After we filed this lawsuit. 13 Q And once this treatment that you described is changing, 14 once you filed the charges or the lawsuit, how long after that 15 was it they put Mr. Pry over you? 16 A 17 job, building rolls, walking the I-bed, no problems at all. 18 few -- you know, me and Steve Jackson worked some things out, 19 but as soon as Craig come over there, nothing was good enough. 20 You know, it was now I couldn't do my job, now I could not 21 perform my job, I didn't know what I was doing. 22 down, clean up over here. 23 that people didn't want to work with me because they knew that 24 if they got close to me, they were going to get some of the 25 buckshots. He haven't even seen me. That's what I didn't Before you filed the EEOC charges about the racial I would say I was at NYS 2 for probably two years doing my A Break the rolls You know, people -- it got so bad Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 311 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 242 of 267 1 Q Let me show you some documents to get some dates. 2 MR. WIGGINS: 3 THE COURT: 4 MR. LINKER: 5 MR. WIGGINS: 6 May I approach, Your Honor? You may. Counsel? These are your exhibits, Defendants' Exhibits 5 to 29. 7 THE COURT: 5 to 29, is what you said? 8 MR. LINKER: 9 MR. WIGGINS: 5 through 29. 5 through 29. I am not offering them. 10 just want to get some dates out of here. 11 Exhibits 14 through 29 and ask, are these various documents 12 before 1997 -- in 1997 or before? 13 A The dates are 1997. 14 Q Okay. 15 that group? MR. LINKER: 17 THE COURT: 18 THE WITNESS: 20 Let me show you And do you see any dates in there after 1997 among 16 19 I May we approach? You may. No, sir. (Bench conference reported as follows:) MR. LINKER: Your Honor, my concern is that on 21 redirect -- I understand why he might want to get into the 22 disciplines, but it sounds as if he is eliciting testimony based 23 on a retaliation issue that was not covered during the scope of 24 the direct. 25 THE COURT: You mentioned -- excuse me. I am losing my Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 312 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 243 of 267 1 voice. You mentioned, during your cross-examination, 16 2 disciplinary instances. 3 sustained and just told you to mention several instances. 4 anticipate that these documents include some of those incidents, 5 and it is within the scope of your cross. 6 retaliation isn't part of the case, hostile environment is and 7 it's encompassed in retaliation. 8 instruct the jury on retaliation, because I think that really, 9 the way I see the evidence so far, it's a racially -- it's a There was an objection, which I And I And even though And I don't know that I will 10 hostile environment case involving race. 11 "retaliation," but it's encompassed in hostile environment. 12 I doubt that I will be instructing the jury individually on 13 retaliation with respect to these racial -- I mean, I think we 14 have one claim. 15 within the scope of your cross-examination because you may 16 revisit it on recross. 17 He used the word And Clifton Lee was the only one, and I think it is (Return to open court.) 18 BY MR. WIGGINS 19 Q Tell us the latest date among those. 20 A September '97. 21 Q And what's the exhibit number on that one? 22 A 14. 23 Q And that's the one that -- the defense lawyer, Mr. Linker, 24 put in front of you earlier? 25 A Yes, it is. Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 313 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 244 of 267 1 Q 2 suspended for using the radio, right? 3 A Yes, it is. 4 Q What's the next date among these Defendants' Exhibits. 5 am going to show you the next group, which is 5 through 12. 6 What's the closest in time to that September 24th, 1997? 7 A 8 January 02, '04. 9 Q No. 10 A Oh, I'm sorry. 11 Q All right. 12 disciplines, isn't it? 13 A Yes, sir. 14 Q Now, the ones from before 1997, are they all by 15 Terry Dennis? 16 A Every one of them is Terry Dennis. 17 Q And does your signature appear on all of those? 