VOLUME 4 PAGES 614 - 842 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA BEFORE THE HONORABLE YVONNE GONZALEZ ROGERS, JUDGE CIARA NEWTON, ) ) PLAINTIFF, ) ) VS. ) ) EQUILON ENTERPRISES LLC DBA ) SHELL OIL PRODUCTS, ) ) ) DEFENDANT. ) ____________________________) NO. C-17-3961 YGR THURSDAY, DECEMBER 13, 2018 OAKLAND, CALIFORNIA JURY TRIAL REPORTER'S TRANSCRIPT OF PROCEEDINGS APPEARANCES: FOR PLAINTIFF: BY: BY: FOR DEFENDANT: BY: REPORTED BY: MINNIS & SMALLETS LLP 369 PINE STREET, SUITE 500 SAN FRANCISCO, CALIFORNIA 94104 SONYA L. SMALLETS, ESQUIRE EVEN R. ETTHINGHOFF, ESQUIRE DICKSON GEESMAN LLP 1999 HARRISON STREET, SUITE 1945 OAKLAND, CALIFORNIA 94612 EMILY A. NUGENT, ESQUIRE LAFAYETTE & KUMAGAI LLP 1300 CLAY STREET, SUITE 810 OAKLAND, CALIFORNIA 94612 GARY T. LAFAYETTE, ESQUIRE BARBARA L. LYONS, ESQUIRE DIANE E. SKILLMAN, CSR 4909, RPR, FCRR OFFICIAL COURT REPORTER TRANSCRIPT PRODUCED BY COMPUTER-AIDED TRANSCRIPTION DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 615 1 I N D E X 2 PLAINTIFF'S WITNESSES: 3 NEWTON, CIARA 4 PAGE VOL. CROSS-EXAMINATION BY MR. LAFAYETTE (RESUMED) 628 4 5 REDIRECT EXAMINATION BY MS. SMALLETS 666 4 6 OSTROFE, NORA 7 DIRECT EXAMINATION BY MR. ETTINGHOFF 674 4 8 CROSS-EXAMINATION BY MR. LAFAYETTE 697 4 9 REDIRECT EXAMINATION BY MR. ETTINGHOFF 716 4 10 JONES, RAY 11 DIRECT EXAMINATION BY MS. NUGENT 718 4 12 CROSS-EXAMINATION BY MR. LAFAYETTE 754 4 13 FISCHER, JEFFREY 14 DIRECT EXAMINATION BY MS. NUGENT 760 4 15 CROSS-EXAMINATION BY MR. LAFAYETTE 775 4 16 REDIRECT EXAMINATION BY MS. NUGENT 778 4 17 BECK, MICHAEL 18 DIRECT EXAMINATION BY MS. SMALLETS 780 4 19 CROSS-EXAMINATION BY MR. LAFAYETTE 792 4 20 REDIRECT EXAMINATION BY MS. SMALLETS 796 4 21 22 23 24 25 DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 616 1 2 3 PLAINTIFF'S EXHIBITS: WITHDRAWN ID. 9 33 (PGS. 106 & 110) EVD. VOL. 778 4 799 4 4 116A 745 4 5 201 693 4 6 207 735 801 4 ID. EVD. VOL. 7 8 DEFENDANT'S EXHIBITS: WITHDRAWN 9 575 642 4 10 627 629 4 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 617 1 THURSDAY, DECEMBER 13, 2018 2 8:00 A.M. P R O C E E D I N G S 3 THE COURT: GOOD MORNING. 4 THE CLERK: CALLING CIVIL ACTION 17-3961 NEWTON 5 6 7 VERSUS EQUILON. COUNSEL, PLEASE STATE YOUR APPEARANCES. MS. SMALLETS: GOOD MORNING. 8 BEHALF OF PLAINTIFF CIARA NEWTON. 9 AND EVAN ETTINGHOFF. 10 THE COURT: 11 MS. SMALLETS: 12 SONYA SMALLETS ON AND WITH ME IS EMILY NUGENT GOOD MORNING. MY CLIENT IS ALSO PRESENT IN THE COURTROOM. 13 THE COURT: 14 MR. LAFAYETTE: OF COURSE. GOOD MORNING. GOOD MORNING, YOUR HONOR. GARY 15 LAFAYETTE AND BARBARA LYONS FOR THE DEFENDANT AND CHRISTINE 16 LAYNE FROM EQUILON. 17 THE COURT: 18 19 20 ANY ISSUES? ALL RIGHT. WE'LL START WITH YOU, MS. SMALLETS. MS. SMALLETS: WE JUST WANTED TO CIRCLE BACK TO THE STIPULATION ON THE DFEH CHARGE AND MAKE SURE IT WAS CLEAR. 21 THE COURT: 22 MADE IT CLEAR, BUT GO AHEAD. 23 24 25 WHAT IS YOUR UNDERSTANDING? I THOUGHT I WHAT'S YOUR UNDERSTANDING. MS. SMALLETS: SO I BELIEVE WE ARE CHEER, BUT I WANT TO MAKE SURE IT'S CLEAR ON THE RECORD THAT THE DEFENDANT IS DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 618 1 AGREEING THAT THE DFEH CHARGE WAS PROPERLY FILED AND SERVED, 2 AND THAT THE ISSUE WITH RESPECT TO EXHAUSTION OF 3 ADMINISTRATIVE REMEDIES IS LIMITED SOLELY TO THE DATE ON WHICH 4 THAT WAS SERVED, AND THAT THERE IS NOT A QUESTION OF THE FACT 5 OF FILING OR SERVICE. 6 MR. LAFAYETTE: 7 THE COURT: 8 MR. LAFAYETTE: 9 THE COURT: 10 ALL RIGHT. 11 12 THAT'S FINE, YOUR HONOR. I -- SAY I SO STIPULATE. I SO STIPULATE, YOUR HONOR. THANK YOU. ANYTHING ELSE? MS. SMALLETS: I DON'T THINK SO. NOTHING FURTHER MR. LAFAYETTE: NO, YOUR HONOR. I JUST ASKED AND FROM US. 13 14 THEY'VE SAID THEY ARE GOING TO GIVE ME PHOTOGRAPHS OF THE 15 WITNESSES THAT THEY TOOK EARLIER THROUGHOUT THE TRIAL. 16 17 THE COURT: OH, YEAH. I MEAN, THE ONES THAT WE HAVE BEEN GIVING TO THE JURORS? 18 MR. LAFAYETTE: 19 MS. SMALLETS: THAT'S RIGHT. WE HAVE PROVIDED -- I THINK WE 20 PROVIDED PAPER COPIES AND MR. LAFAYETTE WAS ASKING FOR 21 ELECTRONIC. 22 SAME. 23 24 25 WE DON'T HAVE AN OBJECTION PROVIDED THEY DO THE THE COURT: I MEAN IT'S -- PEOPLE USE THEM DURING CLOSINGS. DO I HAVE RESOLUTION ON -- THERE WAS AN OUTSTANDING DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 619 1 EXHIBIT ISSUE WITH RESPECT TO 177A VERSUS 177. 2 PORTION... IT WAS A PORTION, I THINK, OF A MANUAL OR 3 SOMETHING. MAYBE THE COLLECTIVE BARGAINING AGREEMENT? 4 MS. SMALLETS: 5 THE COURT: 6 177A WAS A YES. MR. LAFAYETTE HAD THOUGHT HE MIGHT WANT THE ENTIRE THING? 7 MR. LAFAYETTE: IF I DO, I WILL PUT IT IN IN MY CASE. 8 LET'S JUST GO WITH THAT AND MAKE IT SIMPLE FOR THE JURY RIGHT 9 NOW. 10 THE COURT: ALL RIGHT. 11 THE CLERK: IT'S JUST I.D.'D AND -- OR ADMITTED? 12 THE COURT: NO, I ADMITTED IT. 13 THE CLERK: OKAY. 14 THE COURT: SO I ADMITTED IT YESTERDAY, SO WHY DON'T 15 WE, SINCE WE HAVE A COUPLE OF MINUTES, GO OVER THAT. 16 17 18 WE'LL LEAVE IT AS 177A -- YESTERDAY I ADMITTED THE FOLLOWING. LET ME JUST PULL IT UP. 8, 10, 12, 15, 19, 101, 102, 61. 143 WAS IDENTIFIED BUT 19 NOT ADMITTED. 20 151, 153, 154, 155, 162, 156, 157, AND 158A. 21 ONES I SHOW. 22 23 150A, 160, 164, 194A, 177A, 147, 148, 149, 152, MS. SMALLETS: THOSE ARE THE YOUR HONOR, DID YOU LIST ANY BETWEEN 150A AND 160? 24 THE COURT: 25 MS. SMALLETS: I LISTED A NUMBER OF THEM. OKAY, SORRY. I WAS WRITING DOWN THE DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 620 1 PREVIOUS ONES. 2 3 THE COURT: 150A, AND THEN 151, 152, 153, 154, 155, 156, 157, AND 158. 4 MS. SMALLETS: 5 THE COURT: 6 OKAY. THANK YOU. OKAY. I NOTICED AN ERROR IN MY PRETRIAL ORDER NO. 1, AND SO YOU 7 WILL SEE ON YOUR TIME SHEETS I CORRECTED THAT BY GIVING YOU 8 THE EXTRA 30 MINUTES FOR YOUR CLOSING THAT WAS NOT PREVIOUSLY 9 REFLECTED. 10 11 12 AND THOSE ARE ON YOUR TIME SHEETS. MS. SMALLETS: YOUR HONOR, CAN I ASK A QUESTION ABOUT THAT? SO THE FIVE HOURS AND THREE MINUTES THAT PLAINTIFF HAS 13 LEFT, DOES THAT INCLUDE THE HOUR FOR CLOSING OR WE HAVE FIVE 14 HOURS PLUS THE HOUR FOR CLOSING? 15 THE COURT: YOU WILL SEE THERE IT SAYS, FIVE HOURS 16 AND 33 MINUTES, RIGHT? 17 GOING TO BE ONE HOUR. THAT'S THE NEXT LINE. 18 MS. SMALLETS: 19 THE COURT: 20 AND THEN I ANTICIPATE YOUR CLOSING IS YOU SEE THAT? YES. BUT I'M GIVING YOU 30 MINUTES. YOU SEE THAT? 21 MS. SMALLETS: 22 THE COURT: YES. SO THAT MEANS THAT -- I MEAN, YOU CAN 23 HAVE NOTHING LEFT FOR YOUR CLOSING IF YOU WANT, BUT YOU HAVE 24 FIVE HOURS AND THREE MINUTES FOR EVIDENCE IF YOUR CLOSING IS 25 AT ONE HOUR. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 621 1 IF YOU ARE GOING TO USE MORE THAN AN HOUR, THEN YOU'RE 2 GOING TO HAVE TO TAKE IT OUT OF YOUR FIVE HOURS AND THREE 3 MINUTES THAT ARE LEFT. 4 WITH RESPECT TO MR. LAFAYETTE, HE HAS EIGHT HOURS AND 35 5 MINUTES. 6 GIVING HIM 30 MINUTES. 7 LEFT FOR EVIDENCE. 8 9 OKAY? I ANTICIPATE HIS CLOSING TO BE ONE HOUR. AND DON'T HAVE ANY TIME LEFT FOR YOUR CLOSINGS. MS. SMALLETS: 11 MR. LAFAYETTE: 12 THE COURT: 14 15 SO HE HAS EIGHT HOURS AND FIVE MINUTES I DO IT THAT WAY SO THAT YOU GUYS DON'T RUN SHORT 10 13 I AM THANK YOU, YOUR HONOR. THANK YOU. ALL RIGHT. IN TERMS OF JURY INSTRUCTIONS, I WANT TO START TALKING ABOUT THEM THIS AFTERNOON AFTER MY CRIMINAL CALENDAR. THERE ARE SOME ISSUES. THE MAIN ISSUE THAT I WANT TO 16 DISCUSS IN TERMS OF A... IN TERMS OF ORDER, RELATES TO THE 17 DAMAGES. 18 AS I WAS REVIEWING THEM AGAIN LAST NIGHT, THERE ARE A 19 COUPLE OF AFFIRMATIVE DEFENSES THAT IMPACT DAMAGES. 20 AFFIRMATIVE DEFENSE THAT IS THE AVOIDABLE CONSEQUENCES 21 DOCTRINE ONLY RELATES TO THE FIRST CLAIM, NOT TO THE SECOND, 22 THIRD -- AND LET ME JUST SAY ON THE RECORD, I RESTRUCTURED 23 THESE TO BE LOGICAL IN TERMS OF MY READING OF THE CLAIMS TO 24 THE JURY. 25 SO THE IT DOES NOT, UNFORTUNATELY, TRACK THE COMPLAINT. SO I DON'T USE COUNTS, I USE THE WORD "CLAIMS". DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC AND I 622 1 WILL PUT ON THE RECORD HOW THAT -- OR I CAN PUT IN WRITING OR 2 SOMETHING FOR ANY APPELLATE REASONS WHAT CLAIM IN THE JURY 3 INSTRUCTION RELATES TO WHAT COUNT IN THE COMPLAINT. 4 BUT I FIRST STRUCTURED THEM ACCORDING TO THE COMPLAINT, 5 AND IT WENT BACK AND FORTH, AND IT JUST WASN'T VERY LOGICAL. 6 I ALWAYS TRY TO MAKE THESE ACCESSIBLE TO THE JURY. 7 REORDERED THEM IN WHAT I THOUGHT WAS A MORE LOGICAL WAY. 8 WHEN I'M TALKING ON THE RECORD NOW, I'M TALKING ABOUT THE WAY 9 IN WHICH THEY ARE STRUCTURED CURRENTLY. 10 SO I SO SO THE AVOIDABLE CONSEQUENCES DOCTRINE ONLY RELATES TO THE 11 FIRST CLAIM FOR HARASSMENT. 12 LIMITATIONS ON REMEDIES DOCTRINE, WHERE THE EMPLOYER WOULD 13 HAVE MADE THE SAME DECISION, THAT INSTRUCTION ONLY RELATES TO 14 THE SECOND AND THIRD CLAIM. 15 AND THE NEXT DOCTRINE, THE AND SO I INTEND TO MODIFY EACH OF THOSE INSTRUCTIONS TO 16 MAKE IT CLEAR FOR THE JURY THAT THE FIRST -- I WOULD SAY THIS 17 INSTRUCTION APPLIES ONLY TO THE FIRST CLAIM. 18 THE OTHER ONE, I WOULD SAY THIS INSTRUCTION ONLY APPLIES TO 19 THE SECOND AND THIRD CLAIM. AND THEN WITH 20 THE QUESTION IS WHETHER ANYBODY THINKS THAT BECAUSE THOSE 21 DEFENSES ARISE OR RELATE ONLY TO SPECIFIC CLAIMS, WHETHER YOU 22 WOULD RATHER HEAR BACK FROM THE JURY FIRST ON THE CLAIM. 23 SAY LET'S SAY THE JURY FINDS FOR THE PLAINTIFF ON 24 SOMETHING -- ON SOME BUT NOT ALL. 25 FIRST CLAIM, THEN I WOULD NEVER HAVE TO GIVE THAT INSTRUCTION. IF THEY DON'T FIND ON THE DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 623 1 IF I DON'T -- IF THEY DON'T FIND ON THE SECOND OR THIRD CLAIM, 2 I DON'T EVER HAVE TO GIVE THAT INSTRUCTION. 3 SO EVEN -- SO YOU'LL SEE THAT IN THE ONES THAT I SENT YOU 4 BY EMAIL, THERE WAS A STOP, AND THERE WAS A STOP IN FRONT OF 5 THE DAMAGES SECTION SO I COULD HAVE THIS CONVERSATION WITH 6 YOU. 7 8 SO DOES ANYBODY HAVE A PERSPECTIVE THAT THEY WOULD LIKE TO SHARE? START WITH THE PLAINTIFF. 9 10 MS. SMALLETS: WE'RE -- WE WERE THINKING WE WOULD WANT THEM GIVEN ALL AT ONCE, BUT WE WOULD.... 11 THE COURT: THAT'S FINE. 12 I WOULD ALSO SAY THAT I PUT ON THE ONES I SENT YOU, 13 BECAUSE I DID THE STOP EARLIER, I THREW IN THE PUNITIVE 14 SECTION WITH THE DAMAGES. 15 THEN MY PLAN IS TO STILL SEPARATE OUT THE PUNITIVES IN TERMS 16 OF LIABILITY FIRST. 17 BIT WHEN I WENT BACK TO READ THEM LAST NIGHT, TOO. 18 IF I DO THE DAMAGES IN ADVANCE, AND THAT HAD TO BE RESTRUCTURED A LITTLE MS. SMALLETS: BUT, YOUR HONOR, WE WOULD ALSO 19 APPRECIATE A MOMENT TO THINK ABOUT IT AND WE'LL CERTAINLY BE 20 PREPARED TO DISCUSS IT THIS AFTERNOON. 21 THE COURT: 22 MR. LAFAYETTE: 23 24 25 SHE'S IN. DO YOU HAVE A PERSPECTIVE? I AM PROBABLY IN THE SAME BOOT THAT PROBABLY DISCUSS IT THIS AFTERNOON. I HAVE AN INITIAL THOUGHT THAT PROBABLY WITH REGARD TO THE AVOIDABLE CONSEQUENCES DOCTRINE, IT SHOULD PROBABLY BE GIVEN DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 624 1 AS PART OF THE FIRST -- AS PART OF THE INSTRUCTIONS IN THE 2 FIRST INSTANCE AS OPPOSED TO SENDING THEM BACK AND COMING 3 BACK. THAT'S MY INITIAL THOUGHT. 4 THE COURT: LET ME THINK ABOUT IT SOME. AND THAT'S FINE WITH ME. I THINK THAT IF 5 I -- I THINK THAT BY TELLING THEM WHEN I READ THESE, AVOIDABLE 6 CONSEQUENCES THIS ONLY APPLIES TO THE FIRST CLAIM, THAT SHOULD 7 BE CLEAR. 8 ENGINEERS AND BANKERS ON THE JURY SO I'M CONFIDENT THAT THEY 9 WILL FOLLOW THE INSTRUCTIONS AND KNOW HOW TO FOLLOW 10 11 12 AND, AGAIN, THEY GET COPIES OF THESE. AND I'VE GOT INSTRUCTIONS. AND THEN WITH RESPECT TO THE LIMITATION, I CAN EASILY SAY THIS ONLY APPLIES TO THE SECOND AND THIRD CLAIM. 13 THEN MY THOUGHT WOULD BE JUST SO THAT, YOU KNOW, YOU'LL 14 HAVE A BREAK SO THAT YOU KNOW WHAT I DID LAST NIGHT THAT IS 15 JUST A LITTLE BIT DIFFERENT FROM WHAT YOU HAVE HERE SO YOU CAN 16 THINK ABOUT IT. 17 THEN I WOULD STOP, RIGHT? SO IF I ADD THE DAMAGES TO THE 18 FIRST SET, I WOULD STOP AFTER THE MAIN DAMAGES AND THEN JUST 19 INSTRUCT ON LIABILITY FOR PUNITIVES. 20 THAT HEADING. 21 DECIDED DEFENDANT'S CONDUCT CAUSED CIARA NEWTON'S HARM, YOU 22 MUST DECIDE WHETHER CIARA NEWTON PROVED THAT DEFENDANT ENGAGED 23 IN SUCH CONDUCT WITH MALICE, OPPRESSION, AND FRAUD. 24 25 AND I WOULD EVEN CHANGE AND I WOULD SAY, EFFECTIVELY, NOW THAT YOU HAVE I WON'T EVEN MENTION -- THE STANDARD INSTRUCTION HAS A REFERENCE TO DAMAGES UP FRONT. I DON'T EVEN MENTION DAMAGES, DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 625 1 IN MY VIEW. 2 THAT CONDUCT RISE TO MALICE, OPPRESSION, AND FRAUD. ALL I WANT THEM TO FOCUS ON IS THE CONDUCT, DOES 3 AND I WOULD ALSO WANT TO ADD AT THE END SOMETHING TO THE 4 EFFECT THAT IN THIS CASE, PLAINTIFF CONTENDS, AND I WANT THE 5 NAMES, WHO YOU CONTEND ARE THE MANAGING AGENTS. 6 SO, PLAINTIFF CONTENDS THAT SO AND SO, MAYBE IT'S BECK, 7 MAYBE IT'S PEREZ -- I DON'T KNOW WHO YOU ARE GOING TO SAY, I 8 HAVE SOME IDEAS -- WHO ARE MANAGING AGENTS, AND IN APPLYING 9 THESE INSTRUCTIONS, YOU MUST EVALUATE EACH PERSON 10 11 INDEPENDENTLY. I THINK IT IS FAIR AND APPROPRIATE. I THINK THE DEFENSE'S 12 INSTRUCTIONS WENT OVERBOARD AND THEY, IN ADDITION, IGNORED MY 13 SUMMARY JUDGMENT ORDER. 14 I HAVE ALREADY ORDERED THAT SOME OF THESE FOLKS WERE NOT 15 MANAGING AGENTS, SO THEY, YOU KNOW, THEY CAN'T BRING THEIR 16 PUNITIVE DAMAGES CLAIMS BASED UPON SOME OF THESE INDIVIDUALS. 17 SO THAT WOULD HAVE TO BE -- I WOULD AMEND IT IN THAT 18 PARTICULAR WAY TO MAKE SURE THAT THE JURY IS FOCUSED ON THE 19 RIGHT PEOPLE. 20 21 SO THOSE ARE THE CHANGES THAT I SAW WHEN I REVIEWED THEM LAST NIGHT. 22 MR. LAFAYETTE: 23 THE COURT: 24 MR. LAFAYETTE: 25 ONE QUESTION, YOUR HONOR. YES. IF THE JURY COMES BACK WITH A LIABILITY FINDING, I THINK THAT'S -- THEN THAT'S WHEN YOU DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 626 1 WOULD GIVE THEM THE INSTRUCTIONS ON WHETHER OR NOT THERE IS 2 LIABILITY FOR PUNITIVE DAMAGES. 3 THE COURT: CORRECT. IF THEY FIND THERE IS LIABILITY 4 FOR PUNITIVES, THEN I WOULD INSTRUCT THEM ON THE MEASURE OF 5 DAMAGES FOR PUNITIVES AND WE WOULD HAVE EVIDENCE ON WHAT THE 6 FINANCIAL CIRCUMSTANCES ARE FOR THE PLAINTIFF; THAT WE WOULD 7 OPEN UP WHAT HAS BEEN FILED UNDER SEAL, AND PER MY ORDER, 8 YOU'VE TOLD ME WHO IT IS, BUT YOU WOULD HAVE TO HAVE SOMEONE 9 BE AVAILABLE TO TESTIFY AS TO THE PARTY -- AS TO THE 10 DEFENDANT'S FINANCIALS. 11 MR. LAFAYETTE: I UNDERSTAND THAT. THAT PIECE I'VE 12 GOT. 13 GET THE INSTRUCTIONS ON THE PUNITIVE DAMAGES OR ON THE 14 LIABILITY OF PUNITIVE DAMAGES, DO WE ARGUE A SECOND TIME OR DO 15 WE ARGUE -- IF THERE IS A FINDING OF LIABILITY AND THEY ARE GOING TO 16 THE COURT: 17 MR. LAFAYETTE: 18 19 NO, YOU GET TO ARGUE. OKAY. SO THAT'S WHEN WE WILL DO THE ARGUMENT -THE COURT: ON WHETHER OR NOT THE CONDUCT -- YOU WILL 20 GET TWO SEPARATE MINI ARGUMENTS IN TERMS OF WHETHER OR NOT THE 21 CONDUCT ROSE TO MALICE, OPPRESSION, AND FRAUD. 22 23 24 25 MR. LAFAYETTE: ALL RIGHT. AND SO WE WILL NOT ARGUE THE PUNITIVE DAMAGES PIECE DURING THE MAIN CLOSING ARGUMENT -THE COURT: CORRECT, BECAUSE YOU WILL HAVE TIME -- YOU WILL HAVE TIME AFTERWARDS. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 627 1 MR. LAFAYETTE: 2 THE COURT: 3 MR. LAFAYETTE: ALL RIGHT. IF THERE IS A FINDING. IF THERE IS A FINDING. AND THAT WILL 4 BE BASED UPON THE RECORD WE ARE DEVELOPING NOW FOR THE FINDING 5 OF PUNITIVE DAMAGES. 6 THE COURT: 7 MR. LAFAYETTE: 8 THE COURT: 9 OF COURSE, YES. THE ONLY ADDITIONAL EVIDENCE THAT WILL BE TAKEN IS WITH RESPECT TO THE FINANCIALS. 10 MR. LAFAYETTE: 11 THE COURT: 12 OKAY. I UNDERSTAND. WHICH I DON'T HAVE IN EVIDENCE AND WHICH WE WILL NOT HAVE UNLESS THERE IS A FINDING OF LIABILITY. 13 MR. LAFAYETTE: 14 MS. SMALLETS: 15 THE COURT: I UNDERSTAND. THANK YOU, YOUR HONOR. OKAY. 16 SENTENCINGS THIS AFTERNOON. 17 3:30. 18 MR. LAFAYETTE: 19 THE COURT: 20 21 22 23 24 25 THANK YOU, YOUR HONOR. SO THINK ABOUT THAT. I HAVE TWO SO I WOULD HAVE YOU COME BACK AT THAT'S FINE, YOUR HONOR. OKAY. WE WILL STAND IN RECESS UNTIL THE JURY GETS HERE. (RECESS TAKEN AT 8:17 A.M.; RESUMED AT 8:28 A.M.) THE COURT: ALL RIGHT. LET'S CALL THE JURY IN. MS. NEWTON, YOU CAN GET BACK UP ON THE STAND. (PROCEEDINGS HELD IN THE PRESENCE OF THE JURY.) THE COURT: GOOD MORNING, EVERYONE. WE ARE BACK ON DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 628 NEWTON - CROSS / LAFAYETTE 1 THE RECORD. 2 3 HOW'S EVERYBODY DOING? LOOK A LITTLE TIRED. 4 5 THE RECORD WILL REFLECT THAT THE JURY IS HERE. A LITTLE TIRED? YOU ALL I'M A LITTLE TIRED. BUT, MY SON GOT INTO PRINCETON YESTERDAY. SO I'M REALLY, REALLY HAPPY. 6 MR. LAFAYETTE: 7 THE COURT: 8 GOOD? KID. 9 CONGRATULATIONS, YOUR HONOR. REALLY HAPPY. GREAT KID. HE'S A GREAT SO I'M HAPPY, BUT ALSO TIRED. SO -- AND TODAY I HAVE SOME TREATS FOR YOU AT YOUR BREAK. 10 SO HOPEFULLY THAT WILL HELP WITH YOUR TIREDNESS. 11 WILL GET THROUGH THIS. 12 OKAY. ANYWAY, WE DON'T MAKE ME UPSET THIS MORNING, MR. LAFAYETTE. 13 MY PATIENCE LEVEL IS HIGHER TODAY BECAUSE I'M HAPPY. 14 NEVERTHELESS, ONE NEVER KNOWS. 15 MR. LAFAYETTE: 16 THE COURT: 17 BUT, THANK YOU, YOUR HONOR. MS. NEWTON, YOU UNDERSTAND YOU ARE STILL UNDER OATH? 18 THE WITNESS: 19 THE COURT: 20 THE WITNESS: 21 THE COURT: 22 YES. ARE YOU READY? YES. ALL RIGHT. LET'S GO. YOU MAY PROCEED. CROSS-EXAMINATION RESUMED 23 BY MR. LAFAYETTE: 24 Q. GOOD MORNING, MS. NEWTON. 25 A. GOOD MORNING. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 629 NEWTON - CROSS / LAFAYETTE 1 Q. 2 CODE OF CONDUCT? 3 A. I BELIEVE I DID, YES. 4 Q. COULD YOU TAKE A LOOK AT EXHIBIT 26 -- 627? 5 A. OKAY. 6 Q. DO YOU RECOGNIZE THAT AS THE SHELL CODE OF CONDUCT? 7 A. I DON'T RECOGNIZE IT, BUT IT DOES SAY "CODE OF CONDUCT" 8 AND THEY PROBABLY GAVE IT TO US. 9 MR. LAFAYETTE: 10 WHEN YOU WERE AT SHELL, DID YOU GET A COPY OF THE SHELL I WOULD LIKE TO MOVE THIS INTO EVIDENCE, YOUR HONOR. 11 THE COURT: 12 MS. SMALLETS: 13 THE COURT: 14 ANY OBJECTION? ANY OBJECTION? NO OBJECTION. 627 IS ADMITTED. (DEFENDANT'S EXHIBIT 627 RECEIVED IN EVIDENCE) 15 BY MR. LAFAYETTE: 16 Q. 17 ANTI-HARASSMENT POLICY? 18 A. MOST LIKELY YES. 19 Q. CAN YOU TAKE A LOOK AT EXHIBIT 626? AND WHILE YOU WERE AT SHELL, DID YOU GET A COPY OF SHELL'S 20 (DISPLAYED ON SCREEN.) 21 A. OKAY. 22 Q. IS THAT THE POLICY THERE? 23 A. IT DOESN'T LOOK FAMILIAR, BUT WE GOT A COUPLE OF REALLY 24 THICK BIG BINDERS FULL OF PAPERS. 25 Q. OKAY. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 630 NEWTON - CROSS / LAFAYETTE 1 A. SO IT IS POSSIBLE. 2 3 EVIDENCE. 4 MS. SMALLETS: 5 THE COURT: 6 MS. SMALLETS: 7 I WOULD LIKE TO MOVE IT INTO MR. LAFAYETTE: OBJECTION -- I CANNOT HEAR YOU. OBJECTION, THE WITNESS SAID IT DOESN'T LOOK FAMILIAR. 8 THE COURT: 9 MR. LAFAYETTE: 10 THE CLERK: 11 BY MR. LAFAYETTE: 12 Q. 13 YESTERDAY. 14 SUSTAINED. OKAY. OKAY. I TURNED ON YOUR MIC. LET ME GO BACK TO TALKING ABOUT WHERE WE DROPPED OFF I THINK THAT WAS THE FLEXIGAS FLARE ALARM. DO YOU REMEMBER THAT? 15 A. 16 YESTERDAY. 17 Q. WITH REGARD TO THE FLEXIGAS, YOU HAD TO DO A RESET ON IT? 18 A. YES. 19 Q. AND IT WOULD BE ACCURATE THAT YOU FAILED TO DO THE RESET 20 PROPERLY? 21 A. 22 MEANING IT WAS NOT PUT BACK PROPERLY. 23 TO SHOW ME HOW TO RESET IT PROPERLY, AND TOGETHER WE DID THAT. 24 25 I DO REMEMBER THAT. NO. I DON'T KNOW IF WE TALKED ABOUT IT SO WE -- YES. IT WOULD BE ACCURATE THAT IT WAS -- IT WAS AN ALARM MR. LAFAYETTE: AND SO CAMERON TOOK ME I WOULD LIKE TO READ FROM THE WITNESS'S DEPOSITION TESTIMONY AT PAGE 468, LINES 24 THROUGH DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 631 NEWTON - CROSS / LAFAYETTE 1 25. 2 THE COURT: 3 MR. LAFAYETTE: 4 "QUESTION: 5 "ANSWER: 6 BY MR. LAFAYETTE: 7 Q. 8 REFINERY YOU HAVE TO USE A CARD TO SWIPE IN, RIGHT? 9 A. RIGHT. 10 Q. DO YOU KNOW WHAT THAT CARD IS CALLED? 11 A. A TWIC CARD. 12 Q. A WHAT? 13 A. T-W-I-C CARD, TWIC. 14 Q. TWICE CARD? 15 A. I NEVER HEARD IT CALLED A TWICE CARD, BUT TWIC CARD. 16 Q. A TWIC CARD. 17 GO AHEAD. (READING) OKAY. DID YOU FAIL TO DO THE RESET? NO, I FAILED TO DO IT PROPERLY." NOW, WITH REGARD TO THE GATE SWIPES, WHEN YOU COME TO THE AND IS -- IT'S YOUR UNDERSTANDING THAT THAT'S THE BEST WAY 18 TO DETERMINE WHEN SOMEONE SHOWED UP AND WHEN SOMEONE LEFT THE 19 REFINERY, RIGHT? 20 A. 21 CLOCK. 22 Q. AND YOU DON'T KNOW OF A BETTER WAY, RIGHT? 23 A. A BETTER WAY THAT THEY HAVE AVAILABLE AT -- 24 Q. YES. 25 A. -- AT SHELL MARTINEZ? I BELIEVE THAT'S THE ONLY OPTION AS THEY DON'T HAVE A TIME DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 632 NEWTON - CROSS / LAFAYETTE 1 Q. YES. 2 A. NO. 3 Q. NOW, WHEN YOU WERE -- WHEN YOU CAME BACK FROM YOUR 4 BEREAVEMENT LEAVE, YOU WERE BEHIND, RIGHT? 5 A. I HAD MISSED FOUR OR FIVE DAYS. 6 Q. THAT PUT YOU BEHIND, RIGHT? 7 A. SLIGHTLY. 8 Q. AND JEFF FISCHER SUGGESTED THAT YOU READ THE MATERIAL THAT 9 YOU WEREN'T THERE FOR, CORRECT? 10 A. 11 MAP OF A PROCESS THAT WE HAD FROM THE BEGINNING. 12 Q. 13 YOU READ THE MATERIAL, THAT WAS APPROPRIATE, WASN'T IT? 14 A. THAT HE SUGGESTED I READ THE MATERIAL? 15 Q. IT WOULD BE WISE FOR YOU TO READ IT, RIGHT? 16 A. IF THERE WAS SOMETHING I MISSED, YES. 17 Q. SO WHEN YOU WERE WITH JEFF FISCHER IN THE TRAINING COURSE, 18 YOU DID ASK HIM QUESTIONS, RIGHT? 19 A. YES. 20 Q. AND DID YOU EVER ASK TO MEET WITH HIM ONE ON ONE? 21 A. I DON'T -- I MAY HAVE ASKED HIM TO WALK ME THROUGH WHEN WE 22 WERE GETTING READY FOR THE WALK THROUGH, BUT OTHER THAN THAT, 23 I DON'T REMEMBER ASKING TO MEET WITH HIM ONE ON ONE. 24 Q. DID YOU EVER ASK TO SIT DOWN WITH HIM AND TALK WITH HIM? 25 A. NO. WELL, WE DIDN'T DO A LOT OF READING. IT WAS MORE LIKE A TO THE EXTENT THAT THERE WAS READING AND HE SUGGESTED THAT DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 633 NEWTON - CROSS / LAFAYETTE 1 2 MR. LAFAYETTE: I WOULD LIKE TO READ FROM THE WITNESS'S DEPOSITION TESTIMONY, PAGE 73, LINES 2 THROUGH 4. 3 THE COURT: 4 MR. LAFAYETTE: 5 "QUESTION: 6 TALK WITH HIM? 7 "ANSWER: 8 BY MR. LAFAYETTE: 9 Q. GO AHEAD. (READING) DID YOU EVER ASK TO SIT DOWN WITH HIM AND YES." AND WHEN YOU DID ASK HIM TO DO THAT, DID HE SIT DOWN AND 10 TALK WITH YOU? 11 A. THAT WAS PRIOR TO THE BEREAVEMENT LEAVE, I THINK. 12 Q. DID HE SIT -- 13 A. SO PRIOR TO THAT WHEN I FELL BEHIND? 14 Q. DID HE SIT DOWN AND TALK WITH YOU? 15 A. YES, IN THE BEGINNING. 16 Q. SO WHENEVER YOU ASKED AT TIMES SIT TOWN AND TALK WITH HIM, 17 HE GAVE YOU THE TIME, DIDN'T HE? 18 A. 19 20 NO. MR. LAFAYETTE: I WOULD LIKE TO READ FROM THE WITNESS'S DEPOSITION TESTIMONY, PAGE 73, LINE 7 THROUGH 9. 21 THE COURT: 22 MS. SMALLETS: OBJECTION. 23 MR. LAFAYETTE: (READING) 24 25 YES. GO AHEAD. "QUESTION" -THE COURT: WAIT. WHAT IS THE OBJECTION? DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 634 NEWTON - CROSS / LAFAYETTE 1 2 MS. SMALLETS: THE WITNESS CLARIFIED THAT THE TIMING WAS -- 3 THE COURT: 4 MR. LAFAYETTE: 5 "QUESTION: 6 AND TALK WITH HIM, HE GAVE YOU THE TIME, DIDN'T HE? 7 "ANSWER: 8 BY MR. LAFAYETTE: 9 Q. OVERRULED. (READING) SO WHENEVER YOU ASKED A TIME TO SIT DOWN YES." NOW, WHEN YOU ASKED HIM TO SIT DOWN AND TALK WITH HIM, 10 WERE YOU DOING IT TO MAKE SURE THAT YOU UNDERSTOOD A 11 PARTICULAR CONCEPT? 12 A. YES. 13 Q. AND DID HE EXPLAIN THE CONCEPT TO YOU? 14 A. IN THE BEGINNING OF TRAINING, YES. 15 16 MR. LAFAYETTE: WITNESS'S DEPOSITION TESTIMONY, PAGE 73, LINES 14 THROUGH 15. 17 18 MS. SMALLETS: THE COURT: 20 MR. LAFAYETTE: 21 THE COURT: 22 MR. LAFAYETTE: 24 25 YOUR HONOR, WE ASK THAT IT BE READ THROUGH 25. 19 23 I WOULD LIKE TO READ FROM THE YOU CAN READ THROUGH 25. THROUGH 25, YOUR HONOR? THROUGH 25. CAN YOU TAKE ME OFF THE SCREEN, PLEASE? THE CLERK: OKAY. (PAUSE IN THE PROCEEDINGS.) DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 635 NEWTON - CROSS / LAFAYETTE 1 MR. LAFAYETTE: 2 "QUESTION: 3 QUESTIONS FOR HIM, OKAY, HE WOULD TAKE THE TIME TO 4 SIT DOWN WITH YOU AND GO OVER THE MATERIAL? 5 "ANSWER: 6 "QUESTION: 7 "ANSWER: 8 "QUESTION: 9 SAME THING WITH THEM, CORRECT, AS FAR AS YOU COULD UP UNTIL THE POINT IN TIME WHEN YOU HAD YES. THAT WAS HIS JOB. AND THAT IS WHAT HE DID? YES. WHEN YOUR COLLEAGUES DID THAT, HE DID THE 10 TELL?" 11 MS. SMALLETS: 12 (READING) OBJECTION. I DON'T THINK HE IS READING THE PART HE SAID HE WAS GOING TO READ. 13 MR. LAFAYETTE: 14 THE COURT: THROUGH 73? 73? SO 73, I SAID. YOU ASKED FOR 10 15 THROUGH -- YOU ASKED FOR 14 AND 15, AND I SAID YOU CAN DO IT 16 THROUGH 25. 17 18 MR. LAFAYETTE: DIDN'T MATCH UP. I'M SORRY. I AM SORRY. 19 THE COURT: 20 MR. LAFAYETTE: 21 "QUESTION: 22 "ANSWER: 23 "QUESTION: 24 QUESTION (SIC): 25 THE COURT: WHAT I WAS LOOKING AT I APOLOGIZE TO THE COURT. IT IS STRICKEN. READ THE RIGHT SECTION. I WILL, YOUR HONOR. AND DID HE EXPLAIN THE CONCEPT TO YOU? YES. OKAY. AND DO YOU KNOW IF -- ACTUALLY -ANSWER. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 636 NEWTON - CROSS / LAFAYETTE 1 MR. LAFAYETTE: 2 "ANSWER: 3 THERE WAS ONE POINT IN TIME WHEN I CAME BACK FROM 4 LOSING MY FATHER AND HE SAID, I DON'T HAVE TIME TO 5 CATCH YOU UP. 6 YOU ARE GOING TO HAVE TO CATCH UP ON YOUR EVEN. 7 FROM THIS POINT ON HE DIDN'T HAVE TIME, AND HE TOLD 8 ME ON MORE THAN ONE OCCASION THAT HE DIDN'T HAVE 9 TIME." (READING) ACTUALLY LET ME -- LET ME REWIND BECAUSE THIS ISN'T FAIR TO THE OTHER STUDENTS. AND 10 BY MR. LAFAYETTE: 11 Q. 12 FRUSTRATIONS WHEN YOUR COWORKERS DIDN'T HAVE THE ANSWER? 13 A. YES. 14 Q. NOW AT SOME POINT YOU SAID HE WHITED OUT SOMETHING ON YOUR 15 PARALLEL LOG? 16 A. YES. 17 Q. DID YOU GO TO HIM AND ASK HIM WHY? 18 A. I ASKED HIM RIGHT AWAY WHY. 19 Q. AND DID HE TELL YOU IT WAS BECAUSE HE DID NOT UNDERSTAND 20 THAT THE GUYS WHO HAD SIGNED IT HAD BEEN QUALIFIED TO SIGN OFF 21 ON YOUR PAPERS? 22 A. 23 ACCEPTABLE. 24 Q. HE SAID HE DIDN'T UNDERSTAND THAT THEY WERE SMES, RIGHT? 25 A. HE DIDN'T USE THE WORD "UNDERSTAND". WITH REGARD TO -- DID HE EVER IN YOUR PRESENCE EXPRESS THAT'S WHAT HE SAID. HE SAID THOSE GUYS ARE NOT HE SAID THEY ARE DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 637 NEWTON - CROSS / LAFAYETTE 1 NOT, SAID THEY ARE NOT QUALIFIED TO SIGN YOU OFF. 2 Q. DID HE SAY THEY WERE NOT SMES? 3 A. I THINK HE SAID SOMETHING ABOUT THEM NOT BEING SMES. 4 Q. AS FAR AS YOU KNOW, MR. FISCHER DID NOT HAVE A ROLE, 5 OFFICIAL OR OTHERWISE, IN MAKING A DECISION TO TERMINATE YOU. 6 A. 7 BUT, IN MY OPINION, HE HAD A BIG PART OF IT. WELL, THE OFFICIAL PAPERWORK, HIS NAME WAS NOT ON THERE. 8 MR. LAFAYETTE: 9 THE COURT: 10 11 OBJECTION -- OVERRULED. MR. LAFAYETTE: I WOULD LIKE TO READ FROM PLAINTIFF'S DEPOSITION TESTIMONY, PAGE 252, LINES 21 THROUGH 23. 12 (PAUSE IN THE PROCEEDINGS.) 13 THE COURT: 14 YOU ASKED FOR HER KNOWLEDGE. 15 16 YOU DIDN'T ASK HER FOR HER OPINION THERE, MR. LAFAYETTE: MS. SMALLETS: 18 OBJECTION, NOT IMPEACHMENT. (PAUSE IN THE PROCEEDINGS.) 19 THE COURT: NO, I DON'T THINK SO. 20 BY MR. LAFAYETTE: 21 Q. 22 AUTHORITY TO FIRE YOU? 23 A. 25 GO UP TO PAGE 12 -- LINE 12 THROUGH 23. 17 24 TWO DIFFERENT THINGS. WERE YOU ADVISED THAT JEFF FISCHER DID NOT HAVE THE NEVER ADVISED BY ANYONE IN PARTICULAR. MR. LAFAYETTE: I WOULD LIKE TO READ FROM THE WITNESS'S DEPOSITION TRANSCRIPT, PAGE 255, LINES 4 THROUGH 8. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 638 NEWTON - CROSS / LAFAYETTE 1 THE COURT: 2 MR. LAFAYETTE: 3 "QUESTION: 4 DIDN'T HAVE THE AUTHORITY TO FIRE, RIGHT? 5 "ANSWER: 6 "QUESTION: 7 "ANSWER: 8 BY MR. LAFAYETTE: 9 Q. ALL RIGHT. GO AHEAD. (READING) THE UNION TOLD YOU THAT JEFF FISCHER AUTHORITY TO WALK ME TO THE GATE. WHICH IS FIRING SOMEONE, RIGHT? YEAH." IT WOULD BE ACCURATE THAT YOU DIDN'T HAVE ANY 10 CONVERSATIONS IN ANY WAY WITH ANYBODY AT SHELL THAT IN ANY WAY 11 OR FORM RELATED TO SEX. 12 A. CORRECT. SEX AS IN WHICH -- 13 (SIMULTANEOUS COLLOQUY) 14 THE COURT: 15 MS. SMALLETS: 16 THE COURT: I CAN'T HEAR YOU. OBJECTION, VAGUE AND AMBIGUOUS. OVERRULED. 17 BY MR. LAFAYETTE: 18 Q. 19 DISPARAGING NAMES AS A WOMAN. 20 A. YEAH, NOBODY CALLED ME NAMES. 21 Q. I'M GOING TO TALK ABOUT THE JULY 22 MEETING WITH YOU. 22 RIGHT? 23 A. OKAY. 24 Q. CHRISTINE LAYNE WAS NOT PRESENT AT THAT MEETING, WAS SHE? 25 A. JULY 22ND, CAN YOU REMIND ME WHAT THE MEETING WAS ABOUT? WOULD IT BE ACCURATE THAT NO ONE MADE OR CALLED YOU ANY DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC ALL 639 NEWTON - CROSS / LAFAYETTE 1 Q. JULY 22ND, 2016. 2 A. I THINK THIS WAS A MEETING I HAD POSSIBLY WITH THOR AND 3 CAMERON. 4 Q. YOU HAD A MEETING WITH THOR? 5 A. NOT THOR, GUY ROZAR. 6 Q. GUY ROZAR. 7 A. CAMERON. 8 Q. CAMERON CURRAN. 9 A. NICK BACKENS. 10 Q. AND YOU? 11 A. YES, IF THIS IS THE SAME MEETING WITH THAT DATE. 12 AFTER THE BAKER TANK. 13 Q. 14 MEETING, RIGHT? 15 A. 16 THERE. 17 Q. AND NEITHER WAS ERIC PEREZ, RIGHT? 18 A. NO, HE WAS NOT. 19 Q. WOULD IT BE ACCURATE THAT THERE WAS NO COMMENT MADE IN 20 THAT MEETING THAT YOU WERE BEING TREATED DIFFERENTLY 21 SPECIFICALLY BECAUSE YOU'RE A WOMAN? 22 A. 23 BECAUSE I AM A WOMAN, BUT I DEFINITELY SAID I AM NOT BEING 24 TREATED FAIRLY AND YOU'RE SINGLING ME OUT AND YOU ARE PICKING 25 AND CHOOSING WHAT YOU ARE DOCUMENTING, AND YOU ARE ONLY AND IF THAT'S THE MEETING, SHE WAS NOT THERE. WHO ELSE? ANYBODY ELSE? IT WAS SO JUST TO MAKE SURE, CHRISTINE LAYNE WAS NOT AT THAT IF WE'RE TALKING ABOUT THE SAME MEETING, SHE WAS NOT I DEFINITELY NEVER SAID I'M BEING TREATED SPECIFICALLY DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 640 NEWTON - CROSS / LAFAYETTE 1 DOCUMENTING ME. 2 Q. OKAY. 3 A. I DIDN'T THINK -- 4 5 MR. LAFAYETTE: THERE IS NO QUESTION PENDING, YOUR HONOR. 6 7 AND I SAID ALL OF THAT. THE COURT: SHE IS COMPLETING HER ANSWER. YOU DIDN'T HAVE ONE READY TO GO. 8 MR. LAFAYETTE: 9 THE COURT: OKAY. ARE YOU FINISHED? 10 MR. LAFAYETTE: 11 THE COURT: 12 THE WITNESS: YES, YOUR HONOR. NO, I'M ASKING HER. I TOLD 'EM I WASN'T BEING TREATED 13 CONSISTENTLY WITH THE OTHER GUYS ON MY TEAM. 14 BY MR. LAFAYETTE: 15 Q. 16 I JUST WANT TO MAKE SURE I'M CLEAR. YOU DIDN'T SAY SPECIFICALLY BECAUSE YOU ARE A WOMAN, 17 CORRECT? 18 A. I DIDN'T USE THOSE WORDS, NO. 19 Q. NOW, WHEN YOU WERE WITH MR. FISCHER, WOULD IT BE ACCURATE 20 THAT YOUR COWORKERS ARRIVED EARLIER THAN YOU? 21 A. 22 VERY EARLY, YES. 23 Q. NOW, YOU TOOK SOME NOTES, DIDN'T YOU? 24 A. AT WHICH POINT IN TIME? 25 Q. THROUGHOUT YOUR TERM OF EMPLOYMENT, YOU TOOK SOME NOTES, WHEN WE WERE IN TRAINING ON MANY OCCASIONS THEY ARRIVED DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 641 NEWTON - CROSS / LAFAYETTE 1 RIGHT? 2 A. CORRECT. 3 Q. AND YOU TOOK SOME NOTES SPECIFICALLY REFERRING TO WHAT YOU 4 CONSIDERED TO BE INEQUALITIES, CORRECT? 5 A. I DON'T KNOW. 6 7 I TOOK A FEW NOTES OF THINGS THAT HAPPENED. I'D LIKE TO READ FROM THE WITNESS'S MR. LAFAYETTE: DEPOSITION TESTIMONY. PAGE 633, LINES 11 THROUGH 16. 8 THE COURT: 9 MR. LAFAYETTE: OKAY. GO AHEAD. (READING) 10 "QUESTION: 11 THE ONLY NOTES THAT YOU HAVE THAT YOU'VE TAKEN? 12 "ANSWER: 13 "QUESTION: 14 THOSE NOTES OF" INEQUALITY (SIC). 15 "ANSWER: 16 THE COURT: 17 MR. LAFAYETTE: 18 AND SO IN YOUR MIND, DO YOU CONSIDER YES." THE COURT: SHE SAID "EXAMPLES." I'M SORRY, YOUR HONOR. I WILL READ YOU DON'T HAVE TO READ OVER. JUST READ IT -- JUST FOCUS WHEN YOU ARE READING. 21 "EXAMPLES, YES." 22 GO AHEAD. MR. LAFAYETTE: 23 BY MR. LAFAYETTE: 24 Q. 25 YES. OVER. 19 20 ARE THE NOTES THAT YOU'VE SHOWN ME TODAY THANK YOU. I WOULD LIKE YOU TO TAKE A LOOK AT EXHIBIT 575. DO YOU HAVE IT THERE? DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 642 NEWTON - CROSS / LAFAYETTE 1 A. YES. 2 Q. ARE THOSE YOUR NOTES? 3 A. THESE ARE SOME NOTES OF MINE, YES. 4 Q. AND THESE ARE THE NOTES THAT YOU SAY SHOW EXAMPLES OF 5 INEQUALITY, RIGHT? 6 A. YEAH, THESE ARE SOME EXAMPLES. 7 8 MR. LAFAYETTE: I WOULD LIKE TO MOVE EXHIBIT 575 INTO EVIDENCE, YOUR HONOR. 9 THE COURT: ANY OBJECTION? 10 MS. SMALLETS: 11 THE COURT: 12 NO OBJECTION. ADMITTED. (DEFENDANT'S EXHIBIT 575 RECEIVED IN EVIDENCE) 13 BY MR. LAFAYETTE: 14 Q. THESE NOTES ARE DATED AUGUST 1, 2016, RIGHT? 15 A. RIGHT. 16 Q. AND THESE ARE NOTES THAT YOU PERSONALLY WROTE, RIGHT? 17 A. LET ME STEP BACK. 18 THESE ARE NOTES THAT I EMAILED ON AUGUST 1ST, 2016, BUT 19 THEY DATE -- THEY HAVE DIFFERENT DATES STARTING IN APRIL -- 20 STARTING IN MARCH. 21 Q. BUT THESE ARE NOTES YOU SENT TO YOURSELF, RIGHT? 22 A. YES. 23 Q. AND THESE ARE NOTES THAT YOU SENT TO YOURSELF THE DAY 24 BEFORE YOU HAD THE MEETING WITH ERIC PEREZ AND CHRISTINE 25 LAYNE, CORRECT? DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 643 NEWTON - CROSS / LAFAYETTE 1 A. WAS THERE A MEETING AN AUGUST 2ND? 2 Q. AND YOU DID NOT GIVE THESE NOTES TO CHRISTINE LAYNE AND 3 ERIC PEREZ, DID YOU? 4 A. 5 YES. NO. I VERBALLY WENT OVER THEM WITH THEM, BUT I NEVER HANDED 6 THEM TO THEM. 7 Q. 8 SPECIFICALLY STATES THAT YOU WERE BEING TREATED DIFFERENTLY 9 BECAUSE YOU ARE A WOMAN, IS THERE? AND THERE'S NOTHING IN THOSE NOTES THAT SAYS THAT -- THAT 10 A. 11 I EVER USED THOSE WORDS. 12 13 THERE'S LOTS OF EXAMPLES. I DON'T THINK THAT THERE IS. MR. LAFAYETTE: I DON'T KNOW IF BUT I DEFINITELY FELT I EXPRESSED THAT VERBALLY WITH THEM. 14 15 I'M NOT SURE. THAT'S WHY THEY SAID -- OBJECTION, YOUR HONOR, IT IS NONRESPONSIVE. 16 THE COURT: SUSTAINED. 17 BY MR. LAFAYETTE: 18 Q. 19 THAT INDICATES THAT YOU EVER SAID THAT YOU WERE BEING TREATED 20 DIFFERENTLY BECAUSE YOU ARE A WOMAN; ISN'T THAT CORRECT? 21 A. 22 IT DOESN'T SAY BECAUSE I'M A WOMAN. 23 Q. 24 SPECIFICALLY STATES THAT YOU ARE BEING TREATED DIFFERENTLY 25 BECAUSE YOU ARE A WOMAN. AND THERE IS NOTHING IN ANY OF THE NOTES THAT YOU'VE TAKEN IT JUST SAYS I'M BEING TREATED DIFFERENTLY THAN THE GUYS. MY QUESTION IS, THERE'S NOTHING IN ANY OF YOUR NOTES THAT DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 644 NEWTON - CROSS / LAFAYETTE 1 A. CORRECT. 2 Q. AND YOU'RE NOT AWARE OF ANY DOCUMENTS THAT SAY THAT YOU 3 ARE BEING TREATED DIFFERENTLY BECAUSE YOU ARE A WOMAN, ARE 4 YOU? 5 MS. SMALLETS: 6 THE COURT: 7 MR. LAFAYETTE: 8 OBJECTION, VAGUE AND AMBIGUOUS. SUSTAINED. I COULDN'T HEAR THE OBJECTION, YOUR HONOR. 