VOLUME 2 PAGES 184 - 414 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 TUESDAY, DECEMBER 11, 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 185 1 I N D E X 2 PLAINTIFF'S WITNESSES: 3 JOYCE, MICHAEL 4 PAGE VOL. DIRECT EXAMINATION BY MS. ETTHINGHOFF 205 2 5 CROSS-EXAMINATION BY MR. LAFAYETTE 218 2 6 REDIRECT EXAMINATION BY MR. ETTHINGHOFF 229 2 7 RECROSS-EXAMINATION BY MR. LAFAYETTE 231 2 8 CURRAN, CAMERON 9 DIRECT EXAMINATION BY MS. SMALLETS 232 2 10 CROSS-EXAMINATION BY MR. LAFAYETTE 266 2 11 REDIRECT EXAMINATION BY MS. SMALLETS 297 2 12 RECROSS-EXAMINATION BY MR. LAFAYETTE 302 2 13 LAYNE, CHRISTINE 14 DIRECT EXAMINATION BY MS. NUGENT 303 2 15 CROSS-EXAMINATION BY MR. LAFAYETTE 335 2 16 REDIRECT EXAMINATION BY MS. NUGENT 376 2 17 RECROSS-EXAMINATION BY MR. LAFAYETTE 379 2 18 NEWTON, CIARA 19 DIRECT EXAMINATION BY MS. SMALLETS 381 2 20 21 22 23 24 25 DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 186 1 PLAINTIFF'S EXHIBITS: WITHDRAWN ID. EVD. VOL. 2 3 388 2 3 4 395 2 4 19 234 2 5 21 248 2 6 38 249 2 7 40 258 2 8 49 331 2 9 70A 321 2 10 83 272 2 11 85 236 2 12 86 301 2 13 97 242 2 14 99 253 2 15 109 243 2 16 121 245 2 EVD. VOL. 17 DEFENDANT'S EXHIBITS: 320 WITHDRAWN ID. 18 546 345 2 19 547 408 2 20 556 347 2 21 558A 409 2 22 561A 409 2 23 563A 409 2 24 566A 409 2 25 573 355 2 DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 187 1 DEFENDANT'S EXHIBITS: WITHDRAWN ID. EVD. VOL. 2 577 364 2 3 581 366 2 4 594 368 2 5 595 369 2 6 599 371 2 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 188 1 TUESDAY, DECEMBER 11, 2018 2 P R O C E E D I N G S 3 4 8:00 A.M. THE CLERK: REMAIN SEATED. COURT IS IN SESSION. COME TO ORDER. 5 THE COURT: 6 MS. NUGENT: 7 THE COURT: LET'S GO ON THE RECORD. 8 THE CLERK: CIVIL ACTION 17-3961 NEWTON VERSUS 9 10 11 12 EQUILON. GOOD MORNING, EVERYONE. GOOD MORNING. COUNSEL, PLEASE STATE YOUR APPEARANCES. FORWARD AND STATE YOUR APPEARANCES. MS. SMALLETS: THE COURT: 14 MR. LAFAYETTE: 15 THE COURT: 16 MS. SMALLETS: 17 MR. LAFAYETTE: 19 SONYA SMALLETS FOR THE PLAINTIFF CIARA NEWTON AND WITH ME IS EVAN ETTINGHOFF. 13 18 PLEASE COME GOOD MORNING. GARY LAFAYETTE FOR DEFENDANT EQUILON. GOOD MORNING? ISSUES? PLAINTIFF? NONE, YOUR HONOR. THERE IS AN ISSUE THAT MAY COME UP TODAY THE PLAINTIFF ALERTED ME TO. IT HAS TO DO WITH EVIDENCE WITH REGARD TO COMPARATORS. 20 PLAINTIFF IN THIS CASE IS A NONUNION EMPLOYEE ON PROBATION. 21 PLAINTIFFS HAVE ALERTED ME THEY ARE GOING TO TRY TO INTRODUCE 22 EVIDENCE TODAY OF INDIVIDUALS COVERED BY THE COLLECTIVE 23 BARGAINING AGREEMENT, WHO HAVE BEEN THERE FOR SOME TIME, WHO 24 ARE NOT COMPARATORS OF PLAINTIFF. 25 THE COURT: I DON'T UNDERSTAND THAT BECAUSE NO ONE IS DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 189 1 SUBJECT UNDER THE LAW TO DISCRIMINATION AND HARASSMENT, UNION 2 OR NOT UNION. 3 SO WHAT IS THE ISSUE? MR. LAFAYETTE: THE ISSUE IS THIS: THE CASES THAT WE 4 WILL CITE TO YOU BASICALLY SAY IF PLAINTIFF IS TRYING TO SHOW 5 THAT SHE RECEIVED DISPARATE TREATMENT, SHE HAS TO COMPARE 6 HERSELF TO PEOPLE WHO ARE IN HER CLASSIFICATION, WHO ARE 7 COMPARATORS OF HERS. 8 WHAT I AM CITING. 9 THE COURT: THAT'S THE LAW, YOUR HONOR. YES, THAT IS THE LAW. THAT IS EVERYBODY IS 10 ENTITLED TO A HARASSMENT-FREE WORK PLACE. 11 NON UNION PEOPLE CAN BE HARASSED AND UNION PEOPLE CANNOT BE? 12 13 14 15 16 MR. LAFAYETTE: YOU'RE SAYING THAT I'M NOT SPEAKING TO THE HARASSMENT ISSUE, YOUR HONOR. THE COURT: WHAT IS THEN THE FUNDAMENTAL FACTUAL ISSUE THAT WE'RE DEALING WITH? MR. LAFAYETTE: IT'S THE DISCRIMINATION CLAIM. THEY 17 INTEND TO PRESENT EVIDENCE OF INDIVIDUALS WHO WERE TERMINATED, 18 WHO WERE UNION EMPLOYEES AND THEY ARE GOING -- GOING TRY TO 19 ARGUE THAT THE PLAINTIFF WAS TREATED DIFFERENTLY THAN THOSE -- 20 THE COURT: 21 MR. LAFAYETTE: 22 THE COURT: 23 MR. LAFAYETTE: 24 25 ON WHAT BASIS WERE THEY TERMINATED? A WHOLE HOST OF THINGS. I NEED SPECIFICS. SOME WERE TERMINATED FOR FALSIFICATION OF RECORDS. THE COURT: ALL RIGHT. LET ME HAVE THE NAME. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC WHO IS 190 1 BEING CALLED AND WHO IS AND WHAT IS THE CONCERN? 2 MR. LAFAYETTE: 3 THE COURT: 4 YOUR HONOR, ALL I KNOW -- PERSON BY PERSON. DEAL WITH OBJECTIONS AT THE TIME. 5 MS. SMALLETS: OTHERWISE, I CAN'T WHO IS BEING CALLED? IT IS NOT WHO IS BEING CALLED, YOUR 6 HONOR. 7 INVOLVING A TERMINATION HE WITNESSED WHERE AN EMPLOYEE WAS 8 TERMINATED FOR VIOLATING LIFE-SAVING RULES. 9 ANY OTHER EMPLOYEE BEING TERMINATED IN OPCEN. 10 WE INTEND TODAY TO ELICIT TESTIMONY FROM MR. CAMERON HE'S NOT AWARE OF SO IT'S A COMPARISON. 11 THE COURT: 12 MS. SMALLETS: WHO IS IT? HIS NAME IS WILLIE. FOR PURPOSES OF 13 PROTECTING THE CONFIDENTIALITY OF THE WITNESS, I DON'T KNOW 14 HIS LAST NAME. 15 WITNESSED THE INCIDENTS THAT LED TO THE TERMINATION. BUT MR. CURRAN PERSONALLY WAS PRESENT AND 16 THE COURT: 17 MS. SMALLETS: 18 19 20 21 WAS HE INVOLVED IN THE TERMINATION? HE WAS PRESENT WHEN WILLIE DID THE CONDUCT THAT LED TO THE TERMINATION AND THEN WAS AWARE -THE COURT: DOES HE HAVE PERSONAL KNOWLEDGE OF THE TERMINATION? MS. SMALLETS: HE HAS PERSONAL THAT WILLIE NEVER CAME 22 BACK TO WORK -- WAS NEVER BACK AT THE REFINERY THE DAY AFTER 23 THE INCIDENT HAPPENED. 24 25 THE COURT: WHY HAVEN'T YOU CALLED THE PERSON WHO ACTUALLY HAS KNOWLEDGE OF THE TERMINATION IF THAT'S WHAT IN DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 191 1 FACT YOU WANT TO GET INTO EVIDENCE? 2 MS. SMALLETS: TIME LIMITS, YOUR HONOR. 3 MR. CURRAN HAS PERSONAL KNOWLEDGE WHAT HAPPENED. 4 IS WHAT -- 5 THE COURT: WE HAVE -THE INCIDENT HE HAS NO KNOWLEDGE OF WHY THE PERSON 6 ULTIMATELY WAS TERMINATED, HAS NO INFORMATION, RIGHT OF THE 7 TERMINATION ITSELF. 8 ESPECIALLY FOR UNION EMPLOYEES. 9 MS. SMALLETS: THESE THINGS JUST DON'T HAPPEN, SO MR. CURRAN HAS PERSONAL KNOWLEDGE 10 THAT HE SAW THE INCIDENT DON'T TOOK PLACE. 11 CAN DESCRIBE WHAT HAPPENED, AND HE CAN TESTIFY THAT AFTER THAT 12 HE NEVER SAW THIS PERSON IN THE REFINERY AGAIN. 13 ARGUE HE WASN'T TERMINATED, BUT I THINK THERE IS AN INFERENCE 14 CERTAINLY THAT COULD BE DRAWN THAT THAT'S THE REASON FOR THE 15 PERSON'S TERMINATION. 16 THE COURT: 17 MS. SMALLETS: HE WAS THERE. HE THEY COULD WHY DO YOU NEED THIS EVIDENCE? BECAUSE THEY ARE ARGUING THAT MY 18 CLIENT WAS TERMINATED FOR POOR PERFORMANCE. 19 CREATES -- IT IS AN EVIDENTIARY RECORD OF WHAT TYPES OF THINGS 20 THEY IN FACT TERMINATE MEN FOR. 21 TO WHAT SHE DID IS EXTREMELY DIFFERENT. 22 THE COURT: 23 MS. SMALLETS: AND WHAT HE DID IN COMPARISON WELL, WHAT WAS IT? OH, SURE. AND SO THIS I WANT FACTS. HE STUCK HIS HEAD UP UNDER 24 THE SKIRT OF A VESSEL WHEN HE KNEW THERE WERE FLAMMABLE GASES 25 PRESENT. SO, THERE'S A VESSEL THAT HAS AN UNDERSIDE. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC HE 192 1 PLACED -- HE TOOK A READING. 2 FLAMMABLE GASES UNDER THIS VESSEL. 3 IT -- 4 THE COURT: 5 MS. SMALLETS: HE FOUND OUT THAT THERE WERE HE PLACED HIS HEAD UNDER YEAH. -- WHICH PLACING HIS HEAD IN AN AREA 6 WHERE THERE WERE ALREADY FOUND TO BE FLAMMABLE GASES. 7 TOLD HIM NOT TO DO IT AND HE DID IT AGAIN. 8 THE COURT: 9 MS. SMALLETS: 10 11 THE COURT: BEFORE OR AFTER? MS. SMALLETS: 15 MS. SMALLETS: HE WAS A PROBATIONARY EMPLOYEE? THE COURT: 18 MS. SMALLETS: SO YOU DON'T KNOW WHAT HIS RECORD WAS? WHAT WE ARE SAYING IS THAT INCIDENT IN AND OF ITSELF, HE WAS OUT OF THE REFINERY THE NEXT DAY. 20 THE COURT: 21 MS. SMALLETS: 23 HE WAS NOT A PROBATIONARY EMPLOYEE. HE HAD BEEN WITH THE UNION -- HE HAD BEEN THERE FOR A WHILE. 17 22 THEY SAID DON'T DO THIS, AND HE DID IT AGAIN. THE COURT: 19 I'M SORRY. THEY TOLD HIM NOT TO DO IT BEFORE OR 14 16 BEFORE OR AFTER WHAT? AFTER? 12 13 THEY BUT YOU DON'T KNOW THAT. WE KNOW HE WAS OUT OF THE REFINERY THE NEXT DAY. THE COURT: DO YOU KNOW WHETHER HE HAD HAD OTHER 24 INCIDENTS AND THIS WAS THE -- YOU KNOW, THE STRAW THAT BROKE 25 THE CAMEL'S BACK? DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 193 1 2 MS. SMALLETS: OF MR. CURRAN. 3 THE COURT: 4 MS. SMALLETS: 5 8 9 HOW WOULD HE KNOW? HE WAS WORKING THE SAME UNIT AT THE TIME. 6 7 I DON'T, BUT I CAN CERTAINLY ASK THAT THE COURT: WAS HE HIS SUPERVISOR? HOW WOULD HE KNOW? MS. SMALLETS: POINT IN TIME. HE WAS NOT HIS SUPERVISOR AT THAT BUT HE WAS AN OPERATOR IN THAT UNIT AND HE -- 10 AGAIN, HE PERSONALLY WITNESSED THE INCIDENT AND HE PERSONALLY 11 WITNESSED MR. CURRAN NOT COMING TO WORK THE NEXT DAY. 12 THE COURT: 13 MS. SMALLETS: WHAT ELSE IS THERE? THERE IS A SECOND INCIDENT THAT 14 MR. CURRAN TESTIFIED TO OR SECOND EMPLOYEE DURING THE TIME 15 THAT HE WAS -- 16 THE COURT: 17 MS. SMALLETS: 18 THE COURT: 19 DEPOSITION, PLEASE? 20 21 IS THIS IN HIS DEPOSITION? YES. WHAT ARE THE PAGES? MS. SMALLETS: CAN I HAVE HIS IT'S FROM 51:11 TO 57:22, I THINK, BUT CERTAINLY 51:11 TO 57:22. 22 THE COURT: 23 MS. SMALLETS: WHO ELSE? DURING THE TIME THAT MR. CURRAN WAS 24 SUPERVISING MS. NEWTON AND SHE WAS REPORTING UNEQUAL 25 TREATMENT, MR. PEREZ WROTE TO MR. CURRAN AND SAID WE'RE DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 194 1 TREATING HER EQUALLY, WE'RE TREATING HER JUST LIKE WE'RE 2 TREATING JOHN HESS, WHO IS A MEMBER OF THE UNION AND HAS BEEN 3 THERE A WHILE. 4 SEVERAL EXAMPLES OF POOR PERFORMANCE. 5 SUPERVISOR AT THE TIME, TESTIFIED AS TO WHAT THEY WERE. 6 MR. HESS IS STILL AN EMPLOYEE OF THE UNION, AND SOME OF THOSE 7 INDENTS INCLUDE OPENING THE WRONG VALVE THAT LED TO A 8 SIGNIFICANT PLANT UPSET. BUT MR. HESS ENGAGED IN SEVERAL ACTS -MR. CURRAN, WHO WAS HIS 9 SO IT'S VERY SIMILAR -- SORRY -- AND ONE OF THE THINGS 10 THEY ARE SAYING MS. NEWTON DID WRONG TODAY -- SORRY -- IN THIS 11 CASE IS SHE OPENED THE WRONG VALVE. 12 HE ALSO ISSUED A PERMIT THAT SHOULDN'T HAVE BEEN ISSUED, 13 WHICH LED TO PROBLEMS. 14 ARE DOING -- THEY'RE SAYING SHE'S DOING. 15 ALSO -- HE FAILED TO PROPERLY PREPARE EQUIPMENT FOR WORK TO BE 16 DONE THAT CAUSED A WORK SHUTDOWN AND HE IS STILL EMPLOYED. 17 18 THE COURT: THAT'S ANOTHER THING SHE'S SAYING THEY AND THERE WAS -- HE AND HE WAS COMPARED DIRECTLY TO MISS -- TO MS. NEWTON? 19 MS. SMALLETS: 20 THE COURT: 21 MR. LAFAYETTE: 22 THE COURT: 23 MR. LAFAYETTE: BY MR. PEREZ. ALL RIGHT. THAT ONE CAN COME IN. CAN I JUST SPEAK TO THAT, YOUR HONOR? BRIEFLY. WE BRIEFED THIS BEFORE TO YOU WHEN WE 24 WERE GOING THROUGH DISCOVERY. 25 THAT WE SUBMITTED TO YOU, WE ARGUED THAT THEY SHOULD NOT BE AND IN THAT -- IN THE BRIEFS DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 195 1 ALLOWED TO CONDUCT DISCOVERY AGAINST UNION EMPLOYEES FOR 2 COMPARATORS ON THE DISCRIMINATION CASE BECAUSE THEY ARE NOT 3 THE SAME. 4 AGREEMENT, AND WE CAN ONLY TERMINATE THEM FOR CAUSE UNDER THE 5 COLLECTIVE BARGAINING AGREEMENT. 6 THEY ARE PROTECTED BY A COLLECTIVE BARGAINING SHE IS AN AT-WILL EMPLOYEE AND A PROBATIONARY EMPLOYEE. 7 THAT PLACES THEM OUTSIDE THE COMPARATOR STATUS. 8 OUR CONCERN. 9 AND THAT'S IN THE DISCOVERY MOTION, YOU LIMITED THEIR DISCOVERY TO 10 THOSE INDIVIDUALS WHO WERE PROBATIONARY EMPLOYEES, AND WE 11 PROVIDED AND PRODUCED ALL OF THE DOCUMENTATION RELATING TO ALL 12 OF THE PROBATIONARY EMPLOYEES. 13 EMPLOYEES. 14 DEAL WITH THEM DIFFERENTLY. 15 THESE ARE NOT PROBATIONARY THEY ARE SUBSTANTIALLY DIFFERENT. THE COURT: AND WE HAVE TO THE FACT THAT HE COMPARED -- THE REASON 16 IT'S COMING IN IN PART IS BECAUSE HE WAS COMPARED AT -- 17 CONTEMPORANEOUSLY BY ONE OF YOUR KEY WITNESSES. 18 WITNESS CAN EXPLAIN THAT. 19 COMPARED HER AND, TWO, WHY IT MAY NOT AT THIS POINT IN TIME, 20 ONCE WE ARE IN TRIAL, MR. PEREZ CAN SAY WHY IT IS NOT A FAIR 21 COMPARISON. 22 RESPECT TO WILLIE COMES IN. 23 TRANSCRIPT. 24 25 SO YOUR HE CAN EXPLAIN, ONE, WHY HE IT IS NOT CLEAR TO ME THAT THE INCIDENT WITH MR. LAFAYETTE: I WILL READ THE DEPOSITION THE ONE THAT IS COMING IN IS THE HESS? DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 196 1 MS. SMALLETS: HESS, YES. 2 MR. LAFAYETTE: AND HE -- 3 THE COURT: 4 MS. SMALLETS: 5 MR. LAFAYETTE: 6 CAN I HAVE THE EMAIL THAT PEREZ SENT? MS. SMALLETS: 8 MR. LAFAYETTE: 9 MS. SMALLETS: 13 WHICH EXHIBIT NUMBER DID YOU 26. IS THIS THE JULY 25 EMAIL, MA'AM? YES. AND THE EMAIL FROM CAMERON TO ERIC, WHICH IS ON THE BOTTOM PART -- 11 12 OKAY. IT IS EXHIBIT 26. CALL? 7 10 SURE. THE COURT: WAS THERE AN ISSUE WITH TARDIES WITH HESS? MS. SMALLETS: I DON'T BELIEVE SO. BUT THE 14 PERFORMANCE ISSUES THAT WERE IDENTIFIED WERE THE COMPETENCE 15 ISSUES IDENTIFIED WERE VERY SIMILAR. 16 THINGS HE DID WRONG THAT LED TO HIS WRITTEN PERFORMANCE 17 REVIEW -- WARNING WAS HE OPENED THE WRONG VALVE. 18 OF THE THINGS THAT THEY ARE SAYING THAT MS. NEWTON DID WRONG 19 IN THIS CASE. 20 THE COURT: HE WAS -- ONE OF THE THAT IS ONE THE JURY IS ENTITLED TO UNDERSTAND THE 21 CONTEXT OF THIS EMAIL BY MR. PEREZ WITH RESPECT TO MS. NEWTON. 22 THE HESS INFORMATION COMES IN. 23 MR. LAFAYETTE: THE -- I UNDERSTAND THAT, YOUR HONOR. 24 I AM GOING TO POINT OUT ONE LAST THING. 