18 A No, sir. 19 Q Okay. 20 answers Mr. Linker went into. 21 sticker on that one. 22 The latest number among that group was when you were Yes, sir. I That would be January 2 -- I believe -- I believe it's 2004. They're in the reverse order? February 19, 2002. So that's nearly five years between They don't appear on all of them. Now, let me ask you about these interrogatory I don't believe he put an exhibit Let me show you first, and I will see if I know how to 23 operate this. Is that the first page of a deposition of 24 Ozzie Green, August 23, 2005? 25 A Yes, sir. Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 314 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 245 of 267 1 Q Now, Mr. Linker asked you questions had you ever mentioned 2 under oath reporting to Mr. Stratman about the racially hostile 3 environment. 4 years ago at page 96. 5 MR. WIGGINS: I want to turn to your sworn testimony over four Do you know how to blow this up, Mike? 6 BY MR. WIGGINS 7 Q Do you see that line 7 on page 96? 8 A Yes, sir. 9 Q All right. 10 And then I want to read the questions, and you read your answers. 11 "Did you ever complain to a supervisor or department 12 manager regarding the Confederate flags?" 13 A "I mentioned it to Joe Stratman." 14 Q "When did you mention it to Mr. Stratman?" 15 A "I am not sure of the dates, sir." 16 Q When were -- I'm sorry -- "where were you at when you 17 mentioned it to Mr. Stratman?" 18 A "NYS 2 I-bed pulpit." 19 Q Go ahead and finish your answer. 20 A "Inspection bed pulpit." 21 Q "Was anyone else around when you mentioned this to 22 Mr. Stratman?" 23 A "I am not sure at all at that time, sir. 24 Q "What was Mr. Stratman's response to your complaint?" 25 A "I believe he said at the time that he was -- he knew about I am not sure." Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 315 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 246 of 267 1 it and he was going to do something about it. I believe that's 2 what he said." 3 Q 4 response after you had this conversation with him?" 5 A "I guess I was at that time." 6 Q All right. 7 followed up on, page 180, question, line 6. 8 complain to anyone at Nucor-Yamato about observing the 9 Confederate flags, memorabilia, et cetera?" "And were you satisfied with Mr. Stratman's result or Now let's turn over to when that subject was "Did you ever 10 A "Yes. 11 Q "How many times did you complain to Joe Stratman about this 12 issue?" 13 A "At least once I can remember of." 14 Q "Did you ever complain to anybody else about this -- this 15 kind of issues?" 16 A "Not that I can recall right now." 17 Q "What was Joe Stratman's position when you complained to 18 him about this Confederate flag issue?" 19 A "He was general manager." 20 Q "Did you ever get a response from Mr. Stratman?" 21 A "He responded that he was taking care of it, but to this 22 day I still -- you still can review certain Confederate flags, 23 scarves, and on personal helmets and vehicles at Nucor." 24 Q 25 defense lawyers sitting here at the table, correct? Okay. Joe Stratman." And these questions were all being asked by the Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 316 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 247 of 267 1 A Yes, sir. 2 Q And under oath, five years ago? 3 A Yes, sir. 4 Q Turn to page 122. 5 Line 17, "Did you ever have a discussion with your department 6 manager about this specific incident?" 7 it was about the radio slurs. 8 A 9 familiar with my department manager." They kept asking you about this. The incident right above "Once again, I was familiar with my department -- I wasn't 10 Q "Did you ever have a discussion with Joe Stratman regarding 11 the specific instances of -- to Larry McBride?" 12 A 13 situation was going on with the constant abuse on the radio, the 14 Confederate flags, the graffiti in the bathrooms, that he had to 15 put up with this here hostile work environment every time we 16 come to work." 17 Q 18 as to whether you had disclosed in your interrogatory answers 19 that there were Confederate flags or graffiti or that type of 20 thing. 