9 THE COURT: 10 VAGUE AND AMBIGUOUS. IT'S AN INCREDIBLY BROAD QUESTION. I SUSTAINED THE 11 OBJECTION. 12 BY MR. LAFAYETTE: 13 Q. 14 COMPLAINED THAT YOU WERE BEING TREATED DIFFERENTLY BECAUSE YOU 15 ARE A WOMAN? 16 A. 17 INEQUALITY CARD HARD. 18 19 ARE YOU AWARE OF ANY DOCUMENT THAT SHOWS THAT YOU THE EMAIL THAT CAMERON SENT SAYING I AM PUSHING THE MR. LAFAYETTE: I WOULD LIKE TO READ FROM THE WITNESS'S DEPOSITION TESTIMONY, PAGE 542 -- 20 THE WITNESS: 21 MR. LAFAYETTE: 22 THE COURT: 23 MR. LAFAYETTE: 24 "QUESTION: 25 THAT YOU COMPLAINED THAT YOU WERE BEING TREATED I JUST LEARNED ABOUT THAT NOW. -- LINES 13 THROUGH 19. OKAY. (READING) ARE YOU AWARE OF ANY DOCUMENT THAT SHOWS DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 645 NEWTON - CROSS / LAFAYETTE 1 DIFFERENTLY BECAUSE YOU WERE A WOMAN? 2 "ANSWER: 3 BUT OFF THE TOP OF MY HEAD I AM NOT AWARE." I DON'T HAVE THE DOCUMENTS IN FRONT OF ME, 4 BY MR. LAFAYETTE: 5 Q. 6 UNDERSTANDING THAT YOUR PROBATIONARY PERIOD WOULD BE COMING 7 UP? 8 A. 9 OF SEPTEMBER. IN AUGUST, AS OF THE END OF AUGUST, DID YOU HAVE AN THE PROBATION PERIOD ENDED, I THINK, IN OCTOBER 4TH OR END 10 Q. SO YOU KNEW IT WAS COMING UP? 11 A. YEAH. 12 Q. SO I'M GOING TO GO TO THE PROP TEST FOR A SECOND. 13 PROP TEST, IS THAT A TEST THAT IS SUPPOSED TO TAKE 14 APPROXIMATELY 15 MINUTES? 15 A. 16 22 PEOPLE TAKE IT, AND EVERYONE TOOK A DIFFERENT AMOUNT OF 17 TIME. 18 I DON'T KNOW HOW LONG IT WAS SUPPOSED TO TAKE. MR. LAFAYETTE: THE I WATCHED I WOULD LIKE TO READ FROM THE 19 WITNESS'S DEPOSITION TESTIMONY, PAGE 238, LINES 24 THROUGH 25. 20 (PAUSE IN THE PROCEEDINGS.) 21 THE COURT: 22 MR. LAFAYETTE: 23 "QUESTION: 24 "ANSWER: GO AHEAD. (READING) HOW LONG DOES IT TAKE TO DO THE TEST? I CAN'T REMEMBER. 15 MINUTES." 25 DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 646 NEWTON - CROSS / LAFAYETTE 1 BY MR. LAFAYETTE: 2 Q. 3 WHERE JEFF FISCHER STOPPED IT WITHIN FIVE TO TWO SECONDS OF 4 YOU STARTING THE TEST? 5 A. YEAH, IT FELT LIKE RIGHT IN THE BEGINNING. 6 Q. NOW ON AUGUST 29, YOU TALKED ABOUT FINDING A STICKER, 7 RIGHT? 8 A. RIGHT. 9 Q. BUT NO STICKERS LIKE THAT SHOWED UP AFTER THAT, DID THEY? 10 A. NOT THAT I SAW. 11 Q. AND NOBODY DID ANYTHING TO YOU AFTER YOU RECEIVED THAT 12 STICKER, CORRECT? 13 A. NOBODY DID ANYTHING TO ME AS IN? 14 Q. OFFENSIVE LIKE THAT. 15 A. NOT DIRECTLY TO ME OTHER THAN JUST KIND OF LAUGHING AND 16 SAYING THEY HAVE TO BE CAREFUL WHAT THEY TALK AROUND ME. 17 18 AND WASN'T IT -- ISN'T IT TRUE THAT YOU MADE THE MISTAKE AND I GUESS WHEN RICHARD ASKED ME IF IT WAS OFFENSIVE AFTER I ALREADY REPORTED IT, THAT WAS. 19 MR. LAFAYETTE: I WOULD LIKE TO READ FROM THE 20 WITNESS'S DEPOSITION TESTIMONY, PAGE 159, LINES 3 THROUGH 8. 21 (PAUSE IN THE PROCEEDINGS.) 22 23 THE COURT: LINE 6. OKAY. THE OBJECTION IS OVERRULED AT GO AHEAD. 24 MR. LAFAYETTE: 25 "QUESTION: (READING). IS THERE ANYTHING THAT SOMEBODY SAID OR DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 647 NEWTON - CROSS / LAFAYETTE 1 DID TO YOU AFTER THE STICKER INCIDENT? 2 "ANSWER: 3 BY MR. LAFAYETTE: 4 Q. 5 SIX TIMES THAT'S BAD, RIGHT? 6 A. 7 DOESN'T LOOK GOOD. 8 Q. 9 CORRECT, ABOUT YOUR TARDIES? NOT THAT I CAN REMEMBER AT THIS TIME." YOU AGREE THAT IF YOU ARE ON PROBATION AND YOU ARE LATE YEAH, IF SOMEONE WAS LATE SIX TIMES ON PROBATION IT SO ON APRIL 7, YOU HAD A MEETING WITH JEFF AND ERIC PEREZ, 10 A. CORRECT. 11 Q. AND THEY HAD A CONVERSATION WITH YOU WHERE THEY 12 SPECIFICALLY DISCUSSED THAT YOU WERE LATE 45 MINUTES, RIGHT? 13 A. 14 FUNERAL, AND THAT WAS MY FIRST TARDY. 15 UP AND NOTIFIED ME OF THAT ONE. 16 SO, YEAH. THAT WAS THE MARCH 23RD, AFTER MY DAD'S AND THEY BROUGHT THAT AND THEN THEY WENT ON TO TALK ABOUT THE ONE WE WERE 17 ADDRESSING THAT DAY. 18 Q. NOW WHAT IS TRACING PIPE? 19 A. JUST GOING OUTSIDE AND FOLLOWING THE LINES, KNOWING WHAT'S 20 IN EACH LINE, WHAT'S HAPPENING, WHERE IT'S GOING. 21 THERE'S LOTS OF DIFFERENT PIPES GOING IN DIFFERENT DIRECTION 22 WITH DIFFERENT MATERIAL INSIDE. 23 Q. 24 COMING FROM AND WHERE IT IS GOING TO? 25 A. BECAUSE IS THE CONCEPT IF YOU TRACE THE PIPE, YOU KNOW WHERE IT IS YES. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 648 NEWTON - CROSS / LAFAYETTE 1 Q. 2 IS IN THE REFINERY, TRACING THE PIPE? 3 A. IT IS ONE OF THE WAYS. 4 Q. NOW, JEFF FISCHER ASKED YOU TO SPEND TIME TRACING THE 5 PIPE, DIDN'T HE? 6 A. I THINK HE ASKED US ALL TO DO THAT. 7 Q. DID YOU TELL JEFF FISCHER THAT YOU DIDN'T LEARN THAT WAY? 8 A. NO. 9 ACTUALLY WITH THE PROCESS MAP. IS THAT A GOOD WAY TO TRY AND FIGURE OUT WHERE EVERYTHING I TOLD HIM THAT ONE OF THE WAYS I LEARNED BETTER WAS AND I LIKE TO LOOK AT THE 10 PROCESS MAP AND THEN GO OUT, STEP BY STEP AND SEE IT AND 11 COMPARE IT TO THE MAP. 12 13 MR. LAFAYETTE: WITNESS'S DEPOSITION TESTIMONY, PAGE 426, LINES 11 THROUGH 19. 14 MS. SMALLETS: 15 THE COURT: 16 BY MR. LAFAYETTE: 17 Q. OBJECTION, NOT IMPEACHING. I AGREE. THE COURT: 19 MR. LAFAYETTE: 20 THE COURT: EXHIBIT 61? IT'S NOT IN HER BINDER. IT'S IN THE PLAINTIFF'S BINDER. OKAY. SO TAKE A LOOK AT THE OTHER BINDER. 22 THE WITNESS: 23 THE COURT: 24 PLAINTIFF'S BINDER UP THERE? 25 NOT YET. NOW, CAN YOU TAKE A LOOK AT EXHIBIT 61? 18 21 I WOULD LIKE TO READ FROM THE OKAY. I DON'T HAVE IT YET. DOES SHE HAVE THE -- DO YOU HAVE THE MS. SMALLETS: LET ME CHECK. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 649 NEWTON - CROSS / LAFAYETTE 1 THE COURT: 2 MR. LAFAYETTE: 3 THE COURT: 4 DO YOU SEE A SECOND BINDER -I HAVE A HARD COPY I CAN GIVE TO HER. ALL RIGHT. YOU CAN APPROACH. (EXHIBIT HANDED TO WITNESS.) 5 MS. SMALLETS: YOUR HONOR, THIS IS THE PLAINTIFF 6 WITNESS'S BINDER. 7 SURE THERE WEREN'T ANY OF MY NOTES IN IT. I WILL HAPPILY RETURN IT. I WANTED TO MAKE 8 THE COURT: 9 MS. SMALLETS: 10 BLINDER. I CAN'T HEAR YOU. THIS IS THE PLAINTIFF'S WITNESS I AM HAPPY TO RETURN IT. 11 (BINDER HANDED TO WITNESS.) 12 BY MR. LAFAYETTE: 13 Q. DO YOU RECOGNIZE EXHIBIT 61, MA'AM? 14 A. YES. 15 MR. LAFAYETTE: 16 THE COURT: 17 I BELIEVE IT IS. I'LL DOUBLE-CHECK. MR. LAFAYETTE: I'M TRYING TO SHOW IT ON THE SCREEN, YOUR HONOR. 20 (PAUSE IN THE PROCEEDINGS.) 21 THE COURT: IT'S IN EVIDENCE. 22 BY MR. LAFAYETTE: 23 Q. 24 YOU SAY YOU GOT FROM MR. METCALF, RIGHT? 25 GO AHEAD. 18 19 I THINK THIS IS IN EVIDENCE. WITH REGARD TO THIS DOCUMENT, THIS IS AN ASSESSMENT THAT (DISPLAYED ON SCREEN.) DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 650 NEWTON - CROSS / LAFAYETTE 1 A. YES. 2 Q. WHEN DID YOU GET IT FROM MR. METCALF? 3 A. 240 DAYS. 4 Q. 240 DAYS. 5 DO WITH THIS? 6 A. I KEPT IT. 7 Q. YOU KEPT IT. 8 9 WHEN YOU GOT IT FROM MR. METCALF, WHAT DID YOU IS THIS THE ONE THAT YOU GOT FROM HIM? A. I DON'T KNOW. I WOULD HAVE TO SEE THE ONE THAT THEY 10 CREATED AFTER THEY FIRED ME AND COMPARE THE TWO. 11 Q. 12 13 LET'S TAKE A LOOK. THE ONE YOU ARE TALKING ABOUT HAD BOXES CHECKED ON -- TAKE A LOOK AT THE SECOND PAGE. 14 TAKE A LOOK AT THE SECOND PAGE. THE ONE THAT YOU ARE SAYING IS THE ONE THAT THEY CREATED 15 AFTER THEY FIRED YOU HAD BOTH "YES" AND "NO" CHECKED ON IT, 16 RIGHT? 17 A. RIGHT. 18 Q. SO THIS IS NOT THAT, IS IT? 19 A. I DON'T THINK THAT IT IS. 20 Q. SO IT'S YOUR BEST RECOLLECTION AS YOU SIT HERE TODAY, AND 21 THIS IS ONE THAT HAS YOUR INTERNAL BATES STAMP NUMBER, NEWTON 22 00316. 23 DO YOU SEE THAT? 24 A. 25 COMMENTS, AND I'M NOT SURE WHAT THOSE COMMENTS WERE. I AM JUST NOT SURE BECAUSE I KNOW THEY WENT AND ADDED DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 651 NEWTON - CROSS / LAFAYETTE 1 Q. 2 DOCUMENT. 3 A. OKAY. 4 Q. I'LL JUST TELL YOU THAT. 5 I WILL REPRESENT TO YOU THAT THIS IS NOT THAT OTHER OKAY? SO NOW THIS IS THE ONE THAT YOU GOT FROM MR. METCALF, 6 RIGHT? 7 A. YES. 8 Q. AND WHEN YOU GOT IT FROM HIM, YOU TOOK IT HOME? 9 A. I EITHER TOOK IT HOME OR PUT IT IN MY LOCKER. 10 Q. OKAY. 11 A. NOTHING. 12 Q. DID YOU GIVE IT TO YOUR LAWYERS? 13 A. OH, EVENTUALLY, YES. 14 Q. IS THIS THE ONE THAT YOU GOT FROM MR. METCALF THAT YOU 15 GAVE TO YOUR LAWYERS? 16 A. YOU ARE TELLING ME THAT IT WAS? 17 Q. I'M ASKING YOU. 18 A. I GAVE THEM THE COPY THAT HE GAVE ME, YES. 19 Q. IS THIS THE ONE THAT YOU THINK THAT IS WITH YOUR BATES 20 STAMP NUMBER ON IT? 21 A. YES. 22 Q. ALL RIGHT. 23 AND THEN WHAT DID YOU DO WITH IT? I THOUGHT I DID -- I DIDN'T DO ANYTHING WITH IT. THAT'S ALL I'M TRYING TO GET TO. NOW, AT SOME POINT IN TIME AFTER THAT, YOU RECEIVED A COPY 24 OF YOUR PERSONNEL FILE, DIDN'T YOU? 25 A. NO. AFTER I RECEIVED THIS I -- DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 652 NEWTON - CROSS / LAFAYETTE 1 Q. 2 TERMINATED, YOU RECEIVED A COPY OF YOUR PERSONNEL FILE DIDN'T 3 YOU? 4 A. 5 THE UNION AFTER FILING A GRIEVANCE. 6 Q. AFTER YOU WERE TERMINATED OR ABOUT THE TIME YOU WERE NO. I RECEIVED IT EITHER THROUGH THE LAWYER OR THROUGH OKAY. 7 THE COURT: 8 MS. SMALLETS: 9 LIMINES. 10 11 OBJECTION, RELATES TO THE MOTION IN IT'S FINE. THE COURT: NOT QUITE. I THINK THE QUESTION IS DID YOU GET IT -- LET ME ASK. 12 DID YOU GET IT DIRECTLY FROM THE COMPANY? 13 THE WITNESS: 14 THE COURT: 15 THE WITNESS: 16 WHAT'S -- THE PD FILE? YOUR WHOLE FILE? NOT AT THE POINT THAT THEY FIRED ME. EARLIER I DID. 17 MR. LAFAYETTE: 18 FIX IT, YOUR HONOR. 19 THE COURT: 20 BY MR. LAFAYETTE: 21 Q. I THINK I CAN HELP. ALL RIGHT. I THINK I CAN GO AHEAD. CAN YOU TAKE A LOOK AT EXHIBIT 70. 22 THE COURT: 23 MR. LAFAYETTE: 24 THE COURT: 25 MR. LAFAYETTE: SEVEN ZERO? SEVEN ZERO. WE DON'T THAT -70A I THINK IS WHAT HAPPENED BECAUSE DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 653 NEWTON - CROSS / LAFAYETTE 1 WE TOOK -- 2 MS. SMALLETS: 3 THE COURT: 4 YOUR HONOR -- SEVEN ZERO A IS NOT IN ANY OF THE BINDERS. 5 MS. SMALLETS: YOUR HONOR, I THINK THIS MAY BE 6 ADDRESSED BY A POTENTIAL STIPULATION. 7 IS THE OFFICIAL COPY OF THE PERSONNEL FILE. 8 LET ME CONFIRM THAT 70A IS THAT THE RIGHT ONE. 9 MR. LAFAYETTE: 10 BECAUSE IT'S IN EVIDENCE. 11 EVIDENCE. 12 THE COURT: 13 MR. LAFAYETTE: 14 THE COURT: 15 THE -- I CAN PUT IT ON THE SCREEN WHAT I AM GOING TO SHOW IS IN OKAY. 70A IS IN EVIDENCE. I WILL PUT IT ON THE SCREEN. ALL RIGHT. (DISPLAYED ON SCREEN.) 16 MR. LAFAYETTE: 17 OF THE TRANSMITTAL TO MS. NEWTON. 18 COURT REPORTER: 20 BY MR. LAFAYETTE: 21 Q. 25 I'M SORRY? DO YOU SEE THE LETTER ON THE SCREEN? 22 24 THIS IS PAGE 301, BATES STAMPED 301 "ENCLOSED FOR YOUR INFORMATION" -- 19 23 WE STIPULATE THAT THAT (DISPLAYED ON SCREEN.) A. YES. THE COURT: IS THERE A CONCERN, MS. SMALLETS? THERE IS, YOU NEED TO SPEAK UP. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC IF 654 NEWTON - CROSS / LAFAYETTE 1 MS. SMALLETS: I AM WAITING FOR THE QUESTION. YES, I 2 BELIEVE SO. 3 LIMINE. 4 THIS IS THE OFFICIAL COPY OF THE PERSONNEL FILE, WHICH I 5 BELIEVE -- I THINK THAT THIS RELATES TO THE MOTIONS IN I BELIEVE THAT WE CAN ADDRESS THIS BY STIPULATING 6 THE COURT: 7 MR. LAFAYETTE: 8 WHAT IS THE POINT OF THE EXAMINATION? THE COURT: SHE DOESN'T HAVE IT. 10 MR. LAFAYETTE: 11 THE COURT: 17 DO YOU HAVE A COPY FOR HER TO LOOK AT? (PAUSE IN THE PROCEEDINGS.) 14 16 -- UP TO 318 IS WHAT -- SHE DOESN'T HAVE IT IN ANY OF THE BINDERS. 13 15 I WANT TO ASK HER FROM 301 -- 9 12 I'LL GET THERE, YOUR HONOR. MR. LAFAYETTE: MAY I APPROACH THE WITNESS, YOUR HONOR? THE COURT: YOU MAY. (EXHIBIT HANDED TO WITNESS.) 18 THE WITNESS: 19 MS. SMALLETS: 20 THE CLERK: 21 MS. SMALLETS: THANK YOU. YOUR HONOR, I HAVE -- CAN YOU -- THE MIC IS RIGHT THERE. YOUR HONOR, I THINK THAT WHAT WE DID 22 TO ADDRESS THE PREVIOUS MOTION IN LIMINE, I THINK HAS NOW 23 CREATED AN AMBIGUITY IN THIS DOCUMENT AND I'M CONCERNED THAT 24 THE TESTIMONY IS GOING TO COME -- IS GOING TO BE INACCURATE 25 BECAUSE OF WHAT THE CHANGES WE MADE TO THIS DOCUMENT EARLIER. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 655 NEWTON - CROSS / LAFAYETTE 1 THE COURT: OKAY. WELL, WE DON'T HAVE -- I 2 UNDERSTAND YOU HAVE A CONCERN. 3 LOOKING AT THE DOCUMENT. 4 MS. SMALLETS: 5 THE COURT: 6 I UNDERSTAND IT'S MISSING TWO PAGES AT THE FRONT. MR. LAFAYETTE: 8 THE COURT: YES, YOUR HONOR. SO, SHE'S LOOKING AT DEFENDANT 301 TO 325; IS THAT CORRECT? 10 MR. LAFAYETTE: 11 THE COURT: THAT'S CORRECT, YOUR HONOR. ALL RIGHT. SHOW HER SEPARATELY, WHICH IS 12 NOT IN EVIDENCE, DEFENDANT'S 299 AND 300. 13 HER. 14 DO YOU HAVE COPIES? 15 MR. LAFAYETTE: 16 THE COURT: 17 299? JUST SHOW THEM TO I'M SORRY. THE ORIGINAL EXHIBIT 70 STARTED WITH 299 AND 300. 18 MS. NUGENT: MAY I? 19 THE COURT: YOU MAY. 20 GIVE HER THOSE TWO PAGES. (DOCUMENTS HANDED TO WITNESS) 21 MR. LAFAYETTE: 22 THE COURT: 23 THE WITNESS: 24 MR. LAFAYETTE: 25 SHE'S THE DOCUMENT IS MISSING PAGES. 7 9 LET'S HEAR A QUESTION. YOUR HONOR? I SEE WHAT YOU ARE SAYING. THOSE TWO PAGES ARE NOT IN EVIDENCE. OKAY. MAY I APPROACH THE WITNESS AGAIN, THE REST OF THE EXHIBIT IS HERE. I JUST WANT TO DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 656 NEWTON - CROSS / LAFAYETTE 1 APPROACH -- 2 THE COURT: 3 MR. LAFAYETTE: 4 I GUESS I DIDN'T HAVE BATES STAMP 312. 5 6 SO YOU DIDN'T GIVE HER THE WHOLE THING? THE COURT: ALL RIGHT. SO WE'LL TAKE THE QUESTION ONE AT A TIME. 7 ACTUALLY, MS. NEWTON, YOU LET ME KNOW WHEN YOU FINISH 8 LOOKING AT ALL THE PAGES. 9 WHEN YOU FINISH LOOKING AT THEM. 10 THE WITNESS: 11 THE COURT: DON'T SAY ANYTHING, JUST TELL ME I AM FINISHED. WHAT IS YOUR QUESTION? 12 BY MR. LAFAYETTE: 13 Q. CAN YOU LOOK AT BATES STAMPED PAGE 318 IN THAT EXHIBIT? 14 A. OKAY. 15 Q. OKAY. 16 SENT ON OR ABOUT SEPTEMBER 29, 2016, RIGHT? 17 YOU UNDERSTAND THAT THESE ARE DOCUMENTS THAT WERE MS. SMALLETS: 18 BY MR. LAFAYETTE: 19 Q. 20 2016? THESE ARE DOCUMENTS THAT YOU RECEIVED AFTER SEPTEMBER 29, 21 THE COURT: 22 MR. LAFAYETTE: 23 I'M SORRY, I DIDN'T HEAR THE QUESTION. IT'S DATED SEPTEMBER 28TH. THAT'S WHY I SAID "AFTER". AFTER SEPTEMBER 28, 2016, RIGHT? 24 MS. SMALLETS: 25 COURT REPORTER: YOUR HONOR -EXCUSE ME, COUNSEL. PLEASE USE THE DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 657 NEWTON - CROSS / LAFAYETTE 1 MICROPHONE. 2 MR. LAFAYETTE: 3 THE COURT: LET ME TALK TO THE TWO OF YOU AT SIDEBAR. 4 MS. NUGENT: CAN YOU PLEASE TAKE DOWN THIS DOCUMENT? 5 I WILL REPHRASE MY QUESTION. IT HAS HER SOCIAL SECURITY NUMBER ON IT. 6 (SIDE BAR CONFERENCE HELD; NOT REPORTED.) 7 (SIDEBAR CONCLUDED; PROCEEDINGS HELD IN OPEN COURT.) 8 9 10 THE COURT: LADIES AND GENTLEMEN, LET'S GO AHEAD AND TAKE A BREAK SO I CAN FIGURE THIS OUT. THAT WAY YOU CAN GO AND STRETCH YOUR LEGS, GO TO THE BATHROOM IF YOU WANT. 11 TAKE A BREAK. 12 (PROCEEDINGS HELD OUTSIDE THE PRESENCE OF THE JURY.) 13 14 15 THE COURT: GO TO THE MICS AT THIS POINT. MR. LAFAYETTE: THE COURT: 19 MR. LAFAYETTE: THE COURT: EXHIBIT ITSELF. 23 24 25 I AM CONCERNED ABOUT THE WITNESS NOW THE WITNESS IS OUT OF THE ROOM. I HAVE TWO DOCUMENTS THAT I COULD SHOW YOU. 21 22 I DON'T HAVE A JURY HERE. HEARING WHAT I'M ABOUT -- 18 20 I AM NOT HAPPY ABOUT THIS. 16 17 THE CLOCK IS TICKING FOLKS. PUT THEM ON THE OVERHEAD. I HAVE THE GIVE ME A BATES NUMBER. MR. LAFAYETTE: I HAVE BOTH OF THE DOCUMENTS, YOUR HONOR. THE COURT: I WANT BATES NUMBERS. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 658 NEWTON - CROSS / LAFAYETTE 1 THERE'S A MIC. 2 3 MS. SMALLETS: I DON'T WANT TO -- MR. LAFAYETTE'S NOTES ARE ON BOTH PODIUMS. 4 THE COURT: 5 MR. LAFAYETTE: SOMEONE MOVE HIS BINDER. I AM LOOKING AT NEWTON 316, WHICH I 6 JUST ASKED THE WITNESS ABOUT, AND THAT'S THE ONE THAT SHE SAID 7 SHE RECEIVED. 8 9 THE COURT: THE NEWTON BATES NUMBER. 10 11 YOU ASKED HER ABOUT HER OWN DOCUMENT WITH MR. LAFAYETTE: AND THERE'S THE BATES STAMP NUMBER THAT I REFERENCED. 12 THE COURT: 13 MR. LAFAYETTE: 14 THE COURT: 15 THAT'S THIS ONE HERE (INDICATING). THEIR EXHIBIT IS EXHIBIT NO. 60? THAT'S CORRECT, YOUR HONOR -- 61. ALL RIGHT. SO I'M LOOKING AT NEWTON 317 OR 316? 16 MR. LAFAYETTE: 17 THE COURT: 18 MR. LAFAYETTE: 19 THE COURT: 316. I AM LOOKING AT NEWTON 316. RIGHT. NOW I HAVE YOUR DOCUMENT WHICH IS -- WHAT 20 IS THE COROLLARY, DEFENDANT WHAT? 21 MR. LAFAYETTE: THIS IS -- IT IS PLAINTIFF'S 22 EXHIBIT 70A, WHICH IS THE FIRST TWO PAGES REMOVED, AND IT'S 23 DEFENDANT'S BATES STAMP NO. 318. 24 25 THE COURT: NEWTON 316. ALL RIGHT. SO I HAVE DEFENDANT'S 318 AND NOW WHAT'S THE ISSUE? DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 659 NEWTON - CROSS / LAFAYETTE 1 MR. LAFAYETTE: BACK IN THE OLD SCHOOL, I WOULD DO 2 THIS (INDICATING) TO COMPARE TWO DOCUMENTS TO SEE IF THEY WERE 3 THE SAME DOCUMENTS. 4 COPY MARKS RIGHT HERE. 5 DOCUMENTS. 6 GOTTEN THE ORIGINAL FROM MR. METCALF. 7 THERE. 8 9 WHAT I'M REALLY FOCUSED ON ARE THESE TWO THAT WOULD NOT HAVE BEEN THE CASE IF SHE HAD THE COURT: MARKS? MR. LAFAYETTE: 11 THE COURT: 12 MR. LAFAYETTE: 13 THE COURT: 15 THOSE MARKS WOULDN'T BE YOU ARE GOING TO ASK HER TO COMPARE COPY 10 14 THEY ARE THE SAME ON BOTH OF THESE I AM, YOUR HONOR. YOU CAN ARGUE THAT. I AM -- YOU CAN FIND OUT WHERE IT IS -- WHAT ABOUT -MR. LAFAYETTE: IN THE FIRST INSTANCE, I WAS ONLY 16 TRYING AT THE BEGINNING SIMPLY TO HAVE HER IDENTIFY THE TWO 17 DOCUMENTS, YOUR HONOR. 18 THAT'S WHAT I WAS TRYING TO GET DONE. AND I WAS NOT TRYING TO DO ANYTHING WHATSOEVER WITH THE 19 UNION ISSUE. 20 SHE GOT ONE ON ONE DAY AND THE OTHER ONE ON ANOTHER DAY. 21 22 23 24 25 I'M ONLY TRYING TO GET HER TO ACKNOWLEDGE THAT THAT'S REALLY ALL I WANT TO ESTABLISH HERE. THE COURT: ALL RIGHT. THAT'S IT. AND THAT'S ALL THAT YOU WILL ESTABLISH. BRING HER IN. MS. SMALLETS: YOUR HONOR, MY CONCERN IS ONCE WE PULL DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 660 NEWTON - CROSS / LAFAYETTE 1 THE UNION PIECE IT MAY BE AMBIGUOUS. 2 TO STIPULATE, I THINK THIS WOULD BE SIMPLER, THAT THIS COPY 3 WAS RECEIVED IN OCTOBER. 4 NOW THE FIRST PAGE SHE'S LOOKING AT IS TALKING -- 5 THE COURT: 6 MS. SMALLETS: 7 THE COURT: 8 MS. SMALLETS: 9 THE COURT: 10 11 12 IN. SO I WOULD BE PREPARED BECAUSE THE SECOND PAGE, WHICH IS SHE HAS BOTH OF THEM. OKAY. OKAY. THAT'S -- SHE HAS THE PAGES THAT ARE NOT IN. OKAY. ALL RIGHT. COME BACK UP. CALL THE JURY LET'S KEEP MOVING. WHICH IS THE ONE WITH THE TWO MARKS WITH "YES" AND "NO"? MR. LAFAYETTE: THOSE ARE COPY MARKS THAT RUN 13 THROUGHOUT EXHIBIT 70 WHEN THEY WERE FAXED AND TRANSMITTED. 14 IF YOU LOOK AT THE -- 15 16 WHERE IS THE ONE THAT HAS THE "YES" AND THE COURT: "NO" CHECKED? WHAT'S THE BATES NUMBER? 17 MR. LAFAYETTE: 18 MS. NUGENT: 19 THE COURT: 20 THAT'S THE POINT. I WOULD HAVE -- I DON'T HAVE -- I BELIEVE THAT IS EXHIBIT 61. NO, IT'S NOT 61. 61 HAS JUST THE ONE. WHICH IS THE ONE THAT HAS BOTH? 21 MR. LAFAYETTE: 22 THE COURT: 161. THAT'S HIS POINT. HIS POINT IS THAT THE 23 PERSONNEL FILE, WHICH WAS SENT -- FORGET IT. 24 SOMEBODY GET ME AN EXHIBIT NUMBER. 25 MS. NUGENT: AT SOME POINT 65, YOUR HONOR. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 661 NEWTON - CROSS / LAFAYETTE 1 (PROCEEDINGS HELD IN THE PRESENCE OF THE JURY.) 2 THE COURT: OKAY. WE ARE BACK ON THE RECORD. 3 RECORD WILL REFLECT THE JURY IS HERE AND THE WITNESS. 4 LET'S SEE IF WE CAN GET THROUGH THIS QUICKLY, 5 THE MR. LAFAYETTE. 6 MR. LAFAYETTE: 7 BY MR. LAFAYETTE: 8 Q. 9 YES, YOUR HONOR. I'LL MAKE THIS QUICK, MA'AM, OKAY? IF YOU HAVE EXHIBIT 61, THAT'S THE ONE THAT YOU SAY THAT 10 YOU RECEIVED DURING THE TIME THAT YOU ARE AN EMPLOYEE AND YOU 11 RECEIVED IT FROM MR. METCALF, RIGHT? 12 A. RIGHT. 13 Q. AND THAT'S THE ONE THAT YOU SAY YOU ULTIMATELY GAVE TO 14 YOUR LAWYERS, RIGHT? 15 A. RIGHT. 16 Q. OKAY. 17 A. CAN I CLARIFY ONE THING? 18 NOW TAKE A LOOK AT -- I HAD THIS GIVEN TO ME BY RICHARD METCALF AND I GAVE 19 EVERYTHING I HAD FROM SHELL TO MY LAWYERS. 20 Q. I'M FINE WITH THAT. 21 A. OKAY. 22 Q. THEN WHAT HAPPENS IS THERE'S SOMETHING THAT IS REFERRED TO 23 AS EXHIBIT 70A. 24 A. 25 ALL RIGHT? IN THE BINDER OR IN THIS PILE? THE COURT: THAT WAS THE STACK OF DOCUMENTS THAT HE DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 662 NEWTON - CROSS / LAFAYETTE 1 GAVE YOU. 2 THE WITNESS: 3 BY MR. LAFAYETTE: 4 Q. 5 OKAY. I'M GOING TO MAKE THIS VERY SIMPLE. YOU RECEIVED THAT SET OF DOCUMENTS AFTER YOU WERE 6 TERMINATED, RIGHT? 7 A. YES. 8 Q. ALL RIGHT. 9 THANK YOU. DID YOU MEET WITH NORA OSTROFE? 10 A. NO, NOT IN PERSON. 11 Q. DID YOU TALK TO HER OVER THE PHONE? 12 A. YES. 13 Q. DID SHE -- DID YOU TELL HER THAT YOU WERE AWARE THAT 14 REFINERIES WERE HIRING? 15 A. I TOLD HER -- I DON'T KNOW IF I TOLD HER THAT OR NOT. 16 Q. DID YOU TELL HER THAT YOU WERE NOT APPLYING FOR JOBS AT 17 REFINERIES? 18 A. 19 MOMENT I WAS LOOKING INTO THAT JOB. 20 Q. 21 REFINERIES? 22 A. YES. 23 Q. AND YOU PRODUCED HERE EXHIBITS 148 AND 149. 24 25 I TOLD HER I JUST STARTED A NEW JOB AT ALASKA AND AT THAT DID YOU TELL HER THAT YOU HAD NOT APPLIED FOR JOBS AT IS 148 JUST A COMPILATION OF RÉSUMÉS AND COMMUNICATIONS THAT YOU HAD AS PART OF YOUR JOB SEARCH? DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 663 NEWTON - CROSS / LAFAYETTE 1 A. 2 FOR PARTS OF THE JOB SEARCH. 3 Q. IS 149 YOUR HANDWRITTEN NOTES RELATING TO YOUR JOB SEARCH? 4 A. SOME OF THEM, YES. 5 Q. ARE YOU AWARE OF SOME OTHERS SOMEPLACE THAT YOU DIDN'T 6 PRODUCE IN THE LITIGATION? 7 A. SOME OTHER NOTES? 8 Q. YES, RELATING TO YOUR JOB SEARCH. 9 A. NO. 10 Q. NOW, JUST A FEW QUESTIONS ABOUT MR. FISCHER. 11 12 YEAH, IT LOOKS LIKE IT'S SOME OF THE EMAILS THAT I SENT NOW, DID MR. FISCHER, WHEN HE FOUND OUT THAT YOUR FATHER HAD PASSED, DID HE SEND YOU A TEXT MESSAGE STATING: 13 THIS IS JEFF FISCHER FROM SHELL, VERY SORRY FOR BOTH OF 14 YOUR LOSS. 15 US KNOW IF THERE IS ANYTHING THAT CIARA NEEDS. 16 A. 17 TO MY HUSBAND. 18 Q. 19 MR. FISCHER RELATING TO YOUR ATTENDANCE? 20 A. I DID TEXT HIM THE DAY I WAS ARRIVING LATE. 21 Q. OKAY. 22 A. TEXT OR CALLED. 23 Q. SO ON MARCH 8, DID YOU SEND MR. FISCHER A TEXT MESSAGE 24 ASKING HIM IF YOU COULD TAKE OFF ONE MORE DAY? 25 A. WE WILL KEEP CIARA AND FAMILY IN OUR PRAYERS. LET I DON'T REMEMBER THAT TEXT, BUT IT SOUNDS LIKE HE SENT IT OKAY. HE PROBABLY DID. AND THEN DID YOU EXCHANGE TEXT MESSAGES WITH I DON'T REMEMBER THAT, BUT THAT'S AROUND THE TIME RIGHT DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 664 NEWTON - CROSS / LAFAYETTE 1 AFTER MY DAD PASSED, SO IT'S POSSIBLE. 2 I DON'T REMEMBER. 3 Q. 4 YOU NEEDED TO COMMUNICATE WITH WAS ERIC PEREZ? 5 A. YES. 6 Q. NOW, DO YOU RECALL ON MARCH 11, GETTING A TEXT MESSAGE 7 FROM MR. FISCHER AT 6:22 A.M. ASKING: 8 WORK TODAY. 9 A. 10 DO YOU RECALL THAT MR. FISCHER TELLING YOU THAT THE PERSON I DON'T REMEMBER IT, BUT I THINK WE WERE MAYBE TRYING TO FIGURE OUT WHEN I WAS RETURNING TO WORK. 11 12 CIARA ARE YOU COMING TO MR. LAFAYETTE: I DON'T REMEMBER. MAY I APPROACH THE WITNESS, YOUR HONOR? 13 THE COURT: 14 MS. SMALLETS: 15 MR. LAFAYETTE: YOU MAY. WHAT EXHIBIT NUMBER IS THIS? WHAT IS THE LAST -- CAN WE HAVE THIS 16 MARKED AS EXHIBIT 633 USED TO REFRESH HER RECOLLECTION ONLY 17 AND IMPEACHMENT. 18 JUST TO REFRESH HER RECOLLECTION. THE COURT: SHE HASN'T SAID SHE NEEDED HER 19 RECOLLECTION REFRESHED. 20 BY MR. LAFAYETTE: 21 Q. 22 ASKING YOU WHETHER OR NOT YOU WERE COMING IN? 23 A. 24 FIGURE OUT HOW MUCH TIME I WAS ALLOWED TO HAVE FOR GRIEVE. 25 Q. DO YOU RECALL MR. FISCHER COMMUNICATING WITH YOU AND I REMEMBER COMMUNICATING WITH ERIC AND JEFF TRYING TO MY QUESTION IS SLIGHTLY DIFFERENT, MA'AM. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 665 NEWTON - CROSS / LAFAYETTE 1 A. I'M SORRY. 2 Q. DO YOU RECALL HIM SPECIFICALLY AT 6:22 A.M. TEXTING YOU 3 AND ASKING YOU IF YOU WERE COMING IN? 4 A. I DON'T RECALL THAT, BUT IT DOESN'T MEAN IT DIDN'T HAPPEN. 5 MR. LAFAYETTE: 6 MS. SMALLETS: 7 OBJECTION, THE DOCUMENT IS NOT COMPLETE. 8 9 NOW CAN I SHOW IT TO HER, YOUR HONOR? MR. LAFAYETTE: I AM JUST ASKING IF IT REFRESHES HER RECOLLECTION. 10 THE COURT: THEN ASK THE FOUNDATIONAL QUESTION FIRST. 11 BY MR. LAFAYETTE: 12 Q. 13 RECOLLECTION? 14 A. 15 I WOULD ASSUME THAT IT HAPPENED. 16 17 18 WOULD LOOKING AT THE TEXT MESSAGES REFRESH YOUR IF I SEE THE TEXT MESSAGE AND IT HAS MY PHONE NUMBER, THEN THE COURT: I DON'T DOUBT THAT IT DID. DOESN'T HAVE HER PHONE NUMBER ON IT. AND I DON'T -MR. LAFAYETTE: I DON'T WANT TO ASK HER PHONE NUMBER, 19 BUT I CAN ONLY DO THAT WITHOUT PUTTING HER PHONE NUMBER IN THE 20 RECORD BY SHOWING HER THE DOCUMENT WITH THE NUMBER AT THE TOP. 21 22 THE COURT: FIRST OF ALL, THAT IS NOT ON MY EXHIBIT LIST, IS IT? 23 MR. LAFAYETTE: 24 THE COURT: 25 NO. ALL RIGHT. SHOW HER THOSE TWO PAGES. I WOULD LIKE TO KNOW WHERE THE FULL DOCUMENT IS AND I DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 666 NEWTON - REDIRECT / SMALLETS 1 WOULD LIKE TO KNOW WHY IT IS NOT ON THE LIST. GO AHEAD. 2 (DOCUMENT HANDED TO WITNESS.) 3 4 5 ANYTHING? 6 7 NOT REALLY BECAUSE THAT WAS JUST THE THE WITNESS: HARD TIME. 8 9 DOES THAT REFRESH YOUR RECOLLECTION ABOUT THE COURT: THE COURT: TURN IT OVER. BY MR. LAFAYETTE: 10 Q. 11 TEXT MESSAGE TO MR. FISCHER ADVISING HIM THAT YOU WERE NOT 12 GOING TO BE IN. 13 A. YOU'RE ASKING ME IF I SENT THAT MESSAGE? 14 Q. YES. 15 A. I KNOW MARCH 20TH WAS MY DAD'S FUNERAL, SO I WILL BELIEVE 16 THAT, BUT I DON'T REMEMBER IT. 17 Q. WAS THERE A WOMEN'S NETWORK AT THE MARTINEZ REFINERY? 18 A. I THINK THERE WAS. 19 LIKE EXTRA CURRICULAR ACTIVITIES AFTER WORK. DO YOU HAVE A RECOLLECTION THAT ON MARCH 21 YOU SENT A 20 MR. LAFAYETTE: 21 THE COURT: 22 THERE WAS LOTS OF DIFFERENT GROUPS, NO FURTHER QUESTIONS, YOUR HONOR. CROSS -- RE-EXAMINATION LIMITED TO THE SCOPE OF MR. LAFAYETTE'S EXAMINATION. 23 REDIRECT EXAMINATION 24 BY MS. SMALLETS: 25 Q. GOOD MORNING, MS. NEWTON. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 667 NEWTON - REDIRECT / SMALLETS 1 A. GOOD MORNING. 2 Q. MR. LAFAYETTE ASKED YOU SOME QUESTIONS ABOUT SOME NOTES, 3 AND IT'S EXHIBIT 627 IN YOUR WITNESS BINDER. 4 A. DID YOU SAY 27 OR 627? 5 Q. 627. 6 A. I JUST SEE 197. 7 Q. I'M SORRY, IT IS THE OTHER WITNESS BINDER, THE ONE HE GAVE 8 YOU. 9 10 THE COURT: 27 WAS NOT ADMITTED. IT'S THE LAST ONE IN YOUR BINDER. 11 MS. SMALLETS: 12 THE WITNESS: IT'S 575. OKAY. 13 BY MS. SMALLETS: 14 Q. DO YOU HAVE THAT? 15 A. YES. 16 Q. DO YOU KNOW WHAT THESE ARE? 17 THE COURT: 18 THE WITNESS: I AM SORRY. I CAN'T HEAR YOU. THEY ARE NOTES. 19 BY MS. SMALLETS: 20 Q. AND DID YOU TAKE THESE NOTES? 21 A. YES. 22 Q. WHAT WAS THE PURPOSE FOR WHICH YOU TOOK THESE NOTES? 23 A. I WAS JUST MAKING NOTES OF THINGS THAT HAD HAPPENED THAT I 24 WANTED TO SHARE WITH ERIC AND CHRISTINE. 25 Q. DID YOU WRITE -- DID YOU RECORD EVERYTHING THAT HAPPENED DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 668 NEWTON - REDIRECT / SMALLETS 1 TO YOU AT THE REFINERY? 2 A. NO. 3 Q. WHO DID YOU WRITE THE NOTES FOR? 4 A. MYSELF. 5 Q. MR. LAFAYETTE ASKED YOU ABOUT A MEETING WITH JEFF FISCHER 6 AND ERIC PEREZ IN WHICH YOU TALKED ABOUT THE APRIL 7TH TARDY. 7 I WOULD LIKE TO CLARIFY A FEW THINGS ABOUT THAT. 8 AT ANY TIME DURING THE TIME THAT YOU WORKED FOR SHELL, DID 9 SHELL TELL YOU THAT THEY HAD DETERMINED THAT YOU -- WHETHER OR 10 NOT YOU WERE TARDY ON APRIL 7TH, THE DAY IN YOUR PD LOG? 11 A. NO. 12 Q. DURING THE TIME THAT YOU WORKED AT SHELL, DID ANYONE TELL 13 YOU THAT SHELL HAD MADE A DETERMINATION THAT YOU WERE TARDY ON 14 THE DAY AFTER APRIL 8TH? 15 A. NO. 16 Q. DURING THE TIME THAT YOU WORKED FOR SHELL, DID ANYONE ASK 17 YOU TO PROVIDE -- ABOUT WHAT HAPPENED -- WHAT WAS GOING ON 18 APRIL 8TH? 19 A. NO. 20 Q. DO YOU RECALL YESTERDAY WHEN MR. LAFAYETTE ASKED YOU ABOUT 21 THE SIZE OF THE SULFURIC ACID SPILL? 22 A. YES. 23 Q. AND HE READ A PORTION FROM YOUR DEPOSITION WHERE YOU 24 TALKED ABOUT A FEW DROPS OF ACID; DO YOU RECALL THAT? 25 A. YES. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 669 NEWTON - REDIRECT / SMALLETS 1 Q. 2 I WOULD LIKE TO ASK A FEW CLARIFYING QUESTIONS. WHEN YOU WENT OUT TO LOOK AT THE SPILL, WAS THERE A 3 PARTICULAR LOCATION WHERE THERE WERE A FEW DROPS OF ACID? 4 A. YEAH, THE FEW DROPS OF ACID WERE ON THE SIGHT GLASS. 5 Q. WAS THERE A LOCATION -- ANY OTHER LOCATIONS WHERE ACID WAS 6 PRESENT? 7 A. 8 PUDDLES, BUT WET SPOTS, CIRCULAR WET SPOTS. 9 Q. THEN ON THE SIDE WHERE IT HAD OVERFILLED WERE THE TWO, NOT MR. LAFAYETTE ALSO ASKED YOU EARLIER ABOUT WHAT YOU 10 THOUGHT THE PROPER RESPONSE WOULD BE TO THINGS LIKE INCIDENTS. 11 I WOULD LIKE TO CLARIFY THAT A LITTLE BIT. 12 IF THERE IS AN INCIDENT IN THE REFINERY THAT LEADS TO LOSS 13 OF CONTAINMENT OR SOMEONE COULD POTENTIALLY BE INJURED, WHAT 14 DO YOU THINK THE APPROPRIATE RESPONSE TO THAT IS? 15 A. 16 PROCEDURES. 17 AND THERE'S ZERO TO SIXTY WRITE-UP, WHICH IS NONDISCIPLINARY, 18 BUT IT IS TO RECORD MISTAKES SO THAT THEY CAN HAPPEN LESS 19 FREQUENTLY. 20 I THINK THE APPROPRIATE RESPONSE IS TO FOLLOW THE AND SO THERE'S TWO DIFFERENT KINDS OF WRITE-UPS AND THEN THERE'S THE PD LOG WHICH IS NOT -- WHICH IS A 21 POSITIVE AND NOT SUPPOSED TO BE DISCIPLINE. 22 REALLY IS DISCIPLINE. 23 BUT IT ULTIMATELY SO I THINK THEY SHOULD JUST BE CONSISTENT ON WRITING ZERO 24 TO SIXTIES FOR ALL LOSS OF CONTAINMENT OR INCIDENTS WHERE 25 SOMEONE COULD BE HURT. AND THEN WHEN WRITING IN THE PD LOG, I DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 670 NEWTON - REDIRECT / SMALLETS 1 FEEL LIKE THEY SHOULD NOT PICK AND CHOOSE, THEY SHOULD JUST BE 2 CONSISTENT WITH WRITING WHAT THEY WRITE. 3 Q. 4 OF CONDUCT. 5 627. MR. LAFAYETTE ASKED YOU ABOUT EXHIBIT 627, THE SHELL CODE CAN YOU TAKE A LOOK AT THAT? AND LOOK AT PAGE -- 6 THE COURT: 7 MS. SMALLETS: 8 THE COURT: 9 THAT IS ACTUALLY 627 IS NOT ADMITTED. I THOUGHT -- 626 WAS ADMITTED. SHE COULDN'T RECALL 627. 10 MS. SMALLETS: 11 THE COURT: 12 MS. SMALLETS: I THOUGHT THAT WAS REVERSED. WAS IT REVERSED? SHE COULD RECALL THE CODE OF CONDUCT 13 BUT NOT THE LETTER. 14 THE COURT: OKAY. 15 THE CLERK: I HAVE 627 WAS ADMITTED. 16 THE COURT: ALL RIGHT. 17 THE CLERK: 626 WAS JUST I.D.'D. 18 THE COURT: ALL RIGHT. 19 BY MS. SMALLETS: 20 Q. 21 3.3 HARASSMENT. 22 23 24 25 FRANCES, WHAT DO YOU HAVE? MY MISTAKE. GO AHEAD. TAKE A LOOK AT PAGE 240, WHICH IS THE -- WHICH IS LABELED YOU WANT TO PUT SOMETHING ON THE SCREEN THE COURT: OR WHAT ARE WE DOING WITH THIS? (DISPLAYED ON SCREEN.) THE WITNESS: I DON'T HAVE A PAGE 240 IN THE CODE OF DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 671 NEWTON - REDIRECT / SMALLETS 1 CONDUCT. 2 THE COURT: IT'S THE LEGAL NUMBER, DEF 00240, ALSO 3 PAGE 12 OF THE HANDBOOK. 4 BY MS. SMALLETS: 5 Q. 6 RESPONSIBILITIES. 7 A. YES. 8 Q. AND IT TALKS ABOUT THINGS YOU CAN DO IF YOU ARE BEING 9 HARASSED. 10 SO SEE HERE ON THE RIGHT IT TALKS ABOUT YOUR DO YOU SEE THAT? MY QUESTION IS, WHO DID YOU REPORT HARASSMENT -- YOUR 11 CONCERNS ABOUT BEING TREATED DIFFERENTLY TO? 12 A. 13 GUY ROZAR, NICK BACKENS. 14 Q. 15 JEFF FISCHER, CAMERON CURRAN, ERIC PEREZ, CHRISTINE LAYNE, JUST A QUICK QUALIFYING QUESTION ABOUT THAT. WHY DID YOU TELL ERIC PEREZ? 16 A. 17 UNDERSTOOD ON OUR SITE. 18 Q. 19 PERSON FOR YOUR -- FOR YOUR SITE? 20 A. 21 PROBLEMS IN OPCEN. 22 Q. 23 REASONABLE FOR CHRISTINE TO TERMINATE YOU IF SHE BELIEVED 24 EVERYTHING THAT THEY WERE CLAIMING YOU DID WAS TRUE. 25 WHY DID I TELL ERIC PEREZ? BECAUSE HE WAS THE HR THAT I HE WAS THE MANAGER. HOW DID YOU COME TO THE UNDERSTANDING THAT HE WAS THE HR THEY TOLD US TO DEAL WITH ERIC PEREZ FOR ANY PERSONNEL MR. LAFAYETTE ASKED YOU YESTERDAY IF IT WOULD BE I WOULD LIKE TO ASK A FOLLOW-UP QUESTION ON THAT. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 672 1 AFTER THE AUGUST 2ND MEETING THAT YOU HAD WITH MS. LAYNE, 2 DO YOU HAVE A BELIEF AS TO WHETHER OR NOT IT WOULD HAVE BEEN 3 REASONABLE FOR MS. LAYNE TO BELIEVE THAT ALL THE THINGS THAT 4 THEY WERE SAYING ABOUT YOU WAS TRUE? 5 MR. LAFAYETTE: 6 THE COURT: 7 BY MS. SMALLETS: 8 Q. 9 MEETING? OBJECTION, IMPROPER OPINION. SUSTAINED. WHAT DID YOU TELL MS. LAYNE DURING THAT AUGUST 2ND 10 MR. LAFAYETTE: 11 THE COURT: 12 THE WITNESS: CUMULATIVE. OVERRULED. I TOLD HER A FEW -- I STARTED TO TELL 13 SOME OF THE INCIDENTS STARTING WITH JEFF FISCHER MOSTLY, AND 14 HOW HE SAID I COULDN'T BE ON THAT TEAM, THAT WOMEN DON'T LAST 15 LONG IN OPCEN. 16 BEFORE THAT I HAD ALREADY MENTIONED THAT I WAS BEING 17 TREATED UNFAIRLY. 18 STARTED TO LIST THE SPECIFICS I WAS STOP -- I STOPPED. THEY ASKED FOR SPECIFICS, AND WHEN I 19 MS. SMALLETS: 20 THE COURT: 21 MR. LAFAYETTE: 22 THE COURT: 23 MR. LAFAYETTE: 24 THE COURT: 25 MR. LAFAYETTE: I HAVE NOTHING FURTHER. ANYTHING ON THOSE QUESTIONS? NOTHING MORE, YOUR HONOR. ALL RIGHT. RESERVE ON THIS WITNESS, THOUGH. EXCUSE ME? I RESERVE ON THIS WITNESS IN MY DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 673 1 2 CASE-IN-CHIEF. THE COURT: ALL RIGHT. 3 NEXT WITNESS. 4 MS. SMALLETS, NEXT WITNESS. 5 MR. ETTINGHOFF: 6 THE COURT: 7 8 9 BINDERS OFF? IT'S ALL RIGHT. ALL RIGHT. CAN YOU GO AND GET THOSE I KNOW YOU HAVE YOUR KNEE. HAVE A SEAT. I CAN GET IT, YOUR HONOR. MR. LAFAYETTE: THANK YOU. (PAUSE IN THE PROCEEDINGS.) 11 THE CLERK: 12 THE WITNESS: 14 I WILL BE CALLING NORA OSTROFE. I BELIEVE ONE OF THEM BELONGS TO MR. LAFAYETTE. 10 13 YOU MAY STEP DOWN. IF YOU WILL STAND AND SWORN, PLEASE. ABSOLUTELY. (NORA OSTROFE, CALLED AS A WITNESS FOR THE PLAINTIFF, HAVING BEEN DULY SWORN, TESTIFIED AS FOLLOWS:) 15 THE WITNESS: 16 THE CLERK: I DO. ALL RIGHT. PLEASE BE SEATED. THEN IF 17 YOU WILL ADJUST THE MICROPHONE AND PLEASE STATE YOUR FULL NAME 18 AND SPELL YOUR LAST NAME. 19 20 21 22 THE WITNESS: OKAY. MY NAME IS NORA OSTROFE. IS N-O-R-A, O-S- AS IN SAM- T-R-O-F- AS IN FRANK, E. THE COURT: GOOD MORNING. GOOD MORNING. 23 THE WITNESS: 24 THE COURT: GOOD MORNING. YOU MAY PROCEED, MR. ETTINGHOFF. 25 DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC THAT 674 OSTROFE - DIRECT / ETTINGHOFF 1 DIRECT EXAMINATION 2 BY MR. ETTINGHOFF: 3 Q. GOOD MORNING, MS. OSTROFE. 4 A. GOOD MORNING, MR. ETTINGHOFF. 