25 WHICH IS THE POSITIVE DISCIPLINE POLICY AND THE POSITIVE -- THAT IS EXHIBIT 500, DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 197 1 THE COURT: 2 MR. LAFAYETTE: DO I HAVE THAT? IT IS IN THE EXHIBIT BINDERS, YOUR 3 HONOR. 4 BATES STAMP PAGE 152, YOU WILL SEE THAT PROBATIONARY EMPLOYEES 5 ARE TREATED DIFFERENTLY THAN UNION EMPLOYEES UNDER THE 6 PROGRESSIVE DISCIPLINE POLICY. 7 8 9 10 DEFENDANT'S FIRST EXHIBIT. THE COURT: RIGHT. IF YOU TAKE A LOOK AT SO EXPLAIN THAT TO THE JURY. THEY ARE SMART. MR. LAFAYETTE: THANK YOU, YOUR HONOR. ONE LAST THING YOUR HONOR. I HAVE INJURED MY KNEE. IT IS 11 EXTREMELY PAINFUL. 12 TODAY AND I JUST WANT YOU TO KNOW THAT I AM NOT TRYING TO DO 13 ANYTHING, BUT IT IS EXTREMELY PAINFUL. 14 15 16 17 THE COURT: I WILL BE A LITTLE -- DIFFICULT WALKING OKAY? ALL RIGHT. I WILL READ THESE PAGES WITH RESPECT TO THE WILLIE INCIDENT, BUT IT DOESN'T SEEM LIKE A PROPER COMPARISON. I AM GOING THROUGH THE JURY INSTRUCTIONS FOR THE END, AND 18 I SHOULD HAVE A DRAFT TO YOU TOMORROW FOR TALKING PURPOSES FOR 19 US TO DISCUSS ON THURSDAY. 20 I AM CURIOUS ABOUT YOUR APPROACHES WITH THE VERDICT FORMS, 21 WHICH I FIND TO BE INCREDIBLY ONEROUS. 22 KNOW WHY YOU EACH TOOK THE APPROACH THAT YOU DID WITH RESPECT 23 TO THOSE FORMS. 24 MS. SMALLETS: 25 THE COURT: AND I WOULD LIKE TO YOUR HONOR -- DO WE REALLY NEED TO ASK THEM AS MANY DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 198 1 QUESTIONS AS YOU'RE WANTING TO ASK THEM? 2 MS. SMALLETS: YOUR HONOR, WE CERTAINLY WOULD BE 3 HAPPY TO REDUCE THE NUMBER OF QUESTIONS. 4 OBJECTION TO THAT. 5 6 THE COURT: WE WOULD HAVE NO MR. LAFAYETTE, FOR THESE PURPOSES IF YOU WANT TO STAY AT YOUR CHAIR YOU CAN. 7 MR. LAFAYETTE: 8 THE CLERK: I'LL TURN ON THE MIC. 9 THE COURT: I THINK THESE VERDICT FORMS ARE LIKE 25 10 THANK YOU. PAGES LONG. 11 MS. LYONS: GOOD MORNING, YOUR HONOR. BARBARA LYONS. 12 I AM ADDRESSING THE VERDICT FORMS BECAUSE I AM THE PERSON IN 13 THE OFFICE WHO PUT THEM TOGETHER. 14 FIRST OF ALL AFTER INSTRUCTIONS THAT MR. LAFAYETTE HAS 15 RECENTLY USED IN ANOTHER CASE. WE MODELED THE CACI FORMS 16 THE COURT: WAS IT FEDERAL? 17 MS. LYONS: I BELIEVE IT WAS. 18 MR. LAFAYETTE: 19 20 YES. BEFORE MAGISTRATE CORLEY, YOUR HONOR. MS. LYONS: THE OTHER ASPECT OF THE VERDICT FORMS IS 21 THAT THEY CLOSELY TRACK THE ELEMENTS OF EACH OF THE SEVERAL 22 CAUSES OF ACTION. 23 THE COURT: I UNDERSTAND THEY TRACK THE ELEMENTS. 24 AND YOU WILL SEE WHEN I HAVE REDONE THESE INSTRUCTIONS TO MAKE 25 THEM MORE ACCESSIBLE TO THE JURY. THE JURY IS GOING TO KNOW DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 199 1 EXACTLY WHAT THEY HAVE TO FIND FOR EACH AND EVERY COUNT AT 2 ISSUE. 3 WHY DO THEY HAVE TO ANSWER A QUESTION FOR EACH AND EVERY 4 ELEMENT? 5 ABOUT A SPECIFIC ELEMENT? 6 ANSWER THE QUESTIONS RELATIVE TO THE COUNTS, NOT TO EVERY 7 SPECIFIC ELEMENT. 8 9 IS THERE SOMETHING YOU NEED TO KNOW SPECIFICALLY MS. LYONS: IF NOT, I'M GOING TO HAVE THEM OUR PREFERENCE IS THE CACI FORM VERDICT FORM WHICH IS WHAT THESE ARE MODELED AFTER. 10 THE COURT: LOOK AT PAGE 14 OF YOUR VERDICT FORM. 11 THIS IS YOUR SPECIAL VERDICT FORM AT PAGE 14 OF 29. 12 178. 13 PURPOSE IS BECAUSE I AM NOT GOING TO DO IT THIS WAY, UNLESS 14 THERE IS A SPECIFIC REASON. 15 16 DOCKET TELL ME PAGE BY PAGE WHAT YOU MUST KNOW AND WHAT THE MS. LYONS: IT IN FRONT OF ME. YOUR HONOR, AT THIS MOMENT I DON'T HAVE MY COMPUTER IS MISBEHAVING THIS MORNING. 17 THE COURT: ALL RIGHT. 18 THE CLERK: OKAY. 19 MS. LYONS: IN THIS CASE, YOUR HONOR, THERE ARE A FRANCES, DOCKET 178. 20 COUPLE OF PRIMARY ISSUES FOR US. 21 TO VICARIOUS LIABILITY ON A SEXUAL HARASSMENT CLAIM, THERE'S 22 AN IMPORTANT -- WHERE THERE ARE MULTIPLE ALLEGED INDIVIDUALS 23 INVOLVED IN HARASSING THE PLAINTIFF, THAT THE JURY CLEARLY 24 DECIDE WHETHER EACH ALLEGED PERPETRATOR IS A SUPERVISOR 25 BECAUSE IT'S THE DIFFERENCE BETWEEN STRICT LIABILITY AND THE FIRST OF ALL, WITH RESPECT DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 200 1 NEGLIGENCE STANDARD, THE KNEW OR SHOULD HAVE KNOWN STANDARD 2 APPLICABLE OTHERWISE. 3 OUR OTHER PRIMARY CONCERN IS ON PUNITIVE DAMAGES. 4 WHERE THEY CAN BE A POOR SURROGATE FOR -- IT IS IMPORTANT 5 THERE AGAIN THAT THE -- 6 THE COURT: AND I UNDERSTAND IT ON THE PUNITIVE DAMAGES. 7 I UNDERSTAND, BASED UPON YOUR INSTRUCTIONS, YOUR CONCERNS WITH 8 RESPECT TO THE SUPERVISOR. 9 TAKEN WITH EVERY OTHER SINGLE CAUSE OF ACTION. 10 OTHER CONCERN? 11 CONCERNS. 12 13 IS THERE ANY IF NOT, I WILL GOING TO ADDRESS THOSE TWO MS. LYONS: IF YOU WILL REMIND ME OF WHAT INSTRUCTION YOU ARE ADDRESSING ON PAGE 14 -- 14 THE COURT: EVERY ELEMENT YOU ARE ASKING FOR THEM TO 15 ANSWER AS TO EACH ELEMENT. 16 UNNECESSARY. 17 MR. LAFAYETTE: 18 178. 19 196, DOCKET NUMBER 196. IT'S ONEROUS AND BURDENSOME AND I THINK, YOUR HONOR, YOU REFERENCED AND I'M SHOWING THAT THERE WERE REVISED INSTRUCTIONS AT 20 THE COURT: 21 MR. LAFAYETTE: 22 THAT DOESN'T JUSTIFY THE APPROACH THE REVISED VERDICT FORMS? YES, YOUR HONOR. AT DOCKET NUMBER 196 ON NOVEMBER 28TH, 2018. 23 MS. SMALLETS: WE HAD NOTICED IN THE INTERIM TYPO OR 24 TWO. 25 WE CORRECTED A TYPO OR TWO AND FLIPPED ONE QUESTION. WE CORRECTED OURS. I DON'T KNOW WHAT CHANGED ON THEIRS. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 201 1 ALL I WANT TO KNOW IS WHAT YOUR CONCERNS THE COURT: 2 ARE BECAUSE I AM REDOING THEM. 3 PROVIDED. 4 5 6 7 8 9 MR. LAFAYETTE: THEY ARE NOT ACCEPTABLE AS WE CAN -- WE MAY NOT NEED ALL OF THE ELEMENTS, YOUR HONOR. THE COURT: ALL I WANT TO KNOW IS WHAT YOUR CONCERN IS, SO THAT I CAN TRY TO ADDRESS IT MYSELF. MR. LAFAYETTE: CAN WE LOOK AT THAT TODAY AND LET YOU KNOW AT THE CLOSE OF TODAY? 10 THE COURT: 11 MR. LAFAYETTE: 12 THE COURT: YOU CAN. THANK YOU, YOUR HONOR. SO, THE OTHER ISSUE WITH RESPECT TO, AND 13 I THINK I MENTIONED THIS BEFORE, THE MANNER IN WHICH YOU 14 PROFFERED THE VERDICT FORMS IN THE INSTRUCTIONS DID NOT 15 ADDRESS OR ACCOUNT FOR MY APPROACH. 16 SO THE WAY THAT I DO IT IS THAT THE JURY WILL BE 17 INSTRUCTED ON EACH OF THE CLAIMS AND DAMAGES FOR EACH OF THE 18 UNDERLYING CLAIMS. 19 BE ALLOWED ADDITIONAL ARGUMENT AND THE JURY WILL BE ASKED TO 20 FIND WHETHER THERE IS LIABILITY FOR PUNITIVES. 21 SUCCEED ON THAT QUESTION, THEN YOU WILL BE ALLOWED TO PRESENT 22 EVIDENCE AND/OR ARGUMENT WITH RESPECT TO PUNITIVES AND THE 23 JURY WILL BE SENT BACK A THIRD TIME TO DEAL WITH THE 24 PUNITIVES, DAMAGES. 25 IF THE PLAINTIFF SUCCEEDS, THEN YOU WILL SO IT IS EFFECTIVELY TRIFURCATED. IF THEY WE NEVER GET TO THE DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 202 1 PUNITIVES UNLESS I KNOW I HAVE A FINDING OF LIABILITY. 2 THEN I CAN ADDRESS MORE SPECIFICALLY THE ISSUES RELATIVE TO 3 THE PERSONS WHO WERE GIVING RISE TO PUNITIVE DAMAGES 4 LIABILITY. 5 POTENTIALLY DIFFERENT. 6 THE PEOPLE ARE DIFFERENT. 7 THE LIABILITY PHASE FIRST BEFORE GIVING THEM THE PUNITIVES 8 QUESTION. 9 I DON'T WANT TO CONFUSE THEM. MR. LAFAYETTE: AND THE BURDENS ARE I HAVE TO GO BACK AND DOUBLE-CHECK. I WOULD LIKE THEM TO JUST DECIDE I THINK I UNDERSTAND, YOUR HONOR. I 10 THINK YOU'RE SAYING THE PUNITIVE DAMAGES INSTRUCTIONS AND THE 11 VERDICT FORM ON THE PUNITIVE DAMAGES, EVEN THE QUESTION OF 12 WHETHER OR NOT THEY FIND PUNITIVE DAMAGES, FALLS AFTER THE 13 FINDING OF LIABILITY IN THE FIRST INSTANCE. 14 15 THE COURT: CORRECT. AND IT IS PRETTY QUICK TURN AROUND THE LAST TIME I DID THAT WAY. 16 MR. LAFAYETTE: 17 THE COURT: IT WAS PRETTY QUICK. OKAY. SO YOU WILL GET ADDITIONAL ARGUMENT. 18 THAT IS ON ME, THAT IS NOT ON YOUR TIME BECAUSE IT IS NOT THAT 19 MUCH ARGUMENT. 20 MR. LAFAYETTE: 21 THE COURT: I THINK I UNDERSTAND, YOUR HONOR. AND THEN -- AND THEN THEY GO BACK AND 22 FOCUS SOLELY ON THAT CONDUCT AND WHETHER IT RISES TO THE LEVEL 23 OF PUNITIVE CONDUCT. 24 25 AND THEN ONLY IF THEY FIND THAT, THEN WE'LL OPEN UP THE FINANCIAL INFORMATION, EVIDENCE CAN BE PRESENTED, FURTHER DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 203 1 ARGUMENT CAN BE MADE ON THE PUNITIVE DAMAGES PIECE. 2 MR. LAFAYETTE: 3 THE COURT: 4 MS. SMALLETS: 5 ALL RIGHT. THANK YOU, YOUR HONOR. (PAUSE IN THE PROCEEDINGS.) 6 7 I UNDERSTAND, YOUR HONOR. THE COURT: MR. LAFAYETTE, IS MR. CURRAN COMING IN DURING YOUR CASE-IN-CHIEF? 8 MR. LAFAYETTE: HE IS, YOUR HONOR. IT MAY WELL BE 9 THAT THEY COVER EVERYTHING IN THEIR DIRECT AND, IF THEY DO, 10 THEN I WILL CROSS HIM AT THAT POINT IN TIME ON THOSE ITEMS. 11 THE COURT: OKAY. WITH RESPECT TO THE INCIDENT WITH 12 WILLIE, IT CANNOT COME IN IN YOUR CASE-IN-CHIEF. 13 RE-EVALUATE IF SOMETHING CHANGES IN TERMS OF THEIR CASE. 14 DEFENSE, IF IT'S APPROPRIATE, I MAY ALLOW IT FOR REBUTTAL 15 PURPOSES. 16 THE CLERK: YES. 18 THE COURT: ALL RIGHT. 20 LET'S GET WHAT'S THE ORDER TODAY? MS. NUGENT: MIKE JOYCE, CAMERON CURRAN, AND CHRISTINE LAYNE. 23 (PROCEEDINGS HELD IN THE PRESENCE OF THE JURY.) 24 25 THE JURY IS HERE. GOING. 21 22 AND, IS THE JURY HERE? 17 19 I WILL THE COURT: SEATED. OKAY. GOOD MORNING. YOU MAY ALL BE THE RECORD REFLECT THE JURY IS NOW WITH US. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 204 1 HOW IS EVERYBODY THIS MORNING? IT'S ALL WORKING OKAY? 2 YEAH? 3 IT'S BAD WHEN YOU FIND MOM'S CELL PHONE IN THE RECYCLING BIN. 4 THAT HAPPENS DURING TRIAL. 5 IT'S NOT SO BAD FOR ME YET. MY DAUGHTER SAYS YOU KNOW THE OTHER ONE IS WHEN I'M SO FOCUSED ON GETTING EVERYTHING 6 DONE, THAT I GO INTO THE PARKING LOT -- WE ALL HAVE OUR 7 SPACES, THE JUDGE'S PARKING LOT -- AND I HAVE TO BACK IN. 8 I LOOK IN MY REARVIEW MIRROR AND THERE'S MY DOG LOOKING AT ME 9 LIKE, DAY CARE? 10 11 12 13 ANYHOW, BACK OUT OF THE GARAGE. SO FAR, SO GOOD. AND NONE OF THAT'S HAPPENED, SO I KNOW IT'S A GOOD DAY. ALL RIGHT. WE WILL HAVE MORE EVIDENCE FOR YOU TODAY, MORE LIVE WITNESSES. 14 I SAY THAT, IN PART, BECAUSE MY LAST TRIAL WE HAD A NUMBER 15 OF DAYS WHERE THE WITNESSES WEREN'T IN OUR JURISDICTION, SO IT 16 WAS JUST THE READING OF DEPOSITION TRANSCRIPTS BACK AND FORTH. 17 MUCH LESS INTERESTING BUT SO FAR, SO GOOD. 18 WITNESSES. 19 NEXT WITNESS, PLEASE. 20 MR. ETTINGHOFF: 21 THE COURT: ALL RIGHT. 22 THE CLERK: UP HERE. 23 24 25 ALL LIVE WE WOULD LIKE TO CALL MICHAEL JOYCE. MR. ETTINGHOFF. (MICHAEL JOYCE, CALLED AS A WITNESS FOR THE PLAINTIFF, HAVING BEEN DULY SWORN, TESTIFIED AS FOLLOWS:) THE WITNESS: YES, MA'AM. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 205 JOYCE - DIRECT / ETTINGHOFF 1 THE CLERK: 2 THE WITNESS: 3 THE CLERK: 4 OKAY. GOOD MORNING. THEN IF YOU'LL SCOOT UP TO THE MICROPHONE AND THEN -- 5 THE WITNESS: 6 THE CLERK: 7 PLEASE BE SEATED. TEST. TEST. PLEASE STATE YOUR FULL NAME AND SPELL YOUR LAST NAME. 8 THE WITNESS: 9 THE COURT: 10 THE WITNESS: 11 THE COURT: 12 MICHAEL PATRICK JOYCE. J-O-Y-C-E. GOOD MORNING, SIR. GOOD MORNING. YOU MAY PROCEED. DIRECT EXAMINATION 13 BY MR. ETTINGHOFF: 14 Q. GOOD MORNING, MR. JOYCE. 15 A. GOOD MORNING. 16 Q. DO YOU KNOW THE PLAINTIFF, CIARA NEWTON? 17 A. I DO. 18 Q. AND WHERE DO YOU WORK? 19 A. I WORK AT CHEVRON -- EXCUSE ME. 20 A HARVEST TECHNICAL CONTRACTOR, AND I WORK WITH CONTRA COSTA 21 COUNTY OFFICE OF EDUCATION AND CHEVRON IN A CAREER TECHNICAL 22 EDUCATION PROGRAM. 23 Q. 24 TECHNICAL EDUCATION PROGRAM? 25 A. I WORK FOR CHEVRON. I'M CAN YOU TELL ME A LITTLE BIT MORE ABOUT THE CAREER WHAT I RUN IS WHAT'S CALLED A ROP PROGRAM, AND IT IS FOR DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 206 JOYCE - DIRECT / ETTINGHOFF 1 PROCESS PLANT OPERATOR. 2 PREPARE STUDENTS FOR POTENTIAL JOBS IN THE PETROCHEMICAL 3 INDUSTRY. BEEN DOING THAT ABOUT FOUR-AND-A-HALF YEARS. 4 Q. OKAY. AND PRIOR TO BECOMING AN INSTRUCTOR FOR THAT 5 COURSE, DID YOU EVER WORK AT A REFINERY? 6 A. 7 AS A PROCESS PLANT OPERATOR. 8 Q. 9 AND THE OBJECTIVE OF THE COURSE IS TO I HAVE 15 YEARS' EXPERIENCE AT CHEVRON RICHMOND REFINERY GREAT. CAN YOU DESCRIBE WHAT ARE THE GOALS OF YOUR ROP PROGRAM? 10 A. 11 TRUE MEANING. 12 TO GET PRETTY GOOD JOBS IN THE INDUSTRY. 13 OF SUCCESS -- MYSELF, I'VE HAD A LOT OF SUCCESS GETTING PEOPLE 14 BE HIRED THAT ARE INTERESTED IN DOING THE WORK. 15 THEM THROUGH A FIVE-MONTH PROGRAM THAT EVALUATES THEM BASED ON 16 ATTENDANCE, PARTICIPATION, TESTING, AND -- YOU KNOW, WE'LL 17 EVALUATE THEM AND HELP... HELP PREPARE THEM FOR JOBS IN THE 18 INDUSTRY. 19 PREPARATION AND -- YEAH. 20 Q. WHERE IS THIS PROGRAM HELD? 21 A. THE ACTUAL SITE IS AT CHEVRON HENSLEY FACILITY, WHICH IS 22 NEAR THEIR REFINERY. 23 Q. AND IS IT A CLASSROOM SETTING? 24 A. YES. 25 Q. DO YOU EVER MAKE ANY VISITS TO THE REFINERY ITSELF? THE GOALS OF THE PROGRAM, IT'S AN OUTREACH PROGRAM AT ITS TO HELP THE COMMUNITY, GIVE THEM OPPORTUNITIES AND WE'VE HAD A LOT SO WE PUT ONE OF THE BIGGEST THINGS WE DO IS JUST INTERVIEW WE HAVE A LOT OF SUCCESS. SO IT IS ASSOCIATED WITH CHEVRON. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 207 JOYCE - DIRECT / ETTINGHOFF 1 A. 2 IS IT DOES GIVE PEOPLE EXPOSURE TO THE REFINERY, LET THEM KNOW 3 WHAT THAT TYPE INDUSTRY IS LIKE. 4 EXCITEMENT THEY GET. 5 ALSO VALUABLE TO EXPOSE PEOPLE TO WHAT GOES ON IN THESE TYPES 6 OF FACILITIES. 