21 you. "Once again, I had a discussion with Joe Stratman about the All right. 22 23 24 25 Now, I understood you to be asked by Mr. Linker I want you to look at those questions he put in front of THE COURT: Please repeat the exhibit and interrogatory number. MR. WIGGINS: Defendants' Exhibit 4. There are 11 interrogatories. Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 317 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 248 of 267 1 BY MR. WIGGINS 2 Q 3 the different racial hostility that you knew about or were 4 affected by? 5 different issue. 6 Do you see even one interrogatory that asks you to list them? 7 A To list them? 8 Q Yes. 9 A No, sir. Do you see even one interrogatory that asked you to list And I am not talking about reporting. That's a I am asking about the incidents themselves. If I am -- if I am hearing your question right, 10 you asked for the list of -- 11 Q 12 incidents of racial harassment. 13 A No. 14 Q There is one that he pointed out to you that asked you to 15 list when you reported anything, correct? 16 A Uh-huh. 17 Q All right. 18 Mr. Stratman at that time, correct? 19 answer. 20 A Uh-huh, yes. 21 Q Who drafted those interrogatory answers for you? 22 A I think some -- a third party, I believe maybe. 23 know. 24 Q Did you write the words up, the answers? 25 A No, sir. A question that asks you to state all the different And you admitted that you failed to give In your interrogatory I don't I mean, it's -- I don't understand the question, sir. Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 318 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 249 of 267 1 Q Did you simply give the information to somebody? 2 A Yes. 3 Q And they wrote it up? 4 A Yes. 5 Q Who was that; do you know? 6 A I have no idea. 7 Q Now, when they took your deposition in August of 2005, you 8 were the one giving the answers? 9 A Yes. 10 Q And you fully disclosed to them the times you talked to 11 Mr. Stratman, didn't you? 12 A Yes. 13 THE COURT: 14 that is a leading question. 15 Now, don't ask -- this is redirect, but MR. WIGGINS: Okay. 16 BY MR. WIGGINS 17 Q 18 represented to be the employee handbook, and I want to show you 19 Exhibit 223, which is also an earlier version of the employee 20 handbook. Let's look at the green bound volume of the employee 21 handbook. Look at the table of contents. 22 in there Racial Harassment Policy? 23 A No, sir. 24 Q Have you ever known of the employee handbook to have a 25 racial harassment policy? You were shown Defendants' Exhibit 380, which was Do you see anywhere Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 319 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 250 of 267 1 A No, sir. 2 Q Let's look at the other electronic version that is 3 Defendants' Exhibit 380. 4 contents unfortunately, but it's arranged alphabetically. 5 through and see alphabetical by topic. 6 you see a racial harassment policy in that exhibit. 7 THE COURT: Now, it's arranged without a table of Look Look through and see if While he is looking, I want the record to 8 be clear about -- you handed him something you said was Exhibit 9 223. Is that for the plaintiffs? 10 MR. WIGGINS: 11 THE COURT: 12 MR. WIGGINS: 13 THE COURT: 14 THE WITNESS: Plaintiffs, Your Honor. All right. Thank you. That's the green handbook. Thank you. No, sir. 15 BY MR. WIGGINS 16 Q 17 lynching of the chicken. 18 hanging? 19 A Yes, sir. 20 Q Did it look like a goof-off prank to you? 21 A I didn't take it as a prank at all. 22 Q Did Nucor-Yamato ever announce or post or otherwise put out 23 the position that they took it as a goof-off prank? 24 A Not to my knowledge, no, sir. 25 Q You were asked by Mr. Linker if you had made a written Okay. You were asked the question by Mr. Linker about the You did you see the chicken itself Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 320 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 251 of 267 1 complaint. Does Nucor have a form to use for written complaints 2 of racial harassment? 3 A No, sir. 4 Q Do you know of any form they have for making complaints? 