5 Q. CAN YOU PLEASE STATE YOUR TITLE FOR THE JURY? 6 A. YES. 7 Q. WHAT DOES A FORENSIC ECONOMIST DO? 8 A. WHAT A FORENSIC ECONOMIST DOES IS THEY VALUE THE ECONOMIC 9 DAMAGES IN LITIGATION. I AM A FORENSIC ECONOMIST. NOT ALL THE DAMAGES, BUT IN A LAWSUIT 10 IF A PLAINTIFF CLAIMS THAT THEY LOST A CERTAIN AMOUNT OF 11 MONEY, THE FORENSIC ECONOMIST WILL GO IN AND CALCULATE WHAT 12 THEY LOST. 13 Q. AND CAN YOU DESCRIBE YOUR EDUCATIONAL BACKGROUND? 14 A. YES. 15 UNIVERSITY OF CALIFORNIA AT LOS ANGELES. 16 CREDENTIAL IN ENGLISH AND SOCIAL SCIENCE FROM THE UNIVERSITY 17 OF CALIFORNIA AT BERKELEY. 18 ADMINISTRATION FROM ST. MARY'S COLLEGE IN MORAGA, AND I HAVE 19 CERTIFICATE IN ACCOUNTING AWARD WITH DISTINCTION FROM THE 20 UNIVERSITY OF CALIFORNIA AT BERKELEY. 21 Q. 22 IN COURT ON THE ISSUE OF LOST WAGES AND BENEFITS? 23 A. I HAVE. 24 Q. HOW MANY TIMES? 25 A. ABOUT 25 TIMES. I HAVE A BACHELOR'S DEGREE IN ECONOMICS FROM THE I HAVE A TEACHING I HAVE A MASTER'S IN BUSINESS AND HAVE YOU EVER TESTIFIED AS AN ECONOMIC EXPERT BEFORE DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 675 OSTROFE - DIRECT / ETTINGHOFF 1 Q. DO YOU HAVE ANY OTHER QUALIFICATIONS IN FORENSIC ECONOMY? 2 A. YES. 3 FORENSIC ECONOMICS. 4 PECUNIARY DAMAGE EXPERTS. 5 REHABILITATION ECONOMICS ASSOCIATION. 6 EARNINGS ANALYST. 7 ANALYST. 8 9 I AM A MEMBER OF THE NATIONAL ASSOCIATION OF I AM A MEMBER OF THE COLLEGIUM OF I AM PAST PRESIDENT OF THE AMERICAN I'M A CERTIFIED AND I AM ALSO A CERTIFIED VALUATION MR. ETTINGHOFF: YOUR HONOR, I WOULD LIKE TO REQUEST MS. OSTROFE BE DECLARED AS AN EXPERT. 10 THE COURT: ANY OBJECTION? 11 MS. LYONS: NO. 12 THE COURT: ADMITTED FOR THAT PURPOSE ON FORENSIC 13 ECONOMICS. 14 MR. ETTINGHOF: MS. OSTROFE WILL BE REVIEWING 15 SCHEDULES 1.3, 2.0 AND 3.1 OF HER SUPPLEMENTAL REPORT. 16 BY MR. ETTINGHOFF: 17 Q. 18 LOST WAGES AND BENEFITS IN THIS CASE? 19 20 21 22 23 MS. OSTROFE, DID YOU PERFORM A CALCULATION OF MS. NEWTON'S THE COURT: HOLD ON. I DON'T KNOW WHAT YOU ARE TALKING ABOUT. DO I HAVE EXHIBIT NUMBERS? MS. LYONS: IS THERE AN EXHIBIT BINDER, MR. ETTINGHOFF? 24 MR. ETTINGHOFF: 25 MS. LYONS: YES, I AM SORRY. YOUR HONOR, THE SUPPLEMENTAL REPORT WAS DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 676 OSTROFE - DIRECT / ETTINGHOFF 1 TWO MONTHS LATE UNDER YOUR CASE SCHEDULING ORDER. 2 3 THE COURT: FORWARD. 4 IS THERE SOME REASON THERE WAS NO MOTION? 5 6 MS. LYONS: THE MOTIONS HAD TO BE FILED BEFORE THE SUPPLEMENTAL REPORT WAS SENT TO US. 7 8 THERE WAS NO MOTION, SO WE'RE MOVING THE COURT: WELL, WHERE ARE THE ORIGINAL ONES AND WHAT IS THE DIFFERENCE? 9 MR. ETTINGHOFF: THIS IS JUST AN EXCERPT FROM THE 10 SUPPLEMENTAL REPORT THAT SHE PRODUCED. 11 TIMELY. 12 SUBSEQUENTLY FIXED. 13 THE COURT: 14 THERE WAS ISSUE ABOUT THE PAGE NUMBERS THAT SHE WELL, LAY SOME FOUNDATION. GO AHEAD. 16 BY MR. ETTINGHOFF: 17 Q. 18 PLEASE? 19 A. I'M RIGHT THERE. 20 Q. ARE YOU FAMILIAR WITH THIS DOCUMENT? 21 A. YES. 23 24 25 LET'S SEE IF THERE'S AN ISSUE OR NOT. 15 22 IT WAS ACTUALLY EXPLAIN WHAT'S GOING ON. MS. OSTROFE, WILL YOU LOOK AT EXHIBIT 201 IN YOUR BINDER, THE CLERK: YOU HAVE TO BE ON THE MIC. YOU HAVE TO BE ON THE MIC. THE WITNESS: ALL RIGHT. YES, I AM FAMILIAR WITH EXHIBIT 201. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 677 OSTROFE - DIRECT / ETTINGHOFF 1 BY MR. ETTINGHOFF: 2 Q. AND THERE ARE THREE PAGES IN THIS DOCUMENT, CORRECT? 3 A. LET ME COUNT THEM. 4 THERE ARE THREE PAGES IN THIS DOCUMENT. 5 Q. OKAY. 6 A. THIS IS EXHIBIT 1.3 OF MY REPORT, WHICH IS MS. NEWTON'S 7 LOSSES TO WORK LIFE EXPECTANCY, ASSUMING THAT POST-TERMINATION 8 SHE COULD EARN THE AVERAGE EARNINGS OF A WHITE FEMALE IN THE 9 SAN FRANCISCO BAY AREA WITH A HIGH SCHOOL EDUCATION. WHAT ARE THESE THREE PAGES? 10 MS. LYONS: HONOR? 11 THE COURT: YES, MA'AM. 12 MS. LYONS: THIS WAS NOT AN ASSUMPTION IN THE AUGUST 13 REPORT. 14 15 IN THE OCTOBER REPORT -THE COURT: SO I'M LOOKING FOR YOUR REPORT, WHICH I NOW -- 16 MR. ETTINGHOFF: 17 THE COURT: 18 19 ALL RIGHT. LET ME GET 200. WITH RESPECT TO THE TESTIMONY SHE JUST MADE, WHERE IN THE REPORT EXHIBIT 200 IS IT? 20 21 HER FULL REPORT IS EXHIBIT 200. MR. ETTINGHOFF: YOUR HONOR, THERE'S SCHEDULES IN THE BACK OF HER REPORT STARTING WITH SCHEDULE 1.0 -- 22 THE COURT: I'M TALKING ABOUT THE LAST -- HER 23 TESTIMONY -- I JUST NEED TO KNOW WHERE IN HER DISCLOSED REPORT 24 THE INFORMATION IS COMING FROM. 25 IN. IF IT IS IN THERE, IT COMES IF NOT, IT DOESN'T. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 678 OSTROFE - DIRECT / ETTINGHOFF 1 MR. ETTINGHOFF: 2 THE COURT: HAVE THE DOCUMENT. 4 TELL ME WHICH NUMBERS. 6 THEY ARE ALL IN THIS REPORT. SO I AM ASKING YOU WHERE SPECIFICALLY. 3 5 YES. I HER REPORT IS NUMBERED AS IS REQUIRED. MR. ETTINGHOFF: IN THE SECOND SECTION IN THE SCHEDULES AND EXHIBITS, PAGE 6, PAGE 7, AND PAGE 9. 7 THE COURT: 8 BY MR. ETTINGHOFF: 9 Q. ALL RIGHT. GO AHEAD. DID YOU PERFORM A CALCULATION OF MS. NEWTON'S LOST WAGES 10 AND BENEFITS IN THIS CASE? 11 A. YES. 12 Q. IN CALCULATING MS. NEWTON'S LOST WAGES AND BENEFITS, DID 13 YOU CALCULATE HER PAST LOST EARNINGS AS WELL AS HER FUTURE 14 LOSS? 15 A. I DID. 16 Q. AND WE'VE HEARD TESTIMONY FROM THE PLAINTIFF THAT HER JOB 17 AT SHELL HAD GOOD PAY AND BENEFITS. 18 STATEMENTS AND BENEFIT INFORMATION IN CALCULATING THESE 19 DOCUMENTS? 20 A. I DID. 21 Q. WE'VE ALSO HEARD TESTIMONY FROM PLAINTIFF THAT, AFTER 22 BEING FIRED FOR SHELL, SHE WORKED AT VARIOUS PRODUCT 23 DEMONSTRATIONS JOBS AND ALSO AS A DENTAL ASSISTANT. 24 DID YOU RELY ON THIS INFORMATION IN CALCULATING 25 DID YOU RELY ON HER WAGE MS. NEWTON'S LOST WAGES AND BENEFITS? DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 679 OSTROFE - DIRECT / ETTINGHOFF 1 A. I DID. 2 Q. WE'VE ALSO HEARD TESTIMONY FROM THE PLAINTIFF THAT SHE 3 TOOK A JOB AT ALASKA AIRLINES IN JUNE OF THIS YEAR. 4 DID YOU RELY ON HER WAGE STATEMENTS AND BENEFITS FROM THAT 5 JOB IN CALCULATING MS. NEWTON'S LOST WAGES AND BENEFITS? 6 A. YES. 7 Q. DID YOU CONSIDER ANY ALTERNATIVE SCENARIOS IN CALCULATING 8 HER LOST WAGES AND BENEFITS? 9 A. YES. 10 Q. WHAT WERE THOSE SCENARIOS? 11 A. WELL, I MADE TWO ASSUMPTIONS ABOUT HOW LONG SHE WOULD 12 WORK. 13 EXPECTANCY, WHICH IS APPROXIMATELY THE AGE 56.3, AND THE OTHER 14 IS THAT SHE WOULD WORK TO HER FULL SOCIAL SECURITY RETIREMENT 15 AGE, WHICH IS AGE 67. 16 I CALCULATED FOUR SCENARIOS OF LOSS. ONE WAS THAT SHE WOULD WORK TO HER WORK LIFE THEN I MADE TWO ASSUMPTIONS ABOUT WHAT SHE WILL EARN 17 POST-TERMINATION GOING FORWARD IN HER CAREER. 18 ANALYSES, I KEPT HER AT WHAT SHE'S EARNING NOW AT ALASKA 19 AIRLINES AS A CUSTOMER SERVICE REPRESENTATIVE. 20 WHAT I DID WAS I RELIED ON SOME INFORMATION COMPILED BY THE 21 CENSUS ABOUT WHAT PEOPLE EARN OVER THEIR LIFESPAN. 22 ORGANIZED BY GENDER AND RACE AND SO -- AND EDUCATION. IN ONE OF MY IN THE OTHER, AND IT'S 23 SO I TOOK THE EARNINGS OF A WHITE FEMALE WITH A HIGH 24 SCHOOL DEGREE AND WHAT THAT PERSON WOULD EARN, YOU KNOW, 25 BASICALLY FROM THEIR 30'S THROUGH RETIREMENT, AND THEN I DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 680 OSTROFE - DIRECT / ETTINGHOFF 1 ADJUSTED IT FOR WAGES IN THE SAN FRANCISCO BAY AREA. 2 Q. 3 OKAY. AND THAT LAST SCENARIO YOU WERE JUST SPEAKING ABOUT, LET'S 4 FOCUS ON THAT ONE. 5 COMPARISON TO THE OTHERS? 6 A. 7 TO GROW HER WAGES OVER TIME AND IT ALSO ASSUMES THAT SHE WOULD 8 BE MAKING MORE THAN SHE IS MAKING CURRENTLY. 9 Q. HOW WOULD YOU DESCRIBE THAT SCENARIO IN THE LOSSES ARE LOWER IN THIS SCENARIO BECAUSE IT IS GOING AND SO IS THIS -- WOULD YOU SAY THIS IS THE MOST 10 CONSERVATIVE APPROACH OR SCENARIO? 11 A. 12 HAVE, YES. THIS IS THE MOST CONSERVATIVE OF THE FOUR SCENARIOS THAT I 13 14 MR. ETTINGHOFF: OKAY. EXHIBIT 201 INTO EVIDENCE? 15 THE COURT: 16 YOU CAN SHOW IT TO THE JURY. NOT YET. 17 MR. ETTINGHOFF: 18 THE COURT: 19 YOUR HONOR, CAN WE MOVE YOU CAN SHOW IT TO THE JURY. SHOW IT TO THE JURY. OKAY. I HAVE SOME QUESTIONS, BUT WE WILL DEAL WITH THOSE LATER. 20 MR. ETTINGHOFF: 21 OKAY. (DISPLAYED ON SCREEN.) 22 BY MR. ETTINGHOFF: 23 Q. MS. OSTROFE, CAN YOU EXPLAIN WHAT SCHEDULE 1.3 IS? 24 A. YES. 25 SHE WOULD HAVE MADE AT SHELL. THIS IS THE SUMMARY OF MS. NEWTON'S WAGES -- WHAT THAT IS THE ROMAN NUMERAL I, DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 681 OSTROFE - DIRECT / ETTINGHOFF 1 LOST EARNINGS AND FRINGE BENEFITS. 2 PAST AND FUTURE PERIODS. 3 RIGHT, YOU WILL SEE PAST LOSS. 4 DOWN -- THERE YOU GO. AND IT IS DIVIDED INTO SO IF YOU'RE GOING ALONG TO THE OKAY. GO ALL THE WAY DOWN, DOWN, PAST LOSS. 5 SO HAD SHE REMAINED AT SHELL AND CONTINUED TO WORK UP 6 UNTIL APPROXIMATELY THE PRESENT, I TOOK THIS TO NOVEMBER 4TH, 7 2018, WHICH IS A LITTLE EARLIER THAN TODAY'S DATE BECAUSE THAT 8 WAS THE ORIGINAL TRIAL DATE. 9 SHE WOULD HAVE EARNED $220,673 IN WAGES AND FRINGE BENEFITS. 10 SO HAD SHE REMAINED AT SHELL, NOW, SHE HAD ONE BENEFIT THAT'S NOT COUNTED THERE. SHE 11 HAD A PENSION. 12 COLUMN BECAUSE GENERALLY PEOPLE COLLECT THEIR PENSIONS WHEN 13 SHE RETIRE, BUT SHE WOULD HAVE BEEN EARNING PENSION BENEFITS 14 AS SHE HAD WORKED. 15 Q. WERE THERE OTHER BENEFITS SHE WAS GETTING AT SHELL? 16 A. YES. 17 Q. DO YOU RECALL WHAT THOSE WERE? 18 A. YEAH. 19 IT IS COMPLEX. 20 OKAY? AND I'VE PUT THAT IN THE FUTURE LOSS I'M GOING TO REFER TO MY NOTES BECAUSE THEY ARE -THERE IS QUITE A FEW. SO SHE RECEIVED AN ANNUAL BONUS AND THE BONUS WOULD HAVE 21 BEEN UP TO 5 PERCENT OF SALARY. 22 I GAVE HER ABOUT TWO-AND-A-HALF PERCENT OF SALARY AND THAT 23 WOULD HAVE BEEN $1,843 IN 2017 HAD SHE CONTINUED TO WORK AND 24 $1,995 IN 2018. 25 HEALTH INSURANCE AND THOSE WERE WORTH $10,098 A YEAR. I GAVE HER HALF OF THAT. SHE RECEIVED EMPLOYER CONTRIBUTIONS TO HER DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC SO 682 OSTROFE - DIRECT / ETTINGHOFF 1 SHE ALSO HAD SOMETHING CALLED A SAVINGS PLAN, WHICH WAS 2 SORT OF LIKE A 401K WHERE SHELL WOULD CONTRIBUTE MONEY TO HER 3 SAVINGS. 4 SALARY. 5 OF SALARY AND AFTER NINE YEARS IT WOULD INCREASE TO 10 PERCENT 6 OF SALARY. 7 THAT STARTED OUT AT TWO-AND-A-HALF PERCENT OF THEN AFTER SIX YEARS IT WOULD INCREASE TO 5 PERCENT SO IN THE YEARS WE ARE LOOKING AT, IT WOULD HAVE BEEN 8 $1,882 A YEAR IN 2016, $2,186 A YEAR IN 2017, AND $2,366 IN 9 2018. I GAVE HER HER EMPLOYER'S CONTRIBUTIONS TO SOCIAL 10 SECURITY BENEFITS. 11 EARNINGS. 12 A PENSION BENEFIT THAT WOULD BE BASED ON HER AGE, HER YEARS OF 13 SERVICE, AND HER SALARY AT TERMINATION. 14 Q. 15 OF WAGES AND BENEFITS THAT MS. NEWTON LOST FROM THE DATE OF 16 TERMINATION TO THE PRESENT? 17 A. THAT IS THE NUMBER WE JUST LOOKED AT, THE $220,673. 18 Q. OKAY. 19 AT AFTER SHE WAS TERMINATED FROM SHELL? 20 A. I DID. 21 Q. THAT IS HERE, CORRECT (INDICATING)? 22 A. CORRECT. 23 $192,404 THROUGH APPROXIMATELY TODAY. 24 Q. AND DID YOU APPLY PREJUDGMENT INTEREST ON HER PAST LOSS? 25 A. I DID. OKAY. THOSE WOULD HAVE BEEN 6.2 PERCENT OF AND THEN AS I DISCUSSED, SHE WAS ALSO ELIGIBLE FOR AND THEN DID YOU ARRIVE AT A FIGURE FOR THE AMOUNT DID YOU DEDUCT WHAT SHE MADE AT THE JOB SHE WORKED THAT'S THE $28,269 IN BRACKETS. AND SO HER NET WAGE AND BENEFITS LOSS WOULD BE I APPLIED -- 10 PERCENT IS THE LEGAL RATE IN DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 683 OSTROFE - DIRECT / ETTINGHOFF 1 CALIFORNIA. 2 EARNINGS AND TO THE EARNINGS THAT SHE MADE AND THE NET IS 3 $21,015. 4 Q. 5 SO I APPLIED PREJUDGMENT INTEREST TO HER LOST LET'S MOVE TO FUTURE WAGES. DID YOU THEN CALCULATE WHAT HER REASONABLY ANTICIPATED 6 LOST WAGES AND BENEFITS GOING FORWARD FROM TODAY? 7 A. 8 9 10 I DID. WE'RE GOING TO -- OKAY. COLUMN THAT SAYS FUTURE LOSS. THE HIGHLIGHT. 11 WE'RE GOING TO GO FORWARD TO THAT OKAY. THERE YOU GO. THERE'S ALL RIGHT. SO HAD SHE REMAINED AT SHELL UNTIL APPROXIMATELY AGE 52.6, 12 SHE WOULD HAVE MADE $2,876,185. 13 THAT AGE, THE VALUE OF HER PENSION WOULD BE $166,852. 14 WOULD HAVE BEEN HER TOTAL EARNINGS AND BENEFITS AT SHELL. 15 OKAY? AND HAD SHE RETIRED AT WHAT SHE IS PROJECTED TO MAKE IS $1,249,479. SO THAT AND SO THE 16 IN NET LOSS TO HER IN THE FUTURE IS $1,793,558. 17 Q. 18 HER PLACEMENT EMPLOYMENT? 19 A. 20 TESTIFIED YESTERDAY THAT SHE'S MAKING ABOUT $14.50 AN HOUR BUT 21 IT'S ACTUALLY $14.65SO I GAVE HER ANNUAL WAGES OF $30,472. 22 AND THEN -- LET ME GET TO MY NOTES BECAUSE THIS IS A LITTLE 23 COMPLICATED. 24 25 HOW DID YOU CALCULATE WHAT SHE MIGHT BE ABLE TO EARN FROM I TOOK HER AT WHAT SHE IS EARNING NOW, AND I THINK SHE OKAY. SO THEN BEGINNING IN 2019, I BEGAN INCREASING HER EARNINGS UNTIL AT AGE 35 SHE WOULD BE EARNINGS $47,211, WHICH WOULD BE DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 684 OSTROFE - DIRECT / ETTINGHOFF 1 THE AVERAGE EARNINGS OF A WHITE FEMALE WITH A HIGH SCHOOL 2 DIPLOMA IN THE BAY AREA. 3 OKAY? THEN EVERY FIVE YEARS, HER WAGES ARE GOING TO CHANGE AGAIN 4 BASED UPON THE AVERAGE WAGES OF DEMOGRAPHICALLY SIMILAR 5 FEMALES AND SO FORTH THROUGH HER WORK LIFE EXPECTANCY. 6 OKAY? I HAVE ALSO GIVEN HER BENEFITS, HEALTH INSURANCE AND 7 EMPLOYER CONTRIBUTIONS, SOCIAL SECURITY AND THOSE ARE BASED ON 8 AVERAGE BENEFITS AND THE DATA IS COLLECTED BY THE BUREAU OF 9 LABOR STATISTICS. 10 Q. DID YOU DISCOUNT THAT TO LOSS PRESENT VALUE? 11 A. I DISCOUNTED -- ALL THE NUMBERS IN MY REPORT ARE 12 DISCOUNTED TO PRESENT VALUE, THAT'S CORRECT. 13 Q. CAN YOU EXPLAIN WHAT THAT MEANS? 14 A. YES. 15 THEY ARE GIVEN AN AWARD FOR LOSSES IN THE FUTURE, THEY HAVE 16 THE ABILITY TO INVEST THAT MONEY AND EARN A RETURN ON IT. 17 WE DON'T WANT TO OVERCOMPENSATE THEM, SO WE REDUCE IT A LITTLE 18 BIT TO ACCOUNT FOR THE INVESTMENT RETURNS THAT THEY MIGHT 19 RECEIVE. 20 Q. AND YOU PERFORMED THAT CALCULATION HERE, CORRECT? 21 A. YES. 22 VALUE. 23 Q. CAN WE LOOK AT SCHEDULE 3.1? 24 A. SURE. 25 WHAT WE DO IS, BECAUSE WHEN A PLAINTIFF IS -- IF ALL THESE NUMBERS HAVE BEEN REDUCED TO PRESENT I THINK -(DISPLAYED ON SCREEN.) DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC SO 685 OSTROFE - DIRECT / ETTINGHOFF 1 A. 2 SQUINCHY. 3 Q. 4 HERE. 5 A. OKAY. 6 Q. CAN YOU DESCRIBE FIRST WHAT THIS TABLE IS? 7 A. YEAH. 8 KNOW ABOUT YOU BUT THE NUMBERS -- OKAY. 9 I THINK YOU NEED TO PUT IT UP THERE. THE NUMBERS ARE A LITTLE SMALL. IT'S A LITTLE SEE IF WE CAN ZOOM IN HERE IS WHAT I WAS TELLING -- IS THERE ANY WAY TO SHARPEN THE FOCUS? BASICALLY, WHAT WE ARE DOING, WHERE IT SAYS ANNUAL WAGE, 10 YOU WILL FIND THAT THOSE NUMBERS -- THERE YOU GO. 11 MUCH, MUCH BETTER. 12 I DON'T THAT'S HERE WE ARE. IF YOU LOOK AT 2018, GOING OVER THERE TO THE FAR LEFT-HAND 13 COLUMN, YOU HAVE SOME DATES, AND THERE'S $30,472 FOR WAGES. 14 THAT'S HER -- THE $14.65 SHE EARNS AT ALASKA AIRLINES, 15 MULTIPLY 2,080 HOURS PER YEAR. 16 BEGINS TO GROW. 17 UNTIL IT GOES UP TO $47,211 AND THEN IT IS STABILIZED. 18 WE GO -- GET INCREASES TO $49,616, THEN IT INCREASES TO 19 $50,000. 20 YOU WILL NOTICE IN 2019, THAT SO WE HAVE $36,052, THEN IT GOES TO $41,000, THEN SO, BASICALLY, YOU HAVE THESE INCREASES EVERY FIVE YEARS. 21 AND THAT'S BECAUSE WHEN THE CENSUS COMPILES THIS INFORMATION 22 ON AVERAGE, AVERAGE EARNINGS OF PEOPLE WITH 23 VARIOUS DEMOGRAPHICS CHARACTERISTICS -- 24 THE COURT: 25 THE WITNESS: STAY CLOSE TO THE MIC. OKAY. THAT'S BECAUSE, WHEN THE CENSUS DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 686 OSTROFE - DIRECT / ETTINGHOFF 1 BUREAU COMPILES THE INFORMATION ABOUT THE AVERAGE EARNINGS OF 2 PEOPLE WITH VARIOUS DEMOGRAPHIC CHARACTERISTICS, THEY DO IT IN 3 FIVE-YEAR INCREMENTS. 4 THROUGHOUT HER WORK LIFE EXPECTANCY. 5 BY MR. ETTINGHOFF: 6 Q. 7 EXPECTANCY, WHAT AGE WOULD SHE BE AT THAT TIME? 8 A. 9 OUT -- OKAY. SO ASSUMING THE WORK LIFE -- HER WORK LIFE IT IS 56.3. 10 SO I HAVE GIVEN HER THOSE INCREASES LET ME CHECK THAT FOR SURE. AND THAT GOES WHILE SHE IS LOOKING, MR. ETTINGHOFF, THE THE COURT: 11 TOP LEFT CONTROLS COLOR. 12 SCREEN, IT WILL RUN THROUGH DIFFERENT COLORS. 13 HAVE IT ON WHITE FOR SOME REASON. 14 MR. ETTINGHOFF: 15 THE WITNESS: IF YOU TAP ON THE CORNER OF YOUR ALL RIGHT. RIGHT NOW YOU THANK YOU. THAT IS AGE 56.3. BUT I WANT TO BE 16 CAREFUL ABOUT IT. 17 ECONOMISTS USE. 18 GOING TO HAVE THE BIG PARTY AND SHE RETIRES. 19 THE FACT THAT WOMEN, YOU KNOW, AT AGE 30 WITH A HIGH SCHOOL 20 DIPLOMA, BECAUSE WORK LIFE EXPECTANCY IS BASED ON EDUCATION, 21 ARE EXPECTED TO HAVE ABOUT 23 MORE ACTIVE YEARS IN THE LABOR 22 FORCE. 23 THAT IS A LITTLE BIT OF A SHORTHAND THAT DOESN'T MEAN THAT AT AGE 56.3, THEY ARE IT IS BASED ON SO WHAT WE DO IS WE JUST ADD THAT TO THEIR AGE AND SAY 24 OKAY, THEY ARE RETIRING AT 56.3. 25 THAN THAT, BUT THESE ARE THE YEARS SHE WOULD BE EXPECTED TO BE BUT SHE MAY RETIRE LATER DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 687 OSTROFE - DIRECT / ETTINGHOFF 1 ACTIVE AND EARNING. 2 3 MR. ETTINGHOFF: AGAIN. IF YOU DON'T MIND, I CAN HELP MY -- 4 WHY DON'T WE -- ACTUALLY THIS IS A GOOD THE COURT: 5 BREAKING POINT. 6 BREAK. 7 AND I WANT TO PULL UP SCHEDULE 1.3 WHY DON'T WE GO AHEAD AND TAKE OUR MORNING SO THERE SHOULD BE SOMETHING IN THERE FOR YOU. 8 LITTLE BIT MORE ON THE SWEET SIDE. 9 HOPE YOU ENJOY IT. 10 13 HOPEFULLY IT'S THERE. WE WILL SEE YOU IN ABOUT 15 MINUTES. THE COURT: THE RECORD WILL REFLECT THE JURY HAS LEFT THE ROOM. TWO THINGS. ONE, IT IS IN MY ORDER AND I MENTIONED IT 14 MANY TIMES. 15 ANY EXHIBIT THAT'S NOT ON THE LIST. 16 WITNESSES ARE NEVER SHOWN OR PARTIES CANNOT USE THAT EXHIBIT WAS NOT ON THE LIST. 17 MORNING. 18 THEY COULD HAVE BEEN IDENTIFIED. 19 IMPEACHMENT THAT I SAW. 20 WHY YOU WERE DENIED. 21 I (PROCEEDINGS HELD OUTSIDE THE PRESENCE OF THE JURY.) 11 12 IT'S A IT WAS NOT RAISED THIS OBVIOUSLY, YOU MUST HAVE HAD THE TEXT MESSAGES. MR. LAFAYETTE: THERE WAS NO GRAND IT WAS NOT APPROPRIATE. SO, THAT'S THANK YOU, YOUR HONOR. I APOLOGIZE 22 TO THE COURT. 23 IF IT WOULD REFRESH HER RECOLLECTION. 24 LOOKING AT IT AS IMPEACHMENT. 25 THE COURT: IT WAS MY INTENT TO TRY AND SHOW IT TO HER, SEE THAT WAS IT. YOU SAID IMPEACHMENT. I WASN'T IN ANY EVENT. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 688 OSTROFE - DIRECT / ETTINGHOFF 1 NOW, EVERY MORNING WE TALK. EVERY MORNING. 2 WE HAD LOTS OF EXTRA TIME. 3 THE EXPERT REPORT WASN'T RAISED IS BEYOND ME. 4 THIS MORNING WHY THE HECK SOME OBJECTION ABOUT SO, THAT'S WHY I'M ALLOWING THIS TO GO ON. I DON'T KNOW 5 WHAT, IF ANYTHING, IS THE ISSUE, BUT IT SHOULD HAVE BEEN 6 RAISED THIS MORNING. 7 MS. LYONS: SO WHAT IS THE ISSUE? THE ISSUE, YOUR HONOR, IS THAT 8 MR. ETTINGHOFF IS USING AN EXHIBIT THAT WAS FIRST PRODUCED TO 9 US -- 10 11 THE COURT: WHY DIDN'T YOU RAISE IT THIS MORNING OR YESTERDAY? 12 MS. LYONS: BECAUSE WE HAD NO ADVANCED NOTICE OF 14 THE COURT: IT IS IN THE EXHIBIT BINDER. 15 MS. LYONS: WE WERE NOT AWARE OF WHAT MR. ETTINGHOFF 13 WHAT -- 16 WOULD PROPOSE TO DO. 17 AND SHE INCREASED THEM TO FOUR IN HER OCTOBER REPORT, 18 PRECLUDING EXAMINATION BY OUR OFFICE ON THEM. 19 20 21 THE COURT: MS. OSTROFE STARTED WITH TWO SCENARIOS OKAY. SO YOU KNEW ABOUT THIS IN OCTOBER AND TODAY IT IS DECEMBER 13TH, AND I'M HEARING IT IN TRIAL? MS. LYONS: I WOULD HAVE EXPECTED THEM TO HAVE 22 RESTRICTED THEIR EXPERT EXAMINATION TO WHAT THEY REPORTED 23 UNDER THE COURT-ORDERED TIMELINE. 24 25 THE COURT: YEAH. AND YOU KNOW HOW MUCH LITIGATION HAS HAPPENED IN THIS COURTROOM ABOUT ALL SORTS OF THINGS THAT DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 689 OSTROFE - DIRECT / ETTINGHOFF 1 ARE EXPECTED OR NOT EXPECTED? 2 WE DON'T DO THIS IN THE MIDDLE OF TESTIMONY. YOU GUYS 3 RAISE MOTIONS AND FILE MOTIONS AND YOU FILE THEM AND CHANGE 4 THINGS ALL THE TIME. 5 OF YOU THAT THAT WAS INAPPROPRIATE. 6 I HAVE HAD TO REPEATEDLY EXPLAIN TO ALL IF YOU HAD A CONCERN BECAUSE SOMETHING WAS RAISED IN 7 OCTOBER, YOU ARE BEYOND THE DEADLINE, THIS SHOULD HAVE BEEN 8 RAISED. 9 I WOULD HAVE GIVEN YOU THE OPPORTUNITY TO DEPOSE HER. AN OBJECTION AFTER EVERY MORNING I ASK ARE THERE ISSUES, 10 IT IS NEVER RAISED WHEN IT'S IN THE BINDERS? 11 PRODUCED? 12 WHEN IT IS IS NOT -- IT IS BEYOND ME WHY THIS HAS HAPPENED. I WANT TO UNDERSTAND WHAT THE DIFFERENCES AND WHY WAS IT 13 THAT THESE THINGS WERE PRODUCED AFTER HER DEPOSITION? 14 THAT FAIR? 15 MR. ETTINGHOFF: HOW IS SHE -- SO MS. OSTROFE PRODUCED THE 16 SUPPLEMENTAL REPORT THAT WENT -- THAT BASICALLY RESPONDED TO 17 SOME OF THE QUESTIONS THAT WERE MADE IN -- THAT WERE ASKED IN 18 HER DEPOSITION. 19 THEN THERE WAS ALSO AN ISSUE ABOUT THE PAGE NUMBERS AND 20 THE TABLE OF CONTENTS THAT SHE HAD NOT INCLUDED. 21 IT IN SEVERAL REVISED VERSIONS THAT WE SENT TO COUNSEL MONTHS 22 AGO. 23 THE COURT: SHE INCLUDED AND WHY IS IT THAT YOU THINK THAT YOU 24 COULD HAVE A SUPPLEMENTAL REPORT AFTER MY CUT-OFF AND AFTER 25 THE DEPOSITION? DID YOU OFFER TO HAVE HER DEPOSED ON THOSE DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 690 OSTROFE - DIRECT / ETTINGHOFF 1 ADDITIONAL TOPICS? 2 MS. SMALLETS: 3 MS. LYONS: 4 MS. SMALLETS: YES, YOUR HONOR. NO, YOUR HONOR. FEDERAL RULES ALLOW FOR SUPPLEMENTAL 5 REPORTS. 6 OF THE INITIAL EXPERT REPORT, MS. NEWTON HAD JUST GOTTEN THE 7 JOB AT ALASKA AIRLINES. 8 CAME AROUND, THERE WAS MORE INFORMATION THAT ALLOWED FOR 9 BETTER CALCULATIONS. 10 MS. OSTROFE IS -- SO TWO ISSUES. MS -- AT THE TIME BY THE TIME THE SUPPLEMENTAL DEADLINE SECOND OF ALL, AT HER DEPOSITION, COUNSEL RAISED THE 11 OBJECTION THAT THESE SCENARIOS WERE NOT SUFFICIENTLY 12 CONSERVATIVE. 13 CONCERNS, MS. OSTROFE CALCULATED TWO MORE CONSERVATIVE 14 SCENARIOS. 15 REPORTS IN THE FEDERAL RULES OF CIVIL PROCEDURE. 16 SO IN RESPONSE TO THAT DEPOSITION -- THOSE WE SERVED THEM ON THE DEADLINE FOR SUPPLEMENTAL COUNSEL OBJECTED AT THAT TIME. WE SAID WE HAD NO 17 OBJECTION TO BRINGING HER BACK. 18 FOR IT. 19 THESE NEW SCENARIOS THAT ADDRESSED CONCERNS THAT THEY HAD 20 RAISED. 21 AND HAVEN'T RAISED SINCE THE OCTOBER TIME FRAME. 22 23 WE DIDN'T THINK WE HAD TO PAY BUT WE HAD NO OBJECTION TO THEM DEPOSING HER AGAIN ON THEY DROPPED IT. MR. LAFAYETTE: THEY DIDN'T ASK TO HAVE HER BACK IF I COULD, YOUR HONOR. THIS DOCUMENT WASN'T ON THE ORIGINAL SUBMISSION TO THE 24 COURT ON OCTOBER 5 THAT WE DID. 25 IT'S DOCKET NO. 182. IT WASN'T ON THE -- I THINK I SEE IT ON DOCKET NO. 215 ON 12/5. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 691 OSTROFE - DIRECT / ETTINGHOFF 1 WHEN I SEE IT ON THAT DOCKET NUMBER, I SEE THE DEFENDANTS MADE 2 AN OBJECTION AND ONE OF THE OBJECTIONS WAS UNTIMELY. 3 MS. SMALLETS: 4 MR. LAFAYETTE: 5 YOUR HONOR -THERE WAS AN OBJECTION MADE TO THIS DOCUMENT WHEN THIS DOCUMENT WAS SUBMITTED TO THE COURT. 6 THE COURT: MR. LAFAYETTE, YOU KNOW -- MAYBE 7 MS. LYONS DOESN'T, I DON'T KNOW HOW OFTEN SHE TRIES CASES. 8 YOU KNOW THIS SHOULD HAVE BEEN RAISED THIS MORNING. 9 AND I APOLOGIZE TO THE COURT THAT IT MR. LAFAYETTE: 10 WASN'T RAISED THIS MORNING. 11 ANYTHING TO UNDERMINE THE PROCESS THAT WE ARE GOING THROUGH. 12 13 THE COURT: IT WASN'T AN INTENT TO DO SO NOW WE HAVE THINGS THAT ARE MORE CONSERVATIVE? 14 MS. SMALLETS: YES, YOUR HONOR. THE ORIGINAL 15 SCENARIOS IN THE ORIGINAL PART WERE FOUR MILLION AND THREE 16 MILLION. THESE ARE LESS. THE NUMBERS ARE LOWER. WE -- 17 THE COURT: SO HOW IS THERE ANY PREJUDICE? 18 MS. LYONS: NO PREJUDICE. 19 OPPORTUNITY TO EXAMINE HER ON THE REMAINING ASSUMPTIONS. 20 21 SIMPLY A LACK OF THE COURT: IT. NOW YOU GET A FOUR-MINUTE BREAK. ACTUALLY FOUR PLUS FIVE. THAT'S NINE MINUTES. 22 (RECESS TAKEN AT 10:11 A.M.; RESUMED AT 10:19 A.M.) 23 (PROCEEDINGS HELD OUTSIDE THE PRESENCE OF THE JURY.) 24 THE CLERK: 25 MR. LAFAYETTE: REMAIN SEATED. BEFORE THE JURY COMES BACK, YOUR DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 692 OSTROFE - DIRECT / ETTINGHOFF 1 2 HONOR? I'M GOING TO DO THE CROSS-EXAMINATION OF HER. 3 4 THE COURT: ALL RIGHT. LET'S CALL THE JURY BACK IN. 5 (PROCEEDINGS HELD IN THE PRESENCE OF THE JURY.) 6 7 ALL RIGHT. THE COURT: GOOD MORNING. WE ARE BACK ON THE RECORD. THE RECORD WILL REFLECT THE JURY IS BACK. 8 JUROR: IT IS ALL GONE NOW. 9 JUROR: IT WAS GOOD. 10 THE COURT: SO HOW WAS IT? I ONLY GAVE YOU EIGHT PIECES SO NO ONE 11 WAS FIGHTING OVER ANY LEFTOVERS. 12 THE LAST TWO PIECES. 13 TIME, MR. ETTINGHOFF, NOT YOURS. MY CLERKS HAD TO FIGHT OVER BUT I DO RECALL -- AND THIS IS ON MY 14 MR. ETTINGHOFF: 15 THE COURT: DON'T WORRY. THAT'S OKAY. WHEN I WAS PREGNANT, I THINK IT WAS MY 16 FIRST SON, I HAD BEEN VERY GOOD AND I DIDN'T DO ANY COFFEE, 17 RIGHT? 18 BUT FIRST ONE, NO COFFEE. 19 NO COFFEE WHATSOEVER. I CHANGED WITH THE OTHER TWO. THEN I HAD LIKE WHAT I GAVE YOU GUYS. 20 HAD KIND OF THE COFFEE FLAVOR. 21 THIS IS SO GOOD, THAT COFFEE TASTE. 22 I'M GLAD YOU ENJOYED IT. 23 NEXT BREAK. 24 25 OKAY. IT WAS DESSERT THAT I THINK I HAD FOUR PIECES. I AM VERY ADDICTED NOW. SOMETHING EVEN DIFFERENT FOR THE WE WILL SEE IF YOU LIKE THAT ONE. I HAVE THE JURY NOW FED, CAFFEINED AND READY TO KEEP GOING. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 693 OSTROFE - DIRECT / ETTINGHOFF 1 YOU MAY PROCEED. 2 MR. ETTINGHOFF: I AM NOT QUITE AS EXCITING AS THOSE 3 SWEETS, BUT LET'S KEEP GOING. 4 AGAIN? 5 THE WITNESS: 6 THE COURT: 7 EXHIBIT 201. CAN WE PULL UP SCHEDULE 3.1 MY SCREEN IS DARK. AND AT THIS POINT I WILL ADMIT GO AHEAD. 8 (PLAINTIFF'S EXHIBIT 201 RECEIVED IN EVIDENCE) 9 (DISPLAYED ON SCREEN.) 10 THE WITNESS: 11 OKAY. THIS IS 1.3. (DISPLAYED ON SCREEN.) 12 BY MR. ETTINGHOFF: 13 Q. OKAY. 14 A. AND THEN IF WE CAN MAKE IT JUST A LITTLE BIT SHARPER. 15 ARE GOING TO PULL PART OF IT UP. 16 Q. 17 WHAT SHE IS GOING TO MAKE IN THE FUTURE, CORRECT, AT ALASKA 18 AIRLINES? 19 A. NO. 20 Q. OKAY. 21 A. WE ARE ASSUMING THAT HER EARNINGS ARE GOING TO GROW BEYOND 22 THAT BASED ON AVERAGE EARNINGS FOR WOMEN, WHITE WOMAN WITH A 23 HIGH SCHOOL EDUCATION IN THE SAN FRANCISCO BAY AREA. 24 PULLED HER UP TO 47,211. 25 Q. ALL RIGHT. YOU THERE YOU GO. JUST TO REMIND THE JURY WHAT WE ARE DOING HERE. THIS IS THE ALASKA AIRLINES EARNINGS ARE THE 30,472. OKAY. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC SO I 694 OSTROFE - DIRECT / ETTINGHOFF 1 A. OKAY. 2 Q. SO WHERE ON THIS -- ON THIS CHART ON 3.1, YOU WERE SHOWING 3 US EVERY FIVE YEARS HER WAGES INCREASE, CORRECT? 4 A. 5 THERE IS A BOLD NUMBER. 6 NUMBER. 7 Q. OKAY. 8 A. RIGHT AFTER AGE 55. 9 Q. OKAY. 10 A. THEN IT GOES ALL THE WAY OUT TO 67. 11 Q. OKAY. 12 RIGHT. THAT IS THE BOLD. SEE WHERE IT SAYS AGE 35 AND AND AGE 40, AND THERE IS A BOLD AND AGE 45. WHERE IS THE END OF WORK LIFE EXPECTANCY? AND IF YOU WERE TO CALCULATE THE LOSSES TO APPROXIMATELY 13 TEN YEARS AFTER THE DATE OF TRIAL, HOW WOULD YOU MAKE THAT 14 CALCULATION? 15 A. 16 COUNT UP TO THIS DATE. 17 12/11/2028. 18 OKAY. IF I WAS TO DO THAT, WHAT I WOULD DO IS I WOULD I WOULD GO OUT TO APPROXIMATELY RIGHT UP THERE. OKAY. SEE IF THAT'S THE RIGHT NUMBER. IS THAT 539,384. THAT 19 IS. 20 OF TRIAL. 21 MAKE THAT MUCH. 22 Q. OKAY. 23 A. IN ALTERNATE EMPLOYMENT. 24 Q. IN ALTERNATE EMPLOYMENT SHE WOULD BE MAKING 539,384? 25 A. RIGHT. OKAY. SO THIS IS APPROXIMATELY TEN YEARS FROM THE DATE AND SHE WOULD MAKE THE $539,384, IS PROJECTED TO DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 695 OSTROFE - DIRECT / ETTINGHOFF 1 SO THIS TABLE IS GOING TO TELL YOU YEAR BY YEAR OVER HERE 2 IN THE FAR RIGHT-HAND COLUMN, THAT'S GOING TO BE HER 3 CUMULATIVE LOSS -- ACTUALLY HER CUMULATIVE EARNINGS. 4 YEAR I ADD ON WHAT SHE WOULD MAKE THAT YEAR. 5 DOWN TO FIND OUT WHAT SHE WOULD BE MAKING EACH YEAR INTO THE 6 FUTURE. 7 Q. OKAY. AND LET'S LOOK AT SCHEDULE 2.0. 8 A. OKAY. THIS IS WHAT SHE'S PROJECTED TO MAKE, JUST TO BE 9 CLEAR ABOUT IT, WE ARE GOING TO GO TO SCHEDULE 2.0 WHICH IS SO EVERY YOU FOLLOW THAT 10 WHAT SHE WOULD HAVE MADE HAD SHE REMAINED AT SHELL. 11 Q. OKAY. 12 (DISPLAYED ON SCREEN.) 13 A. 14 BIT. 15 OKAY. 16 1/31/2028. 17 WOULD HAVE MADE HAD SHE REMAINED AT SHELL TEN YEARS INTO THE 18 FUTURE. 19 Q. DOES THAT INCLUDE HER PENSION? 20 A. NO. 21 REMAINED AT SHELL FOR TEN YEARS IS $56,913. 22 MADE THAT PLUS HER PENSION WOULD HAVE BEEN WORTH $56,913. 23 Q. 24 IF WE GO TO SCHEDULE 1.3? 25 A. AND AT 2.0, WE'RE GOING TO GO -- BLOW IT UP JUST A LITTLE OKAY. WE'RE GOING TO GO TO 13 -- 1,313,344. AND LET'S GO OVER HERE TO THE DATE. OKAY. THAT IS APPROXIMATELY TEN YEARS. GOT THAT? I THINK THAT IS TO THAT IS WHAT SHE WHAT HER PENSION WOULD HAVE BEEN WORTH HAD SHE SO SHE WOULD HAVE IS THE TEN-YEAR ESTIMATE INCLUDED ON THAT SUMMARY IT IS NOT. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 696 OSTROFE - DIRECT / ETTINGHOFF 1 Q. HOW WOULD WE CALCULATE THAT NUMBER -- 2 A. OKAY. 3 Q. -- BASICALLY? 4 A. YOU WOULD TAKE THE $1,313,344, YOU WOULD ADD THE $56,913, 5 WHICH IS THE NUMBER THAT I GAVE YOU FOR HER PENSION, AND SO 6 HER TOTAL LOST WAGES AND BENEFITS AND PENSION WOULD BE 7 $1,370,257. 8 Q. THAT'S THE TOTAL THAT LOSS HAD SHE REMAINED AT SHELL -- 9 A. REMAINED AT SHELL FOR TEN YEARS. THAT'S NOT INCLUDING 10 WHAT SHE LOST TO DATE. 11 Q. OKAY. 12 A. WHICH WE ALREADY LOOKED AT. 13 INTO THE FUTURE. 14 Q. OKAY. 15 A. CORRECT. 16 Q. SO THE TOTAL LOSS, HAD SHE REMAINED AT SHELL, YOU TAKE THE 17 NUMBER FROM THE RIGHT-HAND COLUMN? 18 A. 19 OUT. 20 Q. OKAY. 21 A. SO HER TOTAL LOSS FUTURE WAGES ARE 1,370,257. 22 THAT IS THE NEXT TEN YEARS AND THAT'S THAT NUMBER WE TOOK FROM SCHEDULE 2.0? THE 1,313,344. THERE YOU GO. WHICH IS ABOUT TEN YEARS THEN YOU ADD THE SHELL PENSION, WHICH IS 56,913. FOR THE COURT REPORTER, IT IS 1,370,257. 23 Q. NOW, DO WE HAVE TO SUBTRACT A NUMBER FROM THAT? 24 A. YES. 25 WHAT SHE IS PROJECTED TO MAKE. THAT'S WHAT SHE WOULD HAVE MADE AND THEN WE SUBTRACT OKAY? WHICH IS WHAT WE LOOKED DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 697 OSTROFE - CROSS / LAFAYETTE 1 AT BEFORE ON SCHEDULE 3.1 WHICH IS THE 539,384. 539,384. 2 SO HER NET TOTAL LOSS, THE DIFFERENCE BETWEEN WHAT SHE 3 WOULD HAVE MADE AT SHELL HAD SHE WORKED FOR THE NEXT TEN YEARS 4 AND WHAT SHE'S PROJECTED TO MAKE IF SHE WORKS IN ALTERNATE 5 EMPLOYMENT FOR THE NEXT TEN YEARS, IS $830,873. 6 THEN WE ADD THE NUMBER THAT WE LOOKED AT PREVIOUSLY, WHICH IS 7 WHAT SHE HAS LOST TO DATE, WHICH IS THE $213,419. 8 Q. OKAY. 9 A. IT IS. 830,873. AND THAT IS ON SCHEDULE 1.3, CORRECT? 10 SO HER TOTAL LOSS IS $1,044,292. 11 NOW, THAT NUMBER IS NOT STRICTLY CORRECT BECAUSE I HAVE 12 DIFFERENT ENDING DATES ON SCHEDULE 1.3, BECAUSE I WAS DOING 13 DIFFERENT CALCULATIONS THEN ON SCHEDULE 2.0. 14 OUT AND DID EXACTLY TEN YEARS, THROUGH NOVEMBER 4TH, 2028, THE 15 LOSS WOULD BE $1,019,290. 16 MR. ETTINGHOF: 17 THE COURT: 18 MR. LAFAYETTE: 19 1,044,292. IF WE TOOK IT SO THAT IS 1,019,290. NO FURTHER QUESTIONS. MR. LAFAYETTE. YES, YOUR HONOR. CROSS-EXAMINATION 20 BY MR. LAFAYETTE: 21 Q. GOOD MORNING. 22 A. GOOD MORNING, MR. LAFAYETTE. 23 Q. HOW ARE YOU? 24 A. I SHOULD POINT OUT, I HAVE NOT HAD MY COFFEE. 25 Q. I HOPE THAT WON'T HURT US HERE TODAY? DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 698 OSTROFE - CROSS / LAFAYETTE 1 A. IT WILL HURT ME. 2 Q. LET ME ASK YOU A FEW QUESTIONS ABOUT WHAT YOU DO. 3 A. OKAY. 4 Q. NOW, YOU GET PAID FOR WHAT YOU DO, RIGHT? 5 A. I DO. 6 Q. HOW MUCH MONEY DO YOU GET PAID AN HOUR FOR WHAT YOU DO? 7 A. WELL, THERE'S TWO QUESTIONS -- QUESTION AS YOU KNOW 8 COMMONLY COMES UP. 9 PAID. 10 IT IS HURTING ME NOW. OKAY? WHAT DO I BILL IS DIFFERENT FROM WHAT I AM SINCE I'M UNDER OATH, I HAVE TO MAKE THAT DISTINCTION 11 BECAUSE I'M NOT PAID ANYWHERE CLOSE TO WHAT I BILL BECAUSE 12 THAT GOES BACK TO MY FIRM AND THEY PAY EXPENSES. 13 KIND OF THING. 14 Q. WHAT DO YOU BILL AN HOUR? 15 A. FOR TESTIMONY, WHAT I BILL IS $395 AN HOUR, 395 FOR THE 16 COURT REPORTER. 17 TOGETHER IS $245 AN HOUR. 245. 18 Q. HOW MUCH ARE YOU BEING PAID TO BE HERE TODAY? 19 A. RIGHT NOW I'M BEING PAID $395 AN HOUR. 20 Q. OKAY. 21 A. IF I AM PAID. 22 Q. UNDERSTAND THAT TOO. 23 ALL THAT AND WHAT I BILL WHEN I'M PUTTING MY ANALYSES SOMETIMES I AM NOT. DID YOU SUBMIT AN INVOICE FOR PREPARING THE REPORT THAT 24 YOU PREPARED? 25 A. I DID. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 699 OSTROFE - CROSS / LAFAYETTE 1 Q. HOW MUCH MONEY HAVE YOU INVOICED FOR THE REPORT SO FAR? 2 A. THAT IS A GOOD QUESTION. 3 WOULD SAY PROBABLY FOR A FEDERAL REPORT, THE COST IS USUALLY 4 CLOSE TO ABOUT $5,000 BECAUSE IT IS A LOT OF WORK. 5 Q. 6 RIGHT? 7 A. CORRECT. 8 Q. DID YOU GET PAID -- DID YOU CHARGE AN HOURLY RATE FOR THE 9 DEPOSITION? ALL RIGHT. I DON'T KNOW PRECISELY, BUT I AND THEN YOU HAD TO APPEAR FOR A DEPOSITION, 10 A. 11 THE $395 RATE. 12 Q. 13 TESTIFYING? 14 A. WELL, MY LIFE'S WORK INCLUDES A LOT MORE. 15 Q. I PROBABLY OVERSTATED IT. 16 A. DON'T ASK THAT QUESTION WHEN I HAVEN'T HAD MY COFFEE. 17 THIS IS PARTIALLY WHAT I DO. 18 LOT OF WORK, TOO. 19 Q. BUT THIS IS YOUR OCCUPATION? 20 A. THIS IS MY OCCUPATION IS A GOOD WORD FOR IT. 21 Q. APPROXIMATELY, HOW MANY CASES A YEAR DO YOU TESTIFY IN? 22 A. NOT A LOT BECAUSE I DO A LOT OF SUPPORT WORK IN THE 23 OFFICE. 24 TIMES A YEAR. IT'S NOT THAT -- AND A LOT OF THE CASES SETTLE 25 BEFORE TRIAL. SO COMING TO TRIAL IS AN INFREQUENT OCCURRENCE RIGHT. THAT WOULD BE MY TESTIMONY RATE. SO THAT WAS AT AND SO THIS IS WHAT YOUR LIFE'S WORK IS NOW, RIGHT? I AM ALSO A MOTHER. THAT IS A SO I WOULD SAY COMING TO TRIAL IS MAYBE FOUR OR FIVE DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 700 OSTROFE - CROSS / LAFAYETTE 1 FOR ME. 2 Q. HOW MANY REPORTS DO YOU PREPARE A YEAR? 3 A. I WOULD SAY UPWARDS OF 50 AT LEAST. 4 Q. SO THEN LET'S TALK A LITTLE BIT ABOUT HOW YOU GO ABOUT 5 PREPARING THE REPORTS. 6 A. OKAY. 7 Q. SO WHEN YOU DO THESE REPORTS, IS THE SUMMARY REPORT 8 SCHEDULE TWO -- WHICH PAGE IS IT ON? 9 A. THE SUMMARY REPORT -- 10 Q. PAGE 6? 11 A. I CAN'T ANSWER THAT QUESTION BECAUSE I DON'T HAVE THE -- I 12 DON'T HAVE THE EXHIBIT. 13 THE THREE PAGES WE WENT OVER. 14 Q. I AM LOOKING AT SCHEDULE 1.3. 15 A. OKAY. 16 Q. YES. 17 A. YES. 18 Q. IS THAT YOUR SUMMARY? 19 A. THAT IS ONE -- I HAD FOUR SCENARIOS. 20 SUMMARIES. 