7 Q. WHEN WAS MS. NEWTON IN YOUR CLASS? 8 A. SHE WAS IN MY CLASS JULY TO OCTOBER 2015. 9 Q. DID YOU KNOW HER BEFORE SHE WAS IN YOUR CLASS? 10 A. NO. 11 Q. HOW WOULD YOU DESCRIBE HER AS YOUR STUDENT? 12 A. HOW WOULD I DESCRIBE HER? 13 IN FACT, EXCELLENT SCORES ON TESTS, VERY CARING INDIVIDUAL. 14 BUT.... 15 Q. 16 THE COURSE? 17 A. 18 SESSION WHILE SHE WAS THERE. 19 Q. 20 CLASS? 21 A. 22 HIGHEST. 23 I DON'T TRY TO DISSUADE PEOPLE, I GUESS YOU WOULD SAY. 24 LIKE TO SEE GOOD PEOPLE THAT DO UNDERSTAND AND CAN PICK UP THE 25 CONCEPTS. UH-HUH, WE DO. THAT IS ONE OF THE BENEFITS OF THE PROGRAM THAT IS PROBABLY THE MOST THEY REALLY ENJOY THAT PART. NO, I DID NOT. SHE DID REALLY WELL IN CLASS. DID YOU SAY YOU GRADED MS. NEWTON? YEAH. BUT IT IS DID YOU GRADE HER IN HER COURSE GRADE WAS ACTUALLY THE HIGHEST IN THE DO YOU REMEMBER WHAT HER GRADE POINT AVERAGE WAS IN THE 97-POINT -- I HAVE A NOTE. 97-PLUS. BUT IT WAS THE I DO TEACH THE CLASS TO GET TO ACHIEVE -- I TEACH -- DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC SO I 208 JOYCE - DIRECT / ETTINGHOFF 1 Q. UH-HUH. 2 A. THAT IS MOSTLY WHAT WE ARE DEALING WITH IS CONCEPTS. 3 Q. MS. NEWTON'S BROTHER-IN-LAW WAS IN THE COURSE AT THE SAME 4 TIME, CORRECT? 5 A. YES. 6 MR. LAFAYETTE: 7 THE COURT: 8 THE WITNESS: 9 THE COURT: 10 OBJECTION. RELEVANCY, YOUR HONOR. OVERRULED. I AM SORRY? YOU CAN ANSWER. THE WITNESS: I AM SORRY. 11 A. 12 REFINERY RIGHT NOW. 13 BY MR. ETTINGHOFF: 14 Q. MS. NEWTON HAD A HIGHER SCORE THAN HIM? 15 A. AS FAR AS -- YEAH. 16 Q. DID MS. NEWTON COMPLETE THE COURSE? 17 A. NO. 18 Q. CAN YOU EXPLAIN WHY? 19 A. SHE RECEIVED A JOB OFFER FROM SHELL AND, OF COURSE, THAT 20 WAS BETTER THAN COMPLETING THE COURSE, WAS IF YOU GAINED THE 21 EMPLOYMENT. 22 YEAH. HE'S ACTUALLY EMPLOYED AT THE REFINERY -- RICHMOND YEAH. AS FAR AS TEST SCORES, YES. THAT'S WHAT WE ARE TRYING TO ACHIEVE. MOST STUDENTS THAT GO THROUGH THE CLASS TRY TO FIND 23 EMPLOYMENT. 24 TRY. 25 DEPENDS ON THE CLASS, BUT THREE TO FIVE PEOPLE PER CLASS. MANY OF THEM DO NOT. SOME OF THEM DON'T EVEN SOME WILL SUCCEED IN GETTING JOBS. USUALLY, I'D SAY, DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC AND 209 JOYCE - DIRECT / ETTINGHOFF 1 EACH CLASS CAN BE ANYWHERE FROM 15 TO 20 PEOPLE. 2 SO THERE'S NO GUARANTEES TO ANYTHING. 3 Q. 4 THERE ANY PARTICULAR QUALITIES THAT STOOD OUT TO YOU? 5 A. 6 PEOPLE. 7 Q. UH-HUH. 8 A. SHE HELPED OUT. 9 WITH THAT WAS KIND OF NODDING OFF IN CLASS, WHICH IS VERY OKAY. AND MS. NEWTON WAS A STUDENT IN YOUR CLASS. WAS AS FAR AS CIARA, I KNOW SHE WAS VERY CONCERNED WITH OTHER I HAD ONE STUDENT I WAS NOT TOO PLEASED 10 HIGHLY FROWNED UPON, OF COURSE. 11 HEY, SIT HERE, YOU KNOW. 12 PROCESS HIM THROUGH THE PROCESS. 13 CARING PERSON. 14 Q. YOU WOULD SAY SHE WAS A TEAM PLAYER? 15 A. YEAH. 16 Q. LET'S TALK A LITTLE BIT MORE ABOUT THE COURSE ITSELF. 17 YOU TEACH ANY SAFETY TOPICS DURING MS. NEWTON'S COURSE? 18 A. 19 CLASS WITH A SAFETY TOPIC. 20 BASED ON SAFETY. 21 TO TEACH PEOPLE, TO GET THAT MINDSET, CHANGE THE WAY PEOPLE 22 BEHAVE. 23 IN THE GENERAL PUBLIC, NOT ABIDING BY RULES AND REGULATIONS. 24 THIS KIND OF STUFF. 25 AND SHE TOOK HIM IN AND SAID KIND OF HELPED HIM THROUGH THE YEAH, DEFINITELY. SHE SEEMED TO BE A VERY DEFINITELY. THAT IS OUR MAIN FOCUS SAFETY IS SAFETY. DID WE START THE WE CONTINUE THE ENTIRE SESSION THAT IS THE NUMBER ONE ASPECT OF THE CLASS, IT'S VERY DIFFICULT FOR ME TO SEE HOW PEOPLE BEHAVE SO I TRY TO INSTILL IN MY CLASS -- AND MYSELF, MY OWN DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 210 JOYCE - DIRECT / ETTINGHOFF 1 BEHAVIOR, OF COURSE -- YOU KNOW, RULES, REGULATIONS, SAFETY. 2 THESE ARE THINGS THAT ARE INCREDIBLY IMPORTANT. 3 TYPES OF JOBS, YOU'RE -- THERE'S AN INCREDIBLE SENSE OF 4 RESPONSIBILITY TO THE SURROUNDING COMMUNITY, YOUR COWORKERS, 5 THE ENVIRONMENT. 6 I TEACH AND AS A COMPANY THAT I WORK FOR. 7 IMPORTANT THING. 8 IS KNOWN FOR NOT NECESSARILY BEHAVING IN THAT FASHION. 9 Q. IN THESE SO SAFETY IS THE MOST IMPORTANT ASPECT THAT THAT IS THE MOST IT USED TO NOT BE LIKE THAT. THE INDUSTRY AND WOULD YOU SAY THAT MS. NEWTON WAS ATTENTIVE TO THAT 10 TOPIC? 11 A. ABSOLUTELY. 12 Q. DID THE TOPIC OF COMPLACENCY EVER COME UP WHEN YOU TAUGHT 13 ABOUT SAFETY? 14 A. 15 USE THE TERM KILLER, BUT IT IS THE WORSE ASPECT OF THIS TYPE 16 OF INDUSTRY AND -- 17 Q. IF YOU DON'T MIND ARE DESCRIBING WHAT COMPLACENCY IS. 18 A. COMPLACENCY IS JUST GOING ALONG WITH WHAT IS THE STATUS 19 QUO, NOT STEPPING UP. 20 COMPLACENCY IS THE NUMBER ONE, I WOULD SAY -- I SHOULDN'T JUST KIND OF ALLOWING THINGS TO OCCUR. SO THAT'S -- THAT IS THE MAIN THING THAT I STRIVE TO 21 ELIMINATE BECAUSE THIS IS DIFFICULT PROFESSION, ESPECIALLY 22 WITH THE HOURS THAT THESE FOLKS WORK. 23 TOUGH. 24 WEIRD SHIFTS, LONG SHIFTS. 25 MISSING DETAILS. IT'S... IT'S... IT'S A LOT OF TIMES WHAT HAPPENS IS YOU END UP WORKING YOU END UP KIND OF MISSING SOME... DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 211 JOYCE - DIRECT / ETTINGHOFF 1 Q. WOULD YOU SAY -- 2 A. WHEN YOU TALK ABOUT COMPLACENCY, IT'S LIKE JUST KIND OF 3 LETTING THINGS GO, NOT WORKING WORRYING ABOUT IT, AND THAT IS 4 WHAT LEADS TO MOST ISSUES THAT WE STUDY. 5 STUDYING ON THE CHEMICAL SAFETY BOARD AND THINGS THAT HAVE 6 OCCURRED. 7 AT THIS, DO NOT LET THESE THINGS HAPPEN. 8 9 WE DO A LOT OF AND I TRY TO PREACH TO THE STUDENTS LIKE, HEY, LOOK I'VE BEEN PRETTY HAPPY WHEN MY STUDENTS COME BACK TO ME SAYING HEY, MIKE, THIS STARTED HAPPENING AND I STOPPED IT, AND 10 I REMEMBER FROM ONE OF THE VIDEOS YOU SHOWED US. 11 LIKE, THAT'S WHY I SHOW THEM TO YOU. 12 TO PREVENT THINGS FROM HAPPENING BECAUSE THINGS SNOWBALL, AND 13 THERE'S BEEN ENOUGH MAJOR EVENTS OF THESE KIND OF THINGS. 14 SORRY IF I'M RATTLING ON HERE. 15 Q. 16 WAS THERE ANY PARTICULAR VIDEO YOU SHOWED DURING MS. NEWTON'S 17 CLASS? 18 A. 19 TEXAS CITY, VERY HORRIBLE EVENT THAT HAPPENED. 20 BASED ON COMPLACENCY, THE LACK OF ATTENTION, PEOPLE THAT WERE 21 OVERWORKED, BAD INFORMATION TRANSFER, WHAT WE CALL TURNOVERS 22 IN INDUSTRY WHERE YOU HAVE TO SIT THERE AND TALK WITH THE 23 PERSON THAT'S REPLACING YOU, TELLING THEM EXACTLY WHAT IS 24 GOING ON. 25 AND I'M I WANT YOU TO LEARN HOW YOU MENTIONED VIDEOS THAT YOU SHOWED DURING THE CLASS. WELL, WE ALWAYS SHOW ONE OF THE MAIN EVENTS, 2005 CALLED IT IS ALL YOU ALSO HAVE TO WRITE THINGS DOWN. SO COMMUNICATION, OVERWORK -- THERE IS A LOT OF ANGLES. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 212 JOYCE - DIRECT / ETTINGHOFF 1 THAT IS LIKE ONE OF THE WORSE EXAMPLES OF A CATASTROPHE THAT 2 COULD HAVE BEEN PREVENTED. 3 Q. AND DO YOU RECALL THE DETAILS OF WHAT WAS IN THAT VIDEO? 4 A. WELL, THAT ONE IN PARTICULAR -- 5 MR. LAFAYETTE: 6 THE COURT: OBJECTION ON RELEVANCY. OVERRULED. 7 BY MR. ETTINGHOFF: 8 Q. GO AHEAD, MR. JOYCE. 9 A. OKAY. 10 11 CLASS. THAT ONE IN PARTICULAR WE SHOW EVERYBODY IN THE THAT IS HOW WE STARTED ACTUALLY. AND WHAT HAPPENED THERE WAS JUST OVERSIGHTS. OVERWORKED 12 PEOPLE, MISMANAGED FOLKS, MISMANAGED EMPLOYEES, EQUIPMENT THAT 13 DIDN'T FUNCTION PROPERLY. 14 PROBABLY THE MOST IMPORTANT THING IS NOT FOLLOWING 15 PROTOCOL, PROCEDURES. 16 ORDER -- ANYTIME -- IT'S ABOUT STARTING A PROCESS UNIT. 17 IT WAS INADEQUATE SAFETY EQUIPMENT THAT SOME... 50-YEAR-OLD 18 TECHNOLOGY THAT THEY WERE USING REALLY SURPRISING. 19 HOPEFULLY, WELL, NO, IT DOESN'T HAPPEN IN CALIFORNIA, BUT THIS 20 WAS IN TEXAS. 21 THAT, YOU KNOW, WHEN YOU LOOK AT IT, YOU'RE LIKE, REALLY? 22 THIS IS SO OBVIOUS. 23 EVERYTHING HAS TO BE FOLLOWED IN SO... BUT A LOT OF OVERSIGHT. PLUS THEY -- A LOT OF THINGS BUT THESE THINGS SNOWBALL AND THEY HAPPEN. AND THAT ONE 24 ENDED UP... CAUSING A LOT OF LIVES, INNOCENT LIVES, IN FACT. 25 THAT'S ONE OF THE THINGS WE STUDY. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 213 JOYCE - DIRECT / ETTINGHOFF 1 SOME NOT QUITE AS HEAVY, BUT THAT WE DO LEAD OFF WITH 2 THAT. 3 ABOUT SAFETY. 4 Q. 5 HAZARDOUS CHEMICALS? 6 A. 7 ONE. 8 PROTECTIVE EQUIPMENT, WHAT YOU HAVE TO WEAR, HOW YOU HAVE TO 9 HANDLE MATERIAL, UNDERSTANDING WHAT THEY CALL SAFETY DATA AND SO THE MAIN FOCUS FOR ME IS -- LIKE I SAY, IT IS DID YOU EVER DISCUSS IN THE COURSE ABOUT WORKING WITH OF COURSE. WE STRESS THE -- LIKE I SAY, SAFETY IS NUMBER EVERYTHING IN THIS INDUSTRY IS BASED ON PERSONAL 10 SHEETS, KNOWING THE CHEMICALS YOU'RE WORKING WITH, PRECAUTIONS 11 YOU HAVE TO TAKE. 12 NOTHING KEPT SECRET. 13 THAT CONSTANTLY, YES. 14 Q. 15 YOU WORKED AT CHEVRON? 16 A. ALL THAT INFORMATION IS THERE. IT'S JUST -- BUT YEAH, WE TALK ABOUT DID YOU HAVE ANY EXPERIENCE WORKING WITH CHEMICALS WHILE YEAH. WELL, I MEAN -- 17 MR. LAFAYETTE: 18 THE COURT: 19 20 THERE IS OBJECTION. RELEVANCY, YOUR HONOR. WHAT IS THE RELEVANCE? LITTLE BIT OF LATITUDE. MR. ETTINGHOFF: I'VE GIVEN YOU A WHAT IS THE RELEVANCE HERE? YOUR HONOR, MS. NEWTON -- THERE WAS 21 AN INCIDENT INVOLVING ACID AND MR. JOYCE HAD A PARTICULAR 22 EXPERIENCE WITH THE CHEMICAL, SULFURIC ACID. 23 24 25 MR. LAFAYETTE: NOT BEEN DESIGNATED AS AN EXPERT, YOUR HONOR. THE COURT: RESPONSE? DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 214 JOYCE - DIRECT / ETTINGHOFF 1 MR. ETTINGHOFF: HE TAUGHT THIS TOPIC DURING THE 2 COURSE AND IT'S IMPORTANT TO KNOW IF MS. NEWTON LEARNED ABOUT 3 IT DURING THE COURSE BEFORE SHE WENT TO WORK AT SHELL. 4 THE COURT: I WILL LET YOU DO THAT PORTION ONLY. 5 NOTHING BEYOND THAT. 6 BY MR. ETTINGHOFF: 7 Q. 8 SULFURIC ACID AT CHEVRON? 9 A. GO AHEAD. YOU CAN ASK YOUR QUESTION. MR. JOYCE, DID YOU HAVE ANY EXPERIENCE WORKING WITH YES. I WORKED IN WHAT THEY CALL A SULFURIC ACID 10 ALKYLATION UNIT WHICH -- WHERE SULFURIC ACID IS A CATALYST AND 11 WHAT'S CALLED AN ALKYLATION PROCESS WHERE YOU ARE COMBINING A 12 COUPLE OF DIFFERENT MATERIALS AND IT HAS TO REACT WITH THE 13 ACID TO MAKE SOMETHING ELSE. 14 ACID CONSTANTLY, DEALT WITH ALL THE PPE REQUIREMENTS, EXTRA 15 SPECIAL ATTENTION TO AREAS THAT CONTAIN THE MATERIAL. 16 KIND OF STUFF, YEAH. 17 Q. 18 PROTECTIVE EQUIPMENT. 19 YOU'RE DEALING WITH -- IS THAT SOMETHING YOU WOULD NEED WHEN MR. LAFAYETTE: 21 MR. ETTINGHOFF: 22 THE COURT: 24 25 A. THAT IS THERE A REASON WHY YOU -- YOU MENTIONED PERSONAL 20 23 IT'S -- SO WE DEALT THE SULFURIC ABSOLUTELY. OBJECTION, YOUR HONOR. -- SULFURIC ACID? OVERRULED. SO AS WITH -- THE COURT: THAT'S THE ANSWER. I HAVE TO TAKE THIS QUESTION BY QUESTION GIVEN THE NATURE OF THE OBJECTIONS. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC WHAT 215 JOYCE - DIRECT / ETTINGHOFF 1 IS YOUR NEXT QUESTION? 2 BY MR. ETTINGHOFF: 3 Q. 4 ABOUT SAFETY? 5 A. 6 YOU ARE ULTIMATELY RESPONSIBLE FOR YOUR OWN SAFETY. 7 SOMETHING I STRESS AND HIGHLIGHT. 8 Q. 9 ASK QUESTIONS DURING THEIR TRAINING? DID YOU GIVE ANY GENERAL ADVICE OR TIPS TO YOUR STUDENTS GENERAL? YEAH. THAT IS THE MOST IMPORTANT THING. AND THAT'S WOULD YOU SAY IT IS IMPORTANT FOR NEW PROCESS OPERATORS TO 10 MR. LAFAYETTE: 11 THE COURT: LEADING, YOUR HONOR. SUSTAINED. 12 BY MR. ETTINGHOFF: 13 Q. 14 IS LIKE FOR WOMEN TO WORK IN A REFINERY? DID YOU EVER HAVE A CONVERSATION WITH CIARA ABOUT WHAT IT 15 MR. LAFAYETTE: 16 THE COURT: 17 MR. LAFAYETTE: 18 THE COURT: OBJECTION, YOUR HONOR. OVERRULED. IMPROPER OPINION. OVERRULED. THE JURY CAN DECIDE THE 19 EXTENT AND WEIGHT TO GIVE ANY WITNESS'S OPINION. 20 JOB. 21 A. 22 UNUSUAL FOR ME TO TALK TO MY STUDENTS AND JUST TRY TO TELL 23 THEM, HEY, THIS IS NOT A JOB FOR EVERYBODY. 24 SOMETHING YOU WANT -- YOU NEED TO KNOW WHAT YOU ARE GETTING 25 INTO HERE, I GUESS IS THE BOTTOM LINE. THAT IS YOUR GO AHEAD. YEAH, I ACTUALLY PULLED CIARA ASIDE EARLY-ON. IT IS NOT THIS IS NOT THAT WOULD BE -- BUT DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 216 JOYCE - DIRECT / ETTINGHOFF 1 YEAH, I WAS CONCERNED. 2 WANT TO DO THIS? 3 WHY WOULD YOU WANT TO DO THIS? SHE INDICATED SHE SPOKE WITH HER FATHER -- 4 MR. LAFAYETTE: 5 THE COURT: 6 MR. ETTINGHOFF: 7 OBJECTION. RESPONSE? HEARSAY, YOUR HONOR. IT IS HEARSAY. IT IS NOT FOR THE TRUTH OF THE MATTER ASSERTED. 8 THE COURT: 9 MR. ETTINGHOFF: 10 AND I ACTUALLY ASKED HER, WHY DO YOU THEN WHAT IS IT FOR? IT'S TO GO TO MS. NEWTON'S DESIRE TO WORK IN THE REFINERY. 11 THE COURT: WELL, THAT IS THE TRUTH IT SOUNDS LIKE. 12 SUSTAINED. 13 BY MR. ETTINGHOFF: 14 Q. 15 OTHER OPERATORS? 16 A. 17 WOMEN THAT HAVE BEEN THROUGH THE OPERATIONS ASPECT. 18 GET THEM TOGETHER AND I DON'T GET INVOLVED WITH WHAT THEY TALK 19 ABOUT, BUT I LET THEM KIND OF DO THEIR THING BECAUSE I THINK 20 THAT IS PRETTY IMPORTANT. 21 IS A TOUGH BUSINESS FOR WOMEN. 22 THAT. 23 DID YOU EVER SET UP A MEETING WITH MS. NEWTON AND ANY WHAT I DO, ESPECIALLY WITH THE WOMEN, IS I DO HAVE OTHER SO, YES. I MEET -- KIND OF GET AWAY OF THE GUYS. IT THERE IS NO QUESTION ABOUT YEAH, I DO. 24 Q. 25 REFINERY FOR 15 YEARS AND ALSO TEACHING MS. NEWTON, DID YOU BASED ON YOUR EXPERIENCE AS AN OPERATOR AT THE CHEVRON DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 217 JOYCE - DIRECT / ETTINGHOFF 1 FORM ANY OPINION ABOUT WHETHER SHE WAS CAPABLE OF BECOMING A 2 PROFICIENT PROCESS OPERATOR? 