5 A No, sir. 6 Q Do you know of any rule that requires, when you have a 7 concern or a complaint that you take to your supervisor, that 8 you have to put it in writing? 9 A No, sir. 10 Q Have you ever been trained or told that you should put it 11 in writing? 12 A No, sir. 13 MR. WIGGINS: 14 THE COURT: 15 MR. LINKER: 16 THE COURT: 17 MR. WIGGINS: 18 MR. LINKER: 19 THE COURT: 20 MR. LINKER: 21 THE COURT: 23 MR. LINKER: 25 All right. Mr. Linker? I will be brief, Your Honor, I promise. All right. We offer Exhibit 223, Your Honor. Which one was 223? It's the green handbook. Your Honor, may I look at it first and then -- may I approach? 22 24 Thank you, Mr. Green. You may. Your Honor, it's put on the spot here. would like to go through this first. THE COURT: Sure, you can. I won't receive it right Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter I 321 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 252 of 267 1 now. I will withhold my ruling. 2 3 MR. LINKER: Thank you. I just don't want to keep everybody waiting. 4 THE COURT: 5 MR. LINKER: 6 THE COURT: Sure. All right. May I approach again, Your Honor? You may. 7 RECROSS-EXAMINAITON 8 BY MR. LINKER 9 Q Mr. Green, in front of you are manila folders. 10 MR. LINKER: If I may, Your Honor? 11 BY MR. LINKER 12 Q 13 want you to go through and describe each and every one of them. 14 If you would, will you go through the first folder and tell me 15 or acknowledge if that is a notice of counseling. 16 a notice of warning dated January 23, or January 3 -- 23rd, 17 2004? 18 A Yes. 19 Q I understand that. 20 A Okay. 21 Q And, but it was Nucor custom -- and I am not saying you 22 signed all these, sir. 23 supervisor going over these with you and, if you didn't agree 24 with it, you certainly were free not to sign it? 25 A These are what I want you to look at. Okay? And I don't Is Exhibit 5 I didn't sign it. You were given the benefit of your Well, I am saying that I didn't sign it because I might not Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 322 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 253 of 267 1 have even been present when he wrote this. 2 Q 3 put that down. 4 Okay. Let's just go through the rest of these, and you can Exhibit 6 is another notice of warning, is that right, sir? 5 MR. LINKER: 6 THE COURT: 7 THE WITNESS: 8 BY MR. LINKER 9 Q Okay. Your Honor, may I approach and try to -You may. Yes, it is. If you would look at Manila Folder 7, that's a 10 notice -- another notice of counseling on September 22, 2003, 11 correct? 12 A 13 it is. 14 Q 15 now. 16 A They can write anything. 17 Q We'll talk about that, but I want you to identify the 18 document. 19 A Yes, ma'am -- yes, sir. 20 Q That's all right. 21 another notice of warning dated July 2nd, 2003, correct? 22 A Yes, it is. 23 Q Okay. 24 9-C. 25 That's -- I don't know where the counseling is. I didn't sign this. I don't know. It is what it is. Yes, But if I didn't sign it, I can't vouch if it's -- I understand, sir. I just want you to identify this right Excuse me. It's getting late. Exhibit 8. Let's look at the next one, sir. That's That's Exhibit That's concerning a -- we can put that one down. I think I left Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 323 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 254 of 267 1 it up here. 2 A Okay. 3 Q Let's look at No. 10. 4 January 6th, 2003, correct? 5 A 6 counseling to me? 7 Q 8 signed it or not. 9 A Anybody can write my name. 10 Q Is that what that reflects? 11 A That's what it reflects, sir, okay. 12 Q What is the next one, Mr. Green? 13 A 11. 14 Q And inside Folder 11 is an exhibit, Exhibit 11, right? 15 April 30th, 2002, notice of counseling, correct? 16 A Yes. 17 Q Okay. 18 February 19, 2002. 19 A Yes. 20 Q I understand that. 21 A Okay. 22 Q Let's look at Exhibit 13. 23 counseling. 24 A This is not a notice of counseling. 