21 Q. 22 23 I JUST HAVE A PORTION OF IT. JUST DO YOU HAVE IT THERE? IN EXHIBIT 201? YES. THIS IS ONE OF FOUR SO LET'S TALK ABOUT THIS ONE FOR A SECOND. NOW, IF I AM LOOKING AT THIS, RIGHT HERE I(INDICATING) WHERE IT SAYS -- 24 25 OKAY? THE COURT: ARE YOU GOING TO PUT IT UP FOR THE JURY OR NOT? DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 701 OSTROFE - CROSS / LAFAYETTE 1 MR. LAFAYETTE: 2 YES, YOUR HONOR. (DISPLAYED ON SCREEN.) 3 THE COURT: 4 BY MR. LAFAYETTE: 5 Q. 6 THAT? 7 A. CORRECT. 8 Q. ALL RIGHT. 9 CALCULATING THAT. THANK YOU. SO IT SAYS THIS COLUMN OVER HERE FUTURE LOSS. DO YOU SEE I WANT TO TALK ABOUT HOW YOU GO ABOUT 10 A. OKAY. 11 Q. THIS TOP NUMBER UP HERE, THE THREE MILLION FORTY-THREE 12 NUMBER. 13 A. RIGHT. 14 Q. THAT'S WHAT YOU ARE SAYING SHE WOULD HAVE MADE HAD SHE 15 REMAINED AT SHELL? 16 A. CORRECT. 17 Q. I WANT TO TALK ABOUT THE ASSUMPTIONS THERE. 18 A. OKAY. 19 Q. FIRST OF ALL, YOU ARE ASSUMING SHE IS GOING TO STAY AT 20 SHELL FOR THE REST OF HER WORK LIFE. 21 A. THAT'S CORRECT. 22 Q. NOW, DO YOU MAKE AN ASSUMPTION AS TO WHETHER OR NOT SHE'S 23 GOING TO RECEIVE OVERTIME? 24 A. I DID MAKE AN ASSUMPTION ABOUT OVERTIME. 25 Q. SO PART OF THAT -- AND WHAT PERCENTAGE OF THIS NUMBER IS WOULD THAT BE TRUE? DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 702 OSTROFE - CROSS / LAFAYETTE 1 YOUR ASSUMPTION OF OVERTIME? 2 A. 3 TO TELL YOU THAT. 4 Q. 5 THAT AFFECT YOUR REPORT? 6 A. IT WOULD. 7 Q. OKAY. 8 OVERTIME? 9 A. FROM HER PAY STATEMENT. 10 Q. FROM HER PAY STATEMENT? 11 A. YEAH. 12 Q. SO YOU ASSUMED THAT WOULD HAPPENED FOR THE REST OF HER 13 WORK LIFE? 14 A. I DID. 15 Q. OKAY. 16 ASSUMED. 17 I HAVE TO LOOK AT MY REPORT -- IT'S NOT IN THIS EXHIBIT -- LET ME ASK YOU THIS: IF SHE DIDN'T GET OVERTIME, WOULD BUT I UNDERSTATED OVERTIME IN MY REPORT. AND FROM WHERE DID YOU GET THIS UNDERSTANDING OF IT BREAKS OUT WHERE THE OVERTIME IS. THAT'S ALL I WANT TO KNOW IF THAT IS WHAT YOU OKAY? NOW, THIS ASSUMPTION ABOUT GOING INTO THE FUTURE. DID YOU 18 MAKE AN ASSUMPTION AS TO HOW MUCH HER INCOME, HER PAY WOULD 19 CHANGE EACH YEAR? 20 A. YES. 21 Q. AND WHAT WAS THE BASIS OF THAT ASSUMPTION? 22 A. THAT WAS AN -- IT WAS AN AGREEMENT WITH THE UNION. 23 Q. YES. 24 A. AND IT HAD HER HOURLY WAGE WAS GOING TO INCREASE EVERY 12 25 MONTHS ESSENTIALLY. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 703 OSTROFE - CROSS / LAFAYETTE 1 Q. 2 HER WORK LIFE, DID IT? 3 A. 4 MONTHS AND I JUST LEFT IT THERE. 5 Q. SO YOU DIDN'T CHANGE IT AT ALL AFTER THAT? 6 A. NO. 7 INSTANCE, COST-OF-LIVING INCREASES AND THAT'S BUILT INTO MY 8 NET DISCOUNT RATE. 9 ASSUMING THERE IS A CERTAIN COMPONENT OF WAGE GROWTH AND THEN BUT THAT UNION AGREEMENT DIDN'T GO THROUGH THE BALANCE OF NO. SO I HELD HER WAGES CONSTANT AFTER SHE RECEIVED 48 BECAUSE I HAVE ASSUMED THAT THERE WOULD BE, FOR SO WHEN I AM DISCOUNTING THE NUMBERS, I'M 10 THERE'S THE TIME VALUE OF MONEY. 11 Q. 12 REFINERY WOULD BE OWNED AND OPERATED BY THE SAME COMPANY 13 THROUGHOUT THE BALANCE OF HER WORK LIFE? 14 A. 15 IT MAY NOT. 16 Q. BUT DID YOU -- 17 A. I MADE THAT ASSUMPTION BECAUSE AT THIS POINT IN TIME I 18 DON'T HAVE A BETTER ASSUMPTION TO MAKE. 19 Q. 20 YEARS HOW MANY REFINERIES IN THIS STATE HAVE ACTUALLY CHANGED 21 HANDS? 22 A. I DID. 23 Q. DID YOU FIND THAT THERE HAVE BEEN A NUMBER OF REFINERIES 24 THAT HAVE CHANGED HANDS IN THE LAST FIVE YEARS? 25 A. LET ME ASK YOU SOMETHING: DID YOU ASSUME THAT THAT WHAT I DID WAS -- WELL, WE SHOULD SAY, IT MAY NOT. OKAY? DID YOU DO ANY RESEARCH TO EVALUATE WITHIN THE LAST FIVE YES. THAT IS TRUE. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 704 OSTROFE - CROSS / LAFAYETTE 1 Q. 2 FUTURE THAT ALL OF THESE REFINERIES BASED UPON YOUR RESEARCH 3 ARE GOING TO REMAIN IN THE SAME HANDS, IS THERE? 4 A. NO. 5 Q. THAT IS YOUR ASSUMPTION, RIGHT? 6 A. IT WASN'T MY ASSUMPTION. 7 WAGES AND BENEFITS. 8 Q. 9 GOING TO REMAIN WITH THE SAME EMPLOYER FOR THOSE BENEFITS, AND SO THERE IS NO GUARANTEE IN THIS BUSINESS IN THE I NEEDED TO PROJECT FORWARD BUT FOR PURPOSES OF DOING THAT, YOU'RE ASSUMING THAT SHE'S 10 RIGHT? 11 A. 12 DON'T KNOW THAT THE REFINERY HAS BEEN DISCUSSED AS SHELL MAY 13 SELL IT SINCE 2017 THAT I AM AWARE OF IN MY RESEARCH BUT THEY 14 HAVEN'T. 15 Q. 16 THOSE ARE IN MEDIA PUBLICATIONS, RIGHT? 17 A. THEY ARE IN MEDIA PUBLICATIONS. 18 Q. SO WHEN YOU'VE READ THAT, YOU CAME AWAY WITH THE 19 UNDERSTANDING THAT AT LEAST AS OF 2017, THERE ARE DISCUSSIONS 20 AND YOU DON'T KNOW IF SHELL IS GOING TO CONTINUE TO OPERATE 21 AND OWN THIS REFINERY, DO YOU? 22 A. 23 THE PIPELINE THAT FEEDS THE REFINERY. 24 DISCUSSION OF SELLING THE REFINERY BUT THAT SEEMS TO HAVE 25 ABATED A LITTLE BIT. I DON'T KNOW -- RIGHT NOW, FIRST OF ALL I WOULD SAY I SO YOU ARE AWARE FROM YOUR RESEARCH, AND I AM ASSUMING CURRENTLY, WHAT IS UNDER DISCUSSION AS I UNDERSTAND IT IS, IN 2017, THERE WAS SOME DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 705 OSTROFE - CROSS / LAFAYETTE 1 Q. 2 THIS REFINERY, DO YOU? 3 A. I DO NOT. 4 Q. SO, AND IF THEY NO LONGER OWN THIS REFINERY, AND IF SHE NO 5 LONGER WORKED THERE, WOULD THAT IMPACT YOUR FUTURE WAGE LOSS 6 CALCULATION? 7 A. 8 OVER THE REFINERY AND WHAT BENEFITS THEY OFFER OR EVEN IF THEY 9 WOULD, THERE'S TO USE SOMETHING AS A PROXY FOR WHAT SHE WOULD BUT YOU DON'T KNOW IF THEY ARE GOING TO CONTINUE TO OWN IT MAY. BUT UNTIL WE KNOW TO WHAT EMPLOYER WOULD TAKE 10 MAKE AS A PROCESS OPERATOR. 11 Q. SO -- 12 A. SO I USED THE SHELL WAGES AND BENEFITS BECAUSE AT THE TIME 13 OF WRITING MY REPORT THAT IS THE BEST INFORMATION THAT WE 14 HAVE. 15 Q. 16 DIFFERENT QUESTIONS THOSE? 17 A. OKAY. 18 Q. IF SOMEONE ELSE PURCHASED THE REFINERY, YOU HAVE NO IDEA 19 AS TO WHETHER OR NOT SHE WOULD REMAIN, DO YOU? 20 THERE, YOU HAVE NO IDEA AS TO WHETHER OR NOT -- YOU DON'T 21 KNOW. 22 A. NO. 23 Q. OKAY. 24 TO GET SOLD, SHE'S GOING TO REMAIN THERE, SHE'S NOT GOING TO 25 GET FIRED FOR SOMETHING ELSE IN THE FUTURE. I UNDERSTAND THAT. I HAVE THAT PIECE CLEAR. I HAVE IF THEY WERE YOU MAY SPECULATE AND GUESS BUT DON'T KNOW, RIGHT? AND SO YOUR ASSUMPTION IS THAT IT'S NOT NEVER GOING ALL OF THOSE DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 706 OSTROFE - CROSS / LAFAYETTE 1 THINGS ARE PART OF YOUR ASSUMPTION, RIGHT? 2 A. CORRECT. 3 Q. IF ANY OF THOSE THINGS WOULD HAPPEN, THAT WOULD ADVERSELY 4 IMPACT YOUR PROJECTION WITH REGARD TO FUTURE WAGE LOSS, RIGHT? 5 A. POSSIBLY, POSSIBLY NOT. 6 Q. IF SHE GOT FIRED, WOULDN'T THAT IMPACT THE CALCULATION FOR 7 FUTURE WAGE LOSS? 8 A. YES AND NO. 9 Q. WELL, YES, TO THE EXTENT THAT SHE WOULDN'T BE THERE ANY 10 MORE. 11 WAGE LOSS, CORRECT? 12 A. 13 EXPLAIN MY ANSWER. 14 Q. 15 QUESTION WITH ALL RESPECT, OKAY? 16 A. OKAY. 17 Q. I GOT THE ASSUMPTION ABOUT FUTURE WAGE LOSS, OKAY? 18 ASSUME, ONE, THERE IS GOING TO BE SOME INCREASES. 19 TWO, THE REFINERY IS NEVER GOING TO GET SOLD. 20 THREE, SHE IS NEVER GOING TO GET FIRED. 21 AREN'T GOING TO GET A BIG EARTHQUAKE. 22 OF YOUR ASSUMPTION, CORRECT? 23 A. 24 ABOUT A WORK LIFE EXPECTANCY, I'M PROJECTING FORWARD THE 25 NUMBER OF YEARS SHE IS ACTIVE IN THE WORKFORCE, OKAY? SO YOU WOULDN'T ABLE TO CALCULATE THAT IN AS FUTURE NOT NECESSARILY. IF YOU WOULD ALLOW ME TO CONTINUE, I CAN I'M ACTUALLY JUST WANTING TO KNOW THE ANSWER TO THAT WELL, FIRST OF ALL, LET'S GO BACK. SO YOU YOU ASSUME, YOU ASSUME, YOU ASSUME, FOUR, WE ALL OF THOSE ARE PART WHEN I AM TALKING DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC SO 56.3 707 OSTROFE - CROSS / LAFAYETTE 1 IS PROBABLY NOT WHEN SHE'S ACTUALLY GOING TO RETIRE. 2 PEOPLE RETIRE WHEN THEY ARE OLDER THAN THAT. 3 GIVEN HER A LOT OF ACTIVE YEARS IN THE WAGE FORCE. 4 NOT ALL THE WAY TO 67. 5 OUTSIDE THE WORKFORCE. 6 MOST SO I HAVEN'T CERTAINLY, SO THAT ACCOUNTS FOR SOME TIME SPENT LIKE, FOR INSTANCE, IF SHELL -- IF SHELL WERE TO SELL THE 7 REFINERY AND SHE HAD TO GO LOOK FOR ANOTHER REFINERY JOB, IT 8 ACCOUNTS FOR THE TIME SPENT OUT OF THE WORKFORCE FOR THAT LIFE 9 CHANGE. 10 Q. 11 PROJECTION HERE ABOUT HER INCOME THAT SHE MAY GET IN THE 12 FUTURE IF SHE IS NOT WORKING AT SHELL, CORRECT? 13 A. CORRECT. 14 Q. DID YOU ASK -- DO YOU KNOW WHAT THE CONCEPT OF MITIGATION 15 IS? 16 A. I DO. 17 Q. TELL ME WHAT YOU UNDERSTAND IT TO BE? 18 A. MY UNDERSTANDING IS THAT IN ORDER TO MITIGATE, SHE HAS TO 19 TAKE A JOB COMPARABLE TO THE ONE THAT SHE LOST. 20 Q. AND SO, IF -- 21 A. BUT MY UNDERSTANDING ALSO IS THAT IT IS THE RESPONSIBILITY 22 OF THE DEFENDANT -- 23 Q. I'M NOT ASKING FOR THAT. 24 A. OKAY. 25 Q. LET ME ASK YOU A COUPLE OF QUESTIONS ABOUT MITIGATION. LET ME ASK YOU ANOTHER QUESTION HERE: NOW, YOU HAVE A DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC IF 708 OSTROFE - CROSS / LAFAYETTE 1 SHE HAS INCOME, YOU WOULD SUBTRACT THAT FROM WHAT SHE WOULD 2 HAVE EARNED AT SHELL, CORRECT? 3 A. THAT'S CORRECT. 4 Q. IF SHE HAD THE POTENTIAL TO MAKE MORE INCOME THAN WHAT SHE 5 HAD, YOU ALSO SUBTRACT THAT TOO, DON'T YOU? 6 OPPORTUNITIES FOR HER WHERE SHE COULD HAVE MADE MORE MONEY AND 7 SHE DIDN'T TAKE THEM, THAT'S THE MITIGATION PIECE, ISN'T IT? 8 A. 9 IS -- IF THERE WERE WHAT I HAVE DONE IS REFLECT WHAT ACTUALLY HAPPENED. THIS 10 Q. THAT NOT MY QUESTION. 11 A. BUT THIS IS WHAT SHE COULD HAVE MADE AND THIS IS WHAT SHE 12 HAS MADE. 13 Q. 14 DIFFERENCE BETWEEN WHAT SHE HAS BEEN MAKING NOW AND WHAT SHE 15 COULD HAVE MADE HAD SHE ACTUALLY PURSUED A HIGHER PAYING JOB, 16 CORRECT? 17 A. NO. 18 Q. OKAY. 19 A. NO. 20 Q. SO IF SHE COULD HAVE MADE A HIGHER -- COULD BE PAID MORE 21 RIGHT NOW THAN WHAT SHE IS, CAN YOU DO A CALCULATION TO 22 DETERMINE WHAT THE IMPACT THAT WOULD HAVE BEEN WITH REGARD TO 23 FUTURE WAGE LOSS? 24 A. 25 SORT OF THINGS, YES. MY QUESTION IS: YES. MITIGATION IS THAT PIECE THAT IS THE IF I CAN GO OFF AND PULL UP MY EXCEL FILES AND THAT DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 709 OSTROFE - CROSS / LAFAYETTE 1 Q. 2 EXISTED FOR HER TO WORK IN ANOTHER REFINERY, SAME WAGES, SAME 3 BENEFITS, WOULD THAT HAVE IMPACTED YOUR FUTURE WAGE LOSS 4 CALCULATION? 5 A. IF IT HAD BEEN PROVEN THAT SHE COULD SECURE A JOB -- 6 Q. YES. 7 A. SO FAR, SHE HAS NOT. 8 Q. ALL OF THAT. 9 PURPOSES OF MY QUESTION, ASSUME THAT SHE COULD GET THE JOB. I'M GOING TO ASK YOU SOMETHING. IF THE OPPORTUNITY ASSUME ALL OF THAT. FOR PURPOSE -- FOR 10 A. 11 TERMINATED FROM SHELL? 12 Q. YES. 13 A. OKAY. 14 Q. ASSUME THAT. 15 A. OKAY. 16 Q. WOULD THAT IMPACT HER FUTURE WAGE LOSS? 17 A. IT WOULD. 18 Q. IT WOULD BRING IT TO ZERO, WOULDN'T IT? 19 A. WELL, IT DEPENDS ON WHICH REFINERY AND WHAT THEIR PAY AND 20 BENEFITS ARE. 21 Q. I SAID SAME BENEFITS AND SAME PAY? 22 A. WELL -- 23 Q. I SAID SAME BENEFITS AND SAME PAY. 24 A. SAME BENEFIT AND PAY, YEAH. 25 Q. IT WOULD BE ZERO, WOULDN'T IT? ASSUME THAT SHE COULD GET THE JOB. OKAY. AFTER SHE WAS THEN -- DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 710 OSTROFE - CROSS / LAFAYETTE 1 A. 2 RE-EMPLOYMENT, YEAH, IT WOULD BE ZERO. 3 Q. I SAID WAIVE FUTURE, IT WOULD BE ZERO, CORRECT? 4 A. CORRECT. 5 Q. OKAY. 6 FEBRUARY 2017, WHEN SHE COULD HAVE OBTAINED A JOB THAT HAD THE 7 SAME PAY, SAME BENEFITS, THAT WOULD HAVE IMPACTED YOUR PAST 8 LOSS, RIGHT? 9 A. IT WOULD. 10 Q. SO DID ANYONE FROM THE PLAINTIFF'S SIDE EVER ASK YOU TO 11 MAKE AN ASSUMPTION THAT SHE COULD HAVE GOTTEN A JOB THAT PAYS 12 WHAT SHE'S GETTING -- WHAT SHE WAS GETTING AT SHELL WITH THE 13 SAME BENEFITS, DID ANYONE ASK YOU TO MAKE THAT ASSUMPTION? 14 A. THEY DID NOT. 15 Q. OKAY. EXCEPT FOR THE TIME FROM HER TERMINATION TO THE TIME OF NOW, IF THERE WAS A POINT IN TIME, SAY 16 DID ANYONE ASK YOU TO TAKE A LOOK AT -- BUT YOU DID ASK A 17 QUESTION OF HER DIRECTLY, DIDN'T YOU, ABOUT APPLYING FOR JOBS 18 AT OTHER REFINERIES? 19 A. CORRECT. 20 Q. YOU TALKED TO HER ON THE PHONE, RIGHT? 21 A. I DID. 22 Q. AND YOU ASKED HER IF SHE HAD APPLIED FOR JOBS IN OTHER 23 REFINERIES, RIGHT? 24 A. THAT'S CORRECT. 25 Q. WHAT DID SHE SAY TO YOU? DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 711 OSTROFE - CROSS / LAFAYETTE 1 A. 2 DID NOT WANT TO RE-ENTER THAT ENVIRONMENT. 3 Q. 4 THESE JOBS WAS SOLELY HERS, RIGHT? 5 A. 6 PROCESS OPERATOR JOB AT BUDWEISER AND DID NOT GET TO AN 7 INTERVIEW. 8 Q. 9 SHE HAD EVER APPLIED FOR A REFINERY JOB? SHE SAID -- SHE SAID THAT RIGHT AFTER HER TERMINATION, SHE OKAY. SO SHE SAID THAT THE DECISION NOT TO APPLY FOR FOR A SHORT TIME. I BELIEVE SHE DID APPLY FOR ANOTHER I'M TALKING ABOUT REFINERY JOBS. DID SHE TELL YOU THAT 10 A. NO. 11 Q. OKAY. 12 A. SHE DID NOT TELL ME SHE APPLIED FOR REFINERY JOB. 13 Q. SO NOW, WHEN YOU SAY THE LIFE WORK -- THERE IS A PHRASE 14 YOU USE, WORK EXPECTANCY. 15 A. IT'S RIGHT UP HERE (INDICATING). 16 Q. AND HOW -- AT WHAT AGE DID YOU CALCULATE SHE WOULD BE AT 17 AT THAT POINT? 18 A. 56.3. 19 Q. 56. 20 LIFE EXPECTANCY IS OF INDIVIDUALS WHO WORK AT THE REFINERY? 21 A. I WAS NOT PROVIDED WITH THAT DATA. 22 Q. SO YOU DON'T KNOW IF THAT IMPACTS YOUR CALCULATION AT ALL, 23 DO YOU? 24 A. NO. 25 Q. NOW, LET'S TALK ABOUT HER PAST, HER FUTURE WAGES. WHAT IS THAT? WORK LIFE EXPECTANCY. NOW, DID YOU DO ANYTHING TO DETERMINE WHAT THE WORK DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 712 OSTROFE - CROSS / LAFAYETTE 1 NOW, RIGHT NOW YOU UNDERSTAND SHE WORKS AT ALASKA 2 AIRLINES, RIGHT? 3 A. CORRECT. 4 Q. I THOUGHT I HEARD YOU SAY THAT YOU DIDN'T CALCULATE THAT 5 SHE WOULD CONTINUE WORKING AT ALASKA AIRLINES AT THE SAME RATE 6 OF PAY. 7 A. I DID NOT. 8 Q. YOU DIDN'T DO THAT -- 9 A. I DID THAT I THINK THROUGH 2018, AND THEN BEGINNING IN DID YOU SAY THAT? 10 2019, I BEGAN TO GROW HER WAGES A LITTLE BIT. 11 Q. 12 WOMEN WHO ARE NOT COLLEGE GRADUATES AND SOME PROJECTION BASED 13 ON THAT, RIGHT? 14 A. THAT'S CORRECT. 15 Q. NOW, DOES THAT -- SO WHAT ALL TYPES OF JOBS ARE ACTUALLY 16 ROLLED UP IN THERE? 17 NUMBER? 18 A. 19 BREAKS IT OUT BY RACE AND GENDER. 20 Q. 21 IF SHE HAS THE POTENTIAL TO HAVE INCOME GREATER THAN WHAT THAT 22 AVERAGE IS, DO YOU? 23 A. I DON'T. 24 Q. NOW, THAT AVERAGE THAT YOU ARE LOOKING AT, IS THAT 25 GEOGRAPHIC? SO YOU THEN ADJUSTED AND YOU SAID WELL, I'M GOING TO TAKE ARE FOOD SERVICE PEOPLE ROLLED UP IN THAT YOU KNOW, IT DOESN'T BREAK OUT THE DATA THAT WAY. IT JUST AND SO YOU DON'T KNOW IF SHE'S ALREADY -- YOU DON'T KNOW DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 713 OSTROFE - CROSS / LAFAYETTE 1 A. 2 FRANCISCO BAY AREA. 3 Q. 4 MEANING IT HAS ALABAMA, MISSISSIPPI, LOUISIANA, MISSISSIPPI IN 5 IT, RIGHT? 6 A. IT DOES. 7 Q. AND SO NOW, WHEN YOU MADE AN ADJUSTMENT TO IT, DID YOU USE 8 SOME PUBLISHED DOCUMENT FOR PURPOSES OF DOING THAT? 9 A. I DID. 10 Q. OKAY. 11 A. NO. 12 Q. OKAY. 13 ABOUT YOUR CALCULATION, OKAY? 14 IT'S A NATIONAL AVERAGE AND I HAVE ADJUSTED IT TO THE SAN LET ME SEE IF I UNDERSTAND IT. IT IS A NATIONAL AVERAGE AND SO YOU ADJUSTED IT FOR WHAT, CALIFORNIA? I ADJUSTED IT FOR THE SAN FRANCISCO BAY AREA. SO NOW, IF I THINK I UNDERSTAND A COUPLE OF THINGS IF SHE, ONE, THERE IS NO GUARANTEE THAT SHE IS GOING TO BE 15 WORKING AT THIS -- IF SHE HAD STAYED THERE, THAT SHE WOULD BE 16 WORKING AT THIS REFINERY UNTIL THE END MUCH HER WORK LIFE 17 EXPECTANCY, RIGHT? 18 A. NO. 19 Q. I JUST WANT TO KNOW THAT. 20 A. NO. 21 Q. OKAY. 22 WILL HAPPEN, RIGHT? 23 A. CORRECT. 24 Q. NUMBER TWO. 25 GOING TO GO TO COLLEGE GET A DEGREE OR DO ANYTHING TO IMPROVE BUT WE HAVE ASSUMED THAT -THERE IS NO GUARANTEE, RIGHT? AND SO YOU GO ON TO MAKE AN ASSUMPTION THAT THAT YOU MAKE AN ASSUMPTION THAT SHE'S NEVER, EVER DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 714 OSTROFE - CROSS / LAFAYETTE 1 HER ECONOMIC STATUS, RIGHT? 2 A. 3 TO RETURN TO SCHOOL. 4 Q. 5 MY UNDERSTANDING IS THAT TO MITIGATE, SHE IS NOT REQUIRED THAT WAS NOT MY QUESTION. MY QUESTION IS REALLY SIMPLE. YOU MAKE AN ASSUMPTION THAT SHE'S NOT GOING TO -- 6 A. NO. 7 Q. -- DO ANYTHING TO IMPROVE HER ECONOMIC STATUS, RIGHT? 8 A. NO. 9 Q. YOU REALIZE IF SHE WERE TO SAY GO TO COLLEGE NOW, OR GO TO I'VE TAKEN HER AS SHE IS. 10 A TRAINING SCHOOL, OR ANY NUMBER OF THINGS, SHE COULD IMPROVE 11 HER ECONOMIC POTENTIAL, RIGHT? 12 A. 13 FROM -- 14 Q. RIGHT. 15 A. -- COLLEGE, AND SHE WOULD ALSO -- YOU KNOW, THAT WOULD BE 16 FOUR YEARS OUT OF THE WORKFORCE WHERE WERE SHE TO GO FULL 17 TIME. 18 Q. 19 JOB IN A REFINERY OR WITH COMPARABLE PAY AND BENEFITS AT THE 20 REFINERY, CORRECT? 21 A. CORRECT. 22 Q. AND IF ANY OF THOSE THINGS HAPPEN, IT COULD BRING HER 23 FUTURE LOSS DOWN TO ZERO OR ACTUALLY MEAN THAT SHE MAKES MORE 24 MONEY, RIGHT? 25 A. WELL, IT DEPENDS ON WHAT JOB SHE TAKES AFTER GRADUATING SO THERE WOULD BE SOME LOSS ASSOCIATED WITH THAT. THEN YOU ASSUME SHE IS NOT GOING TO APPLY FOR AND GET A IF ANY OF THOSE THINGS HAPPEN -- IT'S -- IT'S POSSIBLE. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 715 OSTROFE - CROSS / LAFAYETTE 1 Q. THAT IS ALL I'M ASKING? 2 A. IT IS POSSIBLE BUT I'M NOT SURE IT IS PROBABLE. 3 Q. WE DON'T KNOW WHAT THE FUTURE HOLDS, DO WE? 4 A. WELL, I -- 5 Q. ONLY THING I'M ASKING IS THIS. 6 TO GET HIT WHEN I WALK OUTSIDE THIS DOOR, DO I? 7 A. NO. BUT IT'S PROBABLE -- 8 Q. THAT IS ALL I'M ASKING. 9 A. -- THAT YOU WON'T. 10 Q. THIS WEEK I THOUGHT I WOULDN'T HAVE THIS THING ON MY KNEE 11 BUT I DO. 12 THING I'M GOING TO GO TO NOW IS THIS: 13 THE END OF THE DAY, THESE NUMBERS THAT YOU ARE USING ARE ALL 14 PREDICATED ON ASSUMPTIONS, RIGHT? 15 A. YES. 16 Q. AND IF YOUR ASSUMPTIONS DON'T HOLD, THEN THE CALCULATIONS 17 DON'T WORK, RIGHT? 18 THAT IMPACTS YOUR CALCULATIONS, RIGHT? 19 A. THE ASSUMPTIONS DO IMPACT THE CALCULATIONS, THEY DO. 20 Q. OKAY. 21 ANYBODY AT SHELL? 22 A. NO. 23 Q. OKAY. 24 WHETHER OR NOT SHE INTENDED TO GO TO COLLEGE OR GET A DEGREE 25 OR IMPROVE HER POSITION IN LIFE? OKAY? I DON'T KNOW IF I'M GOING I DON'T KNOW WHAT THE PROBABLE IS. THE ONLY WITH REGARD TO -- SO AT IF THE ASSUMPTIONS ARE -- DON'T HOLD, THEN AND IN DOING THESE CALCULATIONS, DID YOU TALK TO DOING THESE CALCULATIONS, DID YOU TALK TO HER ABOUT DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 716 OSTROFE - REDIRECT / ETTINGHOFF 1 A. I DON'T KNOW IF WE TOUCHED ON THAT SPECIFICALLY. 2 UNDERSTANDING WAS AT THIS TIME SHE DOES NOT. 3 Q. I WANT TO KNOW IF YOU ASKED HER, OKAY? 4 5 MR. LAFAYETTE: I DON'T HAVE ANY FURTHER QUESTIONS, YOUR HONOR. 6 THE COURT: 7 MR. ETTINGHOFF: 8 9 MY ANY REDIRECT? YES. REDIRECT EXAMINATION BY MR. ETTINGHOFF: 10 Q. 11 MITIGATION AND JOB SEARCH? 12 A. NO. 13 Q. AND MR. LAFAYETTE WAS ASKING YOU A QUESTION ABOUT THE 14 ASSUMPTIONS YOU MADE WHEN YOU CALCULATED HER FUTURE WAGE LOSS. 15 IS THERE SOMETHING ELSE YOU WANTED TO EXPLAIN ABOUT THAT? MS. OSTROFE, WERE YOU RETAINED AS EXPERT ABOUT PLAINTIFF'S 16 MR. LAFAYETTE: 17 THE COURT: 18 OBJECTION, VAGUE AND AMBIGUOUS. YOU CAN LEAD A LITTLE. BRING US BACK TO WHAT YOU ARE TALKING ABOUT. 19 SUSTAINED. 20 BY MR. ETTINGHOFF: 21 Q. 22 EARNING, YOU WERE USING WHAT SHE WAS EARNING WITH HER WORK 23 LIFE EXPECTANCY, NOT WHAT SHE WAS CURRENTLY EARNING AT SHELL, 24 CORRECT? 25 A. WHEN YOU WERE MAKING THE COMPARISON BETWEEN WHAT SHE WAS I AM SORRY. YOU NEED TO CLARIFY WHAT YOU MEAN. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 717 OSTROFE - REDIRECT / ETTINGHOFF 1 Q. 2 EARNINGS BUT REALLY IT IS WOMAN WITH A HIGH SCHOOL DEGREE IN 3 THE BAY AREA, CORRECT? 4 A. 5 DEMOGRAPHIC CHARACTERISTIC. 6 Q. 7 REFINERY? 8 A. THE COMPARISON IS NOT BETWEEN WHAT SHE IS CURRENTLY CORRECT. THOSE ARE AVERAGE EARNINGS FOR WOMEN WITH THAT DO YOU KNOW HOW LONG SHELL HAS OWNED THE MARTINEZ I DO -- 9 OBJECTION. MR. LAFAYETTE: 10 THE COURT: 11 THE WITNESS: OVERRULED. I DO NOT KNOW HOW LONG. I KNOW THE 12 REFINERY HAS BEEN THERE OVER A HUNDRED YEARS AND I HAVE SEEN 13 FIGURES FROM IT IS 102 YEARS OLD THROUGH 115 YEARS OLD. 14 HAS BEEN THERE FOR A VERY LONG TIME. 15 MR. ETTINGHOFF: 16 THE COURT: 17 MR. LAFAYETTE: 18 THE COURT: 19 NO FURTHER QUESTIONS. ANYTHING ON THOSE QUESTIONS? NO, YOUR HONOR. ALL RIGHT. YOU ARE EXCUSED. THANK YOU. NEXT WITNESS. 20 THE CLERK: 21 THE WITNESS: 22 MS. NUGENT: 23 THANK YOU. SO IT DOES SHE HAVE A WITNESS BINDER? NO, IT IS MY BINDER. YOUR HONOR, THE PLAINTIFF CALLS RAY JONES. 24 25 DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 718 JONES - DIRECT / NUGENT (RAY JONES, CALLED AS A WITNESS FOR THE PLAINTIFF, HAVING 1 2 BEEN DULY SWORN, TESTIFIED AS FOLLOWS:) 3 THE WITNESS: 4 THE CLERK: I WILL. PLEASE TAKE A SEAT. MOVE THE MICROPHONE 5 UP TO YOU, AND THEN PLEASE STATE YOUR FULL NAME AND SPELL YOUR 6 LAST NAME. 7 GOOD MORNING. THE WITNESS: 8 JONES, JUNIOR. 9 HOPE I AM NOT TALKING TOO LOUDLY. AND I HOPE -- I HAVE A VERY LOUD VOICE, SO I 10 THE COURT: 11 THE WITNESS: WE'LL FIX IT. I GO BY RAY JONES. 12 FATHER TAKES THE GALEN NAME. 13 THE COURT: 14 THE WITNESS: 15 THE COURT: 16 THE WITNESS: 17 MS. NUGENT: 18 MY NAME IS GALEN RAY I'M A JUNIOR AND MY J-O-N-E-S? J-O-N-E-S. GOOD MORNING, SIR. YOU MAY PROCEED. GOOD MORNING. THANK YOU, YOUR HONOR. DIRECT EXAMINATION 19 BY MS. NUGENT: 20 Q. MR. JONES, DID YOU RECEIVE A SUBPOENA TO BE HERE TODAY? 21 A. YES, I DID. 22 Q. WHERE DO YOU WORK? 23 A. I WORK AT SHELL MARTINEZ REFINERY IN MARTINEZ, CALIFORNIA. 24 Q. HOW LONG HAVE YOU WORKED AT THE SHELL MARTINEZ REFINERY? 25 A. I WAS HIRED AT SHELL MARTINEZ IN 1995 AS AN OPERATOR AS DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 719 JONES - DIRECT / NUGENT 1 PART OF THE CLEAN FUELS PROJECT. 2 Q. HAVE YOU WORKED THERE EVER SINCE? 3 A. YES. 4 Q. THE CLEAN FUELS PROJECT, IS THAT IN A CERTAIN DEPARTMENT? 5 A. THAT EVENTUALLY BECAME THE DELAYED COKING DEPARTMENT BUT 6 AT THAT TIME WE WERE COMMISSIONING A WIDE RANGE OF NEW PROCESS 7 UNITS. 8 A COUPLE OF HYDROTREATER UNITS AS WELL AS IN SMALLER COOLING 9 TOWERS AND FLARE SYSTEMS. WE HAD A COGENERATION UNIT, AN ISOMERIZATION UNIT, AND 10 Q. 11 WHAT YOU SAID ABOUT DELAYED COKING. 12 A. OKAY. 13 Q. IS THAT A DEPARTMENT THAT YOU WORKED IN? 14 A. YES. 15 YEARS, WORKING AS AN OPERATOR IN THE DELAYED COKING 16 DEPARTMENT. 17 Q. 18 A LARGER UNIT? 19 A. 20 DIFFERENT TYPES OF OIL PROCESSING DESCRIPTORS. 21 OKAY. WOW. THAT IS A LOT OF EQUIPMENT. LET'S GO BACK TO I SPENT THE BULK OF MY CAREER, I WOULD SAY 15 OR 16 IS THE -- THAT DEPARTMENT, DELAYED COKING, IS THAT PART OF IT'S PART OF A -- YEAH. THEY DIVIDE UP THE COMPLEX INTO DELAYED COKING IS PART OF THE HOP, WHICH STANDARDS FOR 22 HEAVY OIL PROCESSING. 23 ALTHOUGH THEY DO PROCESS SOME OF THE LIGHTER OIL. 24 ISOMERIZATION UNIT IS PART OF LIGHTER GASOLINE PROCESSING BUT 25 THEY ALSO HAVE THE HEAVY GAS PROCESSING AND THE COKER. SO THE DELAYED COKER IS PART OF THAT. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC THE 720 JONES - DIRECT / NUGENT 1 Q. 2 DEPARTMENT? 3 A. YES. 4 Q. WHAT IS -- 5 A. I'M SORRY. 6 Q. I WILL HELP YOU WITH THE QUESTIONS AND THE ANSWERS. 7 A. OKAY. 8 TURNAROUNDS. 9 Q. WHAT DOES THAT MEAN, DURING TURNAROUNDS? 10 A. THOSE ARE BIG PERIODS TYPICALLY IN OPCEN WHEN THEY DO THE 11 FLEXICOKER. 12 DOWN THE UNIT AND THEY DO A LOT OF MAINTENANCE ON THE 13 EQUIPMENT THERE. 14 Q. HOW OFTEN ARE THERE TURNAROUNDS? 15 A. IT DEPENDS ON THE UNIT. 16 FOUR YEARS FOR THE FLEXICOKER. 17 THAN THAT OR LONGER THAN THAT, BASED ON THE TYPES OF MATERIAL 18 THAT THEY PROCESS. 19 Q. 20 THE OPCEN DEPARTMENT? 21 A. 22 THEY ALSO HAVE TURNAROUNDS IN THEIR SULFUR PROCESSING UNITS 23 THAT ARE PART OF SMALLER TURNAROUND BLOCKS. 24 THOSE AS WELL WITH OUR SAFETY TEAM. 25 Q. LET'S -- DO YOU HAVE ANY EXPERIENCE WITH THE OPCEN I BECAME -- I DO HAVE EXPERIENCE WORKING IN OPCEN DURING IT IS A 60-DAY PERIOD OF TIME WHERE THEY SHUT TYPICALLY, IT IS AROUND THREE TO AND SOME UNITS ARE SHORTER WHEN WAS THE LAST TIME YOU PARTICIPATED IN A TURNAROUND IN I BELIEVE IT WAS 2016, WAS THE LAST FLEXICOKER TURNAROUND. AND WE WORK ON I WANT TO TALK JUST BRIEFLY ABOUT YOUR BACKGROUND BEFORE DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 721 JONES - DIRECT / NUGENT 1 SHELL. 2 A. OKAY. 3 Q. WHERE DID YOU BEFORE SHELL? 4 A. PRIOR TO BEING HIRED BY SHELL, I WAS AN OPERATOR AND A 5 CONTRACTOR AT THE DOW CHEMICAL PLANT IN PITTSBURG, CALIFORNIA. 6 Q. HOW LONG DID YOU WORK THERE? 7 A. I WORKED AS AN OPERATOR FOR FIVE YEARS FROM 1990 TO 1995, 8 AND THEN I WORKED APPROXIMATELY TWO YEARS AS A 9 CONTRACTOR/OPERATOR FOR A KCL DRYER UNIT IN THE SPECIALTY 10 CHEMICALS DEPARTMENT. 11 GENERAL LABORER POOL FOR CONTRACTING COMPANY AT THAT SITE. 12 Q. 13 YOUR JOB AT THE SHELL REFINERY IN MARTINEZ? 14 A. NO. 15 Q. WHAT IS YOUR JOB NOW? 16 A. I'M CURRENTLY SERVING AS THE UNITED STEELWORKER HEALTH AND 17 SAFETY REPRESENTATIVE. 18 Q. 19 REPRESENTATIVE OUT THERE AT THE REFINERY? 20 A. 21 REPRESENTATIVE FOR OUR BROTHERS AND SISTERS THAT WORK IN THE 22 COMPLEX. 23 ABOUT OR THAT WE HAVE BECOME CONCERNED ABOUT, THEN WE ADVOCATE 24 ON THEIR BEHALF TO TRY TO ELIMINATE, MITIGATE, OR IMPROVE 25 WHATEVER SITUATION THAT WE'RE CONCERNED ABOUT. AND THEN BEFORE THAT I WAS IN THE YOU TALKED ABOUT WORKING IN DELAYED COKING. IS THAT STILL WHAT DO YOU DO AS THE UNITED STEELWORKER HEALTH AND SAFETY PROBABLY THE EASIEST WAY, I AM AN ADVOCATE OR ANYTIME THEY HAVE AN ISSUE THAT THEY ARE CONCERNED DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 722 JONES - DIRECT / NUGENT 1 Q. 2 TITLE NOW? 3 A. 4 DEPARTMENT. 5 Q. 6 SAFETY? 7 A. 8 AND SAFETY. 9 EQUIPMENT, THE PPE THAT PEOPLE ARE PROVIDED. YOU MENTIONED HEALTH AND SAFETY. IS THAT PART OF YOUR I -- MY ROLE IS LOCATED IN THE HEALTH AND SAFETY AND WHAT PART OF YOUR ROLE HAS TO DO WITH HEALTH AND WHAT DOES THAT MEAN? MY ROLE, THE WHOLE FOCUS IS IN REGARDS TO PERSONAL HEALTH IT CAN BE ANYTHING FROM THE PERSONAL PROTECTIVE IT CAN BE 10 EXPOSURES TO CHEMICALS IN THEIR RESPECTIVE WORK SITES OR IT 11 COULD BE -- MOST RECENTLY, WE HAD SOME NEW STATE LAWS THAT 12 REQUIRED SHELL TO CREATE A STOP WORK AUTHORITY PROCEDURE FOR 13 THE EMPLOYEES TO BE ABLE TO STOP A WORK -- ANY KIND OF WORK 14 THAT THEY FEEL COULD INJURE THEM -- 15 Q. OKAY. 16 A. -- OR A COWORKER. 17 WORKING WITH MANAGEMENT. 18 Q. 19 TRAINING ESPECIALLY. OKAY. SO WE HAD TO CREATE THAT FROM SCRATCH I WANT TO TALK A LITTLE BIT ABOUT YOUR SAFETY AND 20 HAVE YOU TAKEN ANY TRAINING IN ANY HEALTH AND SAFETY 21 TOPICS THAT HELP YOU WITH THE THINGS YOU JUST DESCRIBED THAT 22 ARE PART OF YOUR ROLE? 23 A. 24 FIRE TRAINING. SO I'VE ATTENDED UNIVERSITY OF NEVADA AT RENO 25 FIRE TRAINING. I'VE ALSO RECEIVED TECHNICAL RESCUE TRAINING. YES. JUST TO BE AN OPERATOR, THEY START YOU OFF TAKING DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 723 JONES - DIRECT / NUGENT 1 I WAS PART OF THE SHELL HIGH-ANGLE RESCUE, THE SHARK TEAM. 2 I'VE ATTENDED OSHA 40-HOUR GENERAL INDUSTRY TRAINING THROUGH 3 THE UNITED STEELWORKERS SAFETY CONFERENCES. 4 I'VE ATTENDED PROCESS SAFETY MANAGEMENT TRAINING THROUGH 5 CAL OSHA HERE IN OAKLAND THAT I FELT WAS VERY VALUABLE IN 6 REGARDS TO PROCESS SAFETY BECAUSE IT'S THE ACTUAL TRAINING 7 COURSE THAT THEY PUT THEIR INSPECTORS TO. 8 INVITED TO GO THROUGH THAT TRAINING. I FELT LUCKY TO BE 9 AND I HAVE ATTENDED NUMEROUS, MORE FOCUSED WORKSHOPS 10 THROUGH THE UNITED STEELWORKERS HEALTH AND SAFETY CONFERENCES 11 IN PITTSBURGH THAT ARE HELD EVERY 18 MONTHS. 12 Q. 13 CASE. 14 LET'S TURN NOW TO SOME OF THE SPECIFIC EVENTS IN THIS FIRST OF ALL, DO YOU KNOW THE PLAINTIFF, CIARA NEWTON? 15 A. I DO. 16 Q. HOW DO YOU KNOW HER? 17 A. WHEN SHE FIRST INTERVIEWED, I WAS ONE OF THE INTERVIEWERS. 18 THE WAY SHELL MARTINEZ DOES THEIR INTERVIEW PROCESS FOR 19 POTENTIAL EMPLOYEES IS THEY PAIR PERSON PICKED BY THE UNION 20 WITH A SHELL STAFF PERSON AND THEY ADMINISTER A PRESCRIBED SET 21 OF QUESTIONS AND TEMPLATE WITH -- IN A WAY THAT EXPLAINS HOW 22 TO SCORE THE ANSWERS. 23 Q. DO YOU REMEMBER HER INTERVIEW? 24 A. I DO. 25 AND I CAN'T RECALL IF SHE WAS THE HIGHEST SCORING APPLICANT AND THAT IS THE FIRST TIME I MET CIARA. SHE DID QUITE WELL DURING THE INTERVIEW PROCESS. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 724 JONES - DIRECT / NUGENT 1 FOR THE ENTIRE THREE-DAY PROCESS OR JUST FOR THAT DAY, BUT 2 MYSELF AND KEVIN GOLDSBERRY, WHO IS AN STL AND LOP, SHE WAS 3 ONE OF OUR HIGHEST SCORING APPLICANTS FOR THAT INTERVIEW 4 PROCESS. 5 Q. 6 LEADER; IS THAT RIGHT? 7 A. SHIFT TEAM LEADER, YES. 8 Q. WHAT IS LOP? 9 A. THAT WOULD BE THE LOP. YOU USED A COUPLE OF ACRONYMS THERE. STL IS SHIFT TEAM THAT WOULD BE LIGHT OIL 10 PROCESSING. 11 REFINING SECTOR. 12 Q. 13 MORE INTERVIEWS THAN JUST THE ONE THAT YOU CONDUCTED FOR CIARA 14 NEW, IS THAT TRUE? 15 A. 16 THAT WOULD BE A PRETTY GOOD GUESS ON MY PART. 17 Q. 18 ENTRANCE EXAMS THAT YOU REFERRED TO? 19 A. 20 A CONCERN -- HER JOB IT WAS IN SOME DENTAL OFFICE, AND SHE 21 FELT SHE COULD CREATE A SAFER AND MORE EFFICIENT WAY TO 22 HANDLING ONE OF THE PROCESSES IN THAT JOB. 23 VERY GOOD JOB OF DESCRIBING HER THOUGHT PROCESS AND THE IDEAS 24 THAT SHE WAS ABLE TO SUCCESSFULLY IMPLEMENT, WHICH MADE HER 25 SCORE VERY HIGH ON THE QUESTION. I APOLOGIZE. NO PROBLEM. WE HAVE SO MANY ACRONYMS IN THE OIL THANK YOU FOR CALLING THAT OUT. OKAY. THAT IS CORRECT. IT SOUNDS LIKE YOU PARTICIPATED IN I WOULD SAY SIX TO EIGHT THAT I CAN -- DO YOU RECALL ANY OF THE SCORES THAT SHE HAD ON ANY OF THE I RECALL ONE OF THE ANSWERS THAT SHE GAVE ABOUT -- SHE HAD AND SHE JUST DID A SHE HAD ALL THE POINTS THAT DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 725 JONES - DIRECT / NUGENT 1 THEY WERE LOOKING FOR ON THAT QUESTION. 2 Q. 3 OKAY. SO AFTER MS. NEWTON WAS HIRED AT SHELL, DID YOU HAVE ANY 4 INTERACTIONS WITH HER AFTER THAT? 5 A. 6 THEY FIRST BEGIN. 7 TIME THAT I HAD FOCUSED AMOUNT OF TIME WAS WHEN I WAS CALLED 8 TO SHOW UP FOR SOME SORT OF DISCIPLINARY INVESTIGATION. 9 Q. OKAY. 10 A. OKAY. 11 Q. DO YOU RECALL WHAT TIME PERIOD THAT WAS? 12 A. I BELIEVE IT WAS SOMETIME IN AUGUST -- 13 Q. OKAY. 14 A. -- AFTER SHE INITIALLY BEEN HIRED IN 2016. 15 Q. 2016? 16 A. YEAH. 17 Q. TELL ME HOW IT WAS THAT YOU BECAME A PARTICIPANT IN THAT 18 MEETING? 19 A. 20 WE PARTICIPATE IN THE INITIAL TRAINING THAT THEY HAVE WHEN I SAW HER IN CLASS, AND I THINK THE NEXT LET'S TALK ABOUT THAT. OKAY. YOU SAID IT WAS A MEETING? OKAY. THE UNION REPS AT OUR SITE TYPICALLY ARE ALSO STEWARDS. 21 EACH UNIT, WE TRY TO HAVE STEWARDS IN EACH OF OUR UNITS 22 BECAUSE THEY HAVE MORE SPECIALIZED KNOWLEDGE AND THEY CAN 23 BETTER REPRESENT OUR MEMBERS WHEN THEY ARE CALLED IN TO BE 24 INTERVIEWED FOR DISCIPLINE. 25 NICK BACKENS ASKING ME IF I CAN SHOW UP. BUT I HAD RECEIVED A CALL FROM HE WAS CONCERNED DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 726 JONES - DIRECT / NUGENT 1 THAT THE -- THIS MEETING COULD TURN INTO A TERMINATION 2 MEETING. 3 Q. DID HE TELL YOU ANYTHING ELSE AT THAT INITIAL TIME? 4 A. DURING THE PHONE CALL? 5 Q. YES. 6 A. THAT HE WAS SCARED THAT IT WAS GOING TO TURN INTO A 7 TERMINATION AND HE FELT LIKE HE NEEDED SOME HELP. 8 Q. 9 MEETING? AND SO YOU DID ATTEND THE MEETING. WHO ELSE WAS IN THE 10 A. 11 MYSELF. 12 Q. ANYONE ELSE? 13 A. I'M DRAWING A BLANK RIGHT NOW. 14 BEEN ANOTHER EITHER MANAGEMENT PERSON OR POSSIBLY ANOTHER HR 15 PERSON. 16 Q. DO YOU RECALL WHAT TOPICS WERE DISCUSSED? 17 A. IF I COULD -- 18 Q. SURE. 19 A. -- TAKE A QUICK SIP OF WATER? 20 Q. SO WE WERE TALKING ABOUT THE AUGUST 2ND MEETING AND YOU'VE 21 ALREADY IDENTIFIED THE PARTICIPANTS YOU REMEMBER; MS. LAYNE, 22 MR. BACKENS, MS. NEWTON, OF COURSE, AND YOU -- YOU THINK THERE 23 MAY HAVE BEEN ONE OTHER PERSON. 24 A. 25 CHRISTINE LAYNE I RECALL WAS THERE. CIARA WAS THERE. NICK BACKENS. THERE POSSIBLY COULD HAVE I CAN'T RECALL. WHAT TOPICS WERE DISCUSSED? OKAY. AS BEST I CAN RECALL, THERE WERE A COUPLE OF ISSUES ABOUT DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 727 JONES - DIRECT / NUGENT 1 WHAT TIME SHE HAD SHOWN UP FOR WORK. 2 I RECALL CIARA SHARING THE FACT THAT SHE FELT THAT SHE WAS 3 BEING SINGLED OUT FOR SCRUTINY AND FOR DISCIPLINE, THAT SHE 4 WAS BEING CALLED ON THE CARPET FOR THINGS THAT HER COWORKERS 5 WEREN'T. 6 Q. DO YOU RECALL ANYTHING ELSE THAT WAS DISCUSSED? 7 A. YES. 8 HAD HAD BEGINNING AT HER INITIAL TRAINING. 9 HONESTLY, MY JAW DROPPED. 10 SHE -- SHE STARTED SHARING SOME EXPERIENCES THAT SHE AND, QUITE I COULD NOT BELIEVE THAT SHE HAD GONE THROUGH A HOT OF THESE THINGS THAT SHE WAS DESCRIBING. 11 12 ALSO, THERE WERE SOME -- MR. LAFAYETTE: OBJECTION. OUTSIDE THE SCOPE OF THE QUESTION. 13 THE COURT: OVERRULED. 14 BY MS. NUGENT: 15 Q. WHAT EXPERIENCES DID SHE SHARE THAT MADE YOUR JAW DROP? 16 A. I THINK THE FIRST THING THAT I RECALL WAS WHEN SHE WAS 17 TALKING RIGHT AFTER THEIR PROP TEST. 18 THEY HAVE TO PASS SUCCESSFULLY WHERE NEW EMPLOYEES HAVE TO 19 OPERATE A SMALL UNIT WITH WATER IN IT AND NOT OVERFILL A TANK. 20 Q. WHAT HAPPENED DURING THAT TEST THAT SHE SHARED? 21 A. AT THE END OF THAT, THEY TYPICALLY ANNOUNCE ALL OF THE 22 ASSIGNMENTS, WHICH DEPARTMENTS THE EMPLOYEES ARE GOING TO BE 23 ASSIGNED TO. 24 MENTOR WHO WAS GOING TO BE CONDUCTING THE TRAINING FOR THAT 25 DEPARTMENT, LOUD ENOUGH FOR ALL OF THE APPLICANTS TO HEAR, THAT IS AN EXERCISE THAT AND SHE DESCRIBED JEFF FISCHER, WHO WAS THE DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 728 JONES - DIRECT / NUGENT 1 MAKE A STATEMENT TO THE EFFECT OF MOTHER F-ER, WHO THE HELL 2 DID I PISS OFF TO GET THESE -- OR THIS GROUP. 3 SOMETHING ABOUT MORE THAN LIKELY, THEY ARE NOT ALL GOING 4 TO MAKE IT. 5 Q. 6 MR. FISCHER SAID TO HER? 7 A. 8 MOVING TO A TEAM AND SOMETHING ALONG THE LINES OF NO, I DON'T 9 THINK THAT WOULD BE A GOOD FIT. DO YOU RECALL HER SHARING ANYTHING ELSE ABOUT WHAT YEAH. I RECALL SOMETHING ABOUT A STATEMENT ABOUT HER 10 THAT TEAM. 11 ORIENTATION IS NOT HETEROSEXUAL. 12 Q. 13 WE ALREADY HAVE A FEMALE ON HE WAS REFERRING TO A MALE EMPLOYEE WHOSE SEXUAL IS THAT SOMETHING -- IS THAT -- OKAY. WITHDRAWN. CAN YOU RECALL ANYTHING ELSE THAT SHE SAID SPECIFICALLY 14 ABOUT THE BEGINNING OF HER EMPLOYMENT WITH MR. FISCHER? 15 A. 16 IN HER GROUP OF TRAINEES WHO WERE NOT LIKED. 