3 4 MR. LAFAYETTE: OBJECTION. IMPROPER OPINION, LACKING IN FOUNDATION. 5 THE COURT: OVERRULED. 6 A. 7 THEY HAVE THE DESIRE AND PROPER TRAINING. 8 WHETHER SOMEBODY IS GOING TO SPEND THE TIME WITH YOU. 9 A STUDENT NOW THAT HER PROFESSION WAS A DOG TRAINER, DOG SO THE THING WAS ANYBODY CAN DO THIS PARTICULAR JOB IF THAT'S THE KEY, IS I HAVE 10 GROOMER. 11 BUT I TALKED WITH HER. 12 THEY'RE SAYING WHAT A FANTASTIC JOB SHE'S DOING AND THE KEY 13 WAS BECAUSE WHO WAS TRAINING HER. 14 THIS JOB IS ALL ABOUT TRAINING. 15 CONTINUOUS, AND IT GOES ON FOR AS LONG AS YOU'RE EMPLOYED 16 THERE. 17 SUCCEED. 18 Q. 19 TRAINED TO BECOME A PROFICIENT REFINERY OPERATOR? AND THAT'S THE MAIN THING. IT'S CONSTANT, IT IS HOW LONG WOULD YOU SAY IT TAKES FOR AN OPERATOR TO BE MR. LAFAYETTE: OBJECTION. RELEVANCE AND IMPROPER OPINION. 22 THE COURT: 23 MR. ETTINGHOFF: 24 THE COURT: 25 I TALKED WITH HER TRAINING FOLKS AND THAT IS THE KEY AS TO HOW ANYBODY SUCCEEDS OR DOESN'T 20 21 AND I WAS LIKE, WHAT KIND OF BACKGROUND IS THAT? A PROCESS OPERATOR? OR REFINE -- REFINERY PROCESS OPERATOR. ALL RIGHT. I'LL ALLOW IT. THE OBJECTION IS OVERRULED. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 218 JOYCE - CROSS / LAFAYETTE HOW LONG? THAT IS AN OPINION AND THOSE OPINIONS WOULD 1 A. 2 VARY FROM TEN YEARS ON. 3 THERE IS DIFFERENT LEVELS BUT IT IS A CONTINUOUS TRAINING 4 PROCESS. 5 QUALIFIED AS WHAT THEY CALL AN OPERATOR, PROCESS PLANT 6 OPERATOR IS CONTINUOUS TRAINING THE WHOLE TIME. 7 THAT POINT, IT IS JUST NONSTOP. 8 YOU DON'T COME INTO THE PLACE AND UNDERSTAND WHAT IS GOING ON. 9 IT JUST DOESN'T WORK LIKE THAT. PROFICIENT, COMPETENT, YOU KNOW. WITH WHAT I WENT THROUGH IS THREE YEARS TO GET FULLY EVEN THEN AT YOU ARE CONSTANTLY LEARNING. 10 MR. ETTINGHOFF: 11 THE COURT: 12 JUROR: 13 THE COURT: YES. 14 THE CLERK: DID YOU WRITE IT DOWN? THE COURT: NO, SHE DIDN'T WRITE IT DOWN. 15 CROSS. MAY I HAVE ANOTHER PEN? CAN WE GET HER ANOTHER PEN, PLEASE? OH, YOU NEED A PEN. 16 17 NO FURTHER QUESTIONS. HAVE A PEN. (LAUGHTER) 18 YOU MAY PROCEED. 19 THE COURT: 20 MR. LAFAYETTE: 21 THANK YOU, YOUR HONOR. CROSS-EXAMINATION 22 BY MR. LAFAYETTE: 23 Q. GOOD MORNING, SIR. 24 A. GOOD MORNING. 25 Q. WE HAVE NEVER MET, HAVE WE? DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC SHE DIDN'T 219 JOYCE - CROSS / LAFAYETTE 1 A. ARE YOU GARY? 2 Q. I'M GARY. 3 A. HI, GARY. 4 Q. HAVE YOU MET WITH PLAINTIFF'S COUNSEL? 5 A. I'M SORRY? 6 Q. HAVE YOU MET WITH ANY OF THE LAWYERS HERE? 7 A. YES, I HAVE. 8 Q. YOU HAVE? 9 A. YES. 10 Q. SO I HAVE A FEW QUESTIONS FOR YOU. 11 A. SURE. 12 Q. YOU MENTIONED SOMETHING ABOUT THE SUCCESS OF YOUR PROGRAM, 13 RIGHT? 14 A. UH-HUH. 15 Q. AND HOW DO YOU MEASURE SUCCESS? 16 A. GETTING -- BOTTOM LINE, GETTING PEOPLE EMPLOYED. 17 Q. GETTING PEOPLE EMPLOYED? 18 A. YEAH. 19 Q. YOU BELIEVE YOU'VE BEEN SUCCESSFUL AT THAT? 20 A. I AM PRETTY PROUD OF THAT. 21 Q. THANK YOU. 22 YOU CALLED ME BUT WE HAVEN'T MET IN PERSON, NO. YES, SIR. THIS YEAR DID YOU GET EIGHT PEOPLE EMPLOYED? 23 A. THIS YEAR BEING 2018, CURRENTLY AS WE STAND -- 24 Q. YES. 25 A. I'D SAY THAT IS ACCURATE. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 220 JOYCE - CROSS / LAFAYETTE 1 Q. AT CHEVRON? 2 A. THERE ARE OTHERS IN OTHER POSITIONS, OTHER COMPANIES. 3 Q. HOW MANY DIFFERENT REFINERIES ARE THERE AROUND HERE THAT 4 YOU'VE GOTTEN PEOPLE EMPLOYED IN? 5 A. 6 COMPANY CALLED CHEMTRADE. 7 GAS. 8 KINDER MORGAN. 9 Q. SO SHELL, PHILLIPS 66, VALERO, TESORO. THERE IS ALSO A THERE'S ALSO MATHES -- MATHESON THERE IS MANY DIFFERENT -- THERE IS PIPELINE COMPANIES. GOSH, THE LIST GOES ON. AND HAVE YOU BEEN GETTING PEOPLE EMPLOYED AT ALL OF THESE 10 DIFFERENT PLACES SINCE 2015? 11 A. 12 PROBABLY -- YEAH, BY THE TIME THEY FINISHED THE PROGRAM WAS 13 PROBABLY 2015, AT PHILLIPS 66 ACTUALLY. 14 Q. 15 PROGRAM, ARE THEY GUARANTEED A JOB -- 16 A. NO. 17 Q. OR DO THEY -- 18 A. NO. 19 DOING IS EVALUATING STUDENTS. 20 CLASS. 21 I STARTED IN '14. AND MY FIRST HIRE, TECHNICALLY, WAS AND THE INDIVIDUALS WHO TAKE -- WHO PARTICIPATE IN YOUR NO. IN FACT, YOU KNOW, CURRENTLY, GARY, WHAT I'M TODAY IS THE LAST DAY OF OUR HOW CONVENIENT FOR ME. IT'S A BELL-CURVE-TYPE SITUATION WHERE THERE'S OUTSTANDING 22 INDIVIDUALS THAT WILL GET OUR BACKING. 23 FOLKS THAT DID WELL, THEY ARE KIND OF ON THEIR OWN. 24 IS OTHER PEOPLE I WOULD ABSOLUTELY SAY NO WAY. 25 Q. THERE'S A BULK OF THE AND THERE DO PEOPLE WHO TAKE YOUR CLASS, DO THEY HAVE TO APPLY TO DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 221 JOYCE - CROSS / LAFAYETTE 1 THE VARIOUS REFINERIES IN ORDER TO GET JOBS? 2 A. 3 PURPOSE OF THE ROP PROGRAM IS TO GIVE A GENERAL AWARENESS OF 4 WHAT THIS JOB ENTAILS. 5 CHEVRON REFINERY BECAUSE THAT IS WHAT I KNOW AND THAT IS THE 6 MATERIAL I HAVE. 7 AFTER THEY REALIZE, YOU KNOW, THIS IS A PRETTY GOOD PLACE TO 8 BE -- AND CURRENTLY I'M SOMEWHERE AROUND 40 PEOPLE HIRED IN 9 THAT TIME, BUT -- AND WITH MORE COMING AS WE SPEAK. 10 OH, ABSOLUTELY. YEAH. YEAH. SO THERE'S NO -- THE WE, OF COURSE, GEAR IT TOWARDS THE SO THAT'S WHERE THEY WANT TO BE. OF COURSE, I'M HOPING TO HEAR ANY MINUTE NOW ON A NEW BATCH. 11 SO -- 12 Q. CONGRATULATIONS. 13 A. YEAH, YEAH. 14 Q. BASED UPON THE WORK THAT YOU'VE BEEN DOING, DO YOU HAVE AN 15 UNDERSTANDING AS TO WHETHER OR NOT THE VARIOUS REFINERIES 16 AROUND HERE HAVE BEEN HIRING PEOPLE SINCE -- IN OPERATOR 17 POSITIONS SINCE 2015? 18 A. 19 THIS AGING BABY BOOMERS ARE MOVING ON. 20 INFLUX, THERE IS A BIG TURNOVER GOING ON. 21 HIRING EVERYWHERE. 22 NOW IS THE TIME. 23 THEM LAST NIGHT, HEY, YOU GUYS ARE IN A GREAT SPOT HERE. 24 Q. 25 STUDENTS ANYTHING ABOUT WHETHER OR NOT THESE ARE UNION SO -- I MEAN I DON'T KNOW -- RIGHT NOW, OF COURSE, ALL THERE IS A HUGE THERE IS PEOPLE IT IS NOT JUST THE REFINERIES. BUT, YES, I TELL MY STUDENTS THAT ARE GRADUATING, TOLD WHEN YOU ARE TEACHING YOUR CLASSES, DO YOU TELL YOUR DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 222 JOYCE - CROSS / LAFAYETTE 1 POSITIONS? 2 A. YEAH. 3 Q. AND DO YOU TELL THEM ANYTHING ABOUT THE COMPENSATION 4 BECAUSE OF THE STATUS THAT THEY ARE UNION POSITIONS? 5 A. WE TALK ABOUT THE GENERAL RANGE OF MONIES, YEAH. 6 Q. WHAT DO YOU TELL THEM? 7 A. IT'S A GOOD PLACE TO BE. 8 OF THE MONEY -- SO THESE ARE FOLKS GENERALLY SPEAKING THAT 9 ARE, YOU KNOW, WE DON'T HAVE OUR COLLEGE DEGREES PER SE. YEAH. A LOT OF MONEY TO BE MADE. 10 DON'T HAVE FAMILY MONIES. 11 TYPES, RIGHT? 12 I GET EMPLOYED, IF I APPLY MYSELF, I CAN MAKE SOME PRETTY 13 DECENT MONEY. 14 IT WOULD INVOLVE LONG HOURS, BUT PEOPLE ARE WILLING TO DO 15 THAT. 16 EVERYBODY. 17 Q. 18 COULD EXPECT? 19 A. AN IDEA. 20 Q. WHAT DO YOU TELL THEM? 21 A. LOW -- $33 AN HOUR-ISH, DEPENDING ON WHAT IS GOING ON. 22 RIGHT NOW, THEY ARE GOING THROUGH CONTRACTS AND STUFF. 23 KIND OF KEEP THEM ABREAST. 24 Q. 25 MOST WE IT IS PRETTY HARD-CORE, BLUE-COLOR THE IDEA THAT IF I GO THROUGH THIS TRAINING, IF MOST OF IT WOULD BE BASED ON OVERTIME. MOST OF I ALWAYS WARN THEM, HEY, LIKE I SAID, THIS IS NOT FOR THIS IS A TOUGH WAY TO GO. DO YOU GIVE THEM A RANGE OF HOURLY RATES FOR WHAT THEY JUST DO YOU TELL THEM THEY WILL GET BENEFITS TOO? MR. ETTINGHOFF: OBJECTION. OUTSIDE THE SCOPE. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 223 JOYCE - CROSS / LAFAYETTE 1 THE COURT: SUSTAINED. 2 BY MR. LAFAYETTE: 3 Q. 4 TRAINING. 5 A. UH-HUH. 6 Q. WHAT DOES THAT MEAN IN CONNECTION WITH YOUR PROGRAM? 7 A. SO WHAT WE LIKE TO DO -- GARY, WHAT WE LIKE TO DO IS, THE 8 JOB IS NOT ACTUAL TRAINING, ON-SITE TRAINING. 9 ON-SITE, EXCUSE ME. SO NOW LET'S TALK A LITTLE BIT ABOUT THAT -- YOUR YOU MENTION THE WORD AWARENESS. BUT YOU ARE NOT HANDS-ON. WELL, WE ARE YOU'RE NOT AN 10 EMPLOYEE. 11 LOOKING AT IT FROM 30,000 FEET. 12 BRINGING IN ALL THESE DIFFERENT CONCEPTS, IDEAS, AND THINGS 13 THAT ARE VERY -- WHAT WOULD I SAY -- UNUSUAL? 14 MOST PEOPLE HAVE NO CLUE ABOUT THIS KIND OF STUFF, SO PEOPLE 15 ARE FASCINATED. 16 WHAT I DO IS GIVE YOU AN OVERVIEW. WE CALL IT YOU ARE LOOKING AT SOMETHING, I WAS JUST DOING AN EVALUATION LAST NIGHT. OR DIFFERENT? THEY TELL ME, 17 HEY, THIS WAS A GREAT EXPERIENCE. 18 REALLY ENJOYED THIS CLASS, I'VE LEARNED SO MUCH; MAY NOT WANT 19 TO DO THE JOB BUT OTHERS ARE SO GUNG HO ABOUT WANTING TO DO 20 THE JOB. 21 THIS TYPE OF WORK ENTAILS. 22 IT DOESN'T. 23 Q. 24 TO GO INTO THE REFINERY AND TOUCH AND WORK ON THE EQUIPMENT 25 THERE? I'VE HAD PEOPLE SAY I BUT MY JOB IS JUST TO GIVE THEM AN IDEA WHAT -- WHAT SOME PEOPLE, IT WORKS, SOME PEOPLE WHEN YOU ARE DOING THIS TRAINING WITH THEM, ARE YOU ABLE DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 224 JOYCE - CROSS / LAFAYETTE 1 A. NO. 2 Q. OKAY. 3 A. WHAT THEY -- WHAT THE -- THE BIG ADVANTAGE TO MY CLASS AS 4 OPPOSED TO MOST OTHERS IS WE DO GET TO GO IN. 5 HANDS ON EQUIPMENT? 6 Q. NO. 7 A. NO. 8 Q. OKAY. 9 A. NO, NO. 10 Q. SO WHEN THEY FINISH YOUR CLASS -- 11 A. UH-HUH. 12 Q. -- ARE THEY READY TO GO ON SHIFT IN A REFINERY AND START 13 DOING THE JOB RIGHT THERE AND THEN? 14 A. THEY ARE READY TO APPLY FOR A JOB. 15 Q. ALL RIGHT. 16 A. THAT IS THE GOAL, IS TO PREPARE THEM FOR WHAT THEY ARE 17 GETTING INTO. 18 METHOD OF BEHAVIORAL BASED TRAINING, WHICH IS WHAT CHEVRON 19 DOES. 20 INTERVIEW. 21 Q. I THINK -- 22 A. AS FAR AS, NO. 23 Q. NO. 24 A. BASICALLY, HOW IT WORKS. 25 CLASS, IT'S NOT LIKE YOU CAN THROW OUT EVERYTHING YOU LEARNED TO PUT YOUR AND WE ACTUALLY PREPARE THEM FOR THE STAR SO WE SPEND ALMOST A MONTH JUST TRAINING THEM ON HOW TO GOT IT? WE TELL THEM, YOU GO THROUGH MY DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 225 JOYCE - CROSS / LAFAYETTE 1 BUT YOUR NEXT STEP ONCE YOU GET EMPLOYED IS BASIC TRAINING, 2 WHICH AT CHEVRON IS SEVEN TO NINE WEEKS. 3 YOUR TRAINING HASN'T EVEN BEGUN YET UNTIL YOU ACTUALLY HIT THE 4 UNIT. 5 THAT IS WHEN YOUR TRAINING REALLY HAPPENS. 6 ROLL IT ALL TOGETHER AND IT IS A CONTINUOUS SNOWBALL OF 7 LEARNING. 8 9 YOU FINISH THAT, ONCE YOU HIT THE PARTICULAR UNIT YOU'RE ASSIGNED TO, SO, YES. YOU'RE NOT PREPARED. SO YOU KIND OF YOU HAVE AN IDEA. IN FACT, WE TEACH PEOPLE DON'T GO IN THERE LIKE YOU KNOW WHAT'S 10 GOING ON BECAUSE THAT REALLY TURNS PEOPLE OFF. 11 STRESS THE WHOLE IDEA OF SAFETY. 12 IS STOP, WORK, AUTHORITY. 13 IF I DON'T SEE -- IF I SEE SOMETHING I DON'T LIKE, I CAN SAY, 14 HEY, STOP, LET'S TALK ABOUT THIS. 15 HUGE, HUGE INSISTENCES, I WOULD SAY. 16 Q. 17 FOR 15 YEARS? 18 A. UH-HUH. 19 Q. WHAT YEARS DID YOU WORK AS AN OPERATOR? 20 A. '78 TO '93. 21 Q. WAS THAT ALL AT CHEVRON? 22 A. YES. 23 Q. WOULD IT BE ACCURATE, THE LAST TIME YOU ACTUALLY OPERATED, 24 YOU WORKED ON A SHIFT WAS IN 1993? 25 A. BUT WE ALSO AT CHEVRON, THE WHOLE THING STOP, PAUSE WORK, AUTHORITY, WHERE THAT IS ONE OF OUR HUGE, YOU -- I THOUGHT I HEARD YOU SAY YOU WORKED AS AN OPERATOR CORRECT. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 226 JOYCE - CROSS / LAFAYETTE 1 Q. AND YOU'VE NEVER WORKED ON SHIFT AT SHELL? 2 A. NEGATIVE. 3 Q. OKAY. 4 SHIFT -- 5 A. DO NOT KNOW SHELL'S PROCESS AT ALL. 6 Q. ALL RIGHT. 7 A. YES. 8 PROCESS. 9 Q. I HAVE NOT. YES. AND SO YOU DON'T KNOW THE PEOPLE WHO WORK ON AND I IMAGINE IT'S DIFFERENT. I ONLY KNOW CHEVRON'S SO IN THE -- DO YOU KEEP IN TOUCH WITH YOUR STUDENTS AFTER 10 THEY LEAVE? 11 A. 12 WOULD LIKE TO KEEP IN TOUCH. 13 MENTOR. 14 Q. 15 HERE AND YOU SAID YOU HAD. 16 WITH MS. CIARA NEWTON? 17 A. I -- UP UNTIL RECENTLY? 18 Q. YES. 19 A. I HAPPENED TO ENCOUNTER HER AND HER FUTURE HUSBAND -- THEY 20 WEREN'T MARRIED AT THE TIME -- THEY WERE OUT HIKING. 21 FAR AS KEEPING IN TOUCH, NO. 22 BROTHER-IN-LAW BECAUSE HE WAS ONE OF MY STUDENTS AND I TALK 23 WITH HIM. 24 EARLIER. 25 Q. SOME, I DO. IT'S KIND OF A TOUGH SPOT FOR ME BECAUSE I I CONSIDER MYSELF MORE OF A BUT IT'S SOMEWHAT FROWNED UPON. I ASKED YOU BEFORE IF YOU'D SPOKE TO THE LAWYERS BEHIND ME AND SINCE 2016, HAVE YOU SPOKEN BUT AS AND I DO OCCASIONALLY SEE HER HE DOES WORK OUT AT CHEVRON, THE ONE WE SPOKE OF AND ASIDE FROM -- DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 227 JOYCE - CROSS / LAFAYETTE 1 A. I DON'T HAVE REALLY ANY RELATIONSHIP WITH THEM -- CIARA. 2 Q. ASIDE FROM HER POSSIBLY ASKING YOU TO PARTICIPATE IN THIS 3 CASE, HAVE YOU HAD ANY CONVERSATIONS WITH HER OTHER THAN, OH 4 HI, HOW ARE YOU? 5 A. 6 CONTEXT AT ALL. 7 Q. 8 HER GET A JOB IN A REFINERY? 9 A. 10 SOMETHING LIKE THAT? ASIDE FROM THIS, NO REALLY CONTEXT AT ALL, NO. ALL RIGHT. HUH-UH. NO REAL HAS SHE CALLED YOU UP AND ASKED YOU TO HELP NO. WELL, SO THE THING -- THE LAST I SAW CIARA AS FAR AS -- 11 SHE WAS ON HER WAY TO SHELL. 12 OF JAM SESSION OF, OKAY, THIS IS HOW YOU PREPARE FOR INTERVIEW 13 KIND OF THING AND THEN.... 14 Q. 15 THERE WAS SOMETHING YOU SPOKE ABOUT EARLIER TODAY. 