25 Q That's actually a letter or a notation from the department It's in the folder. Another notice of counseling, Once again, I didn't sign these. Well, is your name on it? Are these supposed to be I am not asking whether you It is a counseling addressed to you. Let's look at the next one. Exhibit 12, It's a counseling, correct? My name is not on it. April 9th, 2001, notice of Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 324 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 255 of 267 1 manager -- 2 MR. WIGGINS: 3 THE COURT: 4 MR. WIGGINS: 5 It is not a notice of counseling. MR. LINKER: Well, it's actually -- let me ask you this. 8 MR. WIGGINS: 9 THE COURT: 10 It's not a notice of warning or counseling. 6 7 Objection, Your Honor. May we approach? You may. (Bench conference reported as follows:) 11 THE COURT: I saw that there was one item in there that 12 is not even a warning or a counseling, and from its 13 description -- 14 15 MR. LINKER: It may have been switched folders, and I will drop it. 16 MR. WIGGINS: 17 THE COURT: 18 21 I don't know whether it's within the scope properly is my problem with it. 19 20 Okay. MR. LINKER: That's fine. I will finish with these and be done. (Return to open court.) 22 MR. LINKER: 23 THE COURT: May I approach? All right. Mr. Wiggins -- oh, I'm sorry. 24 I thought you were approaching me. 25 witness. You may approach the Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 325 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 256 of 267 1 BY MR. LINKER 2 Q Let's look at Exhibit 15, sir. 3 4 MR. WIGGINS: May I look on, Your Honor? I don't have -- 5 THE COURT: You may. 6 BY MR. LINKER 7 Q 8 right? 9 A Yes, sir, it is. 10 Q Okay. 11 notice of counseling, correct? 12 A Yes. 13 Q Okay. 14 A I didn't sign it. 15 Q And I can speed these up, sir. 16 A Okay. 17 Q Why don't you look at these and at least acknowledge that 18 these are write-ups, whether you signed them or not. 19 A Well -- 20 Q Well, then we can do them one by one. 21 Is that a notice of warning? 22 A Yes. 23 Q Let's look at Exhibit 18. 24 A Yes. 25 Q Let's look at 19. Exhibit 15 is a September 24th, 1997, notice of warning, By Terry Dennis. Let's look at Exhibit 16, February 25th, 1997, By Terry Dennis. Let's look at -- Go on. But I didn't sign it. I didn't sign. Okay? Look at Exhibit 17. By Terry Dennis. By Terry Dennis. Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 326 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 257 of 267 1 A Yes. I didn't sign it. 2 Q Let's look at 21. 3 A Yes. 4 Q Look at 23 -- or 22. 5 A No. 6 Q 22, sir. 7 A I'm sorry. 8 Q That's okay. 9 A Verbal warning by Terry Dennis. 10 Q What's the next one? 11 A 23. 12 Q Okay. 13 A I signed that one. 14 Q And that was addressed to you, right? 15 A Yes. 16 Q All of these are at least addressed to you? 17 A Yes. 18 Q A couple more. 19 A This one, David Bridges. 20 Q 26, sir. 21 A Terry Dennis. 22 Q 27, Mr. Green? 23 A This is Pat Brun. 24 Q Who was the department manager, at the time, of the roll 25 mill, correct? I didn't sign it. By Terry Dennis. By Terry Dennis. I am sorry. I missed one there. I don't know what this is. I didn't sign it. Attendance by Terry Dennis. I signed that one. Let's look at Exhibit 24, attendance. Terry Dennis. They were addressed. I used grace days. 25? Terry Dennis. Verbal warning. Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 327 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 258 of 267 1 A Yes. 2 Q 28, if you would, sir. 3 A Terry Dennis. 4 Q And lastly, Exhibit 29. 5 A I'm getting callouses. 6 Q And I apologize because my math was off earlier, but based 7 on some questions I thought it was important to at least address 8 with you that -- 9 A Sorry about that. 10 Q That's okay. 11 your 12-year history with Nucor-Yamato, you were written up a 12 fair number of times? 13 A Well, which is just -- 14 Q I am not saying whether you signed it. 15 A This just proved what I was saying. 16 vendetta against me. Terry Dennis. Would you agree with me, Mr. Green, that in 17 THE COURT: 18 THE WITNESS: Terry has a personal Just answer the question. Yes, sir, I did. I agree I have been 19 written up a numerous amount of times. 