17 SOMETHING BEING SAID BY MR. FISCHER ABOUT WHO WOULD HIRE A 18 PERSON LIKE CIARA NEWTON DURING THEIR TRAINING PROCESS. 19 MR. FISCHER, WHEN THEY WOULD GIVE AN ANSWER, WOULD SNAP A 20 PIECE OF PAPER, PUT HIS FACE INTO FRONT OF HIS HANDS IN FRONT 21 OF HER COWORKERS, IN AN ATTEMPT TO HUMILIATE OR MAKE THEM FEEL 22 LIKE THERE WAS NO HOPE FOR THEM. 23 Q. 24 YOU'VE DESCRIBED MS. NEWTON MAKING ON THE PART OF MS. LAYNE? 25 DID YOU OBSERVE MS. LAYNE'S REACTION? JUST AN OVERALL SENSE THAT THERE WERE A COUPLE OF PEOPLE I RECALL DID YOU OBSERVE ANY REACTION TO ANY OF THE STATEMENTS THAT DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 729 JONES - DIRECT / NUGENT 1 A. 2 SOME PRETTY STRONG STATEMENTS YOU'RE MAKING HERE AND I FELT 3 LIKE WE SHOULD TAKE A BREAK. 4 THAT CIARA AND I COULD GO TALK OUT IN THE HALLWAY. 5 Q. DID YOU AND CIARA GO TALK OUT IN THE HALLWAY? 6 A. WE DID. 7 SERIOUS HARASSMENT AND I FELT LIKE SHE SHOULD USE SHELL'S 8 HARASSMENT PROCESS TO MAKE A FORMAL COMPLAINT. 9 LIKE THAT WOULD PROTECT HER ON ALL OF THESE OTHER ISSUES THAT 10 I DIDN'T THINK THEY WERE THAT SERIOUS, THEY WERE PILING ON HER 11 AT THAT MEETING. 12 Q. 13 PILING ON IN A MOMENT. 14 A. OKAY. 15 Q. BUT I WANT TO STICK WITH THE TIME THAT YOU TALKED WITH 16 CIARA IN THE BREAK AND IN THE MEETING? 17 A. OKAY. 18 Q. AFTER YOU TOLD HER WHAT YOU JUST DESCRIBED, DID SHE 19 RESPOND TO YOU? 20 A. SHE DID. 21 Q. WHAT DID SHE SAY? 22 A. OKAY. 23 WITNESSED THIS, SHE WAS GOING TO HAVE TO NAME THEM AND SHE 24 DIDN'T FEEL COMFORTABLE DRAGGING THEM INTO IT UNLESS SHE COULD 25 TALK TO THEM FIRST. I RECALL HER SAYING SOMETHING ABOUT, YOU KNOW, THESE ARE SO I ASKED IF WE COULD PAUSE SO I TOLD HER THAT WHAT SHE WAS DESCRIBING IS THAT I FELT WE WILL TALK ABOUT THOSE ISSUES THAT YOU WILL FELT WERE SHE WAS CONCERNED THAT -- THAT THE PEOPLE THAT AND I SAID OKAY. WELL, HOW ABOUT -- I'LL DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 730 JONES - DIRECT / NUGENT 1 TELL YOU WHAT. 2 LIKE AN OPPORTUNITY TO DISCUSS WHAT WAS WITNESSED WITH THE 3 PEOPLE WHO WERE THERE BEFORE MAKING A NORMAL COMPLAINT AND 4 MAYBE TAKE YOUR LONG CHANGE AND MAYBE ANOTHER SET AND WE CAN 5 GET THAT GOING. 6 Q. WHEN YOU WENT BACK TO THE MEETING, WHAT HAPPENED? 7 A. THAT'S WHAT I JUST DESCRIBED I RECALL IS WHAT I SAID TO 8 MS. LAYNE AND THE OTHER PEOPLE AT THE TABLE WAS THAT CIARA 9 WOULD FEEL MORE COMFORTABLE HAVING AN OPPORTUNITY TO TALK WITH 10 HER COWORKERS BEFORE NAMING NAMES AND DRAGGING THEM INTO THIS. 11 BUT SHE DOES FEEL THAT SERIOUSLY ABOUT WHAT SHE'S GONE 12 THROUGH, AND I ENCOURAGED HER TO USE SHELL'S HARASSMENT 13 PROCESS TO FILE A FORMAL COMPLAINT. 14 Q. 15 KNOW WHO IS IN HER -- 16 WE'LL GO BACK AND TELL THEM THAT YOU WOULD AND SHE AGREED. DID MS. LAYNE SAY ANYTHING ALONG THE LINES OF, WELL, WE MR. LAFAYETTE: OBJECTION, LEADING. 17 BY MS. NUGENT: 18 Q. 19 WAS IN HER NEW HIRE CLASS AND WE CAN TALK TO THEM OURSELVES? 20 ANYTHING LIKE THAT? 21 THE COURT: 22 THERE AN OBJECTION? 23 24 25 DID MS. LAYNE SAY ANYTHING ALONG THE LINES OF WE KNOW WHO I DIDN'T HEAR -- YOU LOOKED AT ME. MR. LAFAYETTE: YES, YOUR HONOR. I MADE AN OBJECTION OF LEADING. THE COURT: WAS SUSTAINED. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 731 JONES - DIRECT / NUGENT 1 BY MS. NUGENT: 2 Q. 3 THE -- IN THE MEETING. 4 SO WAS THE TOPIC OF ATTENDANCE SOMETHING THAT WAS DISCUSSED? 5 A. 6 THAT MEETING WAS THERE WAS AN ISSUE WITH CIARA HAD WORKED OUT 7 THE TIME SHE WAS GOING TO RELIEVE ONE OF HER COWORKERS. 8 Q. WHAT DO YOU RECALL ABOUT THAT? 9 A. BASICALLY, THAT THE PERSON THAT SHE HAD REACHED AN YOU MENTIONED TWO OTHER TOPICS THAT WERE DISCUSSED IN YEAH. YOU SAID ONE THING ABOUT BEING LATE. I RECALL ONE OF THE ITEMS THAT WERE DISCUSSED AT 10 AGREEMENT WITH WHO WAS GOING TO STAY A LITTLE BIT LONGER 11 BEFORE SHE CAME IN TO RELIEVE HIM WAS TOLD TO GO HOME, THEY 12 HAD AN EXTRA WORKING AND HE DIDN'T NEED TO STAY. 13 Q. 14 TYPE OF THING, MAKING THAT TYPE OF ARRANGEMENT WITH THE 15 OPERATOR THEY ARE COMING TO RELIEVE? HAVE YOU OBSERVED OPERATORS AT THE REFINERY DOING THAT 16 17 MR. LAFAYETTE: OBJECTION, LACK OF FOUNDATION IN OPCEN. 18 THE COURT: 19 BY MS. NUGENT: 20 Q. 21 YOU HAVE IT IN MIND. OVERRULED. YOU CAN ANSWER THE QUESTION BUT I WILL RESTATE IT JUST SO 22 HAVE YOU OBSERVED OPERATORS AT THE REFINERY MAKING THOSE 23 TYPES OF ARRANGEMENTS AND ASKING AN OPERATOR BEFORE THEM WHO 24 THEY ARE GOING TO RELIEVE TO STAY AFTER? 25 A. IT IS A COMMON PRACTICE. YEAH, IT HAPPENS EVERY DAY. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC AND 732 JONES - DIRECT / NUGENT 1 SHELL ALSO HAS A MARTINEZ POLICY AND IT IS IN OUR CONTRACT 2 THAT ALLOWS OPERATORS TO EXCHANGE WHOLE SHIFTS. 3 FILL OUT SOME PAPERWORK, BUT YEAH, IT IS NOT UNCOMMON. 4 Q. AND IN THE MEETING DID YOU SAY ANYTHING ALONG THOSE LINES? 5 A. I DID. 6 FREQUENTLY IN MY OLD DEPARTMENT, AND I THINK I EXPRESSED SHOCK 7 THAT IT WAS SUCH A BIG DEAL IN OPCEN. 8 Q. 9 WAS DISCUSSED AND I FORGET EXACTLY THE WORDS YOU USED. 10 OKAY. THEY HAVE TO I STATED THAT IN MY EXPERIENCE HAD HAPPENED SO NOW LET'S TURN TO THE THIRD TOPIC THAT YOU SAID BUT YOU SAID SOMETHING LIKE -- 11 MR. LAFAYETTE: 12 THE COURT: 13 BY MS. NUGENT: 14 Q. 15 LIKE THAT. 16 DISCUSSED. 17 OBJECTION, LEADING. I DON'T HAVE A QUESTION. YOU TALKED ABOUT SOME LESS SERIOUS THINGS OR SOMETHING SO I WANT TO TURN TO THAT LAST TOPIC THAT WAS DO YOU KNOW WHAT A PD LOG IS? 18 A. 19 DISCIPLINE. 20 Q. WHEN YOU SAY SUPPOSED TO STAND FOR, WHAT DO YOU MEAN? 21 A. WELL, IT HAS TYPICALLY TURNED INTO A CLUB BY MANAGEMENT TO 22 BEAT MY COWORKERS OVER THE HEAD WITH. 23 ONLY HAVE COACHING FOR NEGATIVE EVENTS BUT IT IS SUPPOSED TO 24 BE A REFLECTION OF THE POSITIVE THINGS THAT AN EMPLOYEE DOES 25 IN THE COURSE OF THEIR JOB. YEAH. THAT ACRONYM IS SUPPOSED TO STAND FOR POSITIVE IT IS SUPPOSED TO NOT DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 733 JONES - DIRECT / NUGENT 1 Q. 2 DURING THE MEETING WERE ENTRIES THAT WERE MADE INTO IT 3 DISCUSSED? 4 A. 5 WAS ABLE TO LOOK AT DURING HER TERMINATION. 6 Q. OKAY. 7 A. OKAY. 8 Q. THE JURY HAS HEARD QUITE A BIT ABOUT SOMETHING CALLED A 9 DRAEGER TUBE AND SO I WOULD LIKE YOU TO EXPLAIN WHAT THAT IS A LET'S TALK ABOUT MS. NEWTON'S PD LOG, SPECIFICALLY. I THINK QUITE A FEW WERE IN THE PD LOG THAT I EVENTUALLY SO LET'S TALK ABOUT SOME OF THOSE ENTRIES. 10 D GIVE US A DRAWING. 11 CAN BE WRITTEN ON? 12 13 14 15 THE CLERK: UP THERE. MS. NUGENT: 17 MS. NUGENT: 20 THERE HAS TO BE A DOCUMENT OKAY. MAY I HAVE PERMISSION TO HAVE MR. JONES COME DOWN AND DO A DRAWING ON THE ELMO? THE COURT: 19 HE CAN WRITE. HE CAN'T DRAW ON THE SCREEN. 16 18 MS. STONE, CAN WE HAVE THE SCREEN THAT SURE. YOU CAN COME ON DOWN. (WITNESS STEPS DOWN FROM WITNESS STAND.) THE COURT: IF YOU ARE GOING TO ASK FOR IT TO BE ADMITTED, I NEED A CLEAN SHEET OF PAPER. 21 MS. NUGENT: 22 THE COURT: 23 DO YOU NEED A MARKER? 24 MS. NUGENT: I BROUGHT ONE FOR THIS VERY MOMENT. OKAY. I HAVE A MARKER. 25 DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 734 JONES - DIRECT / NUGENT 1 BY MS. NUGENT: 2 Q. 3 WILL YOU EXPLAIN WHAT YOU ARE DRAWING? 4 A. 5 FOR DIFFERENT TYPES OF CHEMICALS. 6 I'M GOING TO DRAW IT NOW. 7 MR. JONES, WILL YOU DRAW A DRAEGER TUBE AND AS YOU DO IT, OKAY. A DRAEGER TUBE THAT'S A WAY OF SAMPLING GAS STREAMS IT'S SMALLER THAN A PENCIL. AND IT'S A GLASS TUBE AND USUALLY ABOUT 4 INCHES LONG. 8 THAT COMES TO A SMALL POINT AND THERE IS TYPICALLY A LITTLE 9 BULB ON THE END. 10 THERE IS A TYPE OF REAGENT IN THE MIDDLE OF THE TUBE AND GRADATIONS OR LINES. 11 THE TUBE ITSELF, THERE'S NO EASY WAY TO GET THE GAS TO 12 FLOW THROUGH THAT TUBE, SO THERE IS A HAND PUMP. 13 ME THINK OF A FIREPLACE BELLOWS, BUT IT WILL FIT IN YOUR HAND 14 AND IT WORKS THE OPPOSITE. 15 ACTUALLY SUCKING AIR THROUGH THE TUBE. 16 RUBBER RECEPTACLE. 17 AND IT MAKES IT IS NOT BLOWING AIR. IT IS THERE IS A WILL YOU BE GENERALLY, WHAT HAPPENS IS -- THE TUBES BOTH ENDS WILL GET 18 BROKEN, THE TUBE WILL BE INSERTED HERE (INDICATING) AND 19 ACCORDING TO WHATEVER CHEMICAL YOU ARE TRYING TO GET A TEST 20 RESULT OF, YOU'LL PUMP THE HAND PUMP A PRESCRIBED NUMBER OF 21 PUMPS AND, BY DOING THAT, THAT SUCKS AIR THROUGH THE TUBE AND 22 IT MAKES THE REAGENT IN THE MIDDLE OF THE TUBE CHANGE COLOR TO 23 A CERTAIN POINT ALONG THESE GRADATIONS WHICH ALLOWS YOU TO 24 SAY, OKAY, THERE'S X-PERCENT OF H2S IN THIS STRING. 25 Q. OKAY. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 735 JONES - DIRECT / NUGENT 1 A. 2 WILL FIT INTO YOUR HAND. LIKE I SAID, THIS IS ABOUT 4 INCHES LONG AND THIS PUMP 3 4 THE COURT: OKAY. 5 ALL RIGHT. SEE IF WE CAN CLEAN OUR ELMO. WE WILL MARK THAT NEXT IN ORDER. (PLAINTIFF'S EXHIBIT 207 MARKED FOR IDENTIFICATION) 6 BY MS. NUGENT: 7 Q. OKAY. 8 A. YES. 9 Q. IS IT PUT INTO THE PUMP AS YOU DESCRIBED IN SOME WAY, AND SO THE GLASS PIECE HERE? 10 YOU CAN -- SO WHERE IS IT PUT INTO THE PUMP HERE (INDICATING)? 11 A. 12 RECEPTACLE THAT, ONCE YOU BROKE BOTH ENDS OF THE TUBE OFF, YOU 13 INSERT IT INTO THERE BEFORE YOU BEGIN THE PUMPING ACTION TO 14 DRAW THE MATERIAL INTO THE TUBE. 15 EXACTLY WHERE YOU ARE POINTING. THERE IS A RUBBER AND WHAT I DIDN'T DRAW UP THERE, THERE IS TYPICALLY A BOX 16 OR SOME KIND OF RECEPTACLE, THAT ONCE YOU ASSEMBLE THE HAND 17 PUMP AND THE TUBE, YOU INSERT THAT INTO THERE AND SEND A 18 STREAM OF PROCESSED GAS INTO THAT BOX BEFORE YOU START 19 PUMPING. 20 Q. 21 (INDICATING) HAVE TO BE BROKEN OFF, RIGHT? 22 A. 23 REAGENT, OVER THE MIDDLE OF THE TUBE UNLESS BOTH ENDS HAVE 24 BEEN BROKEN. 25 Q. THAT IS HOW YOU COME UP WITH YOUR TEST RESULT. AND BEFORE YOU CAN USE THE TUBE, THIS END AND THIS END ABSOLUTELY. OKAY. YOU WON'T BE ABLE TO DRAW GAS OVER THE THANK YOU. I DON'T KNOW IF THAT CLARIFIED IT. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC IT 736 JONES - DIRECT / NUGENT 1 DID FOR ME. 2 OKAY. SO THERE WAS SOMETHING THAT WAS TALKED ABOUT 3 CONCERNING A DRAEGER TUBE IN THE AUGUST 2ND MEETING. 4 YOU REMEMBER BEING DISCUSSED? 5 A. 6 WHEN SHE HAD GONE OUT THERE TO DRAW THE SAMPLE AS SHE HAD IN 7 THE PAST THAT THE TUBES WEREN'T WHERE THEY NORMALLY WERE. 8 FROM MY EXPERIENCE WHEN I WOULD GO OUT TO THAT -- THAT TYPE OF 9 SAMPLE, WE WOULD HAVE AN AREA WITH ONE OR TWO CONTAINERS OF 10 WHAT DO I REMEMBER THERE WAS SOME CONCERN ON CIARA'S PART THAT AND TUBES READILY AVAILABLE SO YOU COULD TAKE ONE. 11 BUT, YEAH, SHE DESCRIBED WHEN SHE WENT OUT FOR THE TIME 12 THAT WAS ENTERED IN HER PD LOG, THE AREA LOOKED DIFFERENT AND 13 SHE COULD NOT LOCATE A BRAND NEW PRISTINE TUBE IN A BOX. 14 Q. AND SO WHAT DID SHE DO -- 15 A. I RECALL. 16 Q. -- AS SHE EXPLAINED IT. 17 A. I REMEMBER HER DESCRIBING SHE SAW ONE ON THE GROUND OR ON 18 SOME OF THE EQUIPMENT NEARBY THAT ONLY HAD ONE OF THE TIPS 19 BROKEN OFF. 20 CHANGED COLOR, SO IT WAS THE SAME AS CLEAN TUBE. 21 Q. 22 DOCUMENTS IN IT. 23 AND I BELIEVE SHE ALSO STATED THAT IT HAD NOT YOU HAVE A WITNESS BINDER IN FRONT OF YOU AND IT HAS SOME I WOULD LIKE YOU TO TAKE A LOOK AT NO. 99. 24 A. 25 ALL RIGHT. ALL RIGHT. I'M GOING TO HAVE TO GET MY READING GLASSES. SAMPLING AND TESTING, EXHIBIT 99. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 737 JONES - DIRECT / NUGENT 1 Q. DO YOU RECOGNIZE THIS DOCUMENT? 2 A. I DON'T RECALL SEEING THIS VERSION OF IT. 3 LOOKED DIFFERENT WHEN I WAS AN OPERATOR. 4 Q. OKAY. 5 A. YOU KNOW WHAT? 6 OPCEN HYDROGEN PLANT NO. 2. 7 OPERATOR IN THAT PLANT, SO I WAS NEVER CALLED UPON TO USE THIS 8 PROCEDURE. 9 SIMILAR TO OTHER TYPES OF PROCEDURES THAT SHELL USES IN OTHER IT PROBABLY I SEE HERE NOW IT'S SPECIFIC PROCEDURE FOR SO I WAS NEVER QUALIFIED AS AN IT LOOKS SIMILAR TO PAGE 1 OF 6. YEAH. IT LOOKS 10 DEPARTMENTS. 11 Q. 12 AND CORRECT COPY OF THE SAMPLING AND TESTING POLICY SHELL USES 13 IN HP-2? DO YOU HAVE ANY REASON TO BELIEVE THAT THIS IS NOT A TRUE 14 15 MR. LAFAYETTE: THAT CALLS FOR SPECULATION AND LACKING IN FOUNDATION. 16 17 OBJECTION. THE COURT: IT IS IN EVIDENCE BUT HE -- THE OBJECTION IS SUSTAINED. 18 MS. NUGENT: OKAY. 19 BY MS. NUGENT: 20 Q. 21 THERE IS A NEGATIVE READING? 22 A. WHEN YOU SAY NEGATIVE READING, WHAT DO YOU MEAN BY THAT? 23 Q. WHAT DOES A NEGATIVE READING MEAN? 24 OR NOT? 25 A. DO YOU KNOW HOW MANY TIMES A DRAEGER TUBE CAN BE REUSED IF OH, OKAY. YEAH. IS THERE GAS PRESENT IN SOME INSTANCES TUBES -- YEAH, CAN BE DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 738 JONES - DIRECT / NUGENT 1 USED MULTIPLE TIMES. 2 IF YOU BREAK OFF THE OTHER END OF THAT TUBE, IT'S THE SAME AS 3 ONE THAT YOU'VE JUST TAKEN OUT OF THE BOX. 4 Q. 5 WERE DISCUSSED. 6 OF MS. NEWTON'S PD LOG IN THAT MEETING? 7 A. 8 ACID AND ALSO THERE WAS AN EVENT WITH A BAKER TANK AND 9 POTASSIUM PERMANGANATE. 10 Q. 11 OKAY. OR TUBES THAT HAVE ONE END BROKEN OFF, LET'S TALK ABOUT SOME OF THE OTHER ENTRIES THAT WHAT ELSE DO YOU REMEMBER DISCUSSING IN TERMS I BELIEVE IT CAME UP SOME KIND OF INCIDENT WITH SULFURIC ALL RIGHT. LET'S START WITH THE POTASSIUM PERMANGANATE. WHAT DO YOU RECALL ABOUT THAT? 12 A. 13 CIARA HAD STARTED TO OPEN OR HAD OPENED AND HAD CLOSED AND 14 THAT MAKE ITS WAY INTO HER PD LOG. 15 Q. 16 HER PD LOG? THAT THERE WAS SOME KIND OF ISSUE WITH THE VALVE THAT DID YOU HAVE ANY OPINION ABOUT THAT MAKING ITS WAY INTO 17 MR. LAFAYETTE: 18 THE COURT: 19 THE WITNESS: 20 STOP MY EYES FROM ROLLING BACK. 21 HAVE NOT OPENED THE WRONG VALVE. 22 HAVE CATASTROPHIC EFFECTS IF IT IS OPENED AT THE WRONG TIME OR 23 IN THE WRONG PLACE, THEN THERE SHOULD BE SOME KIND OF 24 MECHANICAL MEANS TO PREVENT THAT, AND THE MATERIAL IN THE TANK 25 THE WAY IT WAS DESCRIBED AT THAT MEETING, IT'S A DILUTE OBJECTION, INAPPROPRIATE -- OVERRULED. YEAH. AT THE TIME I PRETTY MUCH HAD TO I MEAN, HOW MANY OPERATORS IF IT IS A VALVE THAT COULD DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 739 JONES - DIRECT / NUGENT 1 MIXTURE OF POTASSIUM PERMANGANATE, ABOUT 4 PERCENT AND 2 96 PERCENT WATER THAT IS TYPICALLY USED TO CLEAN OUT PIPING 3 SYSTEMS TO REMOVE ODORS AND H2S SULFUR COMPOUNDS. 4 BY MS. NUGENT: 5 Q. 6 WATER AND 4 PERCENT POTASSIUM PERMANGANATE, THAT WAS -- THAT 7 CAME OUT WHEN THE VALVE WAS OPENED? 8 A. YES, THAT'S THE WAY I UNDERSTOOD IT. 9 Q. ALL RIGHT. THEN YOU UNDERSTOOD THAT WAS THAT MIXTURE, 96 PERCENT YOU ALSO MENTIONED SOMETHING ABOUT SULFURIC 10 ACID? 11 A. 12 CONCERNED ABOUT -- THERE WAS SOME SULFURIC ACID IN A CERTAIN 13 AREA THAT HAD BEEN SPILLED AND SHE FELT IT WAS UNSAFE AND THAT 14 IT NEEDED TO BE CLEANED UP. 15 AND HER COWORKERS. 16 Q. 17 TO SIXTY"? 18 A. YES, I AM. 19 Q. WHAT IS YOUR UNDERSTANDING OF ZERO TO SIXTY IN THE CONTEXT 20 OF THE SHELL REFINERY IN MARTINEZ? 21 A. 22 REPORTING SYSTEM. 23 AND YOU WRITE A REPORT ON AN INCIDENT. 24 25 WHAT DO YOU RECALL ABOUT THAT INCIDENT? YEAH. THERE WAS DISCUSSION OF AN INCIDENT WHERE CIARA WAS AND LET ME ASK YOU: SHE EXPRESSED CONCERN FOR HERSELF ARE YOU FAMILIAR WITH THE TERM "ZERO THAT'S A PRACTICE AT SHELL MARTINEZ WHERE WE USED OUR IT'S CALLED FOUNTAIN INCIDENT MANAGEMENT. AND THE ZERO TO SIXTY PART OF THAT IS YOU CUT AND PASTE THAT REPORT INTO -- IT'S JUST A BLANK EMAIL. AND YOU SEND DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 740 JONES - DIRECT / NUGENT 1 THAT OUT AS A DESCRIPTION OF THE INCIDENT TO A PRESCRIBED LIST 2 OF RECIPIENTS ON THE EMAIL LIST ON THAT TEMPLATE WHEN YOU 3 PASTE THE REPORT INTO IT. 4 INCIDENTS AND SHARE LEARNINGS WITHIN OF SIXTY MINUTES OF AN 5 EVENT. 6 Q. FOR WHAT PURPOSE? 7 A. TO PREVENT REPEAT INCIDENTS OR TO ALERT OTHER UNITS THAT 8 MAY HAVE A SIMILAR ISSUE IN THEIR UNITS AND TO, LIKE I SAID, 9 REPEAT INCIDENTS OR EVENTS. AND THE INTENT IS TO COMMUNICATE 10 Q. 11 TO SIXTY REPORT PREPARED FOR THE POTASSIUM PERMANGANATE 12 INCIDENT? DID YOU HAVE ANY UNDERSTANDING OF WHETHER THERE WAS A ZERO 13 MR. LAFAYETTE: 14 THE COURT: OBJECTION, LACKING IN FOUNDATION. OVERRULED -- WELL, ACTUALLY SET SOME 15 FOUNDATION. 16 BY MS. NUGENT: 17 Q. 18 TOLD US THAT YOU DISCUSSED THIS BAKER VALVE INCIDENT WHERE 19 THIS MIXTURE WATER AND 4 PERCENT POTASSIUM PERMANGANATE CAME 20 OUT, RIGHT? 21 A. I RECALL THAT BEING BROUGHT UP DURING THE MEETING, YES. 22 Q. DO YOU HAVE ANY UNDERSTANDING OF WHETHER A ZERO TO SIXTY 23 REPORT WAS CREATED AS A RESPONSE TO THAT? WHEN YOU WERE IN THE MEETING ON AUGUST 2ND, YOU ALREADY 24 MR. LAFAYETTE: 25 THE COURT: OBJECTION, LACKING IN FOUNDATION. OVERRULED. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 741 JONES - DIRECT / NUGENT 1 DO YOU HAVE AN UNDERSTANDING FROM THAT MEETING? 2 THE WITNESS: I'M KIND OF DRAWING A BLANK IN REGARDS 3 TO THAT. 4 THE FACT THAT ONE DID NOT GET SUBMITTED ON THE SULFURIC ACID 5 INCIDENT. 6 BY MS. NUGENT: 7 Q. WHY DOES THAT STAND OUT TO YOU? 8 A. WELL, I MEAN, THE AMOUNT OF RISK AND THE POTENTIAL FOR 9 INJURY ON 99 PERCENT SULFURIC ACID IS SO MUCH BE HIGHER THAN A 10 DILUTE WATER AND POTASSIUM PERMANGANATE INCIDENT THAT IT SEEMS 11 LIKE YOU WOULD DEFINITELY WANT EVERYONE TO BE AWARE OF A SPILL 12 IN A CERTAIN AREA THAT HAD SULFURIC ACID INVOLVED. 13 Q. 14 WITNESS BINDER, THERE IS AN EXHIBIT 116. 15 I THINK THE THING THAT STANDS OUT THE MOST TO ME WAS LET'S TAKE A LOOK CLOSER AT SULFURIC ACID. ALSO IN YOUR WILL YOU TAKE A LOOK AT THAT? 16 A. OKAY. 17 Q. ALL RIGHT. 18 A. I AM. 19 Q. WHAT IS THAT? 20 A. IT LOOKS LIKE SDS, SAFETY DATA SHEET, FOR SULFURIC ACID AT 21 A 99 PERCENT CONCENTRATION. 22 Q. HAVE YOU SEEN THIS DOCUMENT BEFORE? 23 A. I HAVE SEEN -- I DON'T KNOW IF I HAVE SEEN THIS EXACT 24 DOCUMENT. 25 ONES. ALL RIGHT. ARE YOU AT 116? EACH MANUFACTURER HAS ONE BUT I'VE SEEN SIMILAR DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 742 JONES - DIRECT / NUGENT 1 Q. 2 SECTION TWO, HAZARDS IDENTIFICATION? 3 A. OKAY. 4 Q. THERE IS A PORTION OF THE DOCUMENT THAT SAYS 5 CLASSIFICATION OF THE SUBSTANCE OR MIXTURE. 6 IF YOU LOOK DOWN AT THE BOTTOM OF THE PAGE, THIS IS UNDER DO YOU SEE THAT? 7 A. YEAH, I'M LOOKING AT IT. 8 Q. THERE IS SOME INFORMATION BELOW THAT. 9 DO YOU RECOGNIZE THAT -- BASED ON YOUR EXPERIENCE THAT 10 YOU'VE ALREADY DESCRIBED, DO YOU RECOGNIZE WHAT IS IN THAT 11 SECTION AS THE HARMS THAT CAN COME FROM SULFURIC ACID 12 99 PERCENT? 13 A. 14 GREAT CONCERN ON THE PART OF ANY PERSON WORKING AROUND THAT 15 MATERIAL. ABSOLUTELY. 16 17 THAT LOOKS VERY FAMILIAR AND WOULD CAUSE MS. NUGENT: YOUR HONOR, I MOVE EXHIBIT 116 INTO EVIDENCE. 18 THE COURT: 19 MR. LAFAYETTE: 20 ANY OBJECTION? YES. NO FOUNDATION WITH THIS WITNESS. 21 THE COURT: 22 MS. NUGENT: 23 ACID. 24 BY MS. NUGENT: 25 Q. AGREED. LET'S KEEP TAKING A LOOK AT THE SULFURIC LET'S -- IF YOU LOOK ON THE PAGE 2? DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 743 JONES - DIRECT / NUGENT 1 A. OKAY. 2 Q. THERE ARE SOME PRECAUTIONARY STATEMENTS, PREVENTION, 3 RESPONSE, STORAGE, DISPOSAL AND INSTRUCTIONS FOR THAT. 4 RECOGNIZE THOSE? 5 A. I DO. 6 Q. OR THOSE CONSISTENT WITH WHAT YOU HAVE LEARNED IN YOUR 7 TRAINING? 8 MR. LAFAYETTE: 9 THE COURT: DO YOU LEADING. OVERRULED. 10 BY MS. NUGENT: 11 Q. 12 CONSISTENT WITH WHAT YOU HAVE LEARNED IN YOUR TRAINING SINCE 13 YOU'VE BEEN AT THE REFINERY -- 14 A. YES, THEY ARE. 15 Q. -- IN MARTINEZ? 16 ARE THOSE AREAS AND WHAT IT SAYS ABOUT SULFURIC ACID ONE OTHER THING ON THAT PAGE. OTHER HAZARDS WHICH DO NOT 17 RESULT IN RECLASSIFICATION. 18 DOCUMENT? 19 A. YES, IT SAYS -- 20 Q. DON'T READ IT. 21 A. OKAY. 22 Q. IS THAT INFORMATION CONSISTENT WITH WHAT YOU HAVE LEARNED 23 IN YOUR TRAINING AT SHELL FOR SULFURIC ACID 99 PERCENT? 24 A. IT IS. 25 Q. AND IF YOU FLIP THROUGH QUICKLY JUST THE REST OF THE DO YOU SEE THAT PORTION OF THE DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 744 JONES - DIRECT / NUGENT 1 DOCUMENT, I HAVE THE SAME QUESTION FOR THE OTHER INFORMATION 2 ON IT BASED -- 3 4 THE COURT: QUICKLY. 5 6 OKAY. THE COURT: INTO EVIDENCE. I'M NOT GOING TO MOVE THE ENTIRE DOCUMENT YOU WILL HAVE TO GO SECTION BY SECTION. MS. NUGENT: OKAY. I WOULD LIKE TO MAKE THE FIRST TWO PAGES 116A AND MOVE THAT INTO EVIDENCE? 11 MR. LAFAYETTE: 12 THE COURT: 13 I WOULD LIKE TO MOVE IT INTO EVIDENCE -- 9 10 THIS IS A 19-PAGE DOCUMENT. MS. NUGENT: 7 8 I DON'T KNOW HOW HE IS GOING TO DO THAT OBJECTION, LACK OF FOUNDATION. WE ARE -- HAVEN'T TALKED ABOUT SECTION THREE ON PAGE 2. 14 MS. NUGENT: OKAY. 15 BY MS. NUGENT: 16 Q. 17 PAGE OF THE DOCUMENT. 18 A. OKAY. 19 Q. IT SAYS COMPOSITION/INFORMATION ON INGREDIENTS? 20 SEE THAT? 21 A. I DO. 22 Q. IF YOU LOOK AT THE INFORMATION THERE, IS THAT INFORMATION 23 CONSISTENT WITH WHAT YOU KNOW ABOUT SULFURIC ACID BASED ON 24 YOUR TRAINING AND EXPERIENCE AT THE REFINERY IN MARTINEZ? 25 A. MR. JONES, IF YOU WILL LOOK AT SECTION THREE ON THE SECOND IT IS. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC DO YOU 745 JONES - DIRECT / NUGENT 1 THE COURT: 2 NUMBERS? 3 YOU KNOW THAT? 4 HOW CAN THAT BE? YOU KNOW IDENTIFICATION THERE ARE IDENTIFICATION NUMBERS ON THIS. THE WITNESS: HOW DO ALTHOUGH THE NUMBERS ARE UNIQUE, THEY 5 ARE ONLY UNIQUE TO THE MANUFACTURER OF THAT CHEMICAL. 6 COMPOUNDS THEMSELVES ARE VERY COMMON MATERIALS THAT ARE USED 7 IN MOST MANUFACTURING COMPLEXES. 8 9 10 THESE DATA SHEETS ARE UNIQUE TO THE MANUFACTURER. OTHER THE -THE COURT: THE WITNESS: 14 THE COURT: 15 THE WITNESS: THE COURT: 18 THE WITNESS: WHAT LOOKS FAMILIAR TO YOU? THE 99 PERCENT SULFURIC ACID, IT BEING OKAY. AND JUST THE GENERAL WAY THAT IT'S PRESENTED ON A SAFETY DATA SHEET. 20 21 SECTION THREE, PAGE 2? CLASSIFIED AS A MIXTURE. 17 19 SO WHAT ARE YOU FAMILIAR WITH IN THAT SECTION THREE ON PAGE 2? 13 16 THE MATERIAL CONTAINED IN THEM IS NOT AS UNIQUE AS THE NUMBERS AND 11 12 THE THE COURT: ALL RIGHT. WILL ADMIT PAGES 1 AND 2. 22 THE OBJECTION IS NOTED. I WE WILL DESIGNATE THAT AS 116A. (PLAINTIFF'S EXHIBIT 116A RECEIVED IN EVIDENCE) 23 BY MS. NUGENT: 24 Q. 25 LOG THAT WERE DISCUSSED AT THAT AUGUST 2ND MEETING? DO YOU RECALL ANY OF THE OTHER ENTRIES ON MS. NEWTON'S PD DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC WE'VE 746 JONES - DIRECT / NUGENT 1 TALKED ABOUT THE BAKER TANK AND WE TALKED ABOUT A SULFURIC 2 ACID AND TALKED ABOUT THE DRAEGER TUBE. 3 DO YOU RECALL ANYTHING ELSE THAT WAS WITH DISCUSSED IN 4 TERMS OF AN ENTRY INTO HER LOG? 5 A. YES. 6 Q. WHAT ELSE DO YOU RECALL? 7 A. I RECALL MENTION OF A BUMPING A PUMP. 8 Q. WHAT DO YOU RECALL ABOUT THAT? 9 A. SOMETHING ABOUT EITHER IT HAD NOT BEEN BUMPED OR IT HAD 10 BEEN BUMPED AND THE BOARD OPERATOR HAD NOT WHEN CONTACTED. 11 SOMETHING ALONG THOSE LINES. 12 Q. 13 ON WHAT YOU HEARD AT THE MEETING? 14 A. 15 NOTHING. 16 TYPICALLY, IT IS NOT A CRITICAL ACTION. 17 WANT TO INFORM YOUR BOARD OPERATOR IN CASE IT CAUSES THEM AN 18 ALARM SO THAT THEY ARE NOT OVERLY CONCERNED THAT SOMETHING BAD 19 IS HAPPENING IN YOUR UNIT. 20 MANY DIFFERENT REASONS. 21 Q. 22 OF THE OTHER PEOPLE WHO ARE IN THE MEETING TO -- TO MS. NEWTON 23 GENERALLY, GENERALLY ABOUT HER PERFORMANCE? 24 A. 25 OVERALL SENSE EVERYTHING SHE DID WAS SOMETHING TO BE CONCERNED DID YOU FORM ANY OPINION ABOUT THAT ENTRY IN HER LOG BASED IT WAS LIKE MOST OF THEM. IT WAS OTHER WHOLE LOT OF IT IS VERY COMMON TO BUMP PUMPS OUT THERE. YOU TYPICALLY -- YOU BUT IT IS COMMON TO BUMP PUMPS FOR DO YOU RECALL ANY -- ANYTHING THAT MS. LAYNE SAID OR ANY I CAN'T RECALL ONE QUANTIFYING STATEMENT BUT JUST AN DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 747 JONES - DIRECT / NUGENT 1 ABOUT. 2 Q. 3 YOU TALKED ABOUT, YOUR OWN EXPERIENCE AS AN OPERATOR, WAS 4 THERE ANYTHING IN ANY OF THOSE ENTRIES THAT YOU SAW OR WAS 5 DISCUSSED THAT LED YOU TO HAVE ANY CONCERN ABOUT MS. NEWTON AS 6 AN OPERATOR WHEN IT CAME TO THE SAFETY OF OTHER OPERATORS 7 THERE? BASED ON YOUR HISTORY AT SHELL SINCE 1995, SAFETY TRAINING 8 MR. LAFAYETTE: 9 THE COURT: 10 OBJECTION, IMPROPER OPINION. OVERRULED. THE WITNESS: I THINK THE WAY THAT HER RESPONSE TO 11 THE SPILL SULFURIC ACID, I THINK THAT INDICATED A HIGH LEVEL, 12 ESPECIALLY FOR A NEW PEOPLE. 13 PAINT A TARGET ON THEIR BACK. 14 SOME KIND OF RESPONSE FROM YOUR LINE LEADERSHIP, I THINK THAT 15 SHOWS A GREAT DEAL OF INITIATIVES AND BRAVERY FOR A NEW 16 EMPLOYEE AND I WAS IMPRESSED BY THAT. 17 THINGS THAT STOOD OUT. 18 BY MS. NUGENT: 19 Q. ANYTHING ELSE STAND OUT? 20 A. JUST THE WAY -- WHEN I LOOKED AT THE PD LOG, JUST THE WAY 21 IT WAS PUT TOGETHER, YOU'VE GOT ONE PAGE WITH FIVE MONTHS OF 22 COMMENTS AND THEN SUDDENLY -- I THINK IT STOPPED IN APRIL OR 23 MAY -- AND THEN SUDDENLY IN JULY, YOU START FOUR PAGES OF 24 EVENTS THAT COVER A THREE-DAY PERIOD. 25 Q. MOST NEW EMPLOYEES DON'T WANT TO SO TO STAND UP AND PUSH FOR THAT IS ONE OF THE WHY DID THAT STAND OUT IN YOUR MIND? DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 748 JONES - DIRECT / NUGENT 1 A. 2 DISCIPLINE FOR PERFORMANCE, IT IS SOMETHING EVERY DAY. 3 TIME THAT PERSON GOES OUT THERE, THERE IS SOME KIND OF 4 INCIDENT OR SOME KIND OF BAD EFFECT. 5 FILE WAS JUST FOUR PAGES OVER A THREE-DAY PERIOD OF MINOR 6 THINGS THAT TO ME WERE LAUGHABLE. 7 Q. 8 CONCERNING MS. NEWTON WHILE SHE WAS EMPLOYED AT THE REFINERY? 9 A. WELL, TYPICALLY, IF A PERSON IS BEING CONSIDERED FOR EVERY AND WHAT I SAW IN HER WERE YOU EVER A PARTICIPANT IN ANY OTHER MEETINGS I BELIEVE IN BETWEEN THE -- THAT AUGUST MEETING AND HER 10 TERMINATION, I DIDN'T PARTICIPATE IN ANY OTHER DISCIPLINARY 11 TYPE MEETINGS. 12 Q. 13 FOLLOW-UP INFORMATION FROM THE AUGUST 2ND MEETING? 14 A. 15 A COUPLE OF WEEKS AFTER THAT AUGUST MEETING, I SENT CIARA A 16 TEXT -- I'VE STILL GOT THOSE IN MY PHONE -- REMINDING HER THAT 17 SHE SHOULD GET IN TOUCH WITH OUR ADJUSTMENT COMMITTEE CHAIRMAN 18 AND GO FORWARD WITH THE HARASSMENT PAPERWORK THAT I FELT LIKE 19 IT WOULD PROTECT HER. 20 Q. DID ANYBODY FROM THE COMPANY REACH OUT TO YOU FOR ANY NO ONE FROM THE COMPANY REACHED OUT TO ME. YOU HAD CONCERNS THAT SHE WAS BEING HARASSED, RIGHT? 21 22 I AM THINKING MR. LAFAYETTE: OBJECTION, IMPROPER OPINION AND LEADING. 23 THE COURT: 24 BY MS. NUGENT: 25 Q. SUSTAINED AS TO THE FORM OF THE QUESTION. WERE YOU CONCERNED ABOUT MS. NEWTON'S EMPLOYMENT THERE? DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 749 JONES - DIRECT / NUGENT 1 A. 2 IF SHE WERE IN THE SAME SITUATION. 3 Q. I WAS. I FELT... IT MADE ME THINK OF MY OWN DAUGHTER AND LET'S TALK ABOUT THE TERMINATION MEETING -- 4 THE COURT: 5 MS. NUGENT: 6 THE COURT: IT LOOKS LIKE YOU ARE SWITCHING GEARS. YES. SO WE WILL TAKE OUR SECOND BREAK, LADIES 7 AND GENTLEMEN. 8 LITTLE MORE SAVORY FOR YOU IN THERE. 9 ARE VEGETARIAN, DON'T TOUCH THE OBVIOUS ONE. 10 11 15 MINUTES. 14 I HAVE TO SAY, IF YOU WE'LL SEE YOU IN STAND IN RECESS. (PROCEEDINGS HEAD OUTSIDE THE PRESENCE OF THE JURY.) 12 13 SO, AGAIN, AT THIS TIME THERE IS SOMETHING A THE COURT: OKAY. THE RECORD WILL REFLECT THE JURY HAS LEFT. SO THAT I DON'T LEAVE YOU ALL IN THE DARK, I HOST A 15 GATHERING FOR ALL OF THE U.S. ATTORNEYS AND FEDERAL DEFENDERS 16 IN OAKLAND EVERY YEAR AND THESE GUYS ARE GETTING PART OF THAT. 17 SO THEY GET TAMALES AND SALSA FOR THEIR BREAK. 18 STAND IN RECESS 15 MINUTES. 19 (RECESS TAKEN AT 11:46 A.M.; RESUMED AT 12:00 P.M.) 20 21 THE CLERK: 24 25 REMAIN SEATED. COURT IS IN SESSION. COME TO ORDER. 22 23 ALL RIGHT. THE COURT: OKAY. LET'S SEE IF THEY ARE READY TO COME IN. (PROCEEDINGS HELD IN THE PRESENCE OF THE JURY.) THE COURT: OKAY. WE ARE BACK ON THE RECORD. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC THE 750 JONES - DIRECT / NUGENT 1 2 RECORD WILL REFLECT THE JURY IS BACK WITH US. SO A LITTLE STORY ABOUT THE SNACK I GAVE YOU GUYS. THE -- 3 I'M MEXICAN-AMERICAN, GREW UP IN TEXAS. 4 FEDERAL BENCH -- WE DO BOTH CRIMINAL AND CIVIL. 5 LAWYERS, THE LAWYERS WHO PRACTICE CRIMINAL, THEY SEE EACH 6 OTHER ALL THE TIME. 7 THOUGH THEY ARE ON OPPOSITE SIDES, THEY ARE VERY NICE. 8 9 WHEN I CAME TO THE THE CRIMINAL THEY ARE VERY NICE TO EACH OTHER. I ALWAYS DO A HOLIDAY GET-TOGETHER. I INVITE ALL THE ASSISTANT U.S. ATTORNEYS AND ALL THE ASSISTANT FEDERAL 10 DEFENDERS AND WE ALL GET TOGETHER. 11 TAMALES FROM TEXAS. 12 CALIFORNIA, NORTHERN CALIFORNIA BECAUSE I SHIP THEM IN. 13 EVEN AND FOR FUN I SHIP IN SO YOU WILL NEVER FIND THOSE TAMALES IN I GREW UP WITH THEM THAT WAY, WHICH ARE VERY MEATY AND NOT 14 A LOT OF MASA. 15 ALL MASA AND THERE'S NO MEAT. 16 MAKE THEM AT CHRISTMASTIME. THE ONES YOU BUY UP HERE ARE LIKE BURRITOS, 17 JUROR: 18 THE COURT: I HOPE YOU ENJOYED THEM. WE YOU MAKE THEM YOURSELF? I DO WITH MY MOM. WE ARE ALL SCHEDULED 19 NEXT WEEKEND TO MAKE THEM FOR CHRISTMAS. YOU KNOW, YOU HAVE 20 THEM FOR BREAKFAST, LUNCH, DINNER, SNACK. MY SON EATS THEM 21 DOZEN AT A TIME, BUT I CAN'T GIVE YOU MORE THAN A COUPLE; 22 OTHERWISE, YOU WILL FALL ASLEEP ON ME. 23 YOU ENJOYED THEM. 24 JURORS: 25 THE COURT: JUST A TASTE. THANK YOU. LET'S GET GOING. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC HOPE 751 JONES - DIRECT / NUGENT 1 BY MS. NUGENT: 2 Q. 3 OFF AT THE BREAK, I WAS ABOUT TO TURN TO THE TERMINATION 4 MEETING. 5 MR. JONES, JUST A COUPLE OF MORE QUESTIONS. WHEN WE LEFT SO LET'S DO THAT NOW. WHAT DO YOU REMEMBER ABOUT THE MEETING WHERE MS. NEWTON'S 6 CAREER AT SHELL ENDED? 7 A. 8 WAS FROM HR BUT THEY ASKED ME IF I COULD ATTEND A TERMINATION 9 MEETING. WELL, I WAS CONTACTED THAT MORNING BY -- I FORGET WHO IT AND -- 10 Q. IS THAT A COMMON OCCURRENCE FOR YOU? 11 A. FOR TERMINATION MEETINGS, I'VE PARTICIPATED IN TWO IN MY 12 CAREER SO FAR. 13 Q. DOES THAT INCLUDE MS. NEWTON'S? 14 A. AT THAT TIME, SHE WAS THE FIRST ONE THAT I HAD ATTENDED. 15 Q. AND WHAT DO YOU RECALL ABOUT WHAT HAPPENED IN THAT 16 MEETING? 17 A. 18 MIGHT HAVE BEEN MIKE BECK WHO ACTUALLY INFORMED CIARA THAT SHE 19 WAS BEING TERMINATED. I RECALL THAT -- I BELIEVE IT WAS CHRISTINE LAYNE. IT 20 AND I THINK I HAD CAUTIONED CIARA BEFORE THE MEETING THAT, 21 YOU KNOW, I ADVISED HER TO RESIST THE TEMPTATION TO MAKE A BIG 22 SPEECH AND MAKE A LOT OF POINTS THAT, YOU KNOW, THAT YOU 23 SHOULD BE CAREFUL WHAT YOU STATE IN ONE OF THOSE MEETINGS, AND 24 TO JUST BE CAUTIOUS ABOUT WHAT YOU SAY DURING THAT MEETING -- 25 Q. DID YOU -- DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 752 JONES - DIRECT / NUGENT 1 A. -- WALKING INTO IT. 2 Q. NO, NO. 3 A. THEY INFORMED -- 4 Q. HOLD ON. 5 A. OKAY. 6 Q. I AM SORRY THAT I TALKED OVER YOU THERE. 7 A. THAT'S ALL RIGHT. 8 Q. OKAY. 9 MEETING GOING INTO IT. SORRY. I WILL ASK YOU SOME QUESTIONS. SO YOU'VE TALKED NOW ABOUT WHAT YOU KNEW ABOUT THE 10 A. OKAY. 11 Q. AND ABOUT WHAT YOU TOLD CIARA BEFORE IT STARTED. 12 HOW ABOUT WHAT HAPPENED IN THE MEETING? 13 A. 14 WAS BEING TERMINATED. 15 Q. DID SHE GET A RESPONSE? 16 A. YEAH. 17 PERFORMANCE. 18 Q. OKAY. 19 A. I BELIEVE SHE BEGAN TO ASK A QUESTION ABOUT WHETHER SHE 20 COULD GET A COPY OF HER PD LOG AND SHE BECAME EMOTIONAL AND I 21 ASKED IF WE COULD TAKE A BREAK TO GIVE CIARA A FEW MINUTES TO 22 COMPOSE HERSELF. 23 Q. 24 OR JUST GENERALLY? 25 A. SO NOW WHAT WAS DISCUSSED? I RECALL CIARA ASKING WANTING TO KNOW SPECIFICALLY WHY SHE THE WAY I RECALL WAS MIKE BECK TOLD HER IT WAS FOR DO YOU RECALL ANYTHING ELSE? DID DO YOU RECALL ANYTHING MS. LAYNE SAID IN THAT MEETING I AM KIND OF DRAWING A BLANK RIGHT NOW. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 753 JONES - DIRECT / NUGENT 1 Q. DID YOU TAKE A BREAK WITH MS. NEWTON? 2 A. I DID. 3 Q. WHAT DID YOU SAY TO HER THEN? 4 A. I THINK -- I ASKED HER IF SHE HAD EVER CONTACTED CHRIS 5 PALACIO, WHICH IS OUR COMMITTEE CHAIRMAN TO DISCUSS HARASSMENT 6 PAPERWORK OR SUBMITTING ONE OF THOSE. 7 THAT SHE HAD FELT LIKE SHE DIDN'T REALLY NEED TO PURSUE THAT. 8 THE IMPRESSION SHE WAS GETTING WAS THAT SHE HAD NAVIGATED WE WALKED DOWN THE HALL TO A CONFERENCE ROOM. AND SHE SHARED WITH ME 9 HER WAY OUT OF THE CONCERN ABOUT HER PERFORMANCE AND SHE HAD 10 BEEN ASKED BY WHOEVER TOOK OVER FOR CAMERON CURRAN, I BELIEVE 11 IT WAS MR. METCALF, WHAT SHE WANTED TO TRAIN ON NEXT. 12 INDICATED TO HER THAT SHE WAS DOING OKAY. 13 Q. 14 WERE IN THE HALLWAY TAKING A BREAK FROM THE MEETING SHE GOT 15 FIRED? 16 A. 17 EVENT THAT THIS OCCURRED AFTER THAT MEETING WHERE SOMEONE HAD 18 LEFT A STICKER ON HER DESK. 19 Q. WAS THAT THE FIRST THAT YOU HAD HEARD OF THE STICKER? 20 A. YES, IT WAS. 21 Q. WHAT WAS YOUR REACTION? 22 A. ONCE AGAIN, MY JAW DROPPED WHEN IT WAS DESCRIBED TO ME AND 23 I ASKED HER TO -- IF SHE HAD A COPY OF IT OR PICTURE THAT SHE 24 COULD FORWARD TO ME. 25 Q. SO THAT DID SHE SHARE ANYTHING ELSE WITH YOU WHILE THE TWO OF YOU SHE DID. OKAY. SHE MENTIONED THAT -- SHE BROUGHT UP THAT -- AN DID YOU GO BACK INTO THE MEETING WITH HER? DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 754 JONES - CROSS / LAFAYETTE 1 A. WE DID GO BACK INTO THE MEETING. 2 Q. THEN WHAT HAPPENED? 3 A. I THINK THEY HAVE A STANDARD FORMAT WHERE THEY PRESENT A 4 PACKAGE WITH THE INFORMATION ABOUT WHAT YOU SHOULD DO NEXT, 5 AND I THINK COBRA MEDICAL INFORMATION. 6 Q. DID ANYTHING ELSE HAPPEN IN THAT MEETING OR WAS THAT IT? 7 A. I THINK THAT WAS PRETTY MUCH IT. 8 ESCORTED BACK TO HER LOCKER TO COLLECT HER BELONGINGS. 9 MS. NUGENT: 10 THE COURT: 11 MR. LAFAYETTE: 12 AND THEN CIARA WAS THANK YOU, MR. JONES. NOTHING FURTHER. CROSS. YES, YOUR HONOR. CROSS-EXAMINATION 13 BY MR. LAFAYETTE: 14 Q. GOOD MORNING, MR. JONES. 15 A. GOOD MORNING. 16 Q. YOU ARE A NATIVE TEXAN? 17 A. YES, I AM. 18 THE COURT: 19 THE WITNESS: I DIDN'T KNOW THAT. GUILTY. 20 BY MR. LAFAYETTE: 21 Q. 22 YOU DID THIS, DIDN'T YOU? 23 A. I DID. 24 Q. LITTLE SOFT SHOE? 25 A. YES. AND YOU PURSUED FOR TEN YEARS A DIFFERENT CAREER BEFORE I WAS A THEATER ARTS MAJOR AT SAN JACINTO COLLEGE IN DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 755 JONES - CROSS / LAFAYETTE 1 PASADENA, TEXAS. 2 PURSUE THAT. 3 Q. 4 IS YOUR ROLE IN THE UNION? 5 A. 6 HEALTH AND SAFETY REPRESENTATIVE. 7 OUR ADJUSTMENT COMMITTEE, AND THAT'S THE COMMITTEE THAT 8 HANDLES GRIEVANCES AND ALSO BARGAINING. 