16 A. OKAY. 17 Q. DID YOU DESCRIBE TO THEM COMPLACENCY CAN BE THE INDIVIDUAL 18 OPERATOR BEING COMPLACENT IN THEIR FUNCTIONS AT THE REFINERY? 19 A. THAT IS -- THAT COULD BE, YES. 20 Q. AND WHEN YOU TALKED TO THEM, DID YOU TELL THEM THAT 21 COMPLACENCY CAN BE NOT PAYING ATTENTION TO DIRECTIONS? 22 A. COULD BE, YES. 23 Q. DID YOU TELL THEM THAT COMPLACENCY CAN BE NOT PERFORMING 24 PROCEDURES IN THE PROPER WAY? 25 A. AND IT WAS A LAST MINUTE, KIND I WANT TO TALK TO YOU A LITTLE BIT ABOUT COMPLACENCY. YES. ABSOLUTELY. SURE. YES. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 228 JOYCE - CROSS / LAFAYETTE 1 Q. 2 PROCEDURES IN THE RIGHT WAY IN A REFINERY, THEY COULD GET 3 PEOPLE KILLED? 4 A. 5 COULD BE POSSIBLE. 6 Q. 7 PROCEDURES AND PEOPLE SEE IT, THEY WILL BRING IT TO THEIR 8 ATTENTION? 9 A. YES. 10 Q. DID YOU TELL THEM THAT IF THEY MAKE MISTAKES, THAT IT'S 11 IMPORTANT FOR THE INTEGRITY OF THE REFINERY THAT THEY BRING 12 THOSE MISTAKES FORWARD? AND DID YOU TELL THEM THAT, IF THEY DON'T FOLLOW THAT'S A STRONG STATEMENT, BUT ON CERTAIN LEVELS THAT YES. AND DID YOU TELL THEM THAT IF THEY DON'T FOLLOW THE 13 MR. ETTINGHOFF: 14 THE COURT: OBJECTION. LEADING. IT'S CROSS-EXAMINATION. OVERRULED. 15 A. YEAH, SO IT SHOULD DEFINITELY BRING BE OPEN ABOUT -- 16 Q. DID YOU GIVE THEM EXAMPLES OF THINGS THAT PEOPLE HAVE DONE 17 IN REFINERIES THAT WERE DANGEROUS? 18 A. 19 RELY ON, WHAT'S CALLED THE CHEMICAL SAFETY BOARD, AND THE 20 VIDEOS THAT THEY HAVE AND WHAT THOSE ARE, THEY WILL COVER 21 CERTAIN SITUATIONS AND LAYOUT THESE THINGS THAT HAPPEN. 22 TRY TO LEARN FROM THAT. 23 HAD PEOPLE ACCUSE ME OF -- OH, YOU DON'T WANT US TO WORK HERE. 24 TRYING TO SCARE THEM. 25 POTENTIAL ISSUES. YEAH. SO MOST OF OUR -- MOST OF THE SAFETY TRAINING I THAT'S THE WHOLE GOAL OF IT. SO WE I'VE BUT IT IS MORE JUST LEARNING ABOUT DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 229 JOYCE - REDIRECT / ETTINGHOF DID YOU TALK TO THEM ABOUT USING DEFECTIVE TOOLS AND 1 Q. 2 EQUIPMENT WHEN WORKING AT A REFINERY? 3 A. DEFECTIVE? 4 Q. BROKEN? 5 A. YOU HAVE TO ALWAYS USE THE RIGHT TOOL FOR THE JOB, YEAH. 6 Q. OKAY. DO YOU KNOW WHAT AN OYSTER SHELL IS? 7 8 A. OYSTER SHELL? 9 Q. YEAH. 10 A. OYSTER SHELL COULD BE -- 11 MR. ETTINGHOFF: 12 MR. LAFAYETTE: 13 THE COURT: 14 MR. LAFAYETTE: 15 THE COURT: 16 OBJECTION. OUTSIDE THE SCOPE. I'LL LEAVE IT, YOUR HONOR. NOTHING ELSE? NO, YOUR HONOR. ALL RIGHT. THANK YOU. RE-EXAM LIMITED TO THE SCOPE OF THE CROSS. 17 REDIRECT EXAMINATION 18 BY MR. ETTINGHOFF: 19 Q. 20 CONTACTED YOU TO HELP HER GET A JOB AFTER SHE WAS FIRED FROM 21 SHELL. 22 FIRED FROM A REFINERY? 23 24 25 MR. LAFAYETTE ASKED YOU IF YOU HAD -- MS. NEWTON HAD HOW HARD WOULD YOU SAY IT IS TO GET A JOB AFTER BEING MR. LAFAYETTE: OUTSIDE THE SCOPE. IMPROPER OPINION. NOT RELEVANT. THE COURT: OVERRULED. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 230 JOYCE - REDIRECT / ETTINGHOF 1 HOW HARD WOULD IT BE? THE WITNESS: 2 BY MR. ETTINGHOFF: 3 Q. YES. 4 A. WELL, SO CIARA DIDN'T CONTACT ME ABOUT ANY JOB. 5 IN MY CASE, ANYBODY CAN APPLY FOR A CHEVRON POSITION OR ANY 6 OTHER REFINERY POSITION, BUT USUALLY YOU HAVE TO HAVE 7 SOMETHING THERE TO HELP GAIN EMPLOYMENT. 8 OF THE CLASS THAT I TEACH. 9 ELSE ON THE PLANET, YOU WOULD NEED AT LEAST A AA DEGREE TO GET 10 ONE OF THESE JOBS. BUT LIKE THAT IS THE PURPOSE A LOT OF TIMES -- WELL, ANYWHERE SO, YEAH. 11 I HAVE HAD STUDENTS, IN FACT, THAT HAVE BEEN FIRED FROM 12 OTHER JOBS AND, YOU KNOW, THE WHOLE THING ABOUT WHAT CAN BE 13 REPORTED AND STUFF, THAT'S.... 14 Q. 15 REFINERY JOBS, WAS IT DIFFICULT FOR THEM TO OBTAIN ANOTHER 16 REFINERY JOB? 17 A. WOULD YOU SAY THE STUDENTS WHO HAVE BEEN FIRED FROM YES. 18 MR. ETTINGHOFF: 19 THE COURT: 20 MR. ETTINGHOFF: 21 THE WITNESS: 22 MR. LAFAYETTE: 23 THE COURT: 24 THE WITNESS: 25 MR. LAFAYETTE: NO FURTHER QUESTIONS. WHAT WAS THE ANSWER? HE SAID YES. YES. ONE QUESTION, YOUR HONOR. OKAY. FROM THERE IS FINE. ARE YOU ALL RIGHT, GARY? YES. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 231 JOYCE - RECROSS / LAFAYETTE 1 RECROSS-EXAMINATION 2 BY MR. LAFAYETTE: 3 Q. THOSE PEOPLE WHO HAVE COME TO YOU IN THE PAST -- 4 A. THERE'S REALLY -- I KNOW OF ONE. 5 Q. OKAY. 6 A. WITH CHEVRON? 7 Q. WITH ANY REFINERY? 8 A. I HAVE NO IDEA. 9 CLASS BUT I WAS A LITTLE CONCERNED MYSELF ABOUT WHY THEY -- GET A JOB? BUT THE INDIVIDUAL DID PRETTY WELL IN MY 10 AND ACTUALLY, I DIDN'T EVEN -- HE REALLY WANTED TO TELL ME HOW 11 HE GOT FIRED. 12 BUSINESS. 13 Q. OKAY. 14 A. BUT IT WAS ALSO A CONCERN. 15 16 I DIDN'T WANT TO KNOW BECAUSE IT IS NONE OF MY ALL RIGHT. MR. LAFAYETTE: YOUR HONOR. 17 THE COURT: 18 MR. ETTINGHOFF: 19 THE COURT: 20 THE WITNESS: 21 THE COURT: 22 MS. SMALLETS: 23 24 25 NO FURTHER QUESTIONS, ALL RIGHT. ANYTHING ON THAT QUESTION? NO. SIR, YOU ARE EXCUSED. THANK YOU. OKAY. NEXT WITNESS. THE PLAINTIFF CALLS CAMERON CURRAN. (CAMERON CURRAN, CALLED AS A WITNESS FOR THE PLAINTIFF, HAVING BEEN DULY SWORN, TESTIFIED AS FOLLOWS:) THE WITNESS: YES. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 232 CURRAN - DIRECT / SMALLETS 1 THE CLERK: PLEASE BE SEATED. IF YOU WILL SCOOT UP 2 TO THE MICROPHONE AND THEN PLEASE STATE YOUR FULL NAME AND 3 SPELL YOUR LAST NAME. 4 THE WITNESS: 5 MY NAME IS CAMERON CURRAN. C-U-R-R-A-N. 6 MS. SMALLETS: 7 THE WITNESS: 8 THE COURT: 9 MORNING, TOO. GOOD MORNING, MR. CURRAN. GOOD MORNING. GOOD MORNING. IT'S VERY SCARY TO BE HERE IN FRONT OF A 10 FEDERAL JUDGE AND JURORS. 11 YOU MAY PROCEED. 12 13 I USUALLY SAY GOOD MS. SMALLETS: YOUR HONOR, MAY I APPROACH THE WITNESS? 14 THE COURT: YOU MAY. 15 (EXHIBIT BINDER HANDED TO WITNESS.) 16 DIRECT EXAMINATION 17 BY MS. SMALLETS: 18 Q. MR. CURRAN, YOU WORK FOR SHELL OIL PRODUCTS? 19 A. YES, MA'AM. 20 Q. AND YOU'VE WORKED AT THE SHELL REFINERY IN MARTINEZ FOR 21 ABOUT 12 YEARS, RIGHT? 22 A. YES. 23 Q. YOU WORK IN OPCEN? 24 A. I DO. 25 Q. YOU BEGAN SUPERVISING CIARA NEWTON IN MAY OF 2016, DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 233 CURRAN - DIRECT / SMALLETS 1 CORRECT? 2 A. CORRECT. 3 Q. AT THAT TIME YOU WERE A TEMPORARY SHIFT TEAM LEAD? 4 A. CORRECT. 5 Q. AND DURING THE TIME PERIOD IN WHICH YOU WERE SUPERVISING 6 MS. NEWTON, YOU REPORTED TO ERIC PEREZ, CORRECT? 7 A. YES. 8 Q. AND HE WAS THE PRODUCTION SUPERVISOR FOR YOUR AREA? 9 A. YES. 10 Q. DURING THE TIME PERIOD YOU SUPERVISED MS. NEWTON, YOU 11 WANTED TO BECOME A PERMANENT SHIFT TEAM LEAD, CORRECT? 12 A. SURE. 13 Q. YOU ULTIMATELY APPLIED FOR THAT POSITION? 14 A. I DID. 15 Q. AND YOU RECEIVED THAT PROMOTION IN 2016? 16 A. YES. 17 Q. AND ERIC PEREZ WAS THE PRODUCTION SUPERVISOR DURING THAT 18 TIME? 19 A. YES. 20 Q. YOU KNEW THAT ERIC WOULD BE INVOLVED IN DECIDING WHETHER 21 YOU WOULD GET THAT PROMOTION, CORRECT? 22 A. YEAH. 23 Q. I WANT TO TALK ABOUT THE FIRST PROGRESS REVIEW YOU GAVE 24 MS. NEWTON. 25 LEAD WAS TO SUPERVISE AND GIVE PROGRESS REVIEWS TO ONE OF YOUR JOB DUTIES AS A TEMPORARY SHIFT TEAM DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 234 CURRAN - DIRECT / SMALLETS 1 PROBATIONARY EMPLOYEES, CORRECT? 2 A. YES. 3 Q. ON JUNE 9TH, YOU GAVE MS. NEWTON A PROGRESS REVIEW? 4 A. CAN I LOOK IN THE BOOK? 5 Q. EXHIBIT 19. 6 A. YES. 7 Q. IS EXHIBIT 19 A COPY OF THE PERFORMANCE REVIEW YOU GAVE TO 8 MS. NEWTON? 9 A. YES. 10 11 MS. SMALLETS: YOUR HONOR, WE WOULD LIKE TO ADMIT EXHIBIT 19 INTO EVIDENCE. 12 THE COURT: 13 MR. LAFAYETTE: 14 THE COURT: 15 ANY OBJECTION? NO, YOUR HONOR. 19 IS ADMITTED. (PLAINTIFF'S EXHIBIT 19 RECEIVED IN EVIDENCE) 16 BY MS. SMALLETS: 17 Q. IS THAT YOUR SIGNATURE ON THE BOTTOM OF PAGE 2? 18 A. YES, MA'AM. 19 Q. IS THAT ERIC PEREZ'S SIGNATURE AS WELL? 20 A. I ASSUME SO. 21 I WOULDN'T RECOGNIZE HIS SIGNATURE. (DISPLAYED ON SCREEN.) 22 Q. 23 GETTING THE HANDS-ON EXPERIENCE SHE NEEDS TO BECOME A 24 PROFICIENT OPERATOR, CORRECT? 25 A. NOW, IN THIS REVIEW YOU OBSERVED THAT MS. NEWTON IS YES. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 235 CURRAN - DIRECT / SMALLETS 1 Q. 2 NOT AFRAID TO BRING UP SAFETY CONCERNS, CORRECT? 3 A. CORRECT. 4 Q. AND BASED ON YOUR KNOWLEDGE OF MS. NEWTON'S PERFORMANCE AT 5 THAT TIME, YOU RECOMMENDED THAT SHE CONTINUE AS AN EMPLOYEE, 6 DIDN'T YOU? 7 A. YES. 8 Q. LET'S TURN TO THE SULFURIC ACID TANK. 9 AT EXHIBIT 85 IN YOUR WITNESS BINDER. AND YOU KNEW THAT MS. NEWTON WAS VERY SAFETY MINDED AND 10 11 MR. LAFAYETTE: PLEASE TAKE A LOOK I COULDN'T HEAR THE EXHIBIT NUMBER, YOUR HONOR. 12 THE COURT: 13 MR. LAFAYETTE: 85. THANK YOU. 14 BY MS. SMALLETS: 15 Q. DO YOU RECOGNIZE THESE DOCUMENTS? 16 A. IT'S A SHIFT REPORT. 17 Q. THEY ARE OPERATOR SHIFT REPORTS THAT MS. NEWTON COMPLETED? 18 A. YES. 19 Q. AT THE REFINERY, PROCESS OPERATORS USE SHIFT REPORTS TO 20 RECORD WHAT HAPPENED DURING THEIR SHIFT, CORRECT? 21 A. CORRECT. 22 Q. SO THEY CAN TELL SUPERVISORS AND OTHER OPERATORS WHAT 23 HAPPENED, RIGHT? 24 A. 25 THE UNIT. RIGHT. IT'S A RECORD OF WHAT'S GOING ON AND THE STATE OF DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 236 CURRAN - DIRECT / SMALLETS 1 Q. TALK ABOUT CHANGES THAT HAPPENED IN THE UNIT? 2 A. CORRECT. 3 Q. AND AS THE SHIFT TEAM LEAD, YOU REVIEW THOSE REPORTS AS 4 PART OF YOUR JOB DUTIES? 5 A. YES. 6 7 MS. SMALLETS: YOUR HONOR, WE WOULD LIKE TO ADMIT EXHIBIT 85 INTO EVIDENCE. 8 THE COURT: 9 MR. LAFAYETTE: 10 THE COURT: 11 ANY OBJECTION? NO, YOUR HONOR. 85 IS ADMITTED. (PLAINTIFF'S EXHIBIT 85 RECEIVED IN EVIDENCE) 12 BY MS. SMALLETS: 13 Q. PLEASE TAKE A LOOK AT THE FIRST PAGE OF EXHIBIT 85. 14 (DISPLAYED ON SCREEN.) 15 THIS IS A SHIFT OPERATOR REPORT CREATED BY MS. NEWTON ON 16 JUNE 19, 2016, CORRECT? 17 A. YES. 18 Q. AND YOU REVIEWED THIS PARTICULAR SHIFT REPORT, DIDN'T YOU? 19 A. I MAY HAVE. 20 Q. TAKE A LOOK AT THE SECOND PAGE TOWARD THE BOTTOM. 21 SEE YOU ARE LISTED AS ONE OF THE CONTRIBUTING AUTHORS? 22 A. YES. 23 Q. DOES THAT REFRESH YOUR RECOLLECTION THAT YOU REVIEWED THIS 24 REPORT? 25 A. I DON'T REMEMBER. IT DOESN'T IDENTIFY THAT I REVIEWED IT. DO YOU I BELIEVE I DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 237 CURRAN - DIRECT / SMALLETS 1 PUBLISHED THIS AT A LATER TIME. 2 OPERATOR WRITES THEIR SHIFT REPORT. 3 PRINT IT UP, THEY DO WHAT'S CALLED PUBLISHING, WHICH SENDS IT 4 INTO A SYSTEM. 5 SO THE PROCESS WOULD BE WHEN THEY'RE DONE AND IT'S LIKE A FINAL DOCUMENT. SOMETIMES PEOPLE FORGET TO PUBLISH AND, LATER ON, WHEN I'M 6 LOOKING THROUGH THE SHIFT REPORTS, IF I SEE SOME THAT ARE NOT 7 PUBLISHED FROM PREVIOUS SHIFTS, FROM PEOPLE ON MY CREW, I WILL 8 PUBLISH THEM. 9 Q. IT IS PART OF YOUR JOB TO REVIEW THOSE SHIFT REPORTS? 10 A. YES. 11 UNITS, THINGS I MIGHT NOT HAVE HEARD ON THE RADIO OR ASKED 12 THEM IN PERSON, I READ THROUGH THE SHIFT REPORTS. 13 Q. 14 GLASS AND LEVEL INDICATOR ON THE SULFURIC ACID TANK ARE NOT 15 FUNCTIONING PROPERLY, CORRECT? 16 A. CORRECT. 17 Q. THE SIGHT GLASS AND THE LEVEL INDICATOR ARE TWO WAYS TO 18 DETERMINE THE LEVEL OF ACID IN A SULFURIC ACID TANK? 19 A. YES. 20 Q. THERE'S NO OTHER WAYS TO DETERMINE THE LEVEL OF ACID IN 21 THE SULFURIC ACID TANK? 22 A. NO. 23 Q. TAKE A LOOK AT THE PAGE THAT HAS DEF 3194 ON THE BOTTOM. 24 SO A FEW PAGES FORWARD IN YOUR EXHIBIT BINDER. 25 AT THE END OF SHIFT TO GATHER INFORMATION FOR THE ON THIS SHIFT REPORT, MS. NEWTON REPORTED THAT THE SIGHT TWO LEVEL INDICATORS, THE GLASS AND THE TRANSMITTER. THAT'S A SHIFT REPORT THAT MS. NEWTON CREATED ON DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 238 CURRAN - DIRECT / SMALLETS 1 JUNE 18TH, CORRECT? 2 A. CORRECT. 3 Q. AND SHE ALSO REPORTED THAT THE ACID TANK SIGHT GLASS AND 4 LEVEL INDICATOR ARE NOT WORKING, CORRECT? 5 A. CORRECT. 6 Q. AND TAKE A LOOK AT PAGE 3196. 7 (DISPLAYED ON SCREEN.) 8 9 THAT'S A SHIFT REPORT THAT MS. NEWTON CREATED ON JUNE 19TH, CORRECT? 10 A. CORRECT. 11 Q. AND SHE AGAIN REPORTED THAT THE ACID TANK LEVEL INDICATOR 12 AND SIGHT GLASS ARE NOT WORKING, CORRECT? 13 A. CORRECT. 14 Q. AND TAKE A LOOK AT PAGE DEF 3198. 15 THAT'S A SHIFT REPORT MS. NEWTON COMPLETED WHO JUNE 20TH, 16 CORRECT? 17 A. CORRECT. 18 Q. AND ON THAT SHIFT REPORT SHE REPORTED AGAIN THAT THE ACID 19 SIGHT TANK LEVEL INDICATOR AND SIGHT GLASS AREN'T WORKING, 20 CORRECT? 21 A. CORRECT. 22 Q. TAKE A LOOK AT THE NEXT ONE FOR JUNE 24TH, 2016. 23 STAMP DEF 3200. 24 25 BATES SHE REPORTS AGAIN THAT THE ACID TANK AND LEVEL INDICATOR ON THE SIGHT GLASS AREN'T WORKING, CORRECT? DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 239 CURRAN - DIRECT / SMALLETS 1 A. CORRECT. 2 Q. SIGHT GLASS IN THE ACID TANK? 3 A. GOT YOU. 4 Q. AND ON JUNE 25TH, THE NEXT DOCUMENT, BATES STAMP DEF 3202, 5 MS. NEWTON REPORTED AGAIN THAT THE SULFURIC ACID TANK SIGHT 6 GLASS AND LEVEL INDICATOR AREN'T WORKING, CORRECT? 7 A. CORRECT. 8 Q. THAT IS SOMETHING SHE SHOULD HAVE BEEN REPORTING IN HER 9 SHIFT REPORT? YEAH, BOTH WERE NOT WORKING PER SHIFT REPORT. 10 A. 11 OPERATORS THAT IT'S NOT WORKING. 12 Q. 13 SHE'S DEMONSTRATING GOOD ATTENTION TO SAFETY BY RECORDING THIS 14 INFORMATION? 