20 BY MR. LINKER 21 Q 22 believe I heard you say that maybe you thought in part that some 23 of your disciplinary action was a result of you having filed a 24 charge or because of your lawsuit against Nucor? 25 A And earlier, in response to your lawyer's questioning, I Well, partially some of them are, but partially other is Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 328 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 259 of 267 1 racial harassment. 2 Q 3 actually filed a charge of discrimination? 4 A Excuse me? 5 Q Are you representing to the Court and to the jury that you 6 filed a charge of discrimination against Nucor-Yamato? 7 A No, I am not doing that. 8 Q And do you know the date that your lawsuit was actually 9 filed? Are you representing to the jury, Mr. Green, that you 10 A I can't remember that. 11 Q You had already left your Nucor-Yamato employment, hadn't 12 you? 13 A 14 don't know. 15 Q 16 was actually filed in 2004 or afterwards, would you agree with a 17 lot of these write-ups preceded your lawsuit? I can't say that. I can't -- I can't speak to that. I Well, if there is evidence in this trial that your lawsuit 18 MR. WIGGINS: Objection. 19 THE WITNESS: No. Because only like two or three of 20 them was from NYS 2. The rest of them was way before that. 21 BY MR. LINKER 22 Q 23 First one dated February 25th, 1994, and the last one was 24 January 23rd, 2004. 25 A Mr. Green, we just went over a number of your write-ups. Uh-huh. Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 329 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 260 of 267 1 Q And you, you are not certain when you filed a charge of 2 discrimination and you are not certain what the date of the 3 lawsuit against Nucor-Yamato was, correct? 4 A I am not certain of the date. 5 Q But I guess my question is, if there is evidence to suggest 6 that your lawsuit was filed after January 23, 2004, then it's 7 reasonable to say all of your write-ups came before your 8 lawsuit, right? 9 A Yeah. That would be reasonable, I believe. 10 Q Okay. A few more questions and I am done, Mr. Green. 11 The chicken incident involving Durrell Warren that you went 12 over and took a look at, I believe is what your testimony was -- 13 you came from NYS 2, across the street, went into NYS 1 to see 14 this rubber chicken, correct? 15 A I probably was already over there in maintenance. 16 Q I thought I heard you say you actually left to come over 17 there to see it. 18 A 19 there. 20 Q 21 actually see this chicken? 22 A Yes. 23 Q And it was a rubber stress chicken, would you agree? 24 A Yes. 25 Yes. But I was probably doing other things to come over I probably went to maintenance or -- Either way, that's not important. MR. LINKER: My question was, did you May I approach one last time, Your Honor? Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 330 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 261 of 267 1 THE COURT: You may. 2 BY MR. LINKER 3 Q 4 questions about policies that were in it or weren't in it. 5 A Uh-huh. 6 Q And this looks like or appears to be the type of handbook 7 that you got when you started at Nucor-Yamato. 8 A Uh-huh. 9 Q Okay. Your lawyer handed you a handbook and asked you a series of I want to turn to page B-1, personnel procedure, and 10 I want to ask, if you would, sir, would you please read for the 11 jury the first paragraph of that procedure? 12 A 13 opportunity employer. 14 because of race, color, creed, sex, national origin, age, 15 religion, political affiliation, handicap or status as a 16 disabled or veteran in Vietnam. 17 the applicants to complete --" 18 Q Just that first paragraph. 19 A Oh, that's the first one? 20 Q Yes, sir. 21 A All right. 22 Q You will agree that this policy prohibiting discrimination 23 was in your handbook when you received it? 24 A I was already employed at Nucor. 25 Q But you got a copy of this handbook with the procedures in "Nucor Employment Policy. Nucor-Yamato Steel is a equal No employee shall suffer discrimination It will be a responsibility of Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 331 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 262 of 267 1 it, correct? 