9 EXECUTIVE BOARD OF OUR LOCAL, LOCAL FIVE. ALL RIGHT. AND IN 1979, I MOVED TO NEW YORK CITY TO SO NOW, RIGHT NOW YOUR ROLE IN THE UNION, WHAT CURRENTLY -- WELL, THE ROLE THAT I DO PRIMARILY, I'M THE BUT I'M ALSO A MEMBER OF AND I'M ALSO ON THE 10 Q. 11 BEHALF OF THE UNION? 12 A. 13 WORK WITH MANAGEMENT WHENEVER POSSIBLE. 14 FURTHER WITH DIPLOMACY WITH SUGAR RATHER THAN YOU DO WITH 15 VINEGAR. 16 ABLE TO BUTT HEADS WITH MANAGEMENT WHEN CALLED UPON TO DEFEND 17 AND ADVOCATE FOR MY BROTHERS AND SISTERS. 18 Q. 19 SO YOU ADVOCATE AGAINST MANAGEMENT, WITH MANAGEMENT ON I AM NOT SURE I WOULD DESCRIBE IT LIKE THAT. BUT YEAH. I TRY TO I THINK YOU GET A LOT THAT'S EXPECTED OF A UNION REP, TO BE ALL RIGHT. THERE WAS SOMETHING THAT YOU SAID AT THE BEGINNING AND I'M 20 GOING TO REFER TO IT AS THE JULY 22 MEETING. 21 KNOW IT BY THAT DAY, BUT YOU SAID YOU WENT TO A MEETING AND 22 CAMERON CURRAN WAS THERE? 23 MS. NUGENT: 24 THE WITNESS: 25 THE COURT: AND YOU MAY NOT OBJECTION, MISSTATES THE TESTIMONY. YEAH. THE MEETINGS -- HOLD ON. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 756 JONES - CROSS / LAFAYETTE 1 2 MR. LAFAYETTE: I WITHDRAW THE QUESTION. I WITHDRAW THE QUESTION. 3 THE COURT: OKAY. 4 BY MR. LAFAYETTE: 5 Q. YOU WERE TOLD TO SHOW UP FOR A MEETING ON AUGUST 2? 6 A. THAT'S CORRECT. 7 Q. WHO ASKED YOU TO ATTEND? 8 A. THAT WAS -- WOULD BE NICK BACKENS. 9 Q. AND WHAT WAS HIS ROLE AT THE TIME? 10 A. HE WAS AN OPERATOR IN OPCEN AND HE'S ALSO A STEWARD. 11 Q. AND WHAT WAS THE REASON HE WANTED YOU TO ATTEND THIS 12 MEETING? 13 A. 14 GOING TO TURN INTO A TERMINATION MEETING AND HE FELT LIKE HE 15 NEEDED SOME HELP. 16 Q. ALL RIGHT. 17 A. HE ASKED ME IF I WOULD COME. 18 Q. THAT IS WHY YOU WENT? 19 A. I DID. 20 Q. YOU SPOKE ABOUT YOUR... THE AGREEMENT THAT THE UNION HAS 21 WITH MANAGEMENT. 22 A. 23 24 25 WELL, I WAS CALLED AND ASKED TO ATTEND. HE TOLD ME THAT HE -- HE WAS SCARED THAT THAT MEETING WAS AND -- THERE'S A COLLECTIVE BARGAINING AGREEMENT? YES, WE HAVE A COLLECTIVE BARGAINING AGREEMENT. MR. LAFAYETTE: I DIDN'T KNOW THIS WAS GOING TO COME UP WITH THIS WITNESS, YOUR HONOR BUT IT IS EXHIBIT 177. MAY I APPROACH THE WITNESS AND SHOW THE WITNESS, YOUR DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 757 JONES - CROSS / LAFAYETTE 1 HONOR. 2 3 THE COURT: MAKE SURE YOU SHOW IT FIRST TO MS. NUGENT. 4 YOU MAY. 5 MR. LAFAYETTE: 6 THANK YOU, YOUR HONOR. (EXHIBIT HANDED TO WITNESS.) 7 BY MR. LAFAYETTE: 8 Q. 9 WAS THE COLLECTIVE BARGAINING AGREEMENT BETWEEN MANAGEMENT AND 10 I JUST WANT YOU TO LOOK AT THAT, SIR, AND TELL ME IF THAT THE UNION. 11 I WANT YOU TO TELL ME IF THAT WAS THE COLLECTIVE 12 BARGAINING AGREEMENT? 13 A. 14 2015. YES. THIS LOOKS LIKE -- YEAH. THAT'S OUR LAST CONTRACT PERIOD. 15 MR. LAFAYETTE: 16 DOCUMENT IN EVIDENCE, YOUR HONOR. 17 THE COURT: 18 MS. NUGENT: 19 20 21 22 23 THE ONE FEBRUARY 1ST, THANK YOU. I WOULD LIKE TO MOVE THIS ANY OBJECTION? EXCUSE ME. (PAUSE IN THE PROCEEDINGS.) MS. NUGENT: YEAH. THE OBJECTION IS THAT AT THE TIME SHE IS NOT A MEMBER OF THE UNION. THE COURT: GO AHEAD AND USE IT. I WILL ADDRESS THE ADMISSIBILITY LATER. 24 MR. LAFAYETTE: 25 THE COURT: THANK YOU, YOUR HONOR. YOU CAN SHOW IT TO THE JURY. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 758 JONES - CROSS / LAFAYETTE 1 MR. LAFAYETTE: 2 EVIDENCE. 3 WANT IT IN EVIDENCE. 4 5 ALL RIGHT. I JUST WANT IT IN I WASN'T GOING TO SHOW ANY PARTS OF IT. THE COURT: I JUST THAT'S ALL. WELL, HE'S AUTHENTICATED IT. WE'LL DISCUSS IT LATER. 6 MR. LAFAYETTE: THANKS, YOUR HONOR. 7 BY MR. LAFAYETTE: 8 Q. 9 CAMERON CURRAN IN THAT MEETING? NOW, WITH REGARD TO THIS MEETING THAT YOU DID ATTEND, WAS 10 A. 11 ATTENDED. 12 Q. WAS JEFF FISCHER IN THAT MEETING? 13 A. I CAN'T RECALL JEFF BEING IN THE ROOM EITHER. 14 Q. SO WITH REGARD TO THE DESCRIPTION THAT YOU RECEIVED WITH 15 REGARD TO THE DRAEGER TUBE, THE VALVE AT THE BAKER TANK, AND 16 THE ACID SPILL, WHERE DID YOU -- WHO WAS IT THAT SPOKE TO 17 THOSE ISSUES? 18 A. 19 BROUGHT THOSE UP. 20 OF THE SUBJECTS. 21 Q. 22 THAT A RESULT OF WHAT MS. NEWTON HAD SAID? 23 A. 24 25 I DO NOT RECALL CAMERON BEING PRESENT AT THE MEETING I I BELIEVE IT WAS CIARA OR IT COULD HAVE BEEN NICK THAT OKAY. IT'S HARD TO RECALL WHO INITIATED EACH ONE AND SO YOUR UNDERSTANDING AS TO THE ACID SPILL, WAS YEAH. MY UNDERSTANDING OF THE EVENT, YEAH. ROLE -- HER THOUGHTS DURING THAT EVENT. SHE DESCRIBED THE THAT'S WHAT I DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 759 JONES - CROSS / LAFAYETTE 1 REMEMBER. 2 Q. 3 WHAT HAD HAPPENED WITH THE ACID SPILL OTHER THAN FROM 4 MS. NEWTON? 5 A. 6 EVEN HAPPENING. 7 Q. 8 ABOUT JEFF FISCHER, DID YOU HAVE ANY SOURCES OF INFORMATION 9 ABOUT THOSE COMMENTS OTHER THAN WHAT MS. NEWTON SAID? I REMEMBER HER TALKING ABOUT IT. DID YOU EVER GET ANY INFORMATION FROM ANYBODY ELSE ABOUT THAT CONVERSATION WAS MY FIRST INTRODUCTION TO THE EVENT ALL RIGHT. AND THEN WITH REGARD TO WHATEVER SHE SAID 10 A. ARE YOU TALKING ABOUT ON THAT DATE -- 11 Q. YES. 12 A. -- AUGUST 2ND? 13 EVENTS THAT I TALKED ABOUT EARLIER. 14 ANYBODY ELSE TALKING ABOUT THE RELATIONSHIP BETWEEN CIARA AND 15 JEFF FISCHER UNTIL THAT MEETING. 16 MR. LAFAYETTE: 17 THE COURT: 18 MS. NUGENT: 19 THE COURT: 20 ARE EXCUSED. YEAH. THE WITNESS: 22 THE COURT: 23 MS. NUGENT: 25 YEAH. AND I DON'T RECALL NO FURTHER QUESTIONS, YOUR HONOR. ANYTHING ON THOSE QUESTIONS? NO, YOUR HONOR. ALL RIGHT, SIR. YOU MAY STEP DOWN. THANK YOU. 21 24 THAT WAS MY FIRST EXPOSURE TO THOSE THANK YOU. NEXT WITNESS. YOUR HONOR, THE PLAINTIFF CALLS JEFF FISCHER. THE CLERK: REMAIN STANDING. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC YOU 760 FISCHER - DIRECT / NUGENT 1 2 (JEFF FISCHER, CALLED AS A WITNESS FOR THE PLAINTIFF, HAVING BEEN DULY SWORN, TESTIFIED AS FOLLOWS:) 3 THE WITNESS: 4 THE CLERK: YES. PLEASE BE SEATED. AND THEN IF YOU'LL 5 SCOOT UP OR SCOOT THE MICROPHONE UP TO YOU. 6 YOUR FULL NAME AND SPELL YOUR LAST NAME. 7 8 THE WITNESS: AND PLEASE STATE MY NAME IS JEFFREY FISCHER. LAST NAME IS SPELLED F-I-S-C-H-E-R. 9 THE COURT: GOOD AFTERNOON, MR. FISCHER. 10 MOVE CLOSER TO THE MICROPHONE? 11 THE WITNESS: 12 CAN YOU SURE. DIRECT EXAMINATION 13 BY MS. NUGENT: 14 Q. GOOD AFTERNOON, MR. FISCHER. 15 MS. NUGENT: 16 THE COURT: 17 YOUR HONOR, MAY I APPROACH? YOU MAY. (EXHIBIT BINDER HANDED TO WITNESS.) 18 THE COURT: WHAT DO YOU NEED? 19 MR. ETTINGHOFF: 20 THE COURT: THE MONITOR. PROCEED. 21 BY MS. NUGENT: 22 Q. 23 MARTINEZ? 24 A. I DO. 25 Q. HOW LONG HAVE YOU WORKED THERE? MR. FISCHER, DO YOU WORK FOR SHELL AT ITS REFINERY IN DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 761 FISCHER - DIRECT / NUGENT 1 A. NEXT MONTH, WILL HAVE COMPLETED 30 YEARS. 2 Q. HAVE YOU ALWAYS BEEN AT THE REFINERY IN MARTINEZ FOR THOSE 3 30 YEARS? 4 A. YES. 5 Q. ARE YOU LOOKING AT SOMETHING IN THE BINDER? 6 A. YES. 7 Q. YOU CAN CLOSE IT. 8 A. THANK YOU. 9 Q. WHAT DO YOU DO AT THE REFINERY NOW? 10 A. I'M A MENTOR. 11 Q. WHAT DOES THAT MEAN? 12 A. THAT MEANS I'M IN CHARGE OF TRAINING PROCEDURES, 13 CALIFORNIA LAW, AUDIT FINDINGS. 14 Q. WHO ARE YOU A MENTOR TO? 15 A. OPCEN. 16 WHICH IS A DEPARTMENT OF HR. 17 Q. AND HOW LONG HAVE YOU BEEN A MENTOR? 18 A. ABOUT FIVE YEARS. 19 Q. AND YOU'RE STILL A MENTOR NOW? 20 A. YES. 21 Q. DO YOU GIVE CLASSES AS A MENTOR TO NEW HIRES? 22 A. I DO. 23 Q. AND OPCEN IS PART OF THE PRODUCTION DEPARTMENT, RIGHT? 24 A. IT'S CALLED OPERATION CENTRAL AND IT IS ONE OF THE 25 DEPARTMENTS OF MARTINEZ REFINERY. I WILL TELL YOU WHEN TO GO THERE. I PERFORM ALL THE CHANGES. I WORK FOR LEARNING AND DEVELOPMENT DEPARTMENT, DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 762 FISCHER - DIRECT / NUGENT 1 Q. 2 FOR OPCEN? 3 A. I BELIEVE SO. 4 Q. AND YOU UNDERSTOOD HIS ROLE TO BE IN CHARGE OF PEOPLE, 5 ISN'T THAT RIGHT? 6 A. YES. 7 Q. AND IN 2016, THE HIGHEST RANKING POSITION IN OPCEN WAS 8 CALLED MANAGER, RIGHT? 9 A. YEAH. 10 Q. AND THAT PERSON IN THAT POSITION WHO IS THE MANAGER OF 11 OPCEN WAS MIKE BECK, RIGHT? 12 A. CORRECT. 13 Q. DID YOU SUPERVISOR CIARA NEWTON FOR SOME PORTION OF TIME 14 IN 2016? 15 A. YES. 16 Q. YOU WERE IN CHARGE OF HER INITIAL TRAINING TO QUALIFY AS 17 AN OPERATOR, ISN'T THAT RIGHT? 18 A. 19 OPCEN. 20 Q. 21 FOR A SET AMOUNT OF TIME, RIGHT? 22 A. ONE OF HER SUPERVISOR, YES. 23 Q. PART OF THAT TRAINING INCLUDED CLASSROOM TRAINING THAT YOU 24 LED, RIGHT? 25 A. IN 2016, WAS ERIC PEREZ, THE PRODUCTION SUPERVISOR, THERE SHE WENT TO A CLASS FOR TWO MONTHS BEFORE SHE CAME TO AND THEN WHEN SHE CAME TO OPCEN, YOU WERE HER SUPERVISOR TRAINING SUPERVISOR. CORRECT. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 763 FISCHER - DIRECT / NUGENT 1 Q. 2 PEOPLE WERE JOSE NAVARRO, ODEMENA EKELEMU, AND PATRICK NEUMAN, 3 RIGHT? 4 A. YES. 5 Q. YOU STARTED THE CLASS WITH THOSE THREE GUYS AND CIARA 6 NEWTON IN FEBRUARY 2016, RIGHT? 7 A. YEP. 8 Q. AND IT CONTINUED FOR ABOUT SIX OR SEVEN WEEKS, ISN'T THAT 9 TRUE? THERE WERE THREE OTHER PEOPLE IN HER TRAINING AND THOSE 10 A. YES. 11 Q. THE FIXED START TIME FOR THE CLASSROOM TRAINING THAT YOU 12 LED WAS 6:30; ISN'T THAT RIGHT? 13 A. 14 15 6:00 O'CLOCK. MS. NUGENT: FROM MR. FISCHER'S DEPOSITION AT 131, 12 THROUGH 25. 16 (PAUSE IN THE PROCEEDINGS.) 17 THE COURT: 18 MS. NUGENT: 19 THE COURT: 20 YOUR HONOR, I WOULD LIKE TO PLAY A CLIP YOU SAID 131? YES. STARTING AT LINE 12. GO AHEAD. (VIDEO DEPOSITION PLAYED AS FOLLOWS.) 21 "QUESTION: 22 FOR YOUR TRAINING CLASSES? 23 "ANSWER: 24 "QUESTION: 25 MR. LAFAYETTE: WHAT -- DID YOU HAVE A FIXED START TIME YEAH, LIKE 6:30. 6:30." YOUR HONOR, I THINK IT SHOULD READ -- DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 764 FISCHER - DIRECT / NUGENT 1 (VIDEO CONTINUES PLAYING.) 2 "HOW DID YOU COMMUNICATE THAT START TIME TO YOUR TRAINEES? 3 "THE FIRST DAY WHEN THEY CAME IN THE CLASS. 4 "OKAY. AND WAS THAT COMMUNICATED VERBALLY" -- 5 MR. LAFAYETTE: 6 THE COURT: AGREED. 7 MS. NUGENT: OKAY. 8 "QUESTION: 9 TIME FOR YOUR TRAINING CLASSES? I THINK IT SHOULD READ THROUGH 132:6. OKAY. I'LL READ IT. WHAT -- DID YOU HAVE A FIXED START 10 "ANSWER: 11 "QUESTION: 12 START TIME TO YOUR TRAINEES? 13 "ANSWER: 14 "QUESTION: 15 OR IN WRITING? 16 "ANSWER: 17 CLASS AND MYSELF. 18 "QUESTION: 19 START TIME 6:30 EVERY DAY DURING THAT SIX TO SEVEN 20 PERIOD WHERE YOU WERE TRAINING THE FOUR PEOPLE IN THE 21 HP-2? 22 "ANSWER: 23 6:00 O'CLOCK. 24 "QUESTION: 25 "ANSWER: YEAH, LIKE 6:30. 6:30? AND HOW DID YOU COMMUNICATE THAT THE FIRST DAY WHEN THEY CAME IN THE CLASS. OKAY. VERBALLY. OKAY. AND WAS THAT COMMUNICATED VERBALLY VERBAL AGREEMENT BETWEEN THE AND AT 6:30 -- SORRY. WAS THE WELL, FOR THAT CLASS, IT MIGHT HAVE BEEN THE VERY LAST DAY? NO, THE FIRST DAY." DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 765 FISCHER - DIRECT / NUGENT 1 BY MS. NUGENT: 2 Q. 3 CLASS STARTED EVERY MORNING, ISN'T IT? 4 A. 5 THAT IT WAS 6:00 O'CLOCK FOR THAT ONE. 6 THE CLASS DECIDES WHAT TIME WE START. 7 WANTED TO START AT 6:00 O'CLOCK AND END AROUND 3:30 BECAUSE OF 8 TRAFFIC. 9 Q. IT IS FAIR TO SAY YOU ARE NOT SURE WHAT TIME THAT TRAINING I THOUGHT I CORRECTED MYSELF WHEN I READ THAT BACK TO YOU THEY DECIDED THEY YOU DOCUMENTED IN THE PD LOG EACH TIME MS. NEWTON WAS 10 LATE, DIDN'T YOU? 11 A. NO, I FORGOT SOME. 12 13 I TEACH MANY CLASSES. MS. NUGENT: YOUR HONOR, I WOULD LIKE TO READ FROM THE WITNESS'S DEPOSITION, 145, 4 THROUGH 6. 14 THE COURT: ALL RIGHT. 15 MS. NUGENT: (READING) 16 "QUESTION: 17 CIARA WAS TARDY? 18 "ANSWER: GO AHEAD. DID YOU DOCUMENT IN THE PD LOG EACH TIME I BELIEVE SO." 19 BY MS. NUGENT: 20 Q. 21 REMEMBER WHEN THAT WAS TAKEN, RIGHT? 22 A. YEAH. 23 Q. YOU TOOK THE OATH TO TELL THE TRUTH? 24 A. YEP. 25 Q. AND AFTERWARDS YOU HAD AN OPPORTUNITY TO REVIEW WHAT WAS MR. FISCHER, I'VE BEEN READING FROM YOUR DEPOSITION. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC YOU 766 FISCHER - DIRECT / NUGENT 1 IN THIS DEPOSITION AND MAKE ANY CHANGES THAT YOU WANTED TO 2 MAKE? 3 A. NOT TO THE FIRST ONE. 4 Q. PLEASE ANSWER MY QUESTION. 5 YOU HAD THE OPPORTUNITY TO MAKE ANY CHANGES THAT YOU 6 WANTED TO MAKE TO THE TESTIMONY THAT YOU GAVE UNDER OATH IN 7 THIS DEPOSITION, DIDN'T YOU? 8 9 MR. LAFAYETTE: ANSWERED. 10 THE COURT: 11 12 OBJECTION, PREVIOUSLY ASKED AND OVERRULED. WERE YOU GIVEN THE OPPORTUNITY OR NOT? THAT'S ALL WE NEED TO KNOW. 13 THE WITNESS: I GOT TO SEE THE GATE CARDS. 14 BY MS. NUGENT: 15 Q. 16 DIDN'T CHANGE THAT PORTION OF IT, DID YOU? 17 A. NO. 18 Q. ONE OF THE TIMES THAT MS. NEWTON WAS LATE WAS A FEW WEEKS 19 AFTER HER FATHER DIED, RIGHT? 20 A. I WOULD HAVE TO CHECK MY RECORDS. 21 Q. YOU RECALL HER BEING LATE FOR ABOUT AN HOUR, 45 MINUTES TO 22 AN HOUR IN MARCH 2016 AND TEXTING YOU ABOUT IT? 23 A. I DO HAVE TEXT. 24 Q. YOU PUT A DATE ON HER PD LOG THAT SHE WAS LATE OF 25 MARCH 23RD; DO YOU RECALL THAT? I'M TALKING ABOUT YOUR TESTIMONY IN THIS DEPOSITION. I DON'T KNOW EXACTLY WHAT DATE IT IS. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC YOU 767 FISCHER - DIRECT / NUGENT 1 A. CAN I LOOK AT IT, PLEASE? 2 Q. 83. 3 A. IS THAT FOR 3/23? 4 Q. NO, IT'S EXHIBIT 83. 5 A. OKAY. 6 Q. DO YOU SEE THAT? 7 A. YES. 8 Q. SO MARCH 23RD, 2016, DO YOU SEE THAT? 9 A. YES. 10 Q. YOU GAVE HER A COUNSELING; SHE WAS ONE HOUR LATE? 11 A. YES. 12 Q. AND THAT WAS THE DATE THAT SHE TEXTED YOU AND SHE SAID HER 13 FAMILY NEEDED HER, DIDN'T SHE? 14 A. DO YOU HAVE THE TEXT. 15 Q. I'M ASKING YOU THE QUESTION, MR. FISCHER. 16 A. YES. 17 Q. DO YOU RECALL THAT OR NOT? 18 IT IS IN FRONT OF YOU. THERE SHOULD BE A TAB. SHE DID, DIDN'T SHE? 19 A. 20 TEXT YOU WOULD LIKE ME TO LOOK AT. 21 Q. 22 23 I'M TRYING TO REFER TO WHICH I'M NOT ASKING YOU TO LOOK AT A TEXT. I'M ASKING YOU THAT WAS THE DATE THAT YOU PUT IN HER PD LOG AFTER SHE TOLD YOU THAT HER FAMILY NEEDED HER. 24 25 THERE WERE SEVERAL TEXTS. ISN'T THAT TRUE? A. I DO NOT KNOW IF THAT'S TRUE OR NOT. I WOULD HAVE TO LOOK DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 768 FISCHER - DIRECT / NUGENT 1 AT MY TEXT. 2 Q. 3 APRIL 7TH, DO YOU SEE THAT? 4 A. YES. 5 Q. SHE WASN'T LATE ON THAT DAY, WAS SHE? 6 A. I DON'T KNOW. 7 Q. NOBODY EVER TOLD YOU THAT ACCORDING TO SHELL'S OWN RECORDS 8 SHE CAME THROUGH THE GATE AT 6:01? 9 A. I DO NOT HAVE ACCESS TO THOSE RECORDS. 10 Q. NOBODY EVER GAVE YOU ACCESS TO THOSE RECORDS? 11 A. WELL, CLASS STARTS AT 6:00 O'CLOCK AND YOU'RE SUPPOSED TO 12 BE SUITED UP AND READY TO GO AT THAT TIME. 13 Q. WHAT DOES IT SAY THERE, 4/7? 14 A. CIARA WAS 45 MINUTES LATE AND WAS GIVEN A TARDY. 15 FISCHER AND ERIC PEREZ SAT DOWN WITH CIARA AND EXPLAINED TO 16 CIARA THE ATTENDANCE POLICY AND MADE SURE THERE WAS NOT AN 17 ISSUE. 18 Q. 19 6:01 THAT MORNING? 20 A. NO, I JUST KNOW WHEN THEY SHOW UP FOR THE CLASS. 21 Q. SO UP UNTIL TODAY THROUGHOUT ALL OF THIS LITIGATION, YOU 22 HAVE NEVER LOOKED AT THOSE GATE LOGS? 23 A. I HAVE JUST SEEN SOME OF THE GATE LOGS RECENTLY. 24 Q. DID YOU LOOK -- 25 A. I'VE NEVER GOT TO SEE THEM. WHILE YOU'RE LOOKING AT THAT, THERE'S ALSO ANOTHER DATE, I WOULD HAVE TO GO LOOK. JEFF NOBODY TOLD YOU THAT SHE CAME THROUGH THE GATE AT DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 769 FISCHER - DIRECT / NUGENT 1 Q. DID YOU LOOK AT THE ONE FOR 4/7? 2 A. NO, I DID NOT GO THROUGH THEM. 3 LOGS. 4 Q. 5 THIS, DID YOU? 6 A. I'M NOT REALLY PRIVY TO THOSE. 7 Q. NEVER -- 8 A. I AM NOT ALLOWED TO REQUEST THEM OR HAVE THEM IN MY 9 POSSESSION, OR -- I AM NOT HIGH ENOUGH THERE TO GET THOSE. OKAY. I JUST KNOW WE'VE HAD GATE YOU DIDN'T BOTHER TO GO BACK AND CHECK AND CORRECT 10 Q. 11 HER UP ON THAT PD LOG FOR BEING 45 MINUTES LATE, THAT SHE 12 ACTUALLY CAME THROUGH THE GATE AT 6:01 THAT MORNING; NO ONE 13 HAS TOLD YOU THAT? 14 15 NOBODY FROM THE COMPANY HAS TOLD YOU THAT WHEN YOU WROTE MR. LAFAYETTE: OBJECTION TO THE EXTENT IT MAY VIOLATE ATTORNEY-CLIENT PRIVILEGE COMMUNICATION. 16 THE COURT: SUSTAINED. 17 BY MS. NUGENT: 18 Q. 19 THE -- THOSE FOUR NEW HIRE OPERATORS WERE WORKING WHEN THEY 20 WERE TRAINING WITH YOU. 21 ALL RIGHT. LET'S TALK ABOUT THE SCHEDULE THAT ALL OF WERE THEY WORKING A 9/80 SCHEDULE? 22 A. I BELIEVE SO. 23 Q. AND ON A 9/80 SCHEDULE, THE OPERATORS GET EVERY OTHER 24 FRIDAY OFF, RIGHT? 25 A. CORRECT. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 770 FISCHER - DIRECT / NUGENT 1 Q. 2 HE WAS LATE FOR YOUR CLASS? 3 A. NOT THAT I CAN REMEMBER. 4 Q. BUT HE WAS LATE, WASN'T HE? 5 A. NOT THAT I CAN REMEMBER. 6 Q. ALL THREE OF THE MALE EMPLOYEES WHO WERE TRAINING UNDER 7 YOU WITH MS. NEWTON STILL WORK AT THE SHELL REFINERY, DON'T 8 THEY? 9 A. NOW THEY DO, YES. 10 Q. ALL RIGHT. 11 JURY HAS HEARD YOU MAKE. 12 YOU MAKE IN THIS CASE. 13 DID YOU EVER PUT ANY ENTRY ON JOSE NAVARRO'S PD LOG WHEN I DON'T HAVE HIS PD FILE. LET'S ADDRESS SOME OF THE COMMENTS THAT THE SOME COMMENTS THAT THEY HAVE HEARD YOU MADE A COMMENT TO MS. NEWTON THAT IT USED TO BE SONS 14 OF EMPLOYEES THAT GOT HIRED. 15 A. SURE. 16 Q. YOU SAID THAT WOMEN DON'T MAKE IN OPCEN. 17 A. ABSOLUTELY NOT. 18 Q. YOU SAID WOMEN DON'T LAST LONG. 19 A. ABSOLUTELY NOT. 20 Q. YOU TOLD MS. NEWTON THAT SHE COULDN'T BE ASSIGNED TO A 21 SPECIFIC TEAM BECAUSE THEY ALREADY HAD A GIRL ON THAT TEAM. 22 ISN'T THAT TRUE? 23 A. NO, YOUR PHRASE IS DIFFERENT. 24 Q. WHAT PHRASE DID YOU USE? 25 A. THE GIRLS IN OPCEN LIKE TO HAVE THEIR -- BE ON THEIR OWN ISN'T THAT TRUE? DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 771 FISCHER - DIRECT / NUGENT 1 TEAM. 2 ROOM, AND SO ON. 3 Q. 4 GIRL BECAUSE HE BITCHES ALL THE TIME. 5 A. NO. 6 Q. WHEN YOU LEARNED THAT MS. NEWTON WAS GOING TO BE ASSIGNED 7 TO OPCEN IN 2016 YOU WERE UPSET, WEREN'T YOU? 8 A. NO. 9 Q. YOU SAID, WHO DO I HAVE TO PISS OFF TO HAVE ALL THESE THEY LIKE THEIR OWN BATHROOM AND SO ON, AND LOCKER YOU ALSO CALLED A MALE EMPLOYEE ON THE TEAM PRACTICALLY A ISN'T THAT TRUE? 10 ASSHOLES COMING TO MY DEPARTMENT, OR SOMETHING TO THAT EFFECT, 11 DIDN'T YOU? 12 A. NO. 13 Q. NEVER SAID ANYTHING LIKE THAT? 14 A. NO. 15 Q. JUST NOT LIKE, UH? 16 MR. LAFAYETTE: 17 THE COURT: OBJECTION, ARGUMENTATIVE. THE LAST QUESTION IS. SUSTAINED. 18 BY MS. NUGENT: 19 Q. YOU SAID TO HER, WHO WOULD HIRE CIARA NEWTON, DIDN'T YOU? 20 A. NO. 21 Q. YOU TOLD HER THAT SHE MUST HAVE PUT ON A GOOD SHOW IN THE 22 INTERVIEW. 23 A. NO. 24 Q. YOU DID LEARN AT SOME POINT THAT ONE OF MS. NEWTON'S 25 DRAWINGS THAT SHE HAD DONE IN THE TRAINING HAD BEEN ERASED OFF ISN'T THAT TRUE? DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 772 FISCHER - DIRECT / NUGENT 1 OF THE WHITE BOARD AND REPLACED WITH THE WORD "FAIRY", RIGHT? 2 YOU LEARNED THAT -- 3 A. 4 SEE THAT. 5 Q. 6 THAT, DID YOU? 7 A. NO. 8 Q. YOU DID? 9 A. MENA AND JOSE. 10 Q. DID YOU ASK ANYBODY ELSE? 11 A. I ASKED THEM IF THEY DID IT BECAUSE EACH PERSON HAD A 12 SECTION OF WHITE BOARD TO WRITE ON. 13 SHE HAD TOLD ME ABOUT SOMETHING LIKE THAT, YES. I DID NOT AND YOU NEVER BOTHERED TO ASK ANYBODY ABOUT WHO HAD DONE I ASKED OUR GUYS BUT -- NOT THAT I REMEMBER. 14 Q. 15 TRAINING, DIDN'T YOU? 16 A. NO. 17 Q. YOU LEARNED AT SOME POINT THAT SHE SAID THAT, DIDN'T YOU? 18 19 YOU TRIED TO INTIMIDATE MS. NEWTON DURING THAT CLASSROOM MR. LAFAYETTE: OBJECTION, ATTEMPT TO VIOLATE THE ATTORNEY-CLIENT PRIVILEGE. 20 THE COURT: REPHRASE. SUSTAINED AS TO THAT GROUND. 21 BY MS. NUGENT: 22 Q. WOULD YOU DESCRIBE YOURSELF AS A PATIENT TEACHER? 23 A. SOMETIMES. 24 Q. HOW ELSE WOULD YOU DESCRIBE YOUR TRAINING STYLE? 25 A. WHATEVER IT TAKES. I'M AN EXTREMELY HARD WORKER. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC I'M 773 FISCHER - DIRECT / NUGENT 1 EXTREMELY DEDICATED -- 2 Q. LET'S TALK ABOUT -- 3 A. -- TO MY STUDENTS. 4 MR. LAFAYETTE: 5 MS. NUGENT: 6 BY MS. NUGENT: 7 Q. SHE'S CUTTING HIM OFF. HE'S ANSWERED THE QUESTION. LET'S TALK ABOUT WHEN YOU WHITED OUT THE -- 8 THE COURT: 9 MS. NUGENT: 10 THE COURT: DO NOT CUT HIM OFF. OKAY. GO AHEAD. NEXT QUESTION. 11 BY MS. NUGENT: 12 Q. 13 MS. NEWTON'S PARALLEL TRAINING CHECKLIST. 14 A. SURE. 15 Q. YOU WHITED OUT THE INITIALS OF MULTIPLE OPERATORS WHO HAD 16 ALREADY QUALIFIED HER ON CERTAIN PIECES OF EQUIPMENT AND 17 CERTAIN SKILLS SO SHE COULD BE AN OPERATOR; ISN'T THAT TRUE? 18 A. THAT IS NOT TRUE. 19 Q. THAT WAS CHRIS SALAS? 20 A. THAT IS CORRECT. 21 Q. ALL RIGHT. 22 LET'S TALK ABOUT WHEN YOU WHITED OUT SIGNATURES FROM OKAY? I WHITED OUT ONE OPERATOR'S SIGNATURE. SO WE WILL GO WITH THAT FOR NOW. DID YOU WHITE OUT HIS SIGNATURE FROM ANY OF THE OTHER 23 THREE OPERATORS WHO WERE IN HER SAME NEW HIRE CLASS? 24 A. 25 ALSO. I DID NOT KNOW AT THAT TIME THAT CHRIS WAS SIGNING THEIRS DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 774 FISCHER - DIRECT / NUGENT 1 Q. YOU DIDN'T BOTHER TO FIND OUT? 2 A. I HAD WITNESSED CHRIS SIGNING CIARA'S PAPER. 3 KNEW. 4 Q. 5 CIARA'S PAPERWORK, YOU DIDN'T DO ANYTHING TO GO FIND OUT IF 6 MR. SALAS HAD BEEN QUALIFYING OTHER OPERATORS? 7 A. I DIDN'T KNOW HE WAS DOING THAT. 8 Q. YOU DIDN'T BOTHER TO FIND OUT, RIGHT? 9 A. I TOLD CHRIS AT THAT TIME HE WAS NOT ALLOWED TO. 10 Q. YOU GOT OVERRULED, RIGHT? AND THEN AFTER YOU WITNESSED THAT AND WHITED IT OUT ON 11 12 THAT'S HOW I MR. LAFAYETTE: YES OR NO. OBJECTION, QUESTION IS ARGUMENTATIVE, VAGUE AND AMBIGUOUS. 13 THE COURT: 14 YOU CAN ANSWER. 15 THE WITNESS: OVERRULED. YEAH. SO GRAYSON AND I HAD TALKED 16 ABOUT IT. 17 OF SELECTING WHO BECOMES A SME, A SUBJECT MATTER EXPERT. 18 GRAYSON WAS OUR SUPERVISOR. GRAYSON IS IN CHARGE WHAT HAD HAPPENED WAS IS GRAYSON CAME TO ME AND SAID IT'S 19 ABOUT TIME THAT CHRIS BECOMES A SME FOR OUR DEPARTMENT. 20 ALLOWED CHRIS TO RE-SIGN CIARA'S PAPERWORK. 21 BY MS. NUGENT: 22 Q. 23 PAPERWORK TO SEE IF CHRIS HAD BEEN ON THEIRS EITHER, DID YOU? 24 A. 25 DOING OTHER THINGS. SO I AND AT THAT TIME YOU DIDN'T CHECK ANY OF THE OTHER GUYS' I WAS NOT THEIR TRAINING SUPERVISOR AT THE TIME. I DIDN'T EVEN THINK ABOUT THAT. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC I WAS 775 FISCHER - CROSS / LAFAYETTE 1 Q. ONLY MS. NEWTON'S PAPERWORK GOT THAT KIND OF SCRUTINY FROM 2 YOU; ISN'T THAT TRUE? 3 A. BECAUSE I WITNESSED THAT HAPPENING WITH CIARA AND CHRIS. 4 Q. HOW LONG HAD CHRIS SALAS WORKED AT THE REFINERY AT THAT 5 TIME? 6 A. I DO NOT KNOW HIS START DATE. 7 Q. HOW LONG DO YOU THINK HE HAD BEEN WORKING THERE? 8 A. MAYBE MORE THAN FIVE YEARS. 9 MS. NUGENT: 10 THE COURT: 11 MR. LAFAYETTE: 12 I HAVE NOTHING FURTHER. ANY EXAMINATION AT THIS POINT? JUST A LITTLE BIT, YOUR HONOR. CROSS-EXAMINATION 13 BY MR. LAFAYETTE: 14 Q. 15 IN FRONT OF YOU? 16 A. YES. 17 Q. WITH REGARD TO THAT EXHIBIT, THERE'S A REFERENCE THERE TO 18 AN APRIL 7TH DATE. 19 A. 20 YOU WERE LOOKING AT EXHIBIT 83. DO YOU STILL HAVE IT UP DO YOU SEE THAT? YES. (DISPLAYED ON SCREEN.) 21 Q. DO YOU KNOW IF APRIL 7TH WAS THE DATE THAT YOU MET WITH 22 MS. NEWTON OR IF THAT'S THE DATE OF THE TARDY? 23 A. 24 THE DATE OF THE ACTUAL TARDY. 25 SAT DOWN WITH CIARA AND DID THIS. WELL, THAT WOULD BE THE DATE THAT I ENTERED THIS IN, NOT THIS WOULD BE THE DATE THAT WE DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 776 FISCHER - CROSS / LAFAYETTE 1 Q. DID YOU TREAT HER DIFFERENTLY BECAUSE SHE WAS A WOMAN? 2 MS. NUGENT: 3 THE WITNESS: 4 THE COURT: LEADING. ABSOLUTELY NOT. SUSTAINED. THE ANSWER IS STRICKEN. OPEN 5 ENDED. 6 BY MR. LAFAYETTE: 7 Q. 8 TRAINING CLASS? 9 A. FOUR. 10 Q. DID YOU MAKE ANY ENTRIES IN THE PD LOG OF ANYBODY IN THAT 11 CLASS OTHER THAN MS. NEWTON? 12 A. 13 EMPLOYEES' PD LOGS. 14 SOMETHING BAD, I MAKE ENTRIES IN EVERYBODY'S PD LOG, NOT JUST 15 THOSE FOUR. 16 Q. 17 THE FOUR PEOPLE THAT YOU HAD? 18 A. 19 TURNAROUND IS WHEN WE TAKE ONE OF THOSE UNITS COMPLETELY DOWN, 20 REFURBISH IT, BUILD IT UP BACK UP. 21 YOU HAD A CLASS OF FOUR -- HOW MANY PEOPLE WERE IN YOUR I DON'T REMEMBER. I MAKE ENTRIES IN 60, 70 OTHER IF THEY DO SOMETHING GOOD, IF THEY DO I DON'T REMEMBER ANYTHING ELSE. WHAT WAS YOUR GOAL IN THE TRAINING CLASS WITH REGARD TO I WAS UNDER A TIME CRUNCH FOR A BIG TURNAROUND COMING UP. I'M IN CHARGE OF UP TO A THOUSAND EMPLOYEES AT THAT TIME. 22 SO MY JOB WAS TO GET THE CLASS DONE IN SIX TO EIGHT WEEKS, AND 23 GET THEM TRAINED UP AND RELEASE THEM TO THEIR CREWS WITH ALL 24 THEIR PAPERWORK COMPLETED. 25 Q. HOW DID YOU TREAT MS. NEWTON? DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 777 FISCHER - CROSS / LAFAYETTE 1 A. 2 EXTRA TIME WITH HER BECAUSE OF HER BEING GONE TO GET HER 3 CAUGHT BACK UP TO EVERYBODY. 4 Q. 5 SHOULD DO, IF ANYTHING, BECAUSE SHE WAS GONE? 6 A. 7 THE FIRST DAY OF MY CLASS, AND WE WERE TRYING TO DO EVERYTHING 8 WE COULD TO HELP HER, AND THEN MAKE GAME PLAN FOR WHEN SHE 9 COMES BACK TO HELP HER GET CAUGHT BACK UP. I THOUGHT I TREATED HER PRETTY GOOD. I SPENT A LOT OF DID YOU MAKE ANY COMMENTS TO HER COWORKERS ABOUT WHAT THEY NO. I WANTED TO HELP HER OUT. SHE JUST LOST HER FATHER 10 Q. DID YOU TREAT HER DIFFERENTLY THAN THE OTHER THREE? 11 A. ABSOLUTELY... I WOULD SAY NO. 12 TO OPCEN, YOU ARE PART OF THE OPCEN FAMILY, YOU ARE PART OF 13 THE SHELL FAMILY. 14 Q. 15 OPCEN -- TO THE TURNAROUND? 16 A. 17 TWO WEEKS EARLY. 18 Q. TWO WEEKS EARLY? 19 A. I DON'T KNOW THE EXACT DATE I HAD TO GO. 20 Q. CAN YOU GIVE ME A MONTH IN WHICH YOU THOUGHT YOU HAD TO 21 GO? 22 A. YOU'RE -- WHEN YOU STEP IN AND AFTER -- WHEN DID YOU LEAVE TRAINING AND GO TO I DO NOT KNOW THE EXACT DATE. I BELIEVE I HAD TO LEAVE AT THE END OF MAY, BEGINNING OF JUNE. 23 MR. LAFAYETTE: NO FURTHER QUESTIONS AT THIS TIME 24 BASED UPON THE DIRECT, YOUR HONOR, BUT I WILL RESERVE ON THIS 25 WITNESS. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 778 FISCHER - REDIRECT / NUGENT 1 2 THE COURT: ANYTHING -- ANY EXAMINATION ON LIMITED TO THE SCOPE? 3 MS. NUGENT: YES, I HAVE ONE QUESTION. MAY I APPROACH, YOUR HONOR? 4 5 THE COURT: 6 YOU MAY. (EXHIBIT HANDED TO WITNESS.) 7 THE COURT: 8 9 ALL RIGHT. WHICH EXHIBIT ARE YOU SHOWING HIM? REDIRECT EXAMINATION BY MS. NUGENT: 10 Q. 11 EXHIBIT 9. 12 MR. FISCHER, I'VE SHOWN YOU WHAT'S BEEN MARKED AS DO YOU SEE THAT? 13 A. YES. 14 Q. IS THAT THE BOTTOM OF THE PAGE AN EMAIL YOU WROTE? 15 A. YES. 16 Q. AND ON THAT EMAIL IT SAYS, CIARA NEWTON WAS 45 MINUTES 17 LATE. 18 A. ACCORDING TO THIS, YES. 19 Q. ALL RIGHT. IS THAT TRUE? 20 21 MS. NUGENT: I WOULD LIKE TO MOVE EXHIBIT 9 INTO EVIDENCE. 22 MR. LAFAYETTE: 23 THE COURT: 24 25 NO OBJECTION. EXHIBIT 9 IS ADMITTED. (PLAINTIFF'S EXHIBIT 9 RECEIVED IN EVIDENCE) MS. NUGENT: I DON'T NEED THE ELMO WE HAVE THE DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 779 FISCHER - REDIRECT / NUGENT 1 SCREEN. 2 (DISPLAYED ON SCREEN.) 3 BY MS. NUGENT: 4 Q. 5 EVEN THOUGH YOU PUT THAT IN THE PD LOG AS MS. NEWTON BEING 6 LATE FOR 45 MINUTES, THAT WASN'T THE ACTUAL DATE, NOW THAT YOU 7 ARE LOOKING AT EXHIBIT 9, ISN'T IT TRUE THAT YOU THOUGHT THAT 8 WAS THE ACTUAL DATE THAT SHE WAS LATE FOR 45 MINUTES. MR. FISCHER, YOU JUST TOLD THE JURY THAT ON APRIL 7TH, 9 10 MR. LAFAYETTE: OBJECTION, IT'S ARGUMENTATIVE AND MISSTATES THE WITNESS'S PRIOR TESTIMONY. 11 THE COURT: OVERRULED. 12 BY MS. NUGENT: 13 Q. WHICH IS IT? 14 A. WELL, SINCE I DON'T REMEMBER THE EXACT DATE THAT I WROTE 15 THIS DOWN, THIS IS THE EXACT DATE THAT I WROTE IT IN THE BOOK. 16 SO.... 17 Q. 18 WHAT TIME SHE ARRIVED TO WORK ON APRIL 7TH? 19 A. 20 WHEN THEY SHOW UP TO MY CLASS AND SIT DOWN, SUITED UP, AND 21 READY TO WORK. DID YOU GO BACK AND TAKE A LOOK AT HER GATE LOG TO SEE ONCE AGAIN, I'M NOT PRIVY TO THE GATE LOG. 22 MS. NUGENT: 23 THE COURT: 24 MR. LAFAYETTE: 25 THE COURT: I'M PRIVY TO I HAVE NOTHING FURTHER. ANYTHING ON THIS EMAIL? NOTHING ELSE, YOUR HONOR. ALL RIGHT, SIR. YOU LEAVE THOSE DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 780 BECK - DIRECT / SMALLETS 1 DOCUMENTS THERE. YOU MAY STEP DOWN. NEXT WITNESS. 2 3 MS. SMALLETS: 4 THE CLERK: HAVING BEEN DULY SWORN, TESTIFIED AS FOLLOWS:) 7 THE WITNESS: 8 THE CLERK: 9 IF YOU WILL REMAIN STANDING. (MICHAEL BECK, CALLED AS A WITNESS FOR THE PLAINTIFF, 5 6 THE PLAINTIFF CALLS MIKE BECK. I DO. PLEASE BE SEATED. THEN IF YOU WILL PULL THE MICROPHONE TOWARD YOU, AND THEN PLEASE STATE YOUR FULL 10 NAME AND SPELL YOUR LAST NAME. 11 THE WITNESS: 12 THE COURT: 13 THE WITNESS: 14 THE COURT: 15 MICHAEL ANTHONY BECK, B-E-C-K. GOOD AFTERNOON, MR. BECK. HI. YOU MAY PROCEED. DIRECT EXAMINATION 16 BY MS. SMALLETS: 17 Q. 18 GOOD AFTERNOON, MR. BECK. YOUR CURRENT EMPLOYER IS SHELL, CORRECT? 19 A. THAT'S CORRECT. 20 Q. AND YOU WORK AT THE MARTINEZ REFINERY? 21 A. I DO. 22 Q. YOU'VE WORKED THERE SINCE 1988, RIGHT? 23 A. CORRECT. 24 Q. AND YOUR CURRENT JOB TITLE IS PRODUCTION UNIT MANAGER FOR 25 OPCEN? DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 781 BECK - DIRECT / SMALLETS 1 A. NO, IT'S NOT. 2 Q. WHAT IS YOUR CURRENT POSITION? 3 A. PRODUCTION EXCELLENT MANAGER. 4 Q. DURING 2016, YOU WERE THE PRODUCTION UNIT MANAGER FOR 5 OPCEN, CORRECT? 6 A. CORRECT. 7 Q. YOU HAD THAT JOB BEGINNING IN SEPTEMBER 2015? 8 A. CORRECT. 9 Q. DURING THE TIME PERIOD YOU WERE PRODUCTION UNIT MANAGER IN JULY I CHANGED POSITIONS. 10 FOR OPCEN, YOU WERE RESPONSIBLE FOR THE OPERATIONS OF ALL THE 11 UNITS WITHIN THE OPCEN DEPARTMENT, CORRECT? 12 A. CORRECT. 13 Q. AND YOU WERE RESPONSIBLE FOR ALL OF THE EMPLOYEES IN THE 14 OPCEN DEPARTMENT, CORRECT? 15 A. CORRECT. 16 Q. AND YOU WERE RESPONSIBLE FOR ALL OF THE PROJECTS IN THE 17 OPCEN DEPARTMENT? 18 A. CORRECT. 19 Q. AND YOU WERE RESPONSIBLE FOR THE TURNAROUND IN OPCEN? 20 A. CORRECT. 21 Q. YOU WERE RESPONSIBLE FOR THE CHANGES THAT WENT ON IN 22 OPCEN? 23 A. YES. 24 Q. WHEN IT CAME TO OPCEN, THE BUCK STOPS WITH YOU? 25 A. THAT'S CORRECT. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 782 BECK - DIRECT / SMALLETS 1 Q. 2 MANAGER, YOU HAD THE AUTHORITY TO MAKE DECISIONS TO HIRE AND 3 FIRE, CORRECT? 4 A. 5 MANAGER, BUT I WAS THE ONE THAT MADE THE RECOMMENDATIONS AND 6 FINAL DECISIONS IN OPCEN. 7 Q. 8 NYGAARD, CORRECT? 9 A. THAT'S CORRECT. 10 Q. AND HE WAS THE -- WHAT WAS HIS JOB TITLE? 11 A. PRODUCTION MANAGER. 12 Q. AND WAS HE RESPONSIBLE FOR ALL OF THE PRODUCTION UNITS AT 13 THE MARTINEZ REFINERY? 14 A. ACTUALLY PRODUCTION UNITS AND MAINTENANCE. 15 Q. HOW MANY EMPLOYEES DID YOU HAVE REPORTING TO YOU IN OPCEN? 16 A. BETWEEN 60 TO 65. 17 Q. DO YOU KNOW HOW MANY EMPLOYEES WERE -- WAS THOR NYGAARD 18 RESPONSIBLE FOR? 19 A. I DON'T. 20 Q. WHO WAS MR. NYGAARD'S MANAGER? 21 A. THE GENERAL MANAGER. 22 Q. WHAT WAS -- DO YOU KNOW WHO HE -- WHAT THAT PERSON'S NAME 23 WAS DURING -- WHO WAS IN THAT POSITION DURING 2016? 24 A. 25 REMEMBER WHEN THAT CHANGED. AND YOU, DURING THE TIME YOU ARE THE PRODUCTION UNIT THAT'S CORRECT. IT WAS SUBJECT TO APPROVAL FROM MY AND YOUR MANAGER, DURING THAT TIME PERIOD, WAS THOR I BELIEVE IT WAS PAUL GABBERT OR TOM RIZZO. I DON'T DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 783 BECK - DIRECT / SMALLETS 1 Q. WHAT IS THE GENERAL MANAGER RESPONSIBLE FOR? 2 A. THE ENTIRE REFINERY. 3 Q. SO THAT'S THE HIGHEST RANKING PERSON AT THE SHELL MARTINEZ 4 REFINERY? 5 A. CORRECT. 6 Q. AND THEY ARE RESPONSIBLE FOR -- TO YOUR UNDERSTANDING, 7 THEY ARE RESPONSIBLE FOR ALL OF THE OPERATIONS OF THAT 8 REFINERY? 9 A. YES. 10 Q. DURING THE 2016 TIME PERIOD, ERIC PEREZ REPORTED TO YOU, 11 CORRECT? 12 A. CORRECT. 13 Q. AND HE WAS THE PRODUCTION -- WHAT WAS HIS TITLE? 14 A. HE WAS PRODUCTION SUPERVISOR FOR BOTH OPCEN, MY 15 DEPARTMENT, AND ANOTHER PRODUCTION UNIT CALLED DELAYED COKING. 16 Q. 17 DUTIES TO HANDLE PERSONNEL-RELATED ISSUES FOR THE OPCEN 18 DEPARTMENT, RIGHT? 19 A. 20 EVERYONE ELSE ERIC MANAGED. 21 Q. 22 PERIOD TO DECIDE WHICH TEMPORARY SHIFT TEAM LEADS BECAME 23 PROMOTED TO PERMANENT SHIFT TEAM LEADS, CORRECT? 24 A. CORRECT. 25 Q. DURING THE TIME THAT -- THE ENTIRE TIME PERIOD YOU WORKED AND AS PRODUCTION SUPERVISOR, WAS PART OF MR. PEREZ'S JOB MOST OF THEM. I HAD A FEW DIRECT REPORTS MYSELF, BUT THEN AND IT WAS PART OF ERIC'S JOB DUTIES DURING THAT 2016 TIME DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 784 BECK - DIRECT / SMALLETS 1 IN OPCEN, YOU WERE AWARE OF ONLY FOUR WOMEN IN TOTAL WHO 2 WORKED AS OPERATORS IN THAT DEPARTMENT, CORRECT? 3 A. I BELIEVE THAT NUMBER IS RIGHT. 4 Q. AND ONE OF THOSE INCLUDES CIARA NEWTON, RIGHT? 5 A. CORRECT. 6 Q. AND DURING THE ENTIRE TIME YOU WERE THE PRODUCTION UNIT 7 MANAGER FOR OPCEN, YOU PARTICIPATED IN TWO TERMINATIONS, 8 CORRECT? 9 A. CORRECT. 10 Q. AND YOU WERE THE DECISION-MAKER FOR BOTH THOSE 11 TERMINATIONS? 12 A. CORRECT. 13 Q. AND ONE OF THEM WAS MS. NEWTON? 14 A. CORRECT. 15 Q. AND THE OTHER ONE WAS A MALE EMPLOYEE, CORRECT? 16 A. CORRECT. 17 Q. AND HE WAS TERMINATED; THE TERMINATING INCIDENT WAS CREDIT 18 CARD FRAUD, CORRECT? 19 A. CORRECT. 20 Q. YOU PARTICIPATED IN A ROUND-ROBIN STYLE DRAFT TO SELECT 21 WHICH EMPLOYEES OF THE 2016 NEW HIRE CLASS WERE -- WENT TO THE 22 OPCEN DEPARTMENT, CORRECT? 23 A. CORRECT. 24 Q. AND ERIC PEREZ PARTICIPATED AS WELL? 25 A. I BELIEVE HE WAS IN THE ROOM, YES. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 785 BECK - DIRECT / SMALLETS 1 Q. 2 OPCEN SELECTED? 3 A. THAT'S CORRECT. 4 Q. AND WHEN YOU MADE THAT SELECTION, YOU KNEW THEY HAD THEIR 5 TEST SCORES, YOU HAD SOME TRAINING, YOU HAD THEIR WORK 6 HISTORY, AND YOU HAD TRAINER FEEDBACK, RIGHT? 7 A. CORRECT. 8 Q. YOU ALSO HAD COPIES OF THEIR PHOTOS, CORRECT? 9 A. CORRECT. 10 Q. PERFORMANCE REVIEWS FOR NEW HIRES ARE HANDLED BY THE SHIFT 11 TEAM LEADERS, RIGHT? 12 A. 13 THEY ARE. 14 Q. 15 AND CIARA WAS OPCEN'S LAST SLOT CHOICE OF THE PEOPLE THAT NOT OF ALL THEM. ONCE THEY'RE TRANSFERRED TO THE UNITS I AM SORRY. SO ONCE THE NEW HIRES GET TRANSFERRED TO THE UNITS, THEIR 16 PERFORMANCE REVIEWS ARE HANDLED BY THE SHIFT TEAM LEADERS, 17 RIGHT? 18 A. CORRECT, ON THEIR TEAM. 19 Q. OKAY. 20 REVIEWS ARE USED -- REVIEWED BY ERIC PEREZ? 21 A. YES. 22 Q. WHEN WE'RE TALKING ABOUT PERFORMANCE REVIEWS, THAT'S THE 23 SAME THING AS THE PROGRESS REVIEWS, RIGHT? 24 A. CORRECT. 