15 A. SHE'S REPORTING WHAT SHE SEES IN THE UNIT, YEAH. 16 Q. NOW, LET'S TURN TO A SPILL THAT TOOK PLACE AT THE SAME 17 SULFURIC ACID TANK. 18 YES. AS WELL AS NOTIFYING THE SHIFT TEAM LEADER OR OTHER AND SHE IS DEMONSTRATING GOOD ATTENTION TO SAFETY BY -- ON MONDAY, JUNE 4TH, YOU RECEIVED A PHONE CALL AND YOU 19 LEARNED THAT THE SULFURIC ACID TANK HAD OVERFLOWED, CORRECT? 20 A. INCORRECT. 21 Q. ON JULY 4? 22 A. YEAH. 23 Q. SO, ON JULY 4TH, YOU RECEIVED A PHONE CALL AND YOU LEARNED 24 THAT THE SULFURIC ACID TANK HAD OVERFLOWED, CORRECT? 25 A. YES. IT WAS ON JULY 4TH. WHILE REFILLING THE TANK, IT HAD OVERFILLED. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 240 CURRAN - DIRECT / SMALLETS 1 Q. 2 HAD BEEN REPORTING IN JUNE THAT THERE WERE PROBLEMS WITH THE 3 SIGHT GLASS AND LEVEL INDICATOR, CORRECT? 4 A. 5 NOTIFICATION TO ME. 6 WE HAVE PROBLEMS, WE SAY THINGS LIKE -- THAT WAS THE SAME SULFURIC ACID TANK WAS WHERE MS. NEWTON YOU'RE CORRECT. REPORTING SHIFT REPORT WITH NO NO -- AT THE STARTER SHIFT MEETINGS, WHEN 7 COURT REPORTER: 8 THE WITNESS: 9 COURT REPORTER: EXCUSE ME. WHAT? DO I NEED TO TALK LOUDER? 10 THE WITNESS: 11 MS. SMALLETS: 12 I'M SORRY. YES. OKAY. SORRY. MAY I HAVE WATER? SURE. (PAUSE IN THE PROCEEDINGS.) 13 THE WITNESS: ALL RIGHT. EXCUSE ME. 14 SO DURING THE STARTER SHIFT MEETING THAT WE HAVE EVERY DAY 15 AT 7:00 O'CLOCK, WE ARE TO REPORT ON THINGS THAT WE ARE HAVING 16 PROBLEMS WITH IN THE UNITS, ANYTHING COMING UP FOR THE UNIT 17 THAT DAY, WORK THAT WE KNOW THAT IS GOING TO HAPPEN AND IF WE 18 ARE HAVING TROUBLE. 19 THOSE TYPES OF THINGS AND BRING THEM UP. 20 BY MS. SMALLETS: 21 Q. 22 CORRECT? 23 A. 24 THAT TO ME. 25 Q. SO THAT WOULD BE THE TIME TO IDENTIFY MS. NEWTON REPORTED THIS ON SIX DIFFERENT SHIFT REPORTS, IN THE SHIFT REPORTS, YES. BUT NOT VERBALLY IDENTIFYING IT IS YOUR JOB TO REVIEW THE SHIFT REPORTS, ISN'T IT? DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 241 CURRAN - DIRECT / SMALLETS 1 A. 2 UNIT STARTUP AFTER A TURNAROUND, A VERY LARGE TURNAROUND, AND 3 I MAY NOT HAVE READ THESE SPECIFIC SHIFT REPORTS. 4 CORRECT. DURING THIS PERIOD OF TIME, WE WERE HAVING A IF I DIDN'T THINK THERE WAS SOMETHING ABNORMAL OR THAT I 5 NEEDED TO GET MORE INFORMATION ON FOR THIS PARTICULAR UNIT, I 6 WILL GO TO THE BOARD OPERATOR'S SHIFT LOGS TO GET MOST OF MY 7 INFORMATION FOR THAT. 8 LOOK AT THE OUTSIDE OPERATOR'S JOBS. 9 NOTIFICATION, IT IS POSSIBLE I DIDN'T NOTICE IT. 10 Q. 11 SULFURIC ACID SPILL. 12 IF I HAVE FURTHER QUESTIONS, I WILL SO, WITHOUT ANY VERBAL I WANT TO TALK ABOUT MS. NEWTON'S RESPONSE TO THE SAME SHE DOCUMENTED THE SULFURIC ACID SPILL IN HER SHIFT 13 REPORT, CORRECT? 14 A. CORRECT. 15 Q. YOU SAW THIS IN HER SHIFT REPORT AND TALKED TO HER ABOUT 16 IT, DIDN'T YOU? 17 A. I DID. 18 Q. YOU TOLD MS. NEWTON THAT JOSE NAVARRO, THE OPERATORS 19 WORKING WHEN THE SPILL HAPPENED, DIDN'T INCLUDE IT IN HIS 20 SHIFT REPORT, CORRECT? 21 A. YES. 22 Q. AND YOU TOLD HER THAT THE SHIFT TEAM LEAD DIDN'T SUBMIT A 23 ZERO TO SIXTY, CORRECT? 24 A. YES. 25 Q. NOW, ACCORDING TO SHELL POLICY, ALL ENVIRONMENTAL DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 242 CURRAN - DIRECT / SMALLETS 1 INCIDENTS HAVE TO BE REPORTED, CORRECT? 2 A. YES. 3 Q. AN ENVIRONMENTAL INCIDENT INCLUDES RELEASES, LEAKS, AND 4 SPILLS OF ANY LIQUID OR VAPOR TO ANY SURFACE, CORRECT? 5 A. YES. 6 Q. TAKE A LOOK AT EXHIBIT 97 IN YOUR WITNESS BINDER, PLEASE. 7 ARE YOU FAMILIAR WITH THIS DOCUMENT? 8 A. YES. 9 Q. THIS IS SHELL'S INCIDENT REPORTING POLICY, CORRECT? 10 A. CORRECT. 11 Q. AND THAT CONTAINS INFORMATION ABOUT SHELL'S POLICIES WITH 12 RESPECT TO REPORTING INCIDENTS AT THE REFINERY? 13 A. YES. 14 MS. SMALLETS: 15 EXHIBIT SHALL 97 INTO EVIDENCE. 16 MR. LAFAYETTE: 17 THE COURT: YOUR HONOR, WE WOULD LIKE TO MOVE NO OBJECTION, YOUR HONOR. ADMITTED. 18 (PLAINTIFF'S EXHIBIT 97 RECEIVED IN EVIDENCE) 19 (DISPLAYED ON SCREEN.) 20 BY MS. SMALLETS: 21 Q. 22 EVERY TIME THERE'S AN INCIDENT AT THE REFINERY, CORRECT? 23 A. YES. 24 Q. IT IS SUPPOSED TO BE PREPARED WITHIN 60 MINUTES OF THE 25 INCIDENT, CORRECT? A ZERO TO SIXTY IS A REPORT THAT'S SUPPOSED TO BE PREPARED DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 243 CURRAN - DIRECT / SMALLETS 1 A. THAT'S THE IDEA. 2 Q. PLEASE TAKE A LOOK -- 3 A. THAT'S THE IDEA. 4 Q. PLEASE TAKE A LOOK AT EXHIBIT 109 IN YOUR WITNESS BINDER. 5 IS THIS A COPY OF SHELL'S ZERO TO SIXTY REPORTING POLICY? 6 A. 7 EMAIL FOR ZERO TO SIXTY TO SEND IT OUT TO OTHER PEOPLE IN THE 8 REFINERY ON THE EMAIL LIST. 9 Q. THIS IS THE WEB PAGE WHERE YOU WOULD GO TO SUBMIT THE DOES IT CONTAINS INSTRUCTIONS FOR WHEN ZEROS TO SIXTIES 10 SHOULD BE PREPARED? 11 A. IT IS A BRIEF OVERVIEW, YES. 12 Q. YOU ARE FAMILIAR WITH THIS DOCUMENT? 13 A. YES, I AM. 14 15 MS. SMALLETS: YOUR HONOR, WE WOULD LIKE TO MOVE EXHIBIT 109 INTO EVIDENCE. 16 MR. LAFAYETTE: 17 THE COURT: NO OBJECTION, YOUR HONOR. ADMITTED. 18 (PLAINTIFF'S EXHIBIT 109 RECEIVED IN EVIDENCE) 19 (DISPLAYED ON SCREEN.) 20 BY MS. SMALLETS: 21 Q. 22 SPILL BY THE TIME YOU TALKED TO MS. NEWTON ABOUT IT, CORRECT? 23 A. CORRECT. 24 Q. AND YOU -- WHEN YOU LEARNED THAT MS. NEWTON WAS 25 DOCUMENTING ON HER SHIFT REPORT, YOU TOLD -- HER ASKED HER IF NOW, NO ZERO TO SIXTY WAS PREPARED FOR THAT SULFURIC ACID DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 244 CURRAN - DIRECT / SMALLETS 1 SHE WANTED TO GET HER COWORKERS IN TROUBLE, CORRECT? 2 A. YES. 3 Q. AND YOU TOLD HER THAT PUTTING INFORMATION IN HER SHIFT 4 REPORT MIGHT GET HER WORKERS IN TROUBLE? 5 A. 6 THE UNIT THAT YOU DISCOVER, SOMETIMES IT IS BETTER TO TALK TO 7 OPERATORS FACE-TO-FACE AS OPPOSED TO PUTTING IT IN THE SHIFT 8 REPORT WITHOUT TALKING TO THEM. 9 Q. I SAID THAT, IF YOU SEE THINGS THAT ARE NOT CORRECT OUT IN YOU TOLD HER SHE COULD GET A REPUTATION AS BEING A 10 TATTLETALE? 11 A. 12 NOT HAVING A REPUTATION, A BAD REPUTATION. 13 Q. 14 RAT? 15 A. 16 IS A COMMON UNION TERM, A RAT IN THE UNION. 17 Q. 18 MS. NEWTON FOR ABOUT SIX WEEKS, CORRECT? 19 A. AROUND THAT. 20 Q. AND YOU HAD NEVER MADE ANY ENTRY, GOOD, BAD, OR OTHERWISE, 21 IN HER PD LOG UP TO THAT TIME, CORRECT? 22 A. 23 SO, I JUST CAME OFF OF A 60 -- WELL, TWO MONTHS' WORTH OF 24 NIGHT SHIFTS. 25 BACK ON TO SHIFT. I DID WITH THE INTENTION OF HELPING HER WITH HER PEERS, YOU TOLD HER THAT SHE COULD GET A REPUTATION OF BEING A I MAY HAVE USED THAT TERM, RAT OR TATTLETALE, OR BOTH. IT WHEN THE SPILL HAPPENED, YOU HAVE BEEN SUPERVISING CORRECT. IT WAS A VERY BUSY TIME. STARTING UP UNITS. AND ALL THE CREWS WERE JUST STARTING TO COME IT WAS GETTING BACK TO NORMAL. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 245 CURRAN - DIRECT / SMALLETS 1 Q. 2 PERIOD, YOU HAD NEVER MADE ANY ENTRY INTO MS. NEWTON'S PD LOG, 3 GOOD, BAD, OR OTHERWISE, CORRECT? 4 A. NO. 5 Q. NOW, LET'S TALK ABOUT WHAT HAPPENED NEXT. 6 MR. CURRAN, MY QUESTION TO YOU WAS: DURING THAT SIX-WEEK THERE WAS NO TIME. BOTH YOU AND MS. NEWTON HAD A WEEK OFF IN THE SCHEDULE, 7 RIGHT? 8 A. OKAY. 9 Q. AND JULY 15TH, WAS THE FIRST DAY THAT BOTH OF YOU WERE 10 BACK AT WORK? 11 A. I DON'T HAVE A CALENDAR IN FRONT OF ME BUT SURE. 12 Q. TAKE A LOOK AT EXHIBIT 121. 13 A. PERFECT. 14 Q. IS THAT A -- THE REFINERY SHIFT OPERATING SCHEDULE FOR THE 15 REFINERY FOR 2016? 16 A. 17 18 THANK YOU. YES, IT IS. MS. SMALLETS: YOUR HONOR, WE WOULD LIKE TO ADMIT EXHIBIT 121 INTO EVIDENCE. 19 MR. LAFAYETTE: 20 THE COURT: NO OBJECTION, YOUR HONOR. ADMITTED. 21 (PLAINTIFF'S EXHIBIT 121 RECEIVED IN EVIDENCE) 22 (DISPLAYED ON SCREEN.) 23 Q. 24 AT WORK, CORRECT? 25 A. SO JULY 15TH, WAS THE FIRST DAY THAT BOTH OF YOU WERE BACK CORRECT. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 246 CURRAN - DIRECT / SMALLETS 1 Q. 2 MS. NEWTON'S PD LOG, CORRECT? 3 A. OKAY. 4 Q. THE PD LOG IS EXHIBIT 83, IF YOU WOULD LIKE TO LOOK AT IT? AND THAT NEXT DAY, JULY 16TH, YOU MADE YOUR FIRST ENTRY IN I'LL TAKE YOUR WORD FOR IT. 5 THE CLERK: 6 MS. SMALLETS: THREE. 7 THE WITNESS: CORRECT. 8 MR. LAFAYETTE: 9 80? I DON'T KNOW IF IT HAS BEEN ADMITTED, YOUR HONOR. 10 THE COURT: 11 MS. SMALLETS: IT HAS NOT BEEN ADMITTED YET, 83. I WAS JUST REFRESHING HIS 12 RECOLLECTION. 13 BY MS. SMALLETS: 14 Q. 15 MS. NEWTON'S PD LOG, CORRECT? 16 A. CORRECT. 17 Q. AND THEN AFTER THAT POINT IN TIME, YOU NEVER MADE ANOTHER 18 ENTRY INTO MS. NEWTON'S PD LOG, CORRECT? 19 A. CORRECT. 20 Q. NOW, I WOULD LIKE TO TALK TO YOU ABOUT A FEW OF THOSE 21 INCIDENTS. 22 OVER THE NEXT THREE DAYS YOU MADE SIX MORE ENTRIES INTO ON JULY 17TH, MS. NEWTON CAME TO YOU AND SHE TOLD YOU THAT 23 SHE MADE A MISTAKE, CORRECT? 24 A. CORRECT. 25 Q. SHE TOLD YOU THAT SHE HAD OPENED THE WRONG VALVE, CORRECT? DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 247 CURRAN - DIRECT / SMALLETS 1 A. CORRECT. 2 Q. AND THAT CAUSED SOME WASH WATER TO LEAK? 3 A. CORRECT. 4 Q. AND SHE -- YOU DIDN'T KNOW SHE'D MADE THAT MISTAKE UNTIL 5 SHE TOLD YOU, CORRECT? 6 A. THAT IS CORRECT. 7 Q. AND WITHIN AN HOUR OR TWO, YOU COMPLETED A ZERO TO SIXTY 8 ABOUT THAT INCIDENT, CORRECT? 9 A. CORRECT. 10 Q. AND TAKE A LOOK AT EXHIBIT 21, PLEASE. 11 A. IS IT 121? 12 Q. JUST 21. 13 IS THAT THE ZERO TO SIXTY THAT YOU COMPLETED FOR THE BAKER 14 TANK INCIDENT? 15 A. YES, IT IS. 16 Q. OR THE SPILL OF THE WASH WATER? 17 A. YES. 18 Q. YOU DESCRIBE THIS INCIDENT IN THE ZERO TO SIXTY AS AN 19 OPERATOR NOTICED A PUDDLE IN THE CONTAINMENT AREA OF A BAKER 20 TANK HOLDING POTASSIUM PERMANGANATE WASH WATER. 21 THE STL, AND THEY FOUND THE SOURCE WAS A VALVE NOT CLOSED 22 COMPLETELY THAT WAS LEAKING BY. 23 THE LEAK WAS STOPPED. 24 25 THEY NOTIFIED VALVE WAS TIGHTENED UP AND LEAK WAS CONTAINED IN THE DIKE AREA. CORRECT? A. THAT'S WHAT IT SAYS. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 248 CURRAN - DIRECT / SMALLETS 1 Q. THAT WAS AN ACCURATE DESCRIPTION OF THE INCIDENT? 2 A. IT'S FAIR, YEAH. 3 Q. OKAY. 4 5 MS. SMALLETS: YOUR HONOR, WE WOULD LIKE TO ADMIT EXHIBIT 21 INTO EVIDENCE. 6 MR. LAFAYETTE: 7 THE COURT: NO OBJECTION, YOUR HONOR. 21 IS ADMITTED. 8 (PLAINTIFF'S EXHIBIT 21 RECEIVED IN EVIDENCE) 9 (DISPLAYED ON SCREEN.) 10 BY MS. SMALLETS: 11 Q. 12 ZERO TO SIXTY WAS MS. NEWTON, CORRECT? 13 A. CORRECT. 14 Q. NOW, IN CONTRAST, A ZERO TO SIXTY FOR THE SULFURIC ACID 15 TANK SPILL WASN'T PREPARED UNTIL JULY 29TH, CORRECT? 16 A. CORRECT. 17 Q. PLEASE TAKE A LOOK AT EXHIBIT 38 IN YOUR WITNESS BINDER. 18 AND THE OPERATOR YOU WERE REFERRING TO WHEN YOU WROTE THAT HAVE YOU SEEN THAT DOCUMENT BEFORE? 19 A. YES. 20 Q. AND THAT'S THE ZERO TO SIXTY THAT WAS PREPARED FOR THE 21 SULFURIC ACID TANK SPILL? 22 A. CORRECT. 23 Q. THAT WAS PREPARED ON JULY 29TH, CORRECT? 24 A. CORRECT. 25 Q. FOR THE SPILL THAT TOOK PLACE ON JULY 4TH, CORRECT? DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 249 CURRAN - DIRECT / SMALLETS 1 A. THAT'S CORRECT. 2 3 YOUR HONOR, WE WOULD LIKE TO ADMIT MS. SMALLETS: EXHIBIT 38 INTO EVIDENCE. 4 MR. LAFAYETTE: 5 THE COURT: NO OBJECTION, YOUR HONOR. ADMITTED. 6 (PLAINTIFF'S EXHIBIT 38 RECEIVED IN EVIDENCE) 7 (DISPLAYED ON SCREEN.) 8 BY MS. SMALLETS: 9 Q. AND TO THE BEST OF YOUR KNOWLEDGE, DONNIE GOFF, THE SHIFT 10 TEAM LEADER WHO PREPARED THAT ZERO TO SIXTY, DIDN'T RECEIVE 11 ANY CRITICISM FOR THE FACT THAT THAT WAS LATE? 12 13 MR. LAFAYETTE: OBJECTION. LACKING IN FOUNDATION WITH THIS WITNESS CONSTITUTES INADMISSIBLE HEARSAY. 14 LAY A FOUNDATION. THE COURT: 15 BY MS. SMALLETS: 16 Q. 17 PEREZ, REGARDING THIS LATE ZERO TO SIXTY, DIDN'T YOU? 18 A. 19 GOFF. 20 OR NOT. 21 Q. 22 ANY REPERCUSSIONS? 23 A. NOT FROM ERIC. 24 Q. ON JULY 18TH, YOU MADE AN ENTRY INTO MS. NEWTON'S PD LOG 25 RELATING TO HER USE OF DRAEGER -- OF GASTEC TUBES, CORRECT? YOU HAD MULTIPLE CONVERSATIONS WITH YOUR SUPERVISOR, ERIC THAT IS CORRECT. AS WELL AS FEEDBACK FROM ME TO DONNIE BUT I DON'T KNOW IF HE HAD ANY REPERCUSSIONS FROM ERIC SO YOU DON'T KNOW -- YOU ARE NOT AWARE OF HIM RECEIVING JUST FEEDBACK FROM MYSELF. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 250 CURRAN - DIRECT / SMALLETS 1 A. CORRECT. 2 Q. AND THAT PD LOG IS A BETTER DESCRIPTION OF THAT INCIDENT 3 THAN YOUR MEMORY, CORRECT? 4 A. CORRECT. 5 Q. GASTEC TUBES ARE ALSO KNOWN AS DRAEGER TUBES, CORRECT? 6 A. YES. 7 NAME. 8 Q. DRAEGER TUBES ARE USED TO MEASURE THE PRESENCE OF GAS? 9 A. YES. 10 Q. AND TO MEASURE THE PRESENCE OF GAS, YOU BREAK OPEN EACH 11 END OF THE DRAEGER TUBE, CORRECT? 12 A. 13 INSERT INTO A TOOL, AND PULL IT. 14 SYRINGE, AND IT DRAWS THE GAS SAMPLE THROUGH THE TUBE AND THE 15 REAGENTS -- THE REACTANTS INSIDE THE TUBE WILL CHANGE COLOR IN 16 THE PRESENCE OF SPECIFIC GASES THAT THEY ARE DESIGNED FOR. 17 Q. IF IT CHANGES COLOR, THAT INDICATES THAT ACID IS PRESENT? 18 A. DEPENDS ON THE TYPE OF TUBE. 19 IF YOU WILL, TO DETECT SPECIFIC GASES. 20 Q. 21 THAT BEING USED TO DETECT. 22 A. HYDROGEN SULFIDE. 23 Q. AND IT WOULD CHANGE COLOR IF HYDROGEN SULFIDE WAS PRESENT? 24 A. CORRECT. 