2 A Well, this is employment policy, right? 3 Q Well, I don't know. 4 A I mean, that's what it says, Employment Policy. 5 it's for new hires, right? 6 Q 7 shall suffer discrimination because of race"? 8 correctly? 9 A Yes. 10 Q It says "employee," does it not? 11 A Yes. 12 Q Did I read it right? 13 A Yes. Well, you read it, sir. MR. LINKER: 15 THE COURT: 17 18 I mean, Does it not state, "No employee Did I read that Discrimination, yes. 14 16 It's something your lawyer handed you. Thank you, Judge. All right. No further questions. Mr. Green, you may stand down. And I am going to admonish the jury and send them home for the evening. Ladies and gentlemen, you know the Court's admonition. 19 Don't discuss the case with anyone. Don't describe it as happy, 20 sad, dull, boring, exciting. Just say you are a juror in a 21 civil case in federal court. Keep an open mind on the issues. 22 Don't read any newspaper articles or listen to any news programs 23 about the case. Leave your notes in your chairs. 24 your attention. I know it has been a long day, and I know we 25 are going to have some more long days this week. Thank you for Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 332 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 263 of 267 1 Please be back here no later than 9:00 in the morning. I 2 anticipate that we will have a schedule similar to the one we 3 had today with a lunch probably after 12:00 because we have such 4 a long afternoon. 5 very much for your attention. And so we will start at 9:00, and thank you 6 Court is in recess until 9:00 in the morning. 7 And I want to take up some housekeeping things with 8 9 you-all. (Jury exits the courtroom.) 10 11 THE COURT: MR. LINKER: 13 THE COURT: 15 I want lawyers to -- is that okay with you? 12 14 All right. It's all right, Judge. Sorry. 223 for the plaintiffs is received. I am not -Cecilia, I don't want them to do this right now because it 16 might take some time, but there is some confusion about the 17 exhibits and their numbers. 18 each side to get together and show -- I want the defendants to 19 show the discrepancies that they have in numbering. 20 21 22 And I would like the parties -- Is that correct, Mr. Linker, that you were trying to tell me about? MR. LINKER: I believe that's correct, Your Honor, but 23 the Court's suggestion is a good one. 24 together. 25 THE COURT: I think we should get Rather than me try to work it out with you, Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 333 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 264 of 267 1 I think it's probably better for you-all to try to mesh up what 2 you, what the defendants have by way of exhibit lists for the 3 plaintiff matches what the plaintiffs have. 4 Ms. Donahue today -- when she was trying to tell me about her 5 mistake, I felt that it was not right to pull this on the 6 defendants immediately before opening, and so I just received 7 that exhibit since they had no -- they indicated otherwise. 8 you -- I want you to show them what you have now and see if 9 you-all can reach any kind of agreement. 10 11 And I had asked But I am not going to make any ruling right now. But she is going to show you the corrections, and if 12 you-all, again, would try to stipulate. 13 agree. 14 lengthy motions-in-limine conferences because I don't remember 15 every single thing even though I have reduced -- I have tried to 16 reduce the rulings to written orders for my own reference and 17 for yours. 18 And you don't have to And keep track of what I had ruled earlier in these Just another bit of housekeeping, Juror No. 7, 19 Mr. {Redacted}, we have tried to work and we worked with the 20 clerk's office so that he can stay at government expense at a 21 hotel. 