25 Q. YOU DIDN'T HAVE THE OPPORTUNITY TO PERSONALLY OBSERVE AND THOSE PROGRESS REVIEWS -- THOSE PERFORMANCE DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 786 BECK - DIRECT / SMALLETS 1 MS. NEWTON'S JOB PERFORMANCE, CORRECT? 2 A. CORRECT. 3 Q. BUT YOU RELIED UPON INFORMATION THAT ERIC PEREZ PROVIDED 4 TO YOU, CORRECT? 5 A. CORRECT. 6 Q. YOU HAD MULTIPLE CONVERSATIONS WITH MR. PEREZ ABOUT 7 MS. NEWTON? 8 A. CORRECT. 9 Q. AND YOU ALSO RELIED UPON INFORMATION THAT MR. CURRAN 10 PROVIDED TO YOU, CORRECT? 11 A. CORRECT. 12 Q. AND YOU REVIEWED HER PD LOGS PRIOR TO HER TERMINATION? 13 A. CORRECT. 14 Q. AND YOU REVIEWED A PROGRESS REVIEW THAT RICHARD METCALF 15 HAD PREPARED, CORRECT? 16 A. CORRECT. 17 Q. THAT WAS THE PROGRESS REVIEW -- THE VERSION OF THE 18 PROGRESS REVIEW THAT YOU REVIEWED WAS THE VERSION THAT SAID 19 THAT SHE COULD CONTINUE -- SHOULD CONTINUE AS AN EMPLOYEE IN 20 OPCEN, RIGHT? 21 A. CORRECT. 22 Q. YOU... WITH RESPECT TO THE INCIDENTS ON MS. NEWTON'S PD 23 LOG, YOU THOUGHT THAT THE ISSUE WITH THE FX FLARE SYSTEM 24 SAMPLE BEING AN ALARM, THAT WAS JUST A MISTAKE, RIGHT? 25 A. THAT COULD BE SOMETHING FROM A, I WOULD CALL A NORMAL, OR DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 787 BECK - DIRECT / SMALLETS 1 NOT AN UNUSUAL OCCURRENCE FOR SOMEONE IN HER POSITION AS FAR 2 AS A NEW HIRE. 3 Q. 4 TRAIN HER ON IT? 5 A. CORRECT. 6 Q. YOU ALSO THOUGHT THE INCIDENT WITH RESPECT TO THE CPI 7 OUTLET -- INLET WAS JUST A TYPICAL MISTAKE A NEW HIRE WOULD 8 MAKE, RIGHT? 9 A. CORRECT. 10 Q. LET'S TALK ABOUT THE -- ON THE PD LOG THERE IS -- IT 11 REFERS TO COACHINGS AND THEN COUNSELINGS, AND THEN THERE'S 12 OTHER LEVELS; IS THAT RIGHT? 13 A. THAT'S CORRECT. 14 Q. SO THE LOWEST LEVEL IS A COACHING? 15 A. CORRECT. 16 Q. AND THEN A MORE SERIOUS SITUATION IS A COUNSELING? 17 A. COUNSELING IS THE NEXT STEP. 18 Q. AND AFTER THAT THEY GO TO AN ORAL REMINDER? 19 A. CORRECT. 20 Q. AND THEN THERE'S WRITTEN DISCIPLINE? 21 A. CORRECT. 22 Q. AND ON MS. NEWTON'S PD LOG, IT'S ALL COACHINGS BUT ONE 23 COUNSELING, RIGHT? 24 A. I WOULD HAVE TO LOOK TO BE SURE. 25 Q. ARE YOU AWARE IF SHE RECEIVED ANY ORAL REMINDERS? OKAY. YOU EXPECTED HER MANAGER TO COACH HER ON IT, RIGHT, DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 788 BECK - DIRECT / SMALLETS 1 A. I AM NOT SURE. 2 Q. OKAY. 3 REFINERY, CORRECT? 4 A. I AM. 5 Q. AND YOU UNDERSTOOD THAT YOUR RESPONSIBILITY -- YOU 6 UNDERSTOOD THAT STICKER WAS INAPPROPRIATE, RIGHT? 7 A. ABSOLUTELY. 8 Q. AND YOU THOUGHT -- 9 10 YOU WERE AWARE THAT A STICKER WAS BROUGHT INTO THE THE COURT: DID SOMEONE'S PHONE JUST GO OFF? YOU NEED TO HAVE THAT OFF. 11 (PAUSE IN THE PROCEEDINGS.) 12 THE WITNESS: 13 THE COURT: SORRY, YOUR HONOR. GO AHEAD. 14 BY MS. SMALLETS: 15 Q. YOU THOUGHT THAT STICKER WAS INAPPROPRIATE? 16 A. ABSOLUTELY. 17 Q. YOU THOUGHT AN INVESTIGATION SHOULD BE CONDUCTED, RIGHT? 18 A. YES. 19 Q. YOUR PERSONAL RESPONSIBILITY RELATING TO THOSE KINDS OF 20 INVESTIGATIONS ARE TO TAKE IT TO HR TO MAKE SURE IT IS 21 PROPERLY INVESTIGATED, RIGHT? 22 A. CORRECT. 23 Q. BY "HR", YOU MEAN CHRISTINE LAYNE? 24 A. YES. 25 SURE CHRISTINE WAS AWARE OF IT. I TOOK -- BOTH ERIC AND I TALKED ABOUT IT AND MADE DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 789 BECK - DIRECT / SMALLETS 1 Q. 2 AN INVESTIGATION IN ORDER TO DETERMINE WHO BROUGHT THE STICKER 3 INTO THE REFINERY, RIGHT? 4 A. 5 SHOULD ACTUALLY DO THE QUESTIONING. 6 Q. 7 GOING TO BE DONE, RIGHT? 8 A. CORRECT. 9 Q. BUT YOU DON'T KNOW IF ANYONE WAS EVER ASKED WHETHER THEY OKAY. AND IT WAS YOUR EXPECTATION THAT HR WOULD CONDUCT THEY TECHNICALLY LEAD THE INVESTIGATION AND SELECT WHO BUT IT WAS YOUR EXPECTATION THAT AN INVESTIGATION WAS 10 BROUGHT THE STICKER INTO THE REFINERY? 11 A. I DON'T KNOW THE DETAILS OF THE INVESTIGATION. 12 Q. AS YOU SIT HERE RIGHT NOW, YOU ACTUALLY DON'T KNOW WHO 13 BROUGHT THE STICKER INTO THE REFINERY? 14 A. I DO NOT. 15 Q. YOU DON'T KNOW IF THAT PERSON WAS A MANAGER? 16 A. I DO NOT. 17 Q. THERE IS NO TIME CLOCK FOR OPCEN EMPLOYEES, RIGHT? 18 A. CAN YOU CLARIFY? 19 Q. SURE. 20 IN AND OUT? 21 A. NO, THERE'S NOT. 22 Q. LET'S TALK A LITTLE BIT ABOUT THE PARALLEL TRAINING 23 CHECKLIST -- PARALLEL TRAINING. 24 TRAINING. 25 IS THERE A TIME CLOCK WHERE OPCEN EMPLOYEES PUNCH LET'S TALK ABOUT PARALLEL DURING PARALLEL TRAINING, A NEW OPERATOR SPENDS SOME TIME DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 790 BECK - DIRECT / SMALLETS 1 IN THE FIELD WITH SOMEONE WHO'S SHOWING THEM HOW TO DO THE 2 JOB, RIGHT? 3 A. WELL, THAT ACTUALLY OCCURS PRIOR TO THAT? 4 Q. BEFORE THEY BECOME A QUALIFIED OPERATOR. 5 A. SO IT HAPPENS BOTH, BUT THE PARALLEL TRAINING IS AFTER 6 THEY ARE QUALIFIED, BEFORE THEY CAN WORK THE UNIT ALONE, IT IS 7 BASICALLY A BUDDY SYSTEM. 8 I BELIEVE IT WAS ABOUT A WEEK. 9 Q. ANY OPERATOR CAN DO PARALLEL TRAINING, RIGHT? 10 A. I AM NOT SURE WHAT OUR POLICY ACTUALLY SAYS ON THAT. 11 Q. OKAY. THEY DO THAT FOR A PERIOD OF TIME. 12 AND CERTAINLY NO LATER THAN THE END OF JULY YOU WERE AWARE 13 THAT MS. NEWTON HAD REPORTED CONCERNS ABOUT BEING SINGLED OUT, 14 RIGHT? 15 A. ON ONE OCCASION. 16 Q. YOU ARE AWARE THAT SHE REPORTED CONCERNS ABOUT BEING 17 TREATED DIFFERENTLY, RIGHT? 18 A. ON THE TARDINESS. 19 Q. YOU WERE AWARE THAT SHE REPORTED THAT CONCERN ABOUT BEING 20 TREATED DIFFERENTLY THAN THE OTHER GUYS, RIGHT? 21 A. CORRECT. 22 Q. YOU RECEIVED AN EMAIL WHICH LISTED ALL THOSE CONCERNS, 23 RIGHT? 24 A. I'M NOT SURE WHICH EMAIL YOU ARE REFERRING TO. 25 Q. DO YOU RECALL RECEIVING AN EMAIL THAT LISTED THOSE DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 791 BECK - DIRECT / SMALLETS 1 CONCERNS? 2 A. I REMEMBER THE ONE ABOUT THE TARDINESS. 3 Q. THERE WAS AN EMAIL THAT LISTED MS. NEWTON'S CONCERNS, 4 CORRECT? 5 A. I DON'T RECALL WHICH ONE YOU ARE TALKING ABOUT. 6 Q. OKAY. 7 THE TERMINATION DECISION HAD ALREADY BEEN MADE BY 8 SEPTEMBER 27 WHEN YOU MET WITH CHRISTINE LAYNE AND ERIC PEREZ 9 TO DISCUSS IT, CORRECT? 10 A. 11 ABOUT THE DECISION IN GETTING TO THAT DECISION. 12 Q. 13 USING STEREOTYPICALLY HIGH PITCHED FEMALE VOICES ON THE RADIO, 14 RIGHT? 15 A. I'VE HEARD THAT BEFORE, YES. 16 Q. THAT'S NOT PEOPLE USING THEIR NATURAL VOICES, RIGHT? 17 A. CORRECT. 18 Q. YOUR CONCERN WITH THIS WAS THAT YOU THOUGHT IT WASN'T 19 PROPER RADIO ETIQUETTE, CORRECT? 20 A. THAT'S CORRECT. 21 Q. THE FIRST TIME YOU MET MS. NEWTON, HAD MORE THAN MAYBE 22 CASUALLY, WAS THAT MEETING WHERE SHE WAS TERMINATED, RIGHT? 23 A. 24 IN THE CONTROL CENTER. 25 Q. I'M NOT SURE OF THE DATES. OKAY. WE TALKED A COUPLE OF TIMES YOU... YOU'RE AWARE THAT PEOPLE OF -- OF PEOPLE I HAD MET HER SEVERAL TIMES FROM TIME TO TIME ON SHIFT AND ANY OF THOSE INTERACTIONS LAST MORE THAN A COUPLE OF DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 792 BECK - CROSS / LAFAYETTE 1 MINUTES. 2 A. NO. 3 Q. AND DURING THE TERMINATION MEETING, MS. NEWTON ASKED YOU 4 WHY SHE WAS BEING TERMINATED, CORRECT? 5 A. CORRECT. 6 Q. YOU DIDN'T TELL HER, DID YOU? 7 A. WE DIDN'T GO INTO THE DETAILS. 8 MS. SMALLETS: 9 THE COURT: 10 I HAVE NOTHING FURTHER. ANY EXAMINATION? CROSS-EXAMINATION 11 BY MR. LAFAYETTE: 12 Q. MR. BECK, ARE YOU MARRIED? 13 A. YES, I AM. 14 Q. DO YOU HAVE CHILDREN? 15 A. YES, I DO. 16 Q. WHAT DO YOU HAVE? 17 A. I HAVE TWO BOYS. 18 Q. AND DID YOU GROW UP IN NORTHERN CALIFORNIA? 19 A. LAST 30 YEARS I'VE BEEN IN MARTINEZ. 20 Q. DID YOU GO TO COLLEGE? 21 A. I DID. 22 Q. TELL ME ABOUT YOUR EDUCATION. 23 A. I AM SORRY? 24 Q. TELL ME ABOUT YOUR EDUCATION. 25 A. I WENT TO THE UNIVERSITY OF NEVADA AT RENO AND GOT A DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 793 BECK - CROSS / LAFAYETTE 1 DEGREE IN CHEMICAL ENGINEERING. 2 Q. 3 MARTINEZ REFINERY? 4 A. NOT AFTER COLLEGE. 5 Q. CAN YOU HIRE AND FIRE PEOPLE ON YOUR OWN WITHOUT TALKING 6 TO SOMEBODY ELSE? 7 A. NO. 8 Q. CAN YOU SET CORPORATE POLICY FOR EQUILON? 9 A. NO. ALL RIGHT. AND HAVE YOU WORKED ANYPLACE OTHER THAN THE 10 MS. SMALLETS: 11 COURT REPORTER: 12 THE COURT: 13 I'VE BEEN THERE 30 YEARS. OBJECTION -I'M SORRY, I CAN'T HEAR YOU. I'M GOING ALLOW THAT QUESTION, AND I WILL EXPLAIN TO THE JURY THEIR ROLE WITH RESPECT TO THOSE TOPICS. 14 OVERRULED. 15 BY MR. LAFAYETTE: 16 Q. ARE YOU AN OFFICER IN EQUILON? 17 A. NO. 18 Q. ARE YOU A CORPORATE DIRECTOR AT EQUILON? 19 A. NO. 20 Q. ARE YOU AN OFFICER IN THE SHELL OIL COMPANY? 21 A. NO. 22 Q. ARE YOU A DIRECTOR IN THE SHELL OIL COMPANY? 23 A. NO. 24 Q. APPROXIMATELY HOW MANY EMPLOYEES ARE AT THE MARTINEZ 25 REFINERY? DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 794 BECK - CROSS / LAFAYETTE 1 A. BETWEEN 700 AND 730 MAYBE. 2 Q. OF THAT NUMBER, HOW MANY OF THEM DO YOU SUPERVISE OR UNDER 3 YOUR SUPERVISION? 4 A. 5 TOTAL DEPARTMENT BETWEEN 60 AND 65. 6 Q. 7 SELECTION FOR THE DEPARTMENT WHERE PEOPLE WENT. 8 DIRECT SUPERVISION AT THE TIME IN 2016 WAS SIX. IN THE THERE WAS A -- I HEARD IT REFERRED TO AS A ROUND-ROBIN WERE YOU PART OF THAT ROUND ROBIN? 9 A. I WAS. 10 Q. CAN YOU TELL ME WHAT IT MEANS TO HAVE A ROUND ROBIN? 11 DOES IT WORK? 12 A. 13 RECEIVING SOME OF THE NEW HIRES PICK IN ORDER, JUST LIKE YOU 14 WOULD PICK A TEAM, IF YOU WILL. 15 Q. 16 THE OTHER? 17 A. ONE AFTER THE OTHER THERE WAS AN ORDER. 18 Q. UNTIL IT WAS ALL DONE? 19 A. CORRECT. 20 Q. AND WERE THERE SOME WOMEN IN THAT ORDER? 21 A. YES. 22 Q. DO YOU KNOW IF ANY OF THE WOMEN WENT HIGH? 23 A. I BELIEVE THEY DID. 24 Q. AND WHERE DID MS. NEWTON FALL? 25 A. SHE WAS TOWARDS THE END. HOW ESSENTIALLY ALL OF THE PRODUCTION UNIT MANAGERS WHO ARE OKAY. SO THEY ALL GOT TO PICK WHO THEY WANTED ONE AFTER DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 795 BECK - CROSS / LAFAYETTE 1 Q. YOU WERE IN THE MEETING WHERE SHE WAS SEPARATED? 2 A. I WAS. 3 Q. WAS THERE -- WAS HER GENDER THE REASON WHY SHE WAS 4 TERMINATED? 5 A. NO. 6 MS. SMALLETS: 7 THE COURT: 8 ASKED AN OPEN-ENDED QUESTION. 9 BY MR. LAFAYETTE: OBJECTION, LEADING. SUSTAINED. THE ANSWER IS STRICKEN. 10 Q. DO YOU KNOW THE REASONS WHY SHE WAS TERMINATED? 11 A. I DO. 12 Q. OF THOSE REASONS, WAS GENDER PART OF IT? 13 A. NO. 14 MR. LAFAYETTE: 15 RESERVE ON THIS WITNESS AS WELL. 16 17 18 19 20 21 22 23 THE COURT: YOU NO FURTHER QUESTIONS, YOUR HONOR. ANY FOLLOW-UP WITH RESPECT TO THOSE QUESTIONS? MS. SMALLETS: YES. I AM GOING TO GIVE YOU AN EXHIBIT TO LOOK AT, MR. BECK, THAT WAS PREVIOUSLY ADMITTED INTO EVIDENCE. IT IS EXHIBIT 33, YOUR HONOR. THE COURT: OKAY. I DON'T SHOW 33 AS ADMITTED. 24 MS. SMALLETS: 25 THE COURT: I'M SORRY. YOU CAN HAND IT TO HIM. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 796 BECK - REDIRECT / SMALLETS 1 DO YOU SHOW IT? 2 (EXHIBIT HANDED TO WITNESS.) 3 THE CLERK: 4 BY MS. SMALLETS: 6 Q. 7 THAT YOU RECEIVED -- TAKE A LOOK AT THIS DOCUMENT, MR. BECK. 8 THE COURT: HOLD ON. MS. SMALLETS: 11 THE COURT: DID YOU GIVE A COPY TO IT IS EXHIBIT 33 IN THE -- IF YOU DID NOT, I NEED TO MAKE SURE HE -- DO YOU HAVE IT UP? 13 14 IS THIS AN EMAIL MR. LAFAYETTE? 10 12 NOT ADMITTED. REDIRECT EXAMINATION 5 9 NO. MR. LAFAYETTE: I HAVE WHAT I THINK IS EXHIBIT 33, BUT I WOULD LIKE TO SEE IT TO MAKE SURE. 15 THE COURT: 16 YOU NEED TO SHOW IT TO HIM. (COUNSEL CONFER.) 17 THE COURT: GO AHEAD. 18 BY MS. SMALLETS: 19 Q. AND THIS IS -- YOU RECOGNIZE THIS EMAIL, MR. BECK? 20 A. I DO. 21 Q. AND THIS IS AN EMAIL YOU RECEIVED ON JULY 28TH, 2016? 22 23 24 MR. LAFAYETTE: THIS IS OUTSIDE THE SCOPE OF MY CROSS. THE COURT: OVERRULED. GO AHEAD. 25 DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 797 BECK - REDIRECT / SMALLETS 1 BY MS. SMALLETS: 2 Q. TAKE A LOOK AT THE LAST PAGE. 3 A. CAN YOU GIVE ME THE BATES NUMBER? 4 Q. SURE. 5 AT THE BOTTOM. 6 A. THANK YOU. 7 Q. AND IT'S A DOCUMENT STATEMENT FROM CIARA, CORRECT? 8 A. YES. 9 Q. SO AS OF THE DATE OF THIS EMAIL, YOU WERE AWARE THAT IT'S BATES NUMBER -- IT SHOULD SAY DEFENDANT 1010 I SEE THAT. 10 MS. NEWTON WAS REPORTING THAT STL'S PICK AND CHOOSE WHICH 11 INCIDENTS TO REPORT AND INVESTIGATE, CORRECT? 12 A. CAN YOU TELL ME WHICH BULLET YOU ARE TALKING ABOUT? 13 Q. THE SECOND BULLET POINT. 14 A. I SEE THAT SHE MADE THAT -- OR ERIC REPORTED THAT SHE'S 15 MAKING THAT STATEMENT. 16 Q. 17 CONCERNS THAT TRAPS WERE BEING SET FOR HER, CORRECT? 18 AND ERIC REPORTED TO YOU THAT MS. NEWTON WAS RAISING THAT'S THE FOURTH BULLET POINT. 19 A. I SEE THAT IT SAYS THAT IN HERE. 20 Q. ERIC NEWTON (SIC) TOLD YOU THAT MS. NEWTON WAS REPORTING 21 CONCERNS THAT IT ISN'T FAIR FOR HER TO GET IN TROUBLE FOR 22 REPORTING WHEN OTHER PEOPLE HAVE INCIDENTS THAT DON'T GET 23 REPORTED; THAT'S THE FIRST BULLET POINT, RIGHT? 24 MR. LAFAYETTE: 25 THE COURT: THAT'S OUTSIDE THE COURSE OF MY -- AT THIS POINT IT IS. SUSTAINED. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 798 BECK - REDIRECT / SMALLETS 1 BY MS. SMALLETS: 2 Q. 3 TO YOU THAT SHE IS NOT BEING TREATED THE SAME AS THE OTHER 4 GUYS? 5 A. 6 I WAS CC'D ON THIS. 7 Q. AND YOU READ IT AT THE TIME? 8 A. I AM NOT SURE IF I READ IT AS COMPLETELY AS YOU'RE 9 INFERRING. AND MS. NEWTON -- YOU ARE AWARE THAT MS. NEWTON REPORTED AGAIN, THIS WAS REPORTED TO ERIC, NOT CORRECTLY TO ME AND SO I DID RECEIVE THIS EMAIL. 10 Q. YOU DON'T DENY RECEIVING THIS EMAIL? 11 A. I DON'T. IT SAYS I RECEIVED IT. 12 MS. SMALLETS: 13 THE COURT: 14 MR. LAFAYETTE: 15 ANYTHING ON THE EMAIL? MS. SMALLETS: 17 THE COURT: 18 MS. SMALLETS: THE COURT: 21 THERE AN OBJECTION? 23 24 25 WE ARE NOT MOVING -- I CAN'T HEAR YOU. I'M SORRY. WE ARE NOT REQUESTING THAT IT BE ADMITTED. 20 22 I WOULD LIKE TO MOVE THIS DOCUMENT INTO EVIDENCE, YOUR HONOR, SINCE IT WAS USED. 16 19 NOTHING FURTHER. I KNOW. MS. SMALLETS: HE'S ASKING. YOU USED IT. IT HAS HEARSAY WITHIN IT. IS IT'S THE SAME ISSUE WE HAVE BEEN TALKING ABOUT. THE COURT: THE FIRST AND THE LAST PAGE ARE ADMITTED. PAGE 106 SHOWING THAT HE'S CC'D AND 110. WE CAN TALK DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 799 1 ABOUT THE BALANCE LATER. 2 3 (PLAINTIFF'S EXHIBIT 33 (PGS. 106 & 110) RECEIVED IN EVIDENCE) 4 5 MR. LAFAYETTE: I HAVE NO QUESTIONS AT THIS TIME, BUT I RESERVE FOR THE WITNESS. 6 7 THANK YOU, YOUR HONOR. ALL RIGHT. THE COURT: YOU CAN STEP DOWN. THANK YOU. 8 NEXT WITNESS. 9 MS. NUGENT: YOUR HONOR, WE HAVE NO MORE WITNESSES 10 FOR TODAY BECAUSE WE HAVE GONE SO RAPIDLY. 11 TO CALL. 12 REST. 13 WE HAVE TWO WITNESSES TOMORROW AND PLAINTIFF WILL OKAY. THE COURT: 14 SO WE HAVE NO ONE LADIES AND GENTLEMEN, THEN THAT CONCLUDES THE EVIDENTIARY 15 PORTION FOR TODAY. 16 MONDAY, PLAN ON BEING HERE ALL DAY. 17 ON MONDAY. 18 JUST LOOKING FORWARD, SO BEGINNING ON WE WILL PROVIDE YOU LUNCH THE SCHEDULE WILL BE A LITTLE BIT OFF. WE'LL KIND OF PLAY 19 IT BY EAR IN TERMS OF WHAT IS GOING TO HAPPEN WHEN SO YOU WILL 20 HAVE TO BE FLEXIBLE ON MONDAY. 21 SURE TO PLAN ON THAT. 22 DAY. 23 JUROR: 24 THE COURT: 25 BUT I JUST WANT YOU TO MAKE SO BEGINNING MONDAY, IT WILL BE ALL WHAT TIME DO WE HAVE TO BE HERE ON MONDAY? HERE AT THE SAME TIME. 8:30, BUT WE WILL GO ALL DAY LONG. OKAY? WE'LL START AT WE WON'T STOP EARLY DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 800 1 AT 1:30 FOR YOU. 2 OKAY? WE WILL GO ALL DAY. 3 JUROR: 4 THE COURT: THEY CLOSE THE BUILDING AT 4:30, RIGHT? 5 THE CLERK: 5:00. 6 THE COURT: ALL RIGHT. UNTIL 4:30? SO CERTAINLY UNTIL 4:00. YOU 7 HAVE THE -- ONCE YOU ARE DELIBERATING, YOU HAVE THE OPTION TO 8 GO TILL 5:00. 9 ARE RIGHT ON THE VERGE, I COULD AUTHORIZE OVERTIME BUT THEY THAT'S WHEN THEY CLOSE THE BUILDING. 10 GET REALLY MAD WHEN I DO THAT. 11 HOW YOU DO. 12 13 ANY OTHER QUESTIONS? THE COURT: WE HAVE THINGS TO TALK ABOUT I'M GOING TO NEED EXHIBIT 116A. ADMITTED. 19 THAT IS WHAT HAS BEEN I'M TRYING TO REMEMBER WHICH ONE THAT WAS. THESE WERE THE CHEMICAL SHEETS. SO I NEED -- I'M GOING TO NEED THE FIRST TWO PAGES AS 116A. 21 22 ALL RIGHT. HERE. 17 20 WE WILL SEE YOU TOMORROW (PROCEEDINGS HELD OUTSIDE THE PRESENCE OF THE JURY.) 15 18 ALL RIGHT. WE WILL SEE AT 8:30. 14 16 BUT IT'S OKAY. IF YOU 207, IS THERE -- THAT'S HIS DRAWING. ARE YOU MOVING 207 IN? 23 MS. NUGENT: 24 MR. LAFAYETTE: 25 THE COURT: YES, IF THERE'S NO OBJECTION. MOVE IT IN. I'M FINE. 207 IS ADMITTED. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 801 1 (PLAINTIFF'S EXHIBIT 207 RECEIVED IN EVIDENCE) 2 THE COURT: AND THEN I HAVE 177. THIS IS THE CBA. 3 DON'T TYPICALLY ADMIT DOCUMENTS THAT AREN'T USED. 4 USE IT. I YOU DIDN'T YOU JUST HAD HIM AUTHENTICATE IT. 5 MR. LAFAYETTE: I DID, YOUR HONOR, BECAUSE I INTEND 6 TO USE THE PASSAGES IN IT THAT TALK ABOUT HOW -- IF YOU WANT 7 ME TO IDENTIFY THE SPECIFIC PAGES, I COULD, BUT I'M TRYING NOT 8 TO WASTE MY TIME WITH ASKING THEM STUFF THAT I DON'T NEED -- 9 10 THE COURT: THE JURY -- YOU CAN'T ARGUE STUFF THE JURY DOESN'T HAVE IN FRONT OF THEM. 11 MR. LAFAYETTE: THEN I WILL ASK SOME OTHER WITNESSES 12 OTHER THAN MR. RAY JONES. 13 ARE SUPPOSED TO DO IF YOU ARE OPERATING AND YOU'RE FATIGUED. 14 THERE'S A SECTION WHAT YOU ARE SUPPOSED TO DO IF YOU THINK 15 YOU'VE GOT AN ISSUE TO TAKE IT TO YOUR UNION. 16 THERE'S A SECTION ABOUT WHAT YOU THOSE ARE THE SECTIONS THAT I WOULD BE USING WITH HIM. 17 THE COURT: ALL RIGHT. WELL, I'LL MAINTAIN MY 18 RESERVATION ON IT, AND WE'LL SEE HOW YOU USE IT AND WHETHER 19 IT'S RELEVANT. 20 RIGHT. 21 BUT LIKE I SAY, HE'S AUTHENTICATED IT. SO I'LL RESERVE ON THAT. AND THEN THIS LAST ONE, NO. 9... OH, NO, THAT'S NOT NO. 9. 22 THE CLERK: 33. 23 THE COURT: 33. 24 25 ALL YOU WANT TO ARGUE FOR ANYTHING OTHER THAN THE TWO PAGES I ADMITTED? DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 802 1 2 MR. LAFAYETTE: YES, YOUR HONOR. 33, IF I THINK I HAVE IT RIGHT. 3 THE COURT: 4 MR. LAFAYETTE: THAT'S THE EMAIL THAT HE WAS CC'D ON. YES. I DON'T SEE ANY REASON TO 5 OBJECT TO THE BALANCE OF IT. 6 FIRST OF ALL, TO REFRESH HIS RECOLLECTION ON WHAT HE GOT. 7 REST OF THIS DOCUMENT IS -- AND I THINK WE ARE PLAYING WITH A 8 GAME HERE -- 9 THE COURT: 10 11 WHAT WE ARE ASKING HIM ABOUT IS, THE I UNDERSTAND, BUT GO AHEAD. MR. LAFAYETTE: THIS IS ERIC PEREZ'S EMAIL. THIS SUMMARIZES HIS FINDINGS AND WHAT HE SAID. 12 AND HE SPECIFICALLY SAID ON THIS DAY THAT WE KEEP TALKING 13 ABOUT, THIS 7TH DAY, HE PUTS THERE IN THAT DOCUMENT THAT IT'S 14 A TYPO. 15 AND HE PUTS THE CORRECT DATE IN THIS DOCUMENT. AND SO THAT'S WHY THIS DOCUMENT IS IN. THEY'VE REFERENCED 16 IT TO REFRESH HIS RECOLLECTION ABOUT THESE EVENTS, AND THAT 17 DOESN'T MEAN YOU ONLY GET ONE PART. 18 YOU GET THE ENTIRE -- 19 THE COURT: I BELIEVE THAT IT MEANS I THINK BOTH SIDES ARE PLAYING GAMES. 20 YOU ARE GOING TO LAY THE FOUNDATION FOR THE REST OF THIS 21 DOCUMENT. IT WILL COME IN AT THAT POINT. 22 MR. LAFAYETTE: 23 THE COURT: THAT'S FINE, YOUR HONOR. AT THIS POINT, BOTH PAGES. 24 HAVE THE GATE LOGS AND NOT HAVE THE GATE LOGS. 25 IS COMING IN AS SOON AS THEY LAY THE FOUNDATION. YOU CAN'T THE GATE STUFF DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 803 1 ALL RIGHT. 2 3 MS. SMALLETS: RECEIVED A WITNESS LIST FOR TOMORROW FROM THE DEFENDANT. 4 5 THE COURT: MR. LAFAYETTE: THE COURT: THAT IS NOT TRUE BECAUSE I'VE HEARD IT. MR. LAFAYETTE: THE COURT: 13 MR. LAFAYETTE: 14 THE COURT: YOU ARE GOING TO DO ALL FOUR TOMORROW? 17 MS. SMALLETS: THE COURT: THAT'S THE ORDER UNLESS I HEAR OTHERWISE. MR. LAFAYETTE: I DO, YOUR HONOR. I CAN'T -- LET ME FIND MY NOTES. 23 25 CAN WE HAVE THE ORDER OF THE IS THAT THE -- I ASSUMED THAT WAS THE ORDER. 21 24 AND LORI MARTINELLI. WITNESSES? 19 22 SO WE WILL HAVE BECK BACK, FISCHER BACK, PEREZ BACK, AND NEUMAN FOR THE FIRST TIME. MR. LAFAYETTE: 20 YES, MA'AM. ALL RIGHT. 16 18 WE HAVE MR. BECK, WE HAVE MR. FISCHER, WE HAVE MR. PEREZ, WE HAVE PATRICK NEUMAN. 12 15 THIS IS THE FIRST I'VE HEARD THAT WE HAVE DONE THIS NOW -- THEY SAID THIS TWO DAYS AGO. 10 11 WHO IS GOING TO BE ON FOR THEY REST. 8 9 ALL RIGHT. TOMORROW? 6 7 YOUR HONOR, I DON'T BELIEVE WE THE COURT: FIND THEM QUICKLY BECAUSE YOU ARE ALREADY LATE. MR. LAFAYETTE: JEFF FISCHER, PATRICK NEUMAN, CAMERON DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 804 1 CURRAN, MR. METCALF, MIKE BECK, LORI MARTINELLI. 2 3 THE COURT: FIRST, FISCHER, SECOND, NEUMAN, THIRD CURRAN, WHICH IS DIFFERENT, AND THEN WHO'S FOURTH? 4 MR. LAFAYETTE: 5 THE COURT: 6 MR. LAFAYETTE: 7 METCALF IS FOURTH? THE COURT: 9 MR. LAFAYETTE: BECK IS FIFTH. 10 THE COURT: 11 MR. LAFAYETTE: 13 YES. MIKE BECK. 8 12 RICHARD METCALF. LORI MARTINELLI. SO NOT PEREZ TOMORROW? NO. THERE COULD BE SOME SHIFTING OF MARTINELLI BECAUSE SHE IS GOING TO BE FLYING BACK TO HOUSTON. THEN FOR THE BALANCE, YOUR HONOR, JUST TO ROUND IT OUT, IT 14 WILL BE DEANNA MARTINEZ, TOM RIZZO, AND MR. PEREZ. 15 ORDER IN WHICH WE INTEND TO CALL WITNESSES. 16 THE COURT: 17 MR. LAFAYETTE: 18 MARTINEZ, RIZZO -PEREZ. BEFORE -- 19 THE CLERK: 20 MR. LAFAYETTE: 21 THAT'S THE CAN YOU TALK INTO THE MIC? BEFORE PEREZ, I CAN'T REMEMBER HIS NAME -- 22 MS. LYONS: 23 MR. LAFAYETTE: 24 THE COURT: 25 MS. NUGENT: KULDEEP. KULDEEP KAUR. HOW DO YOU SPELL THAT? K-A-U-R. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 805 1 THE COURT: 2 (PAUSE IN THE PROCEEDINGS.) 3 THE COURT: 4 MS. NUGENT: 5 ALL RIGHT. I WANTED TO REMIND THE COURT THAT FIRST TOMORROW WE'LL HAVE JOSE NAVARRO AND RICHARD METCALF. 6 THE COURT: 7 MS. NUGENT: 8 THE COURT: 9 HOLD ON JUST A MINUTE. YES, I HAVE THEM ON THE LIST. OKAY. AND I TAKE IT THAT THAT'S NOT GOING TO TAKE VERY LONG. 10 NO, ABSOLUTELY NOT. MS. NUGENT: 11 15, 20 MINUTES TOPS FOR HIM. 12 I THINK ALTOGETHER. 13 AFTERNOON. 14 THE COURT: I THINK MR. NAVARRO AND THEN MR. METCALF MAY TAKE 45 OBVIOUSLY HE'S COMING BACK LATER IN THE SO MOST OF THESE PEOPLE ARE GOING TO 15 GO -- WE WILL HAVE A SIGNIFICANT PORTION TOMORROW. 16 TRIAL TIME LEFT BETWEEN BOTH PARTIES IS ABOUT EIGHT AND A HALF 17 HOURS. 18 ALL RIGHT. I WILL SEE YOU BACK HERE AT 3:30. 19 STAND IN RECESS UNTIL THAT TIME. 20 MS. SMALLETS: TOTAL WE WILL THANK YOU, YOUR HONOR. 21 (RECESS TAKEN AT 1:25 P.M.; RESUMED AT 3:30 P.M.) 22 (PROCEEDINGS HELD OUTSIDE THE PRESENCE OF THE JURY.) 23 THE COURT: ALL RIGHT. WE ARE BACK ON THE RECORD. 24 YOU WERE JUST GIVEN A NEW SET OF VERDICT FORMS WHICH WE WILL 25 GET TO AT THE END. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 806 1 LET'S GO STRAIGHT TO THE SUBSTANTIVE INSTRUCTIONS. 2 THESE WERE EMAILED TO YOU. 3 WORD AT THE TOP "INTRODUCTION". 4 SO IT IS THE SET THAT STARTS WITH THE PLAINTIFF CIARA NEWTON BRINGS FIVE CLAIMS AGAINST 5 DEFENDANT EQUILON ENTERPRISES, LLC DOING BUSINESS AS SHELL OIL 6 PRODUCTS U.S. 7 ANY COMMENTS ON PAGE 1? 8 MS. SMALLETS: 9 NO, YOUR HONOR. THE ONLY COMMENT I WOULD MAKE IS THAT I THINK THE 10 DESCRIPTION ON PAGE 1 OF THE WHISTLEBLOWER RETALIATION CLAIM 11 IS ACTUALLY -- WOULD BE -- I WOULD PREFER THAT THAT BE USED IN 12 THE INTRODUCTION BECAUSE THAT'S ACTUALLY A VERY CLEAR 13 DESCRIPTION OF IT, BUT THAT'S NOT REALLY AN OBJECTION TO 14 PAGE 1. 15 THE COURT: 16 MR. LAFAYETTE: 17 THE COURT: 18 MR. LAFAYETTE: 19 ISSUES WITH PAGE 1. 20 THE COURT: 21 22 23 24 25 ANYTHING FROM YOU, MR. LAFAYETTE? PAGE 1? PAGE 1. NO, YOUR HONOR, I DON'T HAVE ANY ALL RIGHT. PAGE 2 IS THE FIRST START. INSTRUCTIONS. THIS IS THE LONGEST OF THE FIRST CLAIM HARASSMENT BASED ON GENDER. ANY COMMENTS? MR. LAFAYETTE: I HAVE A COMMENT, YOUR HONOR, ON THE PASSAGE WHERE IT SAYS HALFWAY DOWN THE FIRST PAGE: DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC "HARASSING 807 1 CONDUCT", THERE'S A BULLET C, "OTHER HOSTILE OR ABUSIVE SOCIAL 2 INTERACTIONS." 3 I DON'T THINK THAT'S PART OF THE CACI INSTRUCTION AND I 4 THINK IT'S TOO VAGUE FOR THE JURY TO... I JUST HAVE AN ISSUE 5 WITH THAT SECTION. 6 7 8 9 THE COURT: ALL RIGHT. IT'S NOTED. IT'S GOING TO BE IN THERE. I THINK, AS I'M LOOKING AT THIS, ON ELEMENT 6, I THINK I'M GOING TO ADD THE WORD "THAT" -- HOLD ON JUST A MINUTE -- TO 10 MAKE IT CLEAR. 11 CONDUCT OR THAT A SUPERVISING AGENT -- SUPERVISOR OR AGENT 12 JUST SO THEY UNDERSTAND -- SO THAT A SUPERVISOR ENGAGED IN THE HARASSING 13 MR. LAFAYETTE: 14 THE COURT: 15 16 -- THERE'S THAT DISTINCTION. PAGE 3, ANY COMMENTS? MR. LAFAYETTE: 18 MS. SMALLETS: 19 THE COURT: NO, YOUR HONOR. NO, YOUR HONOR. I CAN'T HEAR YOU, MS. SMALLETS. GOING DEAF SO YOU NEED TO SPEAK UP. 21 MS. SMALLETS: 22 THE COURT: 23 I'M GOING TO ADD THAT WORD. 17 20 THAT'S FINE. ALL RIGHT. NO, YOUR HONOR. THANK YOU. PAGE 4, ANY COMMENTS? 24 MR. LAFAYETTE: NO, YOUR HONOR. 25 MS. SMALLETS: YES, YOUR HONOR. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC I'M 808 1 THE COURT: 2 MS. SMALLETS: OKAY. SO OUR CONCERN WITH THE DESCRIPTION OF 3 THE TIMELINESS OF THE CHARGE IS THAT IT CREATES THE 4 IMPLICATION THAT SHELL -- THAT WE ARE NOT SEEKING -- THAT 5 SHELL IS NOT THE DEFENDANT, THAT JEFF FISCHER IS. 6 CONDUCT BY JEFF FISCHER THAT IS ALLEGED TO BE AFTER 7 MAY 24TH -- MAY 23RD, 2016. 8 TRAINING CHECKLIST WHITEOUTS WAS CLEARLY TESTIFIED TO BE 9 MAY 27TH. AND THERE'S THE INCIDENT WITH THE PARALLEL THERE'S CONDUCT THAT OTHER PEOPLE ENGAGED IN THAT 10 TOOK PLACE BEFORE THEN, WHICH WOULD BE, AMONG OTHER THINGS, 11 THE FAIRY DUST, WHICH WE ARE NOT ALLEGING MR. FISCHER DID, WE 12 ARE ALLEGING SOMEBODY DID, BUT MR. FISCHER, AS A SUPERVISOR, 13 KNEW ABOUT IT AND COULD HAVE ADDRESSED IT -- 14 THE COURT: I UNDERSTAND THAT'S YOUR ARGUMENT. SO 15 WHAT IS -- BUT THE DEFENDANT ALSO HAS AN ARGUMENT, AND I HAVE 16 TO ADDRESS BOTH. 17 MS. SMALLETS: 18 THE COURT: 19 MS. SMALLETS: SO I HAVE A PROPOSED LANGUAGE. ALL RIGHT. SO IN THE PARAGRAPH AFTER, "CIARA 20 NEWTON FILED HER CHARGE WITH THE DFEH," THE NEXT PARAGRAPH, I 21 THINK THAT SHOULD READ, DEFENDANT ARGUES THAT HARASSING 22 CONDUCT THAT OCCURRED EARLIER THAN MAY 23RD, 2016 CANNOT BE 23 CONSIDERED. 24 AND THEN THEY CAN ARGUE -- AND THEN WE HAVE THE CONTINUING 25 VIOLATION DEFINITION, AND THEY CAN CERTAINLY MAKE THE ARGUMENT DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 809 1 TO THE JURY THAT MOST OF THE HARASSMENT BEFORE WAS JEFF AND 2 MOST WAS AFTER. 3 4 THE COURT: SO YOUR SUGGESTION... WHAT FOLLOWS YOUR SUGGESTION? 5 MS. SMALLETS: 6 THE COURT: 7 8 9 I THINK THAT IF THAT -- ARE YOU ASKING ME TO STRIKE EVERYTHING ON THAT PAGE? MS. SMALLETS: NO, NO, NO. THINK THAT THAT WOULD DO IT. 11 THE COURT: 12 MS. SMALLETS: 14 15 ALL RIGHT. SO GIVE ME YOUR PARAGRAPH. I THINK IF THAT PARAGRAPH SAID, DEFENDANT ARGUES THAT HARASSING CONDUCT -THE COURT: HOLD ON. (PAUSE IN THE PROCEEDINGS.) 16 THE COURT: 17 MS. SMALLETS: 18 I THINK THAT IF THAT PARAGRAPH IS STRICKEN AND REPLACED WITH WHAT I SAID, I 10 13 I'M SORRY. OKAY. KEEP GOING. THAT OCCURRED EARLIER THAN MAY 23RD, 2016 CANNOT BE CONSIDERED. 19 MR. LAFAYETTE: 20 THE COURT: 21 MR. LAFAYETTE: I THINK IT'S MISSING SOMETHING. WHAT? IN THAT PARAGRAPH IT GOES ON TO SAY, 22 "AND THEREFORE CIARA NEWTON'S CHARGE WAS FILED" -- THERE'S NO 23 LONGER A REFERENCE TO THE CHARGE. 24 THE COURT: 25 MR. LAFAYETTE: ALL RIGHT. AND I THINK BECAUSE THE CHARGE IS DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 810 1 WHAT WE ARE SAYING IS THE TRIGGERING EVENT, IT'S JUST SORT OF 2 A STATEMENT THAT WE CONTEND THAT IT'S NOT, BUT THAT CONTENTION 3 IS BASED UPON THE AGENCY CHARGE. 4 SO I JUST THINK SOMEHOW WE NEED TO REFERENCE THAT. 5 ALL I'M SAYING. 6 IT. 7 THAT'S I AM NOT SAYING HOW YET, JUST TO REFERENCE MS. SMALLETS: IF WHAT MR. LAFAYETTE IS PROPOSING 8 THAT CONDUCT THAT OCCURRED EARLIER THAN THE -- THAN MAY -- IF 9 WHAT HE'S JUST SAYING IS HE WANTS THE REFERENCE TO THE DATE OF 10 THE CHARGE IN THAT PARAGRAPH, I DON'T HAVE A PROBLEM WITH 11 THAT. 12 I AM NOT SURE HOW THE LANGUAGE WOULD READ. THE COURT: WELL, WHAT IS WRONG WITH THE FINAL CLAUSE 13 THAT SAYS YOUR LANGUAGE, DEFENDANT ARGUES THAT THE HARASSING 14 CONDUCT THAT OCCURRED EARLIER THAN MAY 23RD, 2016 CANNOT BE 15 CONSIDERED, AND THEREFORE THAT CIARA NEWTON'S CHARGE WAS FILED 16 MORE THAN A YEAR AFTER THE DEADLINE. 17 18 THAT'S THE POINT OF THE ARGUMENT. MS. SMALLETS: SO THE ISSUE, FROM MY MIND, IS THEY 19 ARE NOT ARGUING THAT WE CANNOT PURSUE A HARASSMENT CLAIM. 20 EVERYONE WOULD CONCEDE THAT THERE IS SOME CONDUCT THAT FALLS 21 WITHIN THE STATUTORY PERIOD. 22 23 24 25 WHAT THEY ARE SAYING IS THAT HARASSMENT CLAIM NEEDS TO BE TRUNCATED TO ONLY INCLUDE A PORTION OF THE CONDUCT. THE COURT: I UNDERSTOOD IT TO BE THAT THE -- I MEAN, THE WAY I WROTE THIS WAS THAT THEY WERE CHALLENGING THE ENTIRE DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 811 1 CLAIM ITSELF. 2 A TIMELY-FILED COMPLAINT -- I MEAN, THIS IS AN INSTRUCTION ON 3 WHETHER OR NOT -- WELL, OKAY. 4 THERE IS NO OTHER -- THERE'S NO POINT TO HAVING MS. SMALLETS: I THINK THE PROBLEM WITH THAT, YOUR 5 HONOR, IS I DON'T THINK THERE'S ANY DISPUTE OR ANY WITNESS WHO 6 HAS TESTIFIED THAT THERE WAS NO HARASSING CONDUCT IN THE 7 STATUTORY PERIOD. 8 PERSUASIVENESS, BUT THERE WAS -- IT'S UNDISPUTED THAT THERE 9 WAS AN ACT OF HARASSMENT WITHIN THE STATUTORY PERIOD, THE 10 THERE'S A QUESTION ABOUT SEVERITY OR STICKER. 11 MR. LAFAYETTE: 12 HONOR, IF I CAN PUT IT OUT THERE. 13 I THINK I HAVE A SOLUTION, YOUR IF WE TAKE THE LANGUAGE THAT IS PROPOSED WHERE IT SAYS, 14 "DEFENDANT ARGUES THAT CONDUCT THAT OCCURRED PRIOR TO 15 MAY 23RD" -- 16 17 18 19 (SIMULTANEOUS COLLOQUY.) THE COURT: LET ME DO THIS. LET ME SUGGEST SOMETHING. THIS SAYS A CHARGE IS TIMELY -- TELLING THE JURY, A CHARGE 20 IS TIMELY FILED IF IT WAS FILED BY THE DEADLINE, THAT IS, 21 WITHIN ONE YEAR OF THE DATE ON WHICH THE CONDUCT OCCURRED THAT 22 CIARA NEWTON CONTENDS WAS HARASSING CONDUCT. 23 HERE, CIARA NEWTON -- OR HERE, THE PARTIES AGREE THAT 24 CIARA NEWTON FILED HER CHARGE WITH THE DFEH ON MAY 24TH, 2017. 25 ACCORDINGLY -- OR NOT ACCORDINGLY, BECAUSE OF THAT FILING DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 812 1 DATE, DEFENDANT ARGUES THAT HARASSING CONDUCT THAT OCCURRED 2 EARLIER THAN MAY 23RD, 2016 CANNOT BE CONSIDERED. 3 DISAGREES. 4 5 PLAINTIFF AND THEN WE CAN ARGUE -- WE CAN -- I CAN INSTRUCT THEM WHY YOU DISAGREE, WHICH IS THE NEXT PARAGRAPH. 6 MR. LAFAYETTE: 7 THE COURT: WHICH IS THE NEXT PARAGRAPH. WHICH SAYS, CIARA NEWTON ARGUES THAT... 8 HOW ABOUT, THAT THE HARASSING CONDUCT BEFORE MAY 23RD WAS A 9 CONTINUING VIOLATION, AND THEN EXPLAINS WHAT A CONTINUING 10 11 VIOLATION IS. AND THEN... AND THEN RATHER THAN THE LAST TWO PARAGRAPHS, 12 I WOULD JUST SAY, YOU MAY ONLY CONSIDER THE EVIDENCE BEFORE 13 MAY 23RD IF YOU FIND THAT IT WAS A CONTINUING VIOLATION. 14 MR. LAFAYETTE: 15 MS. SMALLETS: I THINK THAT'S RIGHT. SO I THINK THAT IS RIGHT IF IT'S 16 LIMITED TO THIS CAUSE OF ACTION, BECAUSE THEY COULD CERTAINLY 17 CONSIDER IT FOR THE OTHER CAUSE OF ACTION. 18 THE COURT: OKAY. AND I CAN SAY THAT -- IT ONLY 19 COMES IN HERE BUT I CAN MAKE IT MORE CLEAR. 20 OPENING PARAGRAPH -- SEE, THERE I SAY IT CANNOT PROCEED, BUT 21 THAT'S NOT QUITE RIGHT. 22 23 24 25 MS. SMALLETS: NO. SO THE VERY BECAUSE, IN FACT, WE CAN ACTUALLY -THE COURT: THIS COUNT ONLY. SO WHAT IF I JUST SAY, WITH RESPECT TO THE PARTIES DISAGREE ABOUT SOME OF THE DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 813 1 2 EVIDENCE WHICH CAN BE CONSIDERED. HERE, THE PARTIES AGREE CIARA NEWTON FILED HER CHARGE WITH 3 THE DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING ON MAY 24TH. 4 CHARGE IS TIMELY IF IT IS FILED BY THE DEADLINE, THAT IS, 5 WITHIN ONE YEAR OF THE DATE ON WHICH THE CONDUCT OCCURRED THAT 6 CIARA NEWTON CONTENDS WAS HARASSING CONDUCT. 7 BECAUSE OF THAT FILING DATE, DEFENDANT ARGUES THAT 8 HARASSING CONDUCT THAT OCCURRED EARLIER THAN MAY 23RD, 2016 9 CANNOT BE CONSIDERED WITH RESPECT TO THIS COUNT. 10 MS. SMALLETS: 11 THE COURT: OR IN EVALUATING -- OKAY. PLAINTIFF DISAGREES. CIARA NEWTON ARGUES 12 THAT THE HARASSING CONDUCT BEFORE MAY 23RD, 2016 WAS A 13 CONTINUING VIOLATION. 14 MR. LAFAYETTE: 15 THE COURT: 16 17 18 AND I DELETE THE LAST TWO. BECAUSE I THOUGHT WHAT WE WERE TALKING ABOUT IS THEY WERE ATTEMPTING TO GET THE ENTIRE THING -MS. SMALLETS: 20 THE COURT: 21 MR. LAFAYETTE: 22 MS. SMALLETS: 23 THE COURT: 25 YES. AND THEN I READ THE NEXT TWO PARAGRAPHS 19 24 A RIGHT. -- ELIMINATED. I THINK THAT'S RIGHT. I THINK THAT'S RIGHT. OKAY GREAT. SO WE WILL REDO THAT IN THAT MANNER. I SHOULD JUST NOTE ON THE PRIOR PAGE SO THAT YOU KNOW, DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 814 1 DESPITE MY ABHORRENCE OF SPLITTING INFINITIVES, I WILL LIKELY 2 SPLIT THEM ON THAT PAGE. 3 ALL RIGHT. SECOND CLAIM PAGE 5. 4 MR. LAFAYETTE: 5 MS. SMALLETS: 6 THE COURT: 7 MR. LAFAYETTE: 8 THE COURT: 9 MR. LAFAYETTE: ANY COMMENTS? NO, YOUR HONOR. NO, YOUR HONOR. THIRD CLAIM, PAGE 6. I HAVE ONE, YOUR HONOR. OKAY. 10 THE COURT: 11 MR. LAFAYETTE: IT'S AT SUBPARAGRAPH (B) DOWN BELOW. OKAY. "THAT SHE PROVIDED SUFFICIENT 12 INFORMATION TO GIVE DEFENDANT REASONABLE CAUSE TO BELIEVE THAT 13 SHE WAS COMPLAINING OF GENDER DISCRIMINATION OR HARASSMENT." 14 15 16 I DON'T THINK THAT'S PART OF THE CACI, AND I THINK IT SORT OF BECOMES ARGUMENT. THE COURT: THAT'S WHAT PLAINTIFF'S ARGUMENT IS. THE PROBLEM IS IS THAT SHE DOESN'T HAVE 17 TO USE MAGIC WORDS AND I DON'T USE THAT PHRASE, BUT THE JURY 18 GETS TO DECIDE WHETHER THE COMPLAINTS WERE SUFFICIENT TO PUT 19 THEM ON NOTICE. 20 REASONABLENESS STANDARD. 21 AND THE ONLY OBJECTIVE STANDARD IS THE MR. LAFAYETTE: I WOULD SAY, YOUR HONOR, THAT THE LAW 22 IS CLEAR, I THINK THAT IT HAS TO BE A PROTESTATION OF 23 DISCRIMINATION. 24 DIFFERENT -- I WOULD ARGUE. 25 SOMETHING DIFFERENT. AND WHAT WE HAVE HERE IS SOMETHING WHEN I ARGUE, I WILL ARGUE DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 815 1 BUT I THINK IF WE STUCK WITH THE CACI, THAT DOESN'T MEAN 2 THAT PLAINTIFF IS PRECLUDED FROM ARGUING THAT THEY KNEW OR 3 SHOULD HAVE KNOWN, OR THERE'S EVIDENCE THAT INDICATES THAT 4 THEY KNEW WHAT THIS WAS. 5 THAT. 6 SHE'S STILL IN A POSITION TO ARGUE AND I THINK THAT'S WHERE THE LAW IS AS OPPOSED TO SORT 7 OF -- AS OPPOSED TO THIS. 8 IS. 9 WALKED IN AND SIMPLY SAID I THINK I'M BEING TREATED I DON'T THINK THAT IS WHERE THE LAW I THINK THAT CREATES A LEGAL STANDARD NOW WHERE IF I 10 DIFFERENTLY, IT'S AUTOMATICALLY PRESUMED IT HAS TO BE BECAUSE 11 OF MY RACE. 12 THAT'S THE ISSUE THAT I HAVE A PROBLEM WITH. BECAUSE IT 13 MEANS THAT ANYBODY WHO EVER MAKES A COMPLAINT IN THE WORKPLACE 14 NOW BECAUSE WE ARE ALL PROTECTED IN ONE GROUP OR ANOTHER, 15 THAT'S WHAT IT WOULD ALWAYS WIND UP BEING, AND I THINK THAT 16 WOULD BE WRONG. 