25 Q. THERE'S NOT USUALLY HYDROGEN SULFIDE PRESENT IN THE YES. OKAY. WE USE THE TERM INTERCHANGEABLY. IT IS A BRAND YOU BREAK OPEN EACH END OF THE DRAEGER TUBE AND IT IS LIKE A PLUNGER OR THEY HAVE DIFFERENT FLAVORS, AND THE TUBE AT ISSUE IN THIS INCIDENT, WHAT WAS DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 251 CURRAN - DIRECT / SMALLETS 1 ATMOSPHERE, IS THERE? 2 A. NO. 3 Q. AND IF THE DRAEGER TUBE DOESN'T CHANGE COLOR, THAT MEANS 4 THERE'S NOT -- THE CHEMICAL THAT YOU ARE TRYING TO DETECT IS 5 NOT PRESENT, CORRECT? 6 A. CORRECT. 7 Q. NOW, IN HER PD LOG, YOU OBJECTED TO MS. NEWTON USING AN 8 OPEN PD -- DRAEGER TUBE, CORRECT? 9 A. IN THE PD LOG, YEAH. 10 Q. AND BY "BROKEN", YOU MEAN ONE THAT HAD BEEN OPENED BEFORE 11 SHE USED IT, CORRECT? 12 A. 13 NOT OUT HERE. A BROKEN ONE. CORRECT. I BELIEVE MS. NEWTON DIDN'T USE ANY DRAEGER TUBES OUT 14 THERE TO TAKE THE SAMPLE. 15 THE PD LOG AS A CONVERSATION -- A DOCUMENTATION OF OUR 16 CONVERSATION. 17 USED. 18 Q. 19 A DRAEGER TUBE THAT HAD ALREADY BEEN OPENED, CORRECT? 20 A. BROKEN, YEAH. 21 Q. AND BY "BROKEN" WE MEAN THAT ONE OF THE ENDS WAS BROKEN 22 OFF, RIGHT? 23 A. SHE SAID SHE FOUND IT ON THE GROUND. 24 Q. SHE TOLD YOU THAT ONE OF THE ENDS WAS BROKEN, CORRECT? 25 A. SHE SAID IT WAS BROKEN AND SHE FOUND IT ON THE GROUND. THAT'S MY BELIEF. I WROTE IT IN BUT MY PERSONAL OPINION IS THERE WAS NO TUBE WHAT YOU DOCUMENTED IN THE PD LOG WAS THAT MS. NEWTON USED BROKEN OPEN? DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC I 252 CURRAN - DIRECT / SMALLETS 1 DON'T THINK WE SPECIFIED WHETHER IT WAS ONE SIDE OR JUST 2 BROKEN. 3 Q. 4 TUBES UP TO TEN TIMES, CORRECT? 5 A. 6 WILL USE TEN PULLS TO DRAW THAT MUCH GAS THROUGH TO MEASURE 7 LOW QUANTITIES. 8 Q. 9 TESTING AND POLICY, CORRECT? I CAN'T RECALL. OKAY. SHELL'S POLICIES ALLOW OPERATORS TO REUSE DRAEGER ON ONE SAMPLE. IT'S FOR THE -- IN LOW CONCENTRATIONS, YOU TAKE A LOOK AT EXHIBIT 99. THIS IS SHELL'S SAMPLING AND 10 A. EXHIBIT 99? 11 Q. YES. 12 A. THIS IS A WORK CONSTRUCTION FOR HP-2. 13 Q. YOU ARE FAMILIAR WITH THIS WORK CONSTRUCTION? 14 A. I DON'T THINK I'VE LOOKED AT IT IN A WHILE, BUT I'VE SEEN 15 IT, YEAH. 16 Q. THIS WORK CONSTRUCTION IS FOR PEOPLE IN THE HP-2 UNIT? 17 A. IT IS. 18 Q. THAT IS ONE OF THE UNITS YOU ARE RESPONSIBLE FOR 19 SUPERVISING? 20 A. 21 22 IT IS. MS. SMALLETS: YOUR HONOR, WE WOULD LIKE TO ADMIT EXHIBIT 99 INTO EVIDENCE. 23 MR. LAFAYETTE: 24 THE COURT: NO OBJECTION. ADMITTED. 25 DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 253 CURRAN - DIRECT / SMALLETS 1 (PLAINTIFF'S EXHIBIT 99 RECEIVED IN EVIDENCE) 2 (DISPLAYED ON SCREEN.) 3 BY MS. SMALLETS: 4 Q. 5 TAKE A LOOK AT PAGE 1600. DO YOU SEE THE SECOND NOTE? 6 A. YES. 7 Q. AND THIS NOTE INSTRUCTS OPERATORS: 8 RESULT MOST TUBES CAN BE USED UP TO TEN TIMES ON THE SAME DAY, 9 CORRECT? AFTER A NEGATIVE 10 A. YES. 11 Q. NOW, A FEW DAYS LATER, JULY 22ND, MS. NEWTON ALLOWED 12 ANOTHER OPERATOR, PATRICK NEUMAN, TO COVER THE FIRST 20 13 MINUTES OF HER SHIFT, CORRECT? 14 15 I BELIEVE YOU ARE REFERRING TO A DRAEGER BRAND TUBE. MR. LAFAYETTE: OBJECTION. REQUIRES HEARSAY ON THE PART OF THIS WITNESS. 16 THE COURT: LAY A FOUNDATION. 17 BY MS. SMALLETS: 18 Q. YOU WERE SUPERVISING MS. NEWTON ON JULY 22ND, CORRECT? 19 A. YES. 20 Q. AND THERE WAS AN INCIDENT WHERE YOU BELIEVE THAT 21 MS. NEWTON WAS LATE TO WORK, CORRECT? 22 A. CORRECT. 23 Q. AND MS. NEWTON -- YOU LATER LEARNED MS. NEWTON HAD ASKED 24 MR. NEUMAN TO STAY AND COVER FOR HER, CORRECT. 25 MR. LAFAYETTE: OBJECTION. HEARSAY. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 254 CURRAN - DIRECT / SMALLETS 1 THE COURT: OVERRULED. 2 BY MS. SMALLETS: 3 Q. YOU CAN ANSWER. 4 A. SORRY. 5 Q. SURE. 6 A. CAN YOU REPEAT THE QUESTION, PLEASE? 7 Q. SURE. 8 9 MY FIRST TIME. YOU LEARNED THAT MS. NEWTON HAD REQUESTED THAT PATRICK NEUMAN STAY AND COVER FOR HER? 10 A. YES. 11 Q. YOU SAW -- AND MR. NEUMAN WAS THE OUTGOING OPERATOR ON THE 12 SHIFT? 13 A. 14 AND CIARA WOULD BE ON DAY SHIFTS AND THEN PATRICK WAS ON NIGHT 15 SHIFTS BEFORE THE WEEKEND. 16 CIARA WASN'T THERE. 17 TO GO HOME. 18 Q. MS. NEWTON WAS REPLACING MR. NEUMAN, CORRECT? 19 A. YES. 20 OPERATOR BEFORE WE CAN LEAVE. 21 Q. 22 RIGHT? 23 A. YES. 24 Q. YOU TOLD HIM TO GO HOME RIGHT? 25 A. I DID. CORRECT. IT WAS A FRIDAY MORNING. MY TEAM, ME -- MYSELF WE GOT AN EXTRA OPERATOR TO COVER. ABOUT 5:50, 6:00 O'CLOCK, I TOLD PATRICK ONE OPERATOR HAS TO COME IN TO RELIEVE THE NEXT YOU CAN'T JUST GO HOME. WHEN YOU SAW -- YOU SAW MR. NEUMAN THERE THAT MORNING, YES. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 255 CURRAN - DIRECT / SMALLETS 1 Q. 2 FOR EACH OTHER? 3 A. 4 GOING ON. 5 IT. 6 PICK UP YOUR KIDS, GO SEE A PLAY, THAT TYPE OF THING. 7 TRADE. 8 Q. SO IT DOES HAPPEN, RIGHT? 9 A. IT DOES. 10 Q. OKAY. 11 A. YES. 12 Q. BUT YOU WANTED TO WRITE MS. NEWTON UP FOR BEING LATE ON 13 THAT DAY, DIDN'T YOU? 14 A. NO. 15 Q. YOU TOLD ERIC PEREZ THAT YOU WANTED TO WRITE MS. NEWTON UP 16 FOR BEING LATE ON THAT DAY, DIDN'T YOU? 17 A. I DON'T LIKE TO WRITE ANYBODY UP. 18 Q. YOU TOLD MR. PEREZ THAT YOU WANTED TO DOCUMENT THAT AS A 19 TARDY INCIDENT FOR MS. NEWTON, DIDN'T YOU? 20 A. 21 SOMETHING THAT I WOULD WANT DO. 22 Q. 23 HOWEVER, THAT YOU THOUGHT IT SHOULD BE DOCUMENTED, CORRECT? 24 A. I DON'T RECALL. 25 Q. MR. PEREZ TOLD YOU -- ULTIMATELY TOLD YOU NO, RIGHT? NOW, OPERATORS DO THIS ALL THE TIME, RIGHT, STAY AND COVER OCCASIONALLY THEY CAN SET IT UP IF THEY HAVE SOMETHING WE LIKE TO HAVE A WORK/LIFE BALANCE, AS YOU CALL SO SOMETIMES THERE'S THINGS THAT HAPPEN. YOU HAVE TO AND YOU KNEW THAT? IF SOMEBODY COMES IN TARDY, I'LL DOCUMENT IT. OKAY. WE WILL YOU -- JUST SO I AM CLEAR. IT IS NOT YOU TOLD MR. PEREZ, I MAY HAVE. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 256 CURRAN - DIRECT / SMALLETS 1 A. YES. 2 Q. AND HE SAID IT WAS BECAUSE YOU -- THAT THE OTHER OPERATORS 3 WERE ALLOWED TO GET AWAY WITH THAT? 4 A. 5 BE THE EXACT WORDS, BUT HE BASICALLY SAID WE ARE NOT GOING TO 6 COUNT IT, YEAH. 7 Q. OKAY. 8 A. YEAH. 9 Q. AND SHE BROUGHT UP ISSUES OF EQUALITY DURING THAT MEETING, THERE IS AN EMAIL. I DON'T KNOW IF IT IS IN HERE. CAN'T NOW, YOU MET WITH MS. NEWTON ON JULY 22ND, CORRECT? 10 DIDN'T SHE? 11 A. YES. 12 Q. AND SHE EXPRESSED CONCERNS TO YOU ABOUT UNEQUAL TREATMENT, 13 DIDN'T SHE? 14 A. YES. 15 Q. SHE TOLD YOU THAT SHE WAS NOT BEING TREATED FAIRLY OR SHE 16 WAS BEING TREATED DIFFERENT, RIGHT? 17 A. SOMETHING TO THAT EFFECT, YES. 18 Q. AND YOU DIDN'T ASK HER ANY FOLLOW-UP QUESTIONS ABOUT THAT, 19 DID YOU? 20 A. I DON'T RECALL. 21 Q. YOU DID, HOWEVER, ABOUT A WEEK LATER, TELL ERIC PEREZ THAT 22 SHE WAS PUSHING HARD ON THE EQUALITY THING, DIDN'T YOU? 23 A. YOU ARE REFERRING TO THE INSTANT MESSAGE? 24 Q. YES. 25 A. I DON'T REMEMBER WHAT DATE THAT WAS, IF IT WAS A WEEK, BUT I MAY NOT HAVE. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 257 CURRAN - DIRECT / SMALLETS 1 I DID MAKE THAT STATEMENT, YES. 2 Q. 3 THE EQUALITY THING? 4 A. 5 NEVER HAD THIS COME UP BEFORE. 6 COMMUNICATING WITH HIM THAT THIS IS HAPPENING. 7 Q. YOU FELT MS. NEWTON WAS QUESTIONING YOUR INTEGRITY? 8 A. YES. 9 Q. TAKE A LOOK AT EXHIBIT 37. YOU DID TELL MR. PEREZ THAT MS. NEWTON WAS PUSHING HARD ON YES. I'VE NEVER HAD THIS -- QUESTION MY INTEGRITY. 10 I'VE SO IT IS MY WAY OF (DISPLAYED ON SCREEN.) 11 IS THAT A COPY OF THE TEXT MESSAGE YOU EXCHANGED WITH ERIC 12 PEREZ? 13 A. YES. 14 Q. YOU SENT THAT ON YOUR COMPUTER? 15 A. YES, CORRECT. 16 Q. THAT SAME DAY, YOU HAD GIVEN MS. NEWTON -- EARLIER THAT 17 DAY YOU HAD GIVEN MS. NEWTON A PROGRESS REPORT, CORRECT? 18 A. CORRECT. 19 Q. LET'S TAKE A LOOK AT IT. 20 BINDER. IT IS LIKE AN INSTANT MESSAGE ON THE COMPUTER. 21 MR. LAFAYETTE: 22 MS. SMALLETS: 23 BY MS. SMALLETS: 24 Q. 25 JULY 29TH? IT'S EXHIBIT 40 IN YOUR EVIDENCE I COULDN'T HEAR THE EXHIBIT NUMBER. 40. IS THAT THE PROGRESS REVIEW THAT YOU GAVE TO MS. NEWTON ON DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 258 CURRAN - DIRECT / SMALLETS 1 A. 2 LOOKS LIKE IT, YES. IT APPEARS TO BE. 3 4 IT IS NOT THE SIGNED ISSUED COPY BUT IT MS. SMALLETS: YOUR HONOR, WE WOULD LIKE TO MOVE EXHIBIT 40 INTO EVIDENCE. 5 THE COURT: 6 MR. LAFAYETTE: 7 THE COURT: ANY OBJECTION? NO OBJECTION, YOUR HONOR. ADMITTED. 8 (PLAINTIFF'S EXHIBIT 40 RECEIVED IN EVIDENCE) 9 (DISPLAYED ON SCREEN.) 10 BY MS. SMALLETS: 11 Q. 12 AND SAMPLES, DIDN'T SHE? 13 A. YES. 14 Q. AND IN THIS REVIEW, YOU SAID THAT YOU FOUND SOME ERRORS IN 15 HER WORK BUT SHE IS ACCEPTING THE FEEDBACK, RIGHT? 16 A. 17 THAT. 18 Q. 19 SORRY, ON THE TOP RIGHT? 20 A. YES. 21 Q. THAT'S A GOOD THING, RIGHT, THAT SHE WAS ACCEPTING THE 22 FEEDBACK? 23 A. 24 HAVE TO HAVE. 25 YOU'RE NOT GOING TO MAKE IT, RIGHT? MS. NEWTON GOT RIGHT OUT IN OUR UNIT TO START HER READINGS I DON'T SEE IT. I'LL TAKE YOUR WORD. I PROBABLY WROTE WORK SPEED, ACCURACY, AND FAIRNESS -- THOROUGHNESS, I'M YEAH. FOR THE MOST PART, YEAH. IT IS A QUALITY THAT YOU YOU HAVE TO BE ABLE TO ACCEPT FEEDBACK OR DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 259 CURRAN - DIRECT / SMALLETS 1 Q. 2 MS. NEWTON HAD WITH THE BAKER TANK. 3 INCIDENT, RIGHT? 4 A. CORRECT. 5 Q. YOU OBSERVED THAT MS. NEWTON HAD COMMITTED TO BEING MORE 6 COMFORT CAREFUL IN THE FUTURE, DIDN'T YOU? 7 A. YES, SHE DID. 8 Q. AND IN THIS -- AND YOU -- AT THAT TIME YOU BELIEVED THAT 9 MS. NEWTON WAS WILLING TO LEARN AND DETERMINED TO LEARN, AND IN THE REVIEW YOU ALSO NOTED THE INCIDENT THAT THAT'S THE WASH WATER 10 CORRECT? 11 A. CORRECT. 12 Q. AND YOU REPORTED THAT SHE HAD HONESTY AND INTEGRITY, 13 CORRECT? 14 A. DID I WRITE THAT? 15 Q. YOU DID. 16 A. IT'S THERE. 17 Q. AND, IN FACT, THAT IS SOMETHING THAT YOU ADDED BETWEEN 18 YOUR JUNE 9TH REVIEW OF HER AND THIS JULY 29TH REVIEW, 19 CORRECT? 20 A. 21 SURE. 22 Q. YOU CAN LOOK? 23 A. DO YOU REMEMBER WHAT THE OTHER EXHIBIT NUMBER WAS? 24 Q. 19. 25 A. YEAH, I WROTE IT. I WOULD HAVE ON LOOK BETWEEN THE TWO. BUT IF IT IS, THEN DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 260 CURRAN - DIRECT / SMALLETS 1 Q. 2 YOU WERE LOSING SLEEP OVER MS. NEWTON'S JOB PERFORMANCE, DID 3 YOU? 4 A. THAT IS NOT SOMETHING I WOULD SHARE WITH AN OPERATOR. 5 Q. YOU DIDN'T TELL ERIC PEREZ THAT, DID YOU? 6 PERIOD? 7 A. YES, I DID. 8 Q. IN JULY, 2006 (SIC), YOU TOLD HIM THAT? 9 A. YES. 10 Q. YOU PUT IT IN WRITING? 11 A. NO. 12 Q. YOU DIDN'T PUT ANYWHERE IN WRITING IN THE JULY TIME FRAME 13 THAT YOU WERE LOSING SLEEP OVER MS. NEWTON'S JOB PERFORMANCE, 14 DID YOU? 15 A. NO. 16 Q. AND AT THE END OF THAT PERFORMANCE REVIEW YOU GAVE TO 17 MS. NEWTON ON JULY 29TH, YOU RECOMMENDED MS. NEWTON CONTINUE 18 AS AN OPERATOR, DIDN'T YOU? 19 A. 20 NOT CONTINUE. 21 SO IT'S YES OR NO. 22 AND NO POINT IN THIS REVIEW AT NO POINT DID YOU INDICATE AT THAT TIME I CALLED ERIC PEREZ AFTER THE BAKER TANK INCIDENT. IT WAS A VERBAL COMMUNICATION. THERE IS ONLY TWO BOXES. IT'S YOU MAY CONTINUE OR YOU MAY I DON'T HAVE THE AUTHORITY TO SAY NOT CONTINUE. SO, YEAH, I WANTED HER TO SUCCEED. I DIDN'T WANT HER TO 23 GO HOME. 24 Q. 25 THE EMPLOYEE'S PERFORMANCE TO DATE, SHOULD THE INDIVIDUAL I WANTED HER TO DO WELL. YOU CHECKED THE BOX THAT SAYS, BASED ON YOUR KNOWLEDGE OF DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 261 CURRAN - DIRECT / SMALLETS 1 CONTINUE AS AN EQUILON OPERATOR? 2 THAT'S ASKING YOU DO YOU THINK THAT INDIVIDUAL SHOULD 3 CONTINUE. 4 A. YES. 5 Q. AND YOU CHECKED THE BOX THAT SAID, YES, DIDN'T YOU? 6 A. YES. 7 Q. AND YOU STOPPED SUPERVISING MS. NEWTON REALLY SHORTLY 8 AFTER YOU COMPLETED THIS REVIEW, CORRECT? 9 A. CORRECT. 10 Q. NOW, LET'S TALK ABOUT SOME THINGS IN THE WORKPLACE 11 ENVIRONMENT. 12 IT WAS A SHORT PERIOD OF TIME. YOU'VE HEARD MALE EMPLOYEES TALKING ON THE RADIO IN FAKE, 13 HIGH, STEREOTYPICAL FEMALE VOICES, HAVEN'T YOU? 14 A. YES. 15 Q. YOU'VE HEARD THAT MANY TIMES? 16 A. YES. 17 Q. AND YOU'VE TOLD PEOPLE TO STOP DOING THAT, HAVEN'T YOU? 18 A. CORRECT. 19 Q. BECAUSE YOU KNOW THAT THAT COULD BE OFFENSIVE? 20 A. CORRECT. 21 Q. PEOPLE STOP WHEN THEY TELL THEM TO? 22 A. FOR A WHILE, YEAH. 23 Q. THEN THEY START DOING IT OVER AGAIN A FEW WEEKS LATER, 24 RIGHT? 25 A. SINCE I WAS A NEW EMPLOYEE. FAIR TO SAY, YES. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 262 CURRAN - DIRECT / SMALLETS 1 Q. 2 APPROPRIATE ON THE RADIO, DON'T THEY? 3 A. 4 LITTLE BIT OF A RAZZING OR JOKING AROUND, KIDDING AROUND. 5 Q. THEY GIVE YOU A HARD TIME ABOUT IT? 6 A. SURE. 7 Q. AND YOU -- YOU ARE AWARE THAT A STICKER WAS BROUGHT INTO 8 THE REFINERY THAT SAID IF YOUR PUSSY HURTS, JUST STAY HOME? 9 A. I'M AWARE OF THE STICKER, YES. 10 Q. YOU NEVER DID ANYTHING TO FIND OUT IF ANY OF YOUR TEAM 11 MEMBERS HAD BROUGHT THAT STICKER ON TO THE REFINERY? 12 A. 13 PERSON ON MY TEAM? 14 Q. DID YOU ASK ANY OF THEM? 15 A. NO. 16 Q. YOU PROVIDED INPUT IN THE DECISION TO TERMINATE 17 MS. NEWTON, DIDN'T YOU? 18 A. YES, I DID. 19 Q. AND YOU TALKED TO JEFF FISCHER ABOUT MS. NEWTON DURING HER 20 EMPLOYMENT? 21 A. SURE. 22 Q. YOU TALKED TO ERIC PEREZ DURING HER EMPLOYMENT? 23 A. YES. 24 Q. AND MIKE BECK ABOUT HER DURING HER EMPLOYMENT? 25 A. CORRECT. AND PEOPLE MAKE FUN OF YOU FOR TELLING THEM TO KEEP IT I DON'T KNOW IF I WOULD SAY IT QUITE LIKE THAT, BUT A IN WHAT REGARDS? WOULD YOU EXPECT ME TO INTERVIEW EVERY I DON'T THINK IT WAS ANYONE ON MY CREW. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 263 CURRAN - DIRECT / SMALLETS 1 Q. 2 CONCERNS ABOUT UNEQUAL TREATMENT, YOU WERE ALSO SUPERVISING AN 3 OPERATOR NAMED JOHN HESS, CORRECT? 4 A. YES. 5 Q. AND WHEN YOU TOLD MR. PEREZ THAT MS. NEWTON TOLD YOU THAT 6 SHE WAS -- THAT SHE THOUGHT SHE WAS BEING TREATED UNFAIRLY, 7 MR. PEREZ POINTED OUT TO YOU THAT YOU WERE ALSO DOCUMENTING 8 JOHN HESS FOR POOR PERFORMANCE, RIGHT? 9 A. CORRECT. 10 Q. AND DURING THAT SAME TIME PERIOD, YOU ACTUALLY GAVE JOHN 11 HESS A WRITTEN WARNING FOR POOR PERFORMANCE, CORRECT? 12 A. ORAL AND WRITTEN, YES. 13 Q. YOU GAVE MS. NEWTON COACHINGS, CORRECT? 14 A. CORRECT. 15 Q. SO IN THE PROGRESSIVE DISCIPLINE POLICY, COACHINGS ARE THE 16 LOWEST LEVEL AND THEN -- I AM SORRY. 17 VERBALLY. 18 A. COACHING, COUNSELING, ORAL OR WRITTEN DML. 19 Q. SO IT STARTS WITH COACHING. 20 A. CORRECT. 21 Q. AND THAT'S TO IMPROVE PERFORMANCE, CORRECT? 22 A. CORRECT. 23 Q. AND THEN IT MOVES TO COUNSELING, CORRECT? 24 A. CORRECT. 25 Q. THAT'S A LITTLE BIT OF A MORE SERIOUS ISSUE, RIGHT? DURING THE SAME TIME FRAME THAT MS. NEWTON WAS RAISING IT IS THE PROGRESSION. YOU HAVE TO SAY IT YES? DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 264 CURRAN - DIRECT / SMALLETS 1 A. 2 PERFORMANCE OR ATTENDANCE. 3 BEFORE. 4 THERE'S A PROBLEM, LET'S DISCUSS IT. 5 TO GET BETTER? 6 IT'S -- YEAH. IT'S A REPEAT, WHETHER IT IS WORK WE'VE TALKED ABOUT THIS ONCE THERE IS THE COUNSELING. THE COACHING IS, LIKE, HEY, WHAT ARE WE GOING TO DO COUNSELING IS IT'S STILL HAPPENING. THIS IS GOING ON. 7 AND IF IT STILL DOESN'T IMPROVE, THEN IT'S GOING TO BE A FORM 8 OF FORMAL DISCIPLINE, WHICH IS AN ORAL REMINDER. 9 Q. AND THEN FOLLOWED BY A WRITTEN REMINDER? 10 A. CORRECT. 11 Q. YOU GAVE JOHN HESS A WRITTEN REMINDER, RIGHT? 12 A. MYSELF AND ERIC PEREZ. 13 Q. HE HAD ISSUED A PERMIT THAT SHOULDN'T HAVE BEEN ISSUED, 14 CORRECT? 15 REMINDER? 16 A. NO. 17 Q. HE ISSUED A PERMIT TO TURN A BLIND AND DIDN'T CHECK WITH 18 THE LEADER? 19 A. 20 ONE WAS... PUTTING A FILTER BACK IN SERVICE WITH THE VENT LINE 21 OPEN AND THE OTHER ONE WAS OPENING A VALVE ON A BYPASS AROUND 22 A PSV TO THE WRONG PIECE OF EQUIPMENT CAUSING A SIGNIFICANT 23 UPSET. 24 Q. 25 VALVE? THAT WAS ONE OF THE THINGS THAT LED TO THE WRITTEN FOR HIS ORAL AND HIS WRITTEN REMINDER, I BELIEVE IT WAS -- SO HE -- ONE OF THE THINGS HE DID WAS HE OPENED THE WRONG DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 265 CURRAN - DIRECT / SMALLETS 1 A. CORRECT. 2 Q. AND THAT CAUSED A SIGNIFICANT UPSET? 3 A. YES. 4 Q. AND A SIGNIFICANT UPSET IS WHEN IT CAUSES THE UNIT TO NOT 5 FUNCTION PROPERLY? 6 A. CORRECT. 7 Q. HE ALSO DID SOMETHING THAT CAUSED A UNIT SHUTDOWN, RIGHT? 8 A. CORRECT. 9 Q. WHAT DID HE DO TO CAUSE THAT UNIT SHUTDOWN? 10 A. DIDN'T PROPERLY SECURE A PIECE OF EQUIPMENT ON THE CONTROL 11 BOARD FOR REPAIRS OR CHECKS AND THE CRAFTS PEOPLE WENT TO 12 PERFORM THEIR REPAIRS AND IT CAUSED A SHUTDOWN. 13 Q. 14 DOWN? 15 A. 16 AND BASICALLY TURNS IT OFF. 17 Q. HE ALSO MADE A MISTAKE WITH RESPECT TO THE PERMITS? 18 A. CORRECT. 19 Q. WHAT WAS THAT MISTAKE? 20 A. ISSUED A PERMIT FOR A BLIND ON A PIECE OF EQUIPMENT THAT 21 WASN'T READY. 22 Q. AND MR. HESS IS STILL EMPLOYED AT THE REFINERY, ISN'T HE? 23 A. YES, HE IS. 24 25 AND A UNIT SHUTDOWN IS WHEN THE ENTIRE UNIT HAS TO BE SHUT YES. IT'S AN EMERGENCY FAIL-SAFE SYSTEM THAT ACTIVATES MS. SMALLETS: I HAVE NOTHING FURTHER AT THIS TIME, YOUR HONOR. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 266 CURRAN - CROSS / LAFAYETTE CROSS. 1 THE COURT: 2 MR. LAFAYETTE: 3 THE COURT: 4 MR. LAFAYETTE: THANK YOU, YOUR HONOR. WILL THIS WITNESS BE COMING BACK? THERE IS A POSSIBILITY, YOUR HONOR. 5 I DON'T KNOW AT THIS POINT, YOUR HONOR. 6 COMING BACK BUT I AM CROSSING HIM NOW. LIMITED TO THE SCOPE OF DIRECT. 7 THE COURT: 8 MR. LAFAYETTE: 9 THE COURT: 10 YES. HE IS YOUR WITNESS AND NO LEADING QUESTIONS. 11 MR. LAFAYETTE: THANK YOU, YOUR HONOR. (BINDER HANDED TO WITNESS.) 12 13 14 YES, HE WILL BE EXCUSE ME. THE WITNESS: DO I USE THE SAME BOOK OR THE NEW BOOK? 15 MR. LAFAYETTE: 16 USE THE NEW BOOK. CROSS-EXAMINATION 17 BY MR. LAFAYETTE: 18 Q. 19 ON MR. HESS, WAS HE A PROBATIONARY EMPLOYEE? 20 A. TALKING ABOUT JOHN HESS? 21 Q. YES. 22 A. NO. 23 Q. WAS HE A UNION EMPLOYEE? 24 A. YES, HE WAS. 25 Q. AT THIS POINT IN TIME WAS MS. NEWTON IN THE UNION? I'M GOING TO ASK YOU A FEW QUESTIONS BEFORE I GET STARTED. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 267 CURRAN - CROSS / LAFAYETTE 1 A. NO. 2 Q. AND DO YOU KNOW WHETHER OR NOT BEING IN THE UNION MEANT 3 THAT YOU COULD ONLY TERMINATE MR. -- DO YOU KNOW WHAT THE 4 UNION CONTRACT SAYS WITH REGARD TO THE STANDARD FOR 5 TERMINATION OF A UNION EMPLOYEE? 6 MS. SMALLETS: 7 THE COURT: 8 THE WITNESS: 9 KNOW. PROBATIONARY EMPLOYEES ARE NOT IN THE UNION. THE QUESTION IS, DO YOU KNOW? YES OR NO. NOT OFF THE TOP OF MY HEAD, I DON'T NO. 10 BY MR. LAFAYETTE: 11 Q. 12 OBJECTION. OKAY. DO YOU KNOW IF IT IS A DIFFERENT STANDARD FOR TERMINATING 13 A UNION EMPLOYEE VERSUS A PROBATIONARY EMPLOYEE? 14 A. I BELIEVE IT IS. 15 Q. NOW, ARE YOU THE PERSON -- DO YOU HAVE AUTHORITY TO 16 TERMINATE PEOPLE AT THE REFINERY? 17 A. NO. 18 Q. DID YOU HAVE THE AUTHORITY TO TERMINATE MR. HESS? 19 A. NO. 20 Q. DID YOU HAVE THE AUTHORITY TO TERMINATE MS. NEWTON? 21 A. NO. 22 Q. SO LET'S GO BACK A LITTLE BIT THEN. 23 24 25 OKAY? YOU WERE SHOWN SOMETHING CALLED -- I THINK IT'S EXHIBIT 121. YOU WERE NOT ASKED WHAT THAT IS. MR. LAFAYETTE: I WOULD LIKE TO PULL UP EXHIBIT 121, DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 268 CURRAN - CROSS / LAFAYETTE 1 YOUR HONOR. 2 I BELIEVE IT IS IN EVIDENCE? THE COURT: 3 121 IS IN EVIDENCE, YES. (DISPLAYED ON SCREEN.) 4 BY MR. LAFAYETTE: 5 Q. WHAT IS THIS? 6 A. THIS IS OUR SHIFT SCHEDULE FOR 2016. 7 Q. HOW DO YOU READ THIS? 8 A. IT HAS THE MONDAY THROUGH FRIDAY ON THE BOTTOM ROW. 9 HAS THE DATES OBVIOUSLY, AND THEN WHAT TEAM IS COVERING, WHAT 10 SHIFT, BE IT DAYS OR NIGHTS. 11 FOR NIGHTS. 12 Q. 13 EXHIBIT 19, AND THAT WAS A DATE PROGRESS REPORT, DO YOU 14 REMEMBER THAT DOCUMENT? IT THERE IS A ROW FOR DAYS AND ROW IT IDENTIFIES WHICH TEAM IS ON. SO WHEN WE LOOKED AT YOUR EXHIBIT -- PLAINTIFF'S 15 CAN YOU TAKE A LOOK AT IT REAL QUICK? (DISPLAYED ON SCREEN.) 16 IN THE WHITE BINDER -- THERE IT IS ON THE SCREEN. DO YOU 17 SEE IT THERE? 18 A. YES. 19 Q. I WANT YOU TO TAKE A LOOK AT THAT DOCUMENT AND DID YOU 20 FILL THAT OUT ON JUNE 8, 2016? 21 A. YES. 22 Q. HOW MANY SHIFTS HAD MS. NEWTON WORKED ON WITH YOU PRIOR TO 23 THAT? 24 A. 14, ACCORDING TO THIS. 25 Q. HOW MANY? LOOK AT THE TOP FRONT OF IT. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 269 CURRAN - CROSS / LAFAYETTE 1 A. 14. 2 Q. 14 SHIFTS. 3 SHIFTS THAT YOU HAD WORKED WITH HER? 4 A. CORRECT. 5 Q. NOW, WHERE WERE YOU PRIOR TO WHEN YOU STARTED SUPERVISING 6 HER? 7 A. 8 BASICALLY, THE WHOLE DEPARTMENT FOR, OVER THE PERIOD OF TWO 9 MONTHS, TWO-AND-A-HALF MONTHS. SO WHEN YOU WROTE THIS, THERE HAD BEEN 14 WE WERE ON A TURNAROUND SCHEDULE. 10 BEING REPAIRED, CLEANED OUT. 11 TURNAROUND. 12 WE SHUT DOWN, THE UNITS WERE DOWN, SO WE WERE SHUTTING DOWN DOING DURING THAT TIME, MYSELF AND -- I WAS ON NIGHT SHIFTS AS 13 THE SHIFT TEAM LEADER THROUGHOUT THIS, JUST ALL NIGHTS. 14 THEY HAD DAY SHIFT SHIFT TEAM LEADER. 15 PEOPLE STAFFING THE TURNAROUND WERE ON A STRAIGHT-DAY SCHEDULE 16 OR STRAIGHT-NIGHT SCHEDULE. 17 AND THERE WAS ALL THE THEY DIDN'T ROTATE AROUND. THE NEW HP-2 OPERATORS FOLLOWED THEIR TEAM SCHEDULES 18 ROTATING AROUND, SO THEY WERE ROTATING BETWEEN DAYS AND NIGHTS 19 WHILE EVERYBODY ELSE STAYED STATIONARY ON STRAIGHT DAYS OR 20 STRAIGHT NIGHTS. 21 Q. 22 NIGHTS? 23 A. CORRECT. 24 Q. DURING THE TURNAROUND? 25 A. CORRECT. LET ME SEE IF I UNDERSTAND IT. YOU WERE WORKING STRAIGHT UNTIL WE CAME BACK ABOUT THE END OF MAY, EARLY DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 270 CURRAN - CROSS / LAFAYETTE 1 JUNE ROTATED -- I TRANSITIONED BACK -- TRANSITIONED BACK INTO 2 TEAM FOUR. 3 Q. 4 STRAIGHT NIGHTS AS WELL OR WERE THEY WORKING SOMETHING 5 DIFFERENT? 6 A. 7 ROTATING THROUGH. 8 Q. 9 ME HOW MANY SHIFTS YOU WORKED WITH MS. NEWTON THAT MONTH? TEAM FOUR, WHICH WAS YOUR TEAM. ALL OVER. SOME ON DAYS AND SOME ON NIGHTS. AND CIARA SO FOR THE MONTH OF JUNE WHEN YOU COME BACK, CAN YOU TELL 10 A. FOR THE FULL MONTH? 11 Q. 14 SHIFTS THAT MONTH. 12 WERE THEY WORKING ALL RIGHT. IT PROBABLY WOULD HAVE BEEN ABOUT 14. WERE THEY ALL DAYS OR WERE THEY ROTATING? 13 A. ROTATING. 14 Q. SO WHEN YOU SAY "ROTATING", WHAT DO YOU MEAN? 15 A. WORK A COMBINATION OF DAYS AND NIGHTS. 16 FOUR NIGHTS AND THEN WE WORK THREE DAYS, AND THEN WE WORK 17 THREE NIGHTS AND THEN WE WORK FOUR DAYS. 18 WORKING ALL SEVEN DAYS OF A WEEK IN DAY SHIFTS OR NIGHT 19 SHIFTS. 20 Q. IS THAT HARD? 21 A. EXTREMELY HARD. 22 Q. AND SO DURING THAT FIRST MONTH OF JUNE, HOW MUCH TIME DID 23 YOU SPEND WITH MS. NEWTON? 24 A. DURING THE MONTH OF JUNE? 25 Q. OKAY. WE START OFF WITH SO YOU END UP WE GO BACK AND FORTH. I CAN'T REMEMBER. DID YOU TRY TO HELP HER LEARN THE UNIT? DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 271 CURRAN - CROSS / LAFAYETTE 1 A. I DID. 2 Q. SO NOW -- 3 THE COURT: 4 MR. LAFAYETTE: 5 THE COURT: 6 MR. LAFAYETTE: 7 THE COURT: 8 9 IT SOUNDS LIKE YOU ARE SHIFTING. SORRY. ARE YOU SHIFTING YOUR QUESTIONS? YES, YOUR HONOR. LET'S GO AHEAD AND TAKE OUR FIRST BREAK, LADIES AND GENTLEMEN. WE WILL STAND IN RECESS FOR 15 MINUTES. (PROCEEDINGS HELD OUTSIDE THE PRESENCE OF THE JURY.) 10 THE COURT: 11 JURY HAS LEFT THE COURTROOM. 12 13 14 15 16 17 18 19 ALL RIGHT. MR. LAFAYETTE: THE RECORD WILL REFLECT THE 15 MINUTES. THANK YOU, YOUR HONOR. (RECESS TAKEN AT 10:03 A.M.; RESUMED AT 10:15 A.M.) THE CLERK: REMAIN SEATED. COURT IS IN SESSION. COME TO ORDER. THE COURT: ALL RIGHT. LET'S CALL THEM BACK IN. (PROCEEDINGS HELD IN THE PRESENCE OF THE JURY.) THE COURT: JURY IS BACK. ALL RIGHT. THE RECORD WILL REFLECT THE HOW ARE YOU DOING ON SNACKS BACK THERE? 20 JUROR: 21 THE COURT: 22 JUROR: 23 THE COURT: GOOD. STILL OKAY? PIZZA WOULD BE A GOOD THING. YOU GET SANDWICHES DURING DELIBERATIONS. 24 I TRY NOT TO BRING ANYTHING TOO GOOD BECAUSE I DON'T WANT YOU 25 TO STAY THAT LONG. JUST LONG ENOUGH TO DO YOUR JOB. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 272 CURRAN - CROSS / LAFAYETTE 1 YOU MAY PROCEED. 2 MR. LAFAYETTE: 3 BY MR. LAFAYETTE: 4 Q. 5 BINDER. 6 I WOULD LIKE YOU TO TAKE A LOOK AT EXHIBIT 83 IN THE WHITE DO YOU RECOGNIZE EXHIBIT 83? 7 A. YES. 8 Q. WHAT IS THAT? 9 A. IT'S A PD LOG. 10 Q. FOR WHOM? 11 A. CIARA NEWTON. 12 13 THANK YOU, YOUR HONOR. MR. LAFAYETTE: I WOULD LIKE TO MOVE EXHIBIT 83 INTO EVIDENCE, YOUR HONOR. 14 THE COURT: 15 MS. SMALLETS: 16 THE COURT: ANY OBJECTION? NO, YOUR HONOR. 83 IS ADMITTED. 17 (PLAINTIFF'S EXHIBIT 83 RECEIVED IN EVIDENCE) 18 (DISPLAYED ON SCREEN.) 19 BY MR. LAFAYETTE: 20 Q. 21 YOUR FIRST ENTRY ON THIS PD LOG? 22 A. THE SECOND PAGE. 23 Q. THE SECOND PAGE. CAN YOU TELL ME WHERE IT IS ON EXHIBIT 83 THAT YOU MAKE AND WHAT IS THAT IN CONNECTION WITH? 24 MS. SMALLETS: 25 THE COURT: OBJECTION, BEYOND THE SCOPE. I CAN'T HEAR YOU. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 273 CURRAN - CROSS / LAFAYETTE 1 MS. SMALLETS: 2 THE COURT: 3 IT IS BEYOND THE SCOPE. MR. LAFAYETTE: EXHIBIT. YES. I'LL GO TO EXHIBIT -- SAME PLAINTIFF REFERENCED IT -- 6 THE COURT: 7 REFERENCED PARTICULAR THINGS. I KNOW SHE REFERENCED IT. 8 MR. LAFAYETTE: 9 THE COURT: ALL RIGHT. BY MR. LAFAYETTE: 11 Q. 7/17/16 COACHING. 12 A. CORRECT. 13 Q. CIARA CAME INTO THE STL OFFICE? 14 A. YES. 15 Q. DID YOU WRITE THAT? 16 A. YES, I DID. 17 Q. AND WHEN DID YOU WRITE THAT? 18 SHE ONLY I AM GOING TO THAT ONE. 10 19 YOU'RE BRINGING HIM BACK, RIGHT? 4 5 OBJECTION, BEYOND THE SCOPE. DO YOU SEE THAT? YES. THE COURT: ARE WE GOING TO GET THE JURY TO THE RIGHT PAGE? 20 (DISPLAYED ON SCREEN.) 21 THERE YOU GO. 22 THANK YOU. MR. LAFAYETTE: 23 BY MR. LAFAYETTE: 24 A. 25 ARE ON NIGHT SHIFT. I BELIEVE 7/17. YES. IT COULD HAVE BEEN 7/16. SOMETIMES WE I CAN'T REMEMBER IF WE DID IT ON THE DAY DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 274 CURRAN - CROSS / LAFAYETTE 1 WE STARTED OR -- 2 Q. THIS IS NOTED AS A COACHING, RIGHT? 3 A. YES, IT IS. 4 Q. WHAT IS A COACHING? 5 A. A COACHING IS AN OBSERVATION, A COMMENT, FEEDBACK 6 DOCUMENTED IN HELPS OF IMPROVING PERFORMANCE. 7 Q. OKAY. 8 A. IT CAN BE POSITIVE OR NEGATIVE. 9 HAPPENED. 10 Q. 11 HAPPENED? 12 A. YES. 13 Q. CAN YOU READ IT, PLEASE? 14 A. (READING) 15 IT'S JUST SOMETHING THAT IS WHAT'S SAID HERE AN ACCURATE STATEMENT OF WHAT CIARA CAME INTO