22 juror wants to do that, the juror stays and keeps track of his 23 hotel bill and submits it, and then we can cut a check to the 24 juror giving him the per diem rate, the way I am -- in other 25 words, the way I do and the way that the court staff does. And we worked that out. Usually what happens is if a Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 334 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 265 of 267 1 Mr. {Redacted} does not have the money to do that, and it's 2 really a bad system because I think poor people ought to be able 3 to serve on juries. 4 court a system where we -- but we have worked it out for him. 5 And I am going to try to institute in our Our marshal, Mr. Miller, our CSO, has graciously agreed to 6 drive Mr. {Redacted} to and from court in the morning, and we're 7 trying to make certain that he stays at a hotel that has 8 breakfast and dinner so he can charge his meals. 9 tell you-all that we are doing what we can to accommodate So I want to 10 Mr. {Redacted}, and I just hope that he is able to continue jury 11 service. 12 effort. 13 effort to accommodate him. 14 agreed to drive him back and forth. 15 serves the jury anyway, and I don't feel that the jury -- that 16 that in any way compromises Mr. 17 because Mr. Miller knows not to talk to him about the case. 18 I wanted to inform you-all about that. 19 Do you have any questions for me? 20 All right. But we are -- we have gone to, you know, to some I haven't personally, but court staff have gone to some MR. WIGGINS: 22 Did you turn that in? 23 MS. DONAHUE: 25 And, of course, the marshal Redacted's status as a juror So Thank you very much. 21 24 And I am glad that the marshal has I think Ms. Donahue does want to -- I did. Does the Court also want a copy? THE COURT: Well, what I would prefer you-all try to do Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 335 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 266 of 267 1 is let me know in the morning by -- I mean, I will be here at 2 8:45, and you let me know to what extent you can stipulate. 3 we need to get these -- is that too early? 4 MR. LINKER: 5 THE COURT: What time? But No, Judge, that's fine. And I want these things to be matched up 6 obviously. Whatever we got from the plaintiffs was -- had a 7 mistake on it and I want it to be matched up as much as we can 8 and that's all I am saying. 9 stipulate to anything, but if you can, it's best. And we at 10 least need to have the exhibits listed correctly. So -- And we don't -- you don't have to 11 MR. LINKER: 12 some of the previous exhibits? 13 THE COURT: Just so I am clear, are you now changing No, I am not. I mean, I -- you know, I am 14 not right now. I can change my mind on exhibits with respect to 15 whether they have been admitted simply because the jury hasn't 16 heard about them. 17 has been prejudiced or relied on it. 18 had relied really to their detriment in preparing for opening 19 argument when that exhibit was listed as no objection. 20 ruled for you in that regard. 21 situations in a similar vein, but let's just try to figure out 22 what Ms. Donahue is now suggesting and see if you, if we can 23 work it out. 24 pretty much remained. 25 because I think my ruling on the motion in limine was that that I can change my mind, especially if no one I thought the defendants So I And there might be other My motion -- my rulings on the motions in limine I made an exception for this exhibit Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter 336 Case 3:04-cv-00291-SWW Document 293 Filed 02/22/10 Page 267 of 267 1 policy was probably going to come in, but you could -- but he 2 could cross-examine on it. Isn't that what I -- 3 MR. QUINN: That's correct. 4 MR. MAYES: That's correct, Judge. 5 THE COURT: So anyway, my ruling was not a great 6 variance in any event. 7 All right. Well, you-all have a good evening. 8 (Overnight recess at 6:13 p.m.) Thank you. 9 C E R T I F I C A T E 10 I, Cheryl Bartnett Nelson, Official Court Reporter, do 11 hereby certify that the foregoing is a true and correct 12 transcript of proceedings in the above-entitled case. 13 14 15 /s/ Cheryl B. Nelson, RPR, CRR, CCR United States Court Reporter Date: February 19, 2010 16 17 18 19 20 21 22 23 24 25 Cheryl Bartnett Nelson, RPR, CRR, CCR United States Court Reporter