17 MS. SMALLETS: YOUR HONOR, MY INTERPRETATION OF THIS 18 LANGUAGE IS THAT IT DOESN'T SAY THAT AS ALL. 19 PROVIDED SUFFICIENT INFORMATION TO GIVE DEFENDANT REASONABLE 20 CAUSE TO BELIEVE. 21 INTENT. 22 I THINK THE SUPREME COURT HAS BEEN VERY CLEAR ON THIS. 23 IT'S NOT TALKING ABOUT HER SUBJECTIVE AND I BELIEVE THAT IS THE LAW. THE COURT: IT SAYS SHE OKAY. THAT'S YANOWITZ. AND ANYTHING ELSE YOU WANT ME TO 24 CONSIDER? 25 NOT GOING TO AGREE, SO I'M JUST GOING TO MAKE A CALL. I'LL GO BACK AND LOOK AT THESE ISSUES, BUT YOU'RE DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 816 1 2 IS THERE ANYTHING ELSE YOU WANT ME TO THINK ABOUT WHEN I GO BACK? 3 MR. LAFAYETTE: 4 MS. SMALLETS: 5 THE COURT: 6 NO, YOUR HONOR. NO, YOUR HONOR. OKAY. SO THEN PAGE 7, WHICH IS -- AGAIN, ONE OF THE REASONS WHY 7 I RESTRUCTURED SOME OF THIS IS BECAUSE IT SEEMS TO ME A LITTLE 8 BIT CRAZY THAT THE INSTRUCTIONS DEFINE "SUBSTANTIAL MOTIVATING 9 REASON" AND "SUBSTANTIAL FACTOR". I DON'T WANT THE JURY TO 10 THINK THAT THERE'S SOME HUGE DIFFERENCE, WHICH IS WHY I MADE 11 THE COMPARISON IN THERE BECAUSE I THINK THAT THEY ARE 12 RELATIVELY CLOSE, BUT, IN ANY EVENT, THIS INSTRUCTION, AGAIN, 13 WOULD ONLY APPLY TO THE SECOND AND THIRD CLAIMS WHICH IS WHY 14 IT'S HERE. 15 ANY COMMENTS ON PAGE 7? 16 MS. SMALLETS: 17 MR. LAFAYETTE: YES, YOUR HONOR. I HAD A COMMENT, YOUR HONOR, WITH 18 REGARD TO THE LAST STATEMENT IN PARAGRAPH 7. 19 AMOUNTS TO ARGUMENT, THE LACK OF A VIGOROUS INVESTIGATION. 20 YOU COULD FIND THAT THERE IS -- THE LAW SAYS THAT WE HAVE 21 TO TAKE IMMEDIATE CORRECTIVE ACTION. 22 SAYS. 23 I THINK THAT THAT'S WHAT THE LAW NOW, THE LAW DOESN'T SAY I HAVE TO ALWAYS INVESTIGATE, NOR 24 DOES IT SAY THAT I HAVE TO VIGOROUSLY INVESTIGATE. 25 DON'T, THEN THAT'S EVIDENCE OF DISCRIMINATORY BIAS. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC AND IF I THAT 817 1 WOULD CREATE A BURDEN IN THE WORKPLACE THAT WOULD BECOME AN 2 UNREAL BURDEN; THAT EVERY TIME SOMEONE MAKES ANY COMPLAINT, I 3 HAVE TO TAKE A VIGOROUS INVESTIGATION. 4 A VIGOROUS INVESTIGATION, I'M PRESUMED TO BE BIASED. 5 THAT, I THINK, IS A MISSTATEMENT OF THE LAW. 6 AND IN THE ABSENCE OF AND I THINK THAT'S ARGUMENT. 7 MS. SMALLETS: YOUR HONOR, I BELIEVE THAT THIS 8 ACCURATELY CAPTURES THE LAW. 9 MEDICAL CENTER. IT'S FROM MENDOZA VERSUS WESTERN AND I THINK IT'S IMPORTANT TO INCLUDE HERE 10 BECAUSE THE LAW IS CLEAR THAT THAT IS ACTUALLY EVIDENCE, AND 11 IT'S NOT SOMETHING THAT A JURY MAY NECESSARILY APPRECIATE, 12 THAT THAT'S SOMETHING THAT THEY WOULD BE ENTITLED TO CONSIDER. 13 SO I THINK IT'S IMPORTANT THAT THEY BE TOLD THAT. 14 THE COURT: I DON'T THINK THIS IS OBVIOUS, WHICH IS 15 WHY I INCLUDED IT. 16 WHAT RECOMMENDED -- AND YOUR OBJECTION IS NOTED TO INCLUDING 17 IT AT ALL. 18 ANY RECOMMENDED CHANGES? IF I INCLUDE SOMETHING TO THIS EFFECT, TO THE EXTENT THAT I DO INCLUDE IT, DO YOU HAVE 19 MR. LAFAYETTE: 20 THE COURT: 21 MR. LAFAYETTE: THE VIGOROUS -- YOU MEAN RIGOROUS? RIGOROUS, YES. I CAN SOMETIMES BE A 22 BIT DYSLECTIC I HAVE COME TO REALIZE, AND I SEE THINGS ONE 23 WAY. 24 25 I THINK THAT THAT IS ARGUMENT BECAUSE -- SO MY FIRST CONCERN, AND I THINK YOU'VE NOTED THAT, IS THAT I OBJECT TO IT DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 818 1 AT ALL. 2 AT IT AND GET IT RIGHT -- RIGOROUS -- BUT THEN WHEN WE USE THE WORD -- LET ME TAKE A LOOK 3 THE COURT: 4 MR. LAFAYETTE: 5 THE COURT: 6 MR. LAFAYETTE: I SEE IT. OKAY. ALL RIGHT. ANYTHING ELSE? ONLY THING -- I TRY A LOT OF CASES 7 AND I HAVE NEVER HAD THAT IN ONE OF MY INSTRUCTIONS IN ANY OF 8 THE OTHER CASES I HAVE EVER HAD AS TO THAT BEING AN ELEMENT 9 HERE. 10 THE COURT: THAT DOESN'T HELP ME. YOU KNOW, YOU KNOW 11 HOW MANY LAWYERS HAVE SAID, BUT, JUDGE, SO AND SO JUDGE DOES 12 IT OR DOESN'T DO IT. 13 JUDGE AND THEY'RE LIKE -- IT'S LIKE, YEAH. 14 MR. LAFAYETTE: 15 THE COURT: 16 17 LOOK AT. OKAY. I UNDERSTAND, YOUR HONOR. IF YOU HAVE SOME CASE CITE, THAT I WILL REFERENCING OTHER JUDGES DOESN'T ALWAYS HELP. NEXT PAGE, FOURTH CLAIM. 18 MR. LAFAYETTE: 19 MS. SMALLETS: 20 THE COURT: 21 MS. SMALLETS: 22 THEN I GO TALK TO THE PAGE 8, NOTHING FROM ME, YOUR HONOR. NOTHING, YOUR HONOR. ALL RIGHT. PAGE 9. YES, YOUR HONOR. ON ELEMENT -- BULLET POINT NO. 2, WE WOULD REQUEST THAT IT 23 READ: 24 OR MIGHT DISCLOSE TO A PERSON WITH AUTHORITY OVER HER SHELL'S 25 FAILURE TO REPORT THE ACID SPILL AND/OR TO FOLLOW LEGALLY THE DEFENDANT BELIEVED THAT CIARA NEWTON HAD DISCLOSED DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 819 1 2 REQUIRED SAFETY PROCEDURES. I THINK AS THE EVIDENCE HAS COME IN, THAT BETTER TRACKS 3 HOW THE EVIDENCE MATCHES WHAT WE ARE REQUIRED TO PROVE FOR 4 THIS CAUSE OF ACTION. 5 MR. LAFAYETTE: 6 THINK THE STATUTE SAYS. 7 DISCLOSED -- 8 9 THE COURT: SO I'VE GOT THEIR REQUEST. MR. LAFAYETTE: 16 WHAT IS YOUR REQUEST? I PROBABLY NEED TO HEAR THEIR REQUEST. 14 15 LET ME WRITE DOWN HER REQUEST AND THEN (PAUSE IN THE PROCEEDINGS.) 12 13 SHE HAS TO STATE THAT SHE I'LL GET TO YOU IN JUST A MINUTE. 10 11 I'M ACTUALLY GOING BACK TO WHAT I THE COURT: WHAT I WROTE DOWN IS, NO. 2 -- JUST A MINUTE. WHAT I WROTE DOWN WITH RESPECT TO NO. 2 IS: THE DEFENDANT 17 BELIEVED THAT CIARA NEWTON HAD DISCLOSED OR MIGHT DISCLOSE TO 18 A PERSON WITH AUTHORITY OVER HER SHELL'S FAILURE TO REPORT THE 19 ACID SPILL OR FOLLOW LEGALLY REQUIRED SAFETY PROCEDURES. 20 MR. LAFAYETTE: I THINK WHAT THIS SHOULD BE SAYING, 21 SHE REPORTED SOMETHING THAT SHE REASONABLY -- THAT SHE 22 BELIEVED WAS A VIOLATION OF STATE OR FEDERAL LAW. 23 24 25 BUT I THINK WE COULD STICK WITH IT AS AN ACID SPILL. I'M FINE WITH THAT. THE COURT: WELL, THEY ARE ASKING FOR A CHANGE NOW. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 820 1 LET ME -- I'M GOING TO TAKE A LOOK AT THE CACI 4604. 2 MS. SMALLETS: 3 DEFENDANT'S ALTERNATE PROPOSAL. 4 NOT AN ADEQUATE CAPTURE OF WHAT'S GOING ON, BUT WE HAVE NO 5 OBJECTION TO WHAT MR. LAFAYETTE JUST PROPOSED. 6 MR. LAFAYETTE: 8 THE COURT: 10 11 WE THINK THE ACID SPILL IS (PAUSE IN THE PROCEEDINGS.) 7 9 YOUR HONOR, WE ARE ALSO FINE WITH LET ME SEE WHAT I AM DOING HERE. OKAY. IT'S FROM 4603 NOT 4604. WELL, THAT IS... THAT IS THE -BUT... ISN'T THAT -- THAT'S ELEMENT THREE, ISN'T IT? SO 4603 SAYS THAT DEFENDANT BELIEVED THAT PLAINTIFF HAD 12 DISCLOSED OR MIGHT DISCLOSE TO A GOVERNMENT AGENCY, LAW 13 ENFORCEMENT AGENCY, OR PERSON WITH AUTHORITY OVER HER, OR AN 14 EMPLOYEE WITH AN AUTHORITY TO INVESTIGATE, DISCOVER, OR 15 CORRECT LEGAL VIOLATIONS OR NONCOMPLIANCE THAT, AND THEN IT 16 SAYS, SPECIFY INFORMATION DISCLOSED. 17 MR. LAFAYETTE: 18 MS. SMALLETS: ACID SPILL. WELL, THE PROBLEM IS I DON'T THINK 19 THAT'S THE ONLY THING AT ISSUE AT THIS POINT IN TIME. 20 NOT JUST THE ACID SPILL, IT'S SHELL'S FAILURE TO PROPERLY 21 DOCUMENT AND REPORT THE ACID SPILL AND ALSO THE OSHA -- 22 POTENTIAL OSHA VIOLATIONS HAVE ALL COME INTO EVIDENCE. 23 IT'S SO IT'S NOT SIMPLY THE ACID SPILL, IT'S THAT WHAT 24 MS. NEWTON BELIEVED IS THAT THE ACID SPILL TRIGGERED REPORTING 25 OBLIGATIONS. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 821 1 THE COURT: 2 MS. SMALLETS: 3 THE COURT: 4 TO THE ACID SPILL? WHAT ABOUT -WE COULD SAY -- HOW ABOUT ALLEGED VIOLATIONS WITH RESPECT WHAT ABOUT THAT? 5 MR. LAFAYETTE: 6 MS. SMALLETS: 7 THE COURT: THAT'S FINE, YOUR HONOR. THAT'S FINE. OKAY. 8 SO IT'S GOING TO READ, SO WE ARE ALL ON THE SAME PAGE. 9 NO. 2 WILL READ: THAT DEFENDANT BELIEVES CIARA NEWTON HAD 10 DISCLOSED OR MIGHT DISCLOSE TO A PERSON WITH AUTHORITY OVER 11 HER ALLEGED VIOLATIONS WITH RESPECT TO THE ACID SPILL. 12 MS. SMALLETS: YEAH. 13 MR. LAFAYETTE: YES. 14 THE COURT: 15 MS. SMALLETS: 16 OKAY. THE ONLY THING IS I THINK THE NEXT PARAGRAPH SHOULD SAY, INFORMATION, NOT POLICIES. 17 THE COURT: 18 MS. SMALLETS: THE NEXT? PARAGRAPH, I THINK IT SHOULD SAY 19 INFORMATION, NOT POLICIES -- 20 THE COURT: 21 MS. SMALLETS: NO. 3 SAYS INFORMATION. I'M SORRY. 22 IT LISTS THE FULL PARAGRAPH. 23 THE COURT: 24 25 NEXT ON PAGE 9. NOT IN THE BULLET POINT, THE DISCLOSURES OF -- THE DISCLOSURE OF INFORMATION? MS. SMALLETS: YES. AND THE SAME ON THE LAST LINE OF DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 822 1 2 THAT PARAGRAPH. THE COURT: I WAS TRACKING 4603. 3 "POLICIES" THAT'S ALL. 4 MS. SMALLETS: 4603 SAYS I JUST THINK THAT WE ARE NOT SAYING 5 THAT THERE'S NO ALLEGATION SHE WAS DISCLOSING POLICIES. 6 SHE WAS DISCLOSING WAS INFORMATION. 7 MR. LAFAYETTE: ARE YOU LOOKING AT PARAGRAPH 5? 8 MS. SMALLETS: I'M LOOKING AT THE FULL PARAGRAPH 9 AFTER THE BULLET POINTED LIST. 10 THE COURT: 11 12 FULL PARAGRAPH AFTER THE ELEMENTS. (PAUSE IN THE PROCEEDINGS.) WELL, THE POLICIES -- IT'S INTERESTING. 13 WASN'T THE POLICIES. 14 POLICIES WERE ACTUALLY ACCURATE. 15 MS. SMALLETS: 16 18 MR. LAFAYETTE: 21 RIGHT. SHE'S DISCLOSING A VIOLATION OF THEIR POLICIES. THE COURT: 20 THE PROBLEM THE POLICIES WERE ACTUALLY -- SHELL'S 17 19 WHAT DO I EVEN NEED THIS PARAGRAPH? OUR POLICIES CAN'T BE A VIOLATION -- OUR POLICIES CAN'T -THE COURT: DO I EVEN NEED THIS PARAGRAPH? BECAUSE SHE'S NOT -- 22 MS. SMALLETS: 23 THE COURT: 24 MR. LAFAYETTE: 25 THE COURT: NO. I MEAN IT IS BRACKETED IN THE -I DON'T THINK YOU NEED THAT. YOU BOTH AGREE I CAN TAKE IT OUT? DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 823 1 MR. LAFAYETTE: 2 MS. SMALLETS: 3 THE COURT: 4 ALL RIGHT. YEAH, WE ARE FINE. IT'S DELETED. ANYTHING ELSE ON 9? 5 MS. SMALLETS: 6 THE COURT: 7 MR. LAFAYETTE: 8 THE COURT: 9 MR. LAFAYETTE: 10 MS. SMALLETS: 11 THE COURT: 12 13 YES. NO, YOUR HONOR. MR. LAFAYETTE? NO, YOUR HONOR. ALL RIGHT. PAGE 10. NO, YOUR HONOR. NO, YOUR HONOR. SO THEN MY DISCUSSION FROM BEFORE; ARE WE GOING STRAIGHT INTO DAMAGES IN THIS PHASE? YOUR HONOR, WE HAD AN OPPORTUNITY TO MS. SMALLETS: 14 THINK ABOUT IT AND WE ACTUALLY THINK THAT YOUR PROPOSAL TO 15 STOP AT THIS POINT IN TIME MAKES A LOT OF SENSE AND WILL MAKE 16 THINGS -- MAKE MUCH MORE SENSE FOR THE JURY. 17 MR. LAFAYETTE: I GUESS... I THINK WHAT I AM HEARING 18 IS WE WILL ARGUE DAMAGES, BUT THEY WON'T GET DAMAGES UNTIL 19 AFTER THEY FIND LIABILITY. 20 21 THE COURT: WE WOULDN'T ARGUE DAMAGES OR DO DAMAGES UNTIL THEY SAID THAT YOU DID SOMETHING WRONG. 22 MR. LAFAYETTE: 23 MS. NUGENT: OKAY. SO IN THE CLOSING WE ARE NOT DOING -- I 24 UNDERSTAND PUNITIVES ARE FAR DOWN THE LINE, BUT WE ARE STILL 25 DOING LIABILITY AND PUTTING THE NUMBERS UP. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 824 1 THE COURT: 2 I INSTRUCT ON THAT? 3 4 MS. NUGENT: THE COURT: 6 MS. NUGENT: 7 9 10 OKAY. SO THEY COME BACK FROM LIABILITY -- AND IF THERE IS LIABILITY THEN WE -- 5 8 IF YOU WANT TO DO THAT, THEN WHY WOULDN'T ARGUE. -- ARGUE THE NUMBERS. (SIMULTANEOUS COLLOQUY.) THE COURT: I WANT TO MAKE SURE MR. LAFAYETTE IS HEARING SO WE ARE ALL ON THE SAME PAGE. I DON'T THINK YOU SHOULD BE ARGUING ON SOMETHING I'M NOT 11 INSTRUCTING ON. 12 OTHER, IT DOESN'T MATTER TO ME ON THIS TOPIC. 13 AND THEN THEY -- AND, FRANKLY, I DON'T CARE ONE WAY OR THE IT WAS PRIMARILY BECAUSE -- THE REASON I WAS REFERENCING 14 IT IN THIS PARTICULAR CASE IS BECAUSE ON PAGE 14, THE 15 AVOIDABLE CONSEQUENCES DOCTRINE ONLY APPLIES IF THEY FIND 16 LIABILITY ON THE FIRST CLAIM. 17 NO LIABILITY ON THE FIRST CLAIM, I WOULD NEVER GIVE THIS 18 INSTRUCTION. 19 SO IF I GOT A VERDICT THAT HAD THEN THE SAME THING FOR THE NEXT PAGE, PAGE 15, ONLY 20 APPLIES TO THE SECOND AND THIRD CLAIM. 21 FINDING OF LIABILITY, IT NEVER GETS -- THEY NEVER GET 22 INSTRUCTED ON IT. 23 24 25 SO IF THERE IS NO THAT'S WHY I WAS SUGGESTING TO DO IT. MR. LAFAYETTE: I THINK MY -- MY GUT TELLS ME WE SHOULD DO IT, WE SHOULD HAVE IT IN THERE. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 825 1 MS. SMALLETS: WE THINK THAT YOUR PROPOSAL TO STOP, 2 DO LIABILITY, AND THEN DO THESE DAMAGES WITH THESE AFFIRMATIVE 3 DEFENSES MAKES SENSE. 4 FOR THE JURY AND PREVENT CONFUSION. 5 THE COURT: I THINK IT WILL BE EASIER AND SIMPLER OKAY. SO WHAT I WILL ALSO THEN DO, 6 THOUGH, IF THERE IS ANY FINDING OF LIABILITY WE WILL DO 7 DAMAGES AND PUNITIVE CONDUCT. 8 PUNITIVE CONDUCT. 9 NOT PUNITIVE DAMAGES, BUT SO I WILL GROUP THOSE TWO THINGS TOGETHER. MR. LAFAYETTE: WHEN I -- I GUESS WHAT I AM TRYING TO 10 SAY IS, I THINK THAT THE INSTRUCTIONS FOR THE AVOIDABLE 11 CONSEQUENCES DOCTRINE SHOULD BE GIVEN AND WE SHOULD ARGUE 12 DAMAGES BECAUSE DAMAGES ARE AN ELEMENT OF LIABILITY. 13 SO -- 14 THE COURT: 15 MR. LAFAYETTE: 16 I'M TRYING TO SAY. SO YOU DON'T WANT TO STOP? I DON'T WANT TO STOP. THAT'S WHAT I WAS NOT CLEAR. 17 THE COURT: 18 MR. LAFAYETTE: 19 THE COURT: YOU SAID IT OPPOSITE LAST TIME. OKAY. WELL, IS IT -- IT'S NOT -- IF I LOOK AT 20 THE ELEMENTS, IT'S NOT AN ELEMENT. 21 THE AMOUNT OF DAMAGES ISN'T. 22 AND MR. LAFAYETTE: HARM IS AN ELEMENT, BUT IN -- IN THESE CASES, A LOT OF TIMES 23 THE HARM ISN'T THE DAMAGES TO THE PLAINTIFF, IT'S THE FEE 24 SHIFTING ISSUE. 25 THE COURT: YOU CAN'T TALK ABOUT FEE SHIFTING. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 826 1 I KNOW I CAN'T. MR. LAFAYETTE: BUT WHAT HAPPENS 2 IS -- I JUST THINK STRATEGICALLY, IF YOU ARE THE DEFENSE, YOU 3 WANT THE DAMAGES WITH THE LIABILITY PHASE OF THE CASE. 4 IT'S -- IT'S -- AND THAT IS WHAT I'M SAYING IS GUT. 5 I CAN'T TELL YOU, YOUR HONOR, THAT THERE'S SOMETHING, A 6 TREATISE OR ANYTHING THAT I CAN RELY UPON AND SAY THAT. 7 JUST SOMETHING THAT I FEEL. 8 THE COURT: 9 MS. SMALLETS: IT'S DO YOU CARE? YOUR HONOR, WE DO THINK THAT THIS 10 WOULD BE -- THE WAY YOU PROPOSED IT EARLIER OR YESTERDAY AND 11 EXPLAINED IT EARLIER TODAY, MAKES SENSE. 12 I THINK THAT THERE ARE TWO -- THE INSTRUCTIONS ARE ALREADY 13 FAIRLY COMPLICATED AND TECHNICAL, AS IT IS IN ALL EMPLOYMENT 14 CASES, AND THAT WE HAVE TWO DEFENSES THAT GO NOT TO LIABILITY 15 BUT TO DAMAGES, AND I THINK IT MAKES SENSE TO SEPARATE THAT 16 OUT AND LET THE JURY FIND LIABILITY, IF THEY ARE GOING TO, AND 17 DECIDE DAMAGES AFTERWARD. 18 THE COURT: I AM CONCERNED ABOUT THE SHIFTING. 19 HARD FOR A JURY TO COMPARTMENTALIZE THESE THINGS. 20 NOT JUDGES. 21 22 THEY ARE SO I AM GOING TO BIFURCATE IT OUT. NOW, IF YOU WANT TO MENTION DAMAGES IN YOUR ARGUMENT, I WON'T STOP YOU. 23 MR. LAFAYETTE: 24 THE COURT: 25 IT'S ALL RIGHT, YOUR HONOR. SO YOU CAN ARGUE IT AND YOU CAN LET THEM KNOW THAT THAT WOULD BE ANOTHER PHASE. KNOWING -- YOU KNOW, DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 827 1 JURORS AREN'T DUMB. 2 ARE GOING TO GET TO DAMAGES, BUT THEN IT WOULD AT LEAST BREAK 3 UP THE INSTRUCTIONS. 4 THEY KNOW IF THEY FIND LIABILITY, THEY SO, YOU CAN CHOOSE WHETHER OR NOT YOU WANT TO RAISE 5 DAMAGES IN THE FIRST INSTANCE. 6 ARGUING IT, BUT I WILL INSTRUCT THEM SEPARATELY SO THAT THEY 7 UNDERSTAND THE SHIFT. 8 9 MS. SMALLETS: YOUR HONOR, THE TIME, JUST SO WE KNOW SO WE CAN PLAN, THE TIME FOR THE CLOSING ARGUMENT IS? 10 11 SO I WON'T STOP YOU FROM THE COURT: SO YOU GET WHATEVER TIME YOU'RE TAKING. YOUR HOUR RELATES TO LIABILITY AND DAMAGES. 12 MS. SMALLETS: 13 THE COURT: 14 MR. LAFAYETTE: 15 THE COURT: OKAY. PUNITIVES IS ON ME. OKAY? I THINK I UNDERSTAND, YOUR HONOR. I'LL GO OVER IT AGAIN. 16 WITH RESPECT TO -- I AM GOING TO STOP AT PAGE 10. 17 PAGE 10, I WILL STOP AND I WILL INVITE EACH OF YOU TO GIVE 18 YOUR CLOSING ARGUMENTS. 19 WITH RESPECT TO DAMAGES AND LIABILITY, IF YOU SO CHOOSE. 20 21 AFTER YOU CAN GIVE YOUR CLOSING ARGUMENTS YOUR TIME LIMITATIONS APPLY TO BOTH DAMAGES AND LIABILITY, BUT I'M NOT GOING TO INSTRUCT THEM ON THE DAMAGES. 22 WHAT I'M GOING TO DO AFTER THAT, IS I'LL CLOSE UP, I'LL 23 SEND THEM IN, AND THEY WILL GIVE US A VERDICT ON LIABILITY. 24 IF THE VERDICT IS IN FAVOR, THEN I WILL INSTRUCT ON THE 25 DAMAGES. AND DEPENDING ON WHICH CLAIMS THEY FOUND IN FAVOR DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 828 1 OF, I WILL PROVIDE AFFIRMATIVE DEFENSE INSTRUCTIONS OR NOT, 2 DEPENDING ON WHAT IT IS THEY DO. 3 I WILL GIVE YOU, TO THE EXTENT YOU HAVE ANY TIME LEFT, I 4 WILL LET YOU ARGUE AGAIN ON THE DAMAGES, BUT IT'S ONLY IF YOU 5 HAVE TIME LEFT. 6 I WILL SEND THEM BACK IN. WELL, ACTUALLY, NO. 7 INSTRUCT THEM ON PUNITIVE LIABILITY. 8 ARGUE PUNITIVE LIABILITY. 9 AND I'LL SO I'LL ALLOW YOU TO I WILL SEND THEM BACK IN, THEY WILL GIVE US THEIR ANSWERS 10 ON DAMAGES AND PUNITIVE LIABILITY. 11 LIABILITY FOR PUNITIVES, THEN I'LL INSTRUCT THEM ON THE LAW 12 FOR HOW THEY CALCULATE THE DAMAGES, YOU CAN HAVE ARGUMENT, AND 13 THEN I WILL SEND THEM BACK IN THE LAST TIME. 14 OKAY. 15 ANY COMMENTS ON PAGE 12? 16 MS. SMALLETS: IF THEY SAY THERE IS NOW, MOVING TO THE DAMAGES SECTION. OUR ONLY COMMENT ON PAGE 12 IS THE 17 DESCRIPTION OF THE 1102.5 CAUSE OF ACTION. 18 DESCRIPTION THAT YOU HAD PUT ON THE FIRST PAGE WAS CLEARER. 19 SO I WAS HOPING THAT COULD BE REPLICATED. 20 THE COURT: 21 MR. LAFAYETTE: MR. LAFAYETTE? I THINK WE ARE BOTH TALKING ABOUT THE 22 LAST BULLET POINT DOWN THERE. 23 THE COURT: 24 MR. LAFAYETTE: 25 I THOUGHT THAT THE UNDER MULTIPLE THEORIES? YES. AND THAT DEFENDANT DISCHARGED HER FOR REPORTING. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 829 1 2 THE COURT: MR. LAFAYETTE: I WOULD LIKE FOR IT TO BE REPORTING UNLAWFUL CONDUCT WITH REGARD TO THE ACID SPILL. 5 THE COURT: 6 PAGE 1? 7 INTRODUCTION. 8 9 SO SHE'S ASKING THAT I JUST REPEAT WHAT IS ON PAGE 1. 3 4 YES. DO YOU HAVE A PROBLEM WITH PAGE -- SHE'S JUST ASKING THAT I REPEAT WHAT I HAVE IN THE MR. LAFAYETTE: SPECIFIC NOW. I DO. I THINK THIS SHOULD BE MORE BECAUSE THAT'S GENERAL AND NOW IT REALLY DOES 10 HAVE TO BE -- NOW WE ARE TALKING ABOUT CONFLATING TWO ELEMENTS 11 BECAUSE IT'S NOT JUST THE REPORTING. 12 REASONABLE BELIEF THAT IT'S UNLAWFUL UNDER STATE OR FEDERAL 13 LAW. 14 15 16 17 THE COURT: SHE HAS TO HAVE A GUYS, ALL I'M TRYING TO DO HERE IS SAY THERE ARE FIVE CLAIMS. MR. LAFAYETTE: I'M FINE WITH YOU GOING BACK TO THAT, YOUR HONOR. 18 THE COURT: 19 MR. LAFAYETTE: 20 THE COURT: THAT'S ALL I'M DOING. OKAY. FRANKLY, IF I HAVE A VERDICT FORM... I 21 DON'T EVEN KNOW THAT I NEED ANY OF THE BULLETS BECAUSE THEY 22 WILL HAVE ALREADY EVALUATED ALL OF THEM AND DECIDED. 23 24 25 SO I THINK I'LL JUST SAY, AS PREVIOUS -- YOU KNOW, OR MAYBE I WOULD PROBABLY SAY, NOW THAT YOU HAVE DECIDED. MS. SMALLETS: YEAH. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 830 1 THE COURT: RIGHT? THAT'S REALLY HOW IT WILL WORK. 2 NOW THAT YOU HAVE DECIDED THAT DEFENDANT IS LIABLE TO CIARA 3 NEWTON UNDER, AND THEN I CAN IDENTIFY THE ONES THAT THEY DID. 4 I'LL HAVE TO FIX THE TENSE ON THIS, AND THEN I'LL SHOW IT 5 TO YOU. 6 HAVE ALREADY GONE THROUGH ALL THE WORK. 7 OKAY. BUT I DON'T EVEN KNOW THAT I'LL REPEAT BECAUSE THEY ANYTHING ELSE ON PAGE 12? 8 MR. LAFAYETTE: 9 MS. SMALLETS: 10 THE COURT: 11 MR. LAFAYETTE: 12 MS. SMALLETS: 13 THE COURT: 14 NO, YOUR HONOR. NO, YOUR HONOR. PAGE 13? NO, YOUR HONOR. NO, YOUR HONOR. NOW LET'S DO -- THE ONE THING I MIGHT DO -- HAVE WE GIVEN THEM VERDICT FORMS? 15 MR. LAFAYETTE: 16 THE COURT: YES. GO TO THE SECOND ONE. 17 THINK THERE WAS A MISTAKE. 18 OH, WAIT. 19 MY MISTAKE. I WILL HAVE TO REDO THIS. 20 AND EMOTIONAL DISTRESS APPLIES TO ALL. 21 APPLY TO THE FIRST. MR. LAFAYETTE: 23 THE COURT: I'VE GOT -- I WE WERE SCRAMBLING BACK THERE. GO TO THE LAST PAGE OF THE FIRST ONE. 22 NO. SO MENTAL SUFFERING ECONOMIC LOSS DOES NOT THAT'S CORRECT, YOUR HONOR. I'LL HAVE TO ADJUST THIS TO REFLECT THAT, 24 AND I HAVEN'T DONE IT YET. 25 WOULD CHANGE IN THESE INSTRUCTIONS. SO THAT'S THE ONE THING THAT I DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 831 1 MS. SMALLETS: 2 THE COURT: 3 MS. SMALLETS: 4 THE COURT: I THINK IT'S ALREADY IN THERE. IT IS NOT REFLECTED IN THE INSTRUCTIONS. SORRY. SO I HAVEN'T HAD A CHANCE -- I MEAN, THIS 5 IS -- I'VE BEEN PARALLEL PROCESSING. 6 CHANCE TO GO AND COMPARE AGAIN THE INSTRUCTIONS WITH THE FORM, 7 BUT IF I THINK I NEED TO MAKE JUST SOME INTRODUCTORY 8 DISTINCTIONS SO THAT THEY GET IT, I WILL DO THAT. 9 WOULD BE THE ONLY CHANGE I WOULD MAKE TO 13. 10 MR. LAFAYETTE: 12 MS. SMALLETS: 13 THE COURT: 14 MR. LAFAYETTE: 15 MS. SMALLETS: 16 THE COURT: 17 MS. SMALLETS: 18 MR. LAFAYETTE: MR. LAFAYETTE: 25 NO, YOUR HONOR. NO, YOUR HONOR. NO, YOUR HONOR. THE PARAGRAPH AFTER SUBPARAGRAPH TWO WHERE IT SAYS, "DEFENDANT DOES NOT MEET ITS BURDEN IF IT" -- 21 24 NO, YOUR HONOR. PAGE 15? THE COURT: 23 NO, YOUR HONOR. HOW ABOUT PAGE 14? 20 22 BUT THAT ANYTHING ELSE ON 13? 11 19 SO I HAVEN'T HAD A CAN YOU SPEAK UP? I'M SORRY. THE PARAGRAPH AFTER PARAGRAPH 2, THE LAST SENTENCE, I THINK -THE COURT: CAN YOU TELL ME THE LAST SENTENCE STARTING WHAT? DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 832 1 MR. LAFAYETTE: 2 THE COURT: 3 MR. LAFAYETTE: 4 DEFENDANT DOES NOT MEET ITS BURDEN. OKAY. I THINK THAT'S ARGUMENT, AND I DON'T THINK WE NEED THAT. 5 (PAUSE IN THE PROCEEDINGS.) 6 THE COURT: WHERE ELSE DO I SAY THAT -- WHERE ELSE DO 7 I SAY THAT? 8 EXPLAINING TO THEM THAT PARTIAL IS INSUFFICIENT. 9 WHERE ELSE I SAY THAT. I DON'T UNDERSTAND HOW IT IS ARGUMENT. 10 MR. LAFAYETTE: 11 THAT'S WHAT I'M SAYING. 12 THE COURT: I DON'T KNOW I DON'T KNOW IF YOU HAVE TO SAY THAT. THIS IS A VERY DIFFICULT CONCEPT I THINK 13 FOR JURORS TO UNDERSTAND. 14 EXPLAINED. 15 WINS ON THIS PARTICULAR TOPIC, RIGHT? 16 ELSE THEY KNOW -- 17 IT IS SO I THINK IT NEEDS TO BE THEY HAVE TO HAVE THE TOOLS TO DECIDE WHICH SIDE MR. LAFAYETTE: SO I DON'T KNOW HOW I THINK IF WE GO TO THE FIRST 18 PARAGRAPH WHERE IT SAYS, "THE DEFENDANT MAY AVOID CERTAIN 19 REMEDIES IF IT CAN PROVE BY A PREPONDERANCE OF THE EVIDENCE 20 THAT, UNSATISFACTORY PERFORMANCE WAS ALSO A SUBSTANTIAL 21 MOTIVATING REASON AND, TWO, UNSATISFACTORY PERFORMANCE 22 STANDING ALONE WOULD HAVE CAUSED IT TO TERMINATE CIARA 23 NEWTON." 24 25 THE "ALONE" WORD IS THE WORD THAT CREATES A BURDEN ON US THAT WE HAVE TO DO THAT. AND SO IN DETERMINING WHETHER DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 833 1 UNSATISFACTORY PERFORMANCE WAS ALSO A SUBSTANTIAL MOTIVATING 2 REASON, YOU MUST DETERMINE WHAT ACTUALLY MOTIVATED DEFENDANT 3 AT THE TIME, NOT WHAT IT MIGHT HAVE BEEN JUSTIFIED IN DOING. 4 SO I THINK WHEN YOU READ THE BURDEN THAT YOU'VE 5 ESTABLISHED FOR US UP ABOVE, YOU'VE ALREADY ARTICULATED WHAT 6 IT IS WE HAVE TO DO. 7 MAKING THE DEFENSE BURDEN MORE DIFFICULT. TO COME BACK AGAIN AND DO THIS IS TO 8 THE COURT: 9 ANYTHING ELSE ON 15? ALL RIGHT. 10 MR. LAFAYETTE: 11 MS. SMALLETS: NO, YOUR HONOR. NO, YOUR HONOR. 12 THE INSTRUCTION REMAIN AS IS. 13 THE COURT: 14 15 ANYTHING ON 16? AGENTS. MS. SMALLETS: THE COURT: MICHAEL BECK, CHRISTINE LAYNE, TOM RIZZO, AND LORI MARTINELLI. 20 MS. SMALLETS: 21 THE COURT: 22 23 24 25 MIKE BECK, CHRISTINE LAYNE, THOR NYGAARD, TOM RIZZO, AND LORI MARTINELLI. 18 19 AND WE WOULD REQUEST SO I NEED TO PUT IN HERE WHO PLAINTIFF SAYS ARE MANAGING 16 17 I'LL THINK ABOUT IT. AND THOR NYGAARD. THOR NYGAARD. SO ARE YOU GOING TO HAVE EVIDENCE ON SOME OF THESE PEOPLE TOMORROW? MS. SMALLETS: THERE HAS ALREADY BEEN SOME EVIDENCE ON THESE PEOPLE IN TERMS OF MIKE BECK TESTIFIED TODAY -- DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 834 1 2 THE COURT: MIKE BECK I GET. WHAT EVIDENCE DO YOU HAVE WITH RESPECT TO TOM RIZZO? 3 MS. SMALLETS: SO, CHRISTINE LAYNE TESTIFIED THAT TOM 4 RIZZO APPROVED THE DECISION. 5 TOM RIZZO RUNS THE ENTIRE FACILITY. 6 ON MONDAY. 7 CHRISTINE LAYNE I GET. MIKE BECK TESTIFIED TODAY THAT AND TOM RIZZO IS COMING HE WASN'T ON OUR WITNESS LIST BECAUSE HE WASN'T DISCLOSED 8 AS A DECISION-MAKER IN THE INITIAL DISCLOSURES. 9 OBJECTING, BUT THAT'S WHY HE WASN'T ON OUR WITNESS LIST. WE ARE NOT SO 10 WE WILL ALSO ADDUCE ADDITIONAL INFORMATION AT THAT POINT IN 11 TIME. 12 BUT WHAT WE HAVE SO FAR IS CHRISTINE LAYNE TESTIFIED HE 13 RATIFIED THE DECISION AND MIKE BECK TESTIFIED HE RUNS -- HE'S 14 THE HIGHEST PERSON AT THE MARTINEZ FACILITY. 15 (PAUSE IN THE PROCEEDINGS.) 16 THE COURT: 17 MARTINELLI AND THOR NYGAARD? 18 THAT'S THE SAME ARGUMENT FOR LORI MS. SMALLETS: ESSENTIALLY. WE HAVE WITNESSES 19 ALREADY WHO TESTIFIED THAT THEY WERE -- THAT THEY RATIFIED AND 20 APPROVED THE DECISION. 21 DATE TALKING ABOUT THE SCOPE OF THEIR RESPONSIBILITIES. 22 IS ALSO SCHEDULED -- MS. MARTINELLI IS ALSO SCHEDULED TO 23 TESTIFY, I BELIEVE, TOMORROW. 24 ADDITIONAL TESTIMONY AT THAT POINT IN TIME. 25 THE COURT: AND WE ALSO HAVE WITNESS TESTIMONY TO LORI AND WE WILL OBVIOUSLY ELICIT SO YOU'RE GOING TO ARGUE OR WANT TO ARGUE DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 835 1 THAT THEIR RATIFICATION CONSTITUTED MALICE, SUPPRESSION, AND 2 FRAUD? 3 MS. SMALLETS: 4 THE COURT: 5 MS. SMALLETS: 6 THE COURT: 7 MR. LAFAYETTE: 8 THE COURT: 9 ANYTHING ELSE ON PAGE 16? NO, YOUR HONOR. MR. LAFAYETTE? NO, YOUR HONOR, NOT ON 16. OKAY. HERE IS THE -- FRANCES, CAN YOU GIVE THEM THIS PAGE? 10 11 YES, THAT THEY RATIFIED THE DECISION. (DOCUMENT HANDED TO COUNSEL.) THIS IS THE STANDARD PAGE -- I JUST SPLIT THEM. 12 THE CLERK: ARE THEY THE SAME THING? 13 THE COURT: THEY ARE THE SAME THING, JUST ONE PAGE. 14 THIS IS A STANDARD CACI 3942. 15 ANY OBJECTIONS? 16 MR. LAFAYETTE: 17 MS. SMALLETS: 18 THE COURT: 19 MS. SMALLETS: NO, YOUR HONOR. NO, YOUR HONOR. OKAY. LET'S LOOK AT THE VERDICT FORMS. YOUR HONOR, WE DID HAVE A COUPLE OF 20 COMMENTS ON THE INTRODUCTION. 21 THAT. 22 23 THE COURT: I DON'T KNOW IF YOU WANT TO DO IT IS LESS IMPORTANT TO ME. THE VERDICT FORMS. 24 MY COURT REPORTER IS ABOUT TO KILL ME YOU UNDERSTAND. 25 OKAY. VERDICT FORM FOR THE FIRST SET. SO I WILL BE DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 836 1 PUTTING THE DAMAGES IN THE OTHER DOCUMENT. 2 I'M JUST GOING TO ASK ONE QUESTION PER CLAIM. 3 OBJECTIONS, PUT THEM ON THE RECORD. 4 IT. 5 MS. SMALLETS: 6 MR. LAFAYETTE: 7 THE COURT: BUT MY VIEW IS, SO YOU MAY HAVE THIS IS THE WAY I'M DOING NO OBJECTIONS, YOUR HONOR. NOTHING MORE TO SAY, YOUR HONOR. OKAY. ANYTHING ABOUT THE LANGUAGE THAT 8 I'M USING, THAT YOU HAVE ANY COMMENTS ON THE FRAMING OR ANY OF 9 THE CONTENT ON PAGES 2 OR 3? 10 MS. SMALLETS: 11 MR. LAFAYETTE: 12 JUST A SECOND, YOUR HONOR. (PAUSE IN THE PROCEEDINGS.) 13 MR. LAFAYETTE: 14 YOUR HONOR. 15 TO SAY. 16 NO, YOUR HONOR. IF WE GO BACK TO PAGE 9 FOR A SECOND, I THINK I CAN MORE BETTER EXPLAIN WHAT I AM ABOUT AT THE BOTTOM OF THE PAGE ON PAGE 9, THE STATUTE ACTUALLY 17 HAS THIS LANGUAGE IN THERE WHICH IS THERE, WHERE IT SAYS: 18 CIARA PROVES -- CIARA NEWTON PROVES THAT HER DISCLOSURE OF AN 19 UNLAWFUL ACT WAS A CONTRIBUTING FACTOR IN DEFENDANT'S DECISION 20 TO TERMINATE HER -- 21 COURT REPORTER: 22 THE COURT: 23 MR. LAFAYETTE: IF I'M SORRY. SLOW DOWN. OKAY. IT BASICALLY HAS DEFENDANT IS 24 NOT LIABLE. 25 LIABLE IF IT PROVES BY CLEAR AND CONVINCING EVIDENCE THAT IT NOT TALKING ABOUT DAMAGES NOW, DEFENDANT IS NOT DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 837 1 2 WOULD HAVE DISCHARGED. SO I'M ASSUMING THAT WHEN WE TAKE THE VERDICT FORM AND WE 3 HAVE NO. 5, THE WHISTLEBLOWER CLAIM, BUILT INTO THE STATUTE IS 4 THIS BURDEN SHIFT THERE. 5 THE COURT: SO DO YOU WANT ME TO ADD, DID CIARA 6 NEWTON ESTABLISH HER CLAIM AND DEFENDANT FAIL TO ESTABLISH ITS 7 DEFENSE? 8 MR. LAFAYETTE: 9 THAT IS ONE WAY YOU COULD DO IT. 10 THAT'S FINE, YOUR HONOR. 11 THE COURT: THAT IS ONE WAY YOU COULD DO IT. THE OTHER WAY TO DO IT IS NOT TO 12 REFERENCE -- IS TO TOTALLY RESTRUCTURE IT AND SAY IS THERE, 13 YOU KNOW, IS THERE LIABILITY FOR THE FIFTH CLAIM. 14 I GUESS IF I DID THAT, I MIGHT BE -- I WOULD RESTRUCTURE 15 ALL OF THEM. 16 CLAIM? IS DEFENDANT LIABLE TO CIARA NEWTON ON THE SECOND 17 CLAIM? IS DEFENDANT LIABLE TO CIARA NEWTON ON THE THIRD 18 CLAIM? 19 IS DEFENDANT LIABLE TO CIARA NEWTON ON THE FIRST MR. LAFAYETTE: MAYBE THE WAY YOU PHRASED IT THE 20 FIRST TIME, AND I CAN'T REMEMBER HOW YOU DID IT, BUT IT WAS A 21 CAVEAT THAT I THOUGHT YOU HAD IN THERE FOR THIS ONE, THAT MAY 22 BE THE EASIEST WAY TO DO IT. 23 THE COURT: SO DID CIARA NEWTON ESTABLISH HER FIFTH 24 CLAIM FOR WHISTLEBLOWER RETALIATION BY A PREPONDERANCE OF THE 25 EVIDENCE AND DEFENDANT FAIL TO PROVE ITS AFFIRMATIVE DEFENSE DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 838 1 BY CLEAR AND CONVINCING EVIDENCE? 2 MR. LAFAYETTE: 3 MS. SMALLETS: 4 THE COURT: 5 MS. SMALLETS: 6 MR. LAFAYETTE: 7 THE COURT: YES. THAT'S FINE. OKAY. ANYTHING ELSE ON THIS FORM? NO, YOUR HONOR. NO, YOUR HONOR. ALL RIGHT. SO THEN THE NEXT FORM WHICH 8 WILL HAVE THE DAMAGES MOVED INTO THIS ONE, AND THEN THE 9 QUESTION WITH RESPECT TO LIABILITY ON PUNITIVES. 10 11 MS. SMALLETS: MR. LAFAYETTE: 13 THE COURT: 15 NO OBJECTION, YOUR HONOR. ALL RIGHT. ANY COMMENTS? MS. SMALLETS: 17 MR. LAFAYETTE: 18 THE COURT: NO, YOUR HONOR. NO. SO THEN THE LAST PIECE ARE THE 19 INTRODUCTORY INSTRUCTIONS. 20 PAPER. 22 23 AND THEN THE LAST WOULD BE THE AMOUNT OF PUNITIVES. 16 21 NO CONCERNS. 12 14 NO OBJECTION, YOUR HONOR. THIS IS THE ONE ON THE PLEADING YOU SAID YOU HAD COMMENTS. MS. SMALLETS: YES, YOUR HONOR. ON PAGE 2, THE LIST -- THE DESCRIPTION OF THE FIVE CLAIMS, 24 THE SAME ISSUE WITH THE LAST ONE, I THINK, DESCRIBING IT AND 25 THEN A SIMILAR ISSUE ON THE NEXT PAGE. I THINK WHEN YOU TALK DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 839 1 ABOUT THE CLEAR AND CONVINCING EVIDENCE -- 2 THE COURT: I THINK... I THINK WHAT I AM GOING TO 3 DO -- I THINK I WOULD LIKE TO DELETE THAT FROM THIS SECTION 4 AND JUST TALK ABOUT IT WHEN IT MATTERS. 5 MR. LAFAYETTE: 6 THE COURT: THAT'S FINE. IS THAT ALL RIGHT? THAT WOULD BE MY 7 PREFERENCE. 8 THINK, IN GENERAL, THE PREPONDERANCE STANDARD. 9 I GET TO CLEAR AND CONVINCING I'LL EXPLAIN THE STANDARD IN THE 10 BECAUSE THESE ARE SUPPOSED TO BE GENERIC, SO I AND THEN WHEN RIGHT CONTEXT. 11 MS. SMALLETS: RIGHT. I AGREE WITH THAT ESPECIALLY 12 SINCE IN THE CURRENT STUFF THERE IS ONLY ONE PLACE IT COMES 13 UP. 14 THE COURT: 15 MR. LAFAYETTE: 16 MS. SMALLETS: 17 THE COURT: 18 NO, YOUR HONOR. SO LET ME DOUBLE-CHECK SOMETHING. MR. LAFAYETTE: AM I THE ONLY ONE OR IS IT GETTING WARM IN HERE? 21 22 NO, YOUR HONOR. (PAUSE IN THE PROCEEDINGS.) 19 20 ANYTHING ELSE? THE COURT: OKAY. THEY TURN IT ALL OFF AT 4:00. I WILL REVISE THESE. 23 THE FINAL UNTIL THIS WEEKEND. 24 DRAFT. 25 YOU MAY NOT, YOU MAY NOT GET BUT YOU HAVE, YOU HAVE THE SO I'LL GET THEM TO YOU AS SOON AS I REASONABLY CAN. MR. LAFAYETTE: THANK YOU, YOUR HONOR. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 840 1 MS. SMALLETS: 2 THE COURT: 3 THANK YOU, YOUR HONOR. MY PLAN WOULD BE TO INSTRUCT ON MONDAY AND CLOSINGS ON MONDAY. 4 MS. SMALLETS: 5 THE COURT: CLOSINGS ON MONDAY? CLOSINGS ON MONDAY. WE WILL GO 6 STRAIGHT -- YOU WILL BE DONE GIVEN THE NUMBER OF HOURS YOU 7 HAVE LEFT. 8 MS. SMALLETS: 9 THE COURT: ARE WE GOING UNTIL 4:00 ON MONDAY? 4:30, WHATEVER. I MEAN, I WANT THEM TO 10 HAVE THIS CASE -- THEY DON'T HAVE TO HAVE TIME TO DELIBERATE, 11 BUT I WANT THEM TO HAVE THE CASE ON MONDAY, AND GO IN THERE 12 AND PICK A FOREPERSON, AND THEN START DELIBERATING ALL DAY 13 TUESDAY. THAT WOULD BE MY PLAN. 14 MR. LAFAYETTE: THANKS, YOUR HONOR. 15 MS. SMALLETS: THANK YOU, YOUR HONOR. 16 MR. LAFAYETTE: JUST SO WE ARE CLEAR, I ADVISED 17 PLAINTIFF'S COUNSEL OF A REVISED WITNESS SCHEDULE TOMORROW TO 18 ACCOMMODATE SOME PEOPLE'S TRAVEL. 19 20 ALTHOUGH I DON'T BELIEVE YOU FINISHED MS. SMALLETS: THAT. 21 MR. LAFAYETTE: 22 MS. NUGENT: 23 DO YOU WANT TO PUT IT ON THE RECORD? TOOK NOTES OF WHAT YOU TOLD US. 24 25 WHAT'S THAT? THE COURT: IT. I WOULD LIKE TO KNOW. LET'S GO THROUGH AND THEN WE WILL BE DONE, DIANE. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC I 841 1 MR. LAFAYETTE: AFTER JOSE NAVARRO IN THE MORNING AND 2 RICHARD METCALF, THE FIRST PERSON WE WILL CALL WILL BE RICHARD 3 METCALF SO THAT HE DOESN'T HAVE TO COME BACK AGAIN. 4 THE COURT: 5 MR. LAFAYETTE: 6 PATRIK NEUMAN. 7 MARTINELLI. 8 9 10 OKAY. AND THEN WE'LL GO FROM THERE TO AND THEN FROM PATRIK NEUMAN TO LORI AND THEN FROM HER TO JEFF FISCHER. AND THEN IF WE WORK OUT A DEAL WE WON'T NEED TO CALL THIS PERSON, BUT THE PERSON WHO RAN THE REPORT FOR THE GATE LOGS. I ALSO BUTCHER THIS PERSON'S NAME -- 11 THE COURT: 12 MR. LAFAYETTE: THAT'S ALL RIGHT. JUST KEEP GOING. THEN CAMERON CURRAN, AND THEN IT'S 13 MR. BECK, AND THEN DEANNA MARTINEZ, AND THEN IT WOULD BE TOM 14 RIZZO, AND WE WOULD BE DONE. 15 THE COURT: 16 MR. LAFAYETTE: 17 THE COURT: 18 MS. NUGENT: 19 THE COURT: 20 21 OKAY. THANK YOU, YOUR HONOR. THAT'S YOUR UNDERSTANDING? YES, IT IS. THANK YOU. STAND IN RECESS UNTIL 8:00 A.M. TOMORROW. THANK YOU. MR. LAFAYETTE: I'M SORRY, YOUR HONOR. IF I DIDN'T 22 MENTION ERIC PEREZ IT'S BECAUSE I DID JUST SEE IT. 23 PEREZ IS AFTER KULDEEP AND BEFORE CAMERON CURRAN. 24 THE COURT: 25 MR. LAFAYETTE: OKAY. BUT ERIC SO YOU ARE NOT CALLING LAYNE BACK? AFTER LORI MARTINELLI, LAYNE FOR DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 842 1 ABOUT FIVE MINUTES. 2 THE COURT: 3 MR. LAFAYETTE: 4 MS. SMALLETS: 5 THE COURT: OKAY. HAVE A GOOD EVENING. THANK YOU, YOUR HONOR. THANK YOU, YOUR HONOR. THANK YOU. 6 7 (PROCEEDINGS ADJOURNED AT 4:28 P.M.) 8 9 10 CERTIFICATE OF REPORTER I, DIANE E. SKILLMAN, OFFICIAL REPORTER FOR THE 11 UNITED STATES COURT, NORTHERN DISTRICT OF CALIFORNIA, HEREBY 12 CERTIFY THAT THE FOREGOING IS A CORRECT TRANSCRIPT FROM THE 13 RECORD OF PROCEEDINGS IN THE ABOVE-ENTITLED MATTER. 14 15 _____________________________ 16 DIANE E. SKILLMAN, CSR 4909, RPR, FCRR 17 FRIDAY, DECEMBER 14, 2018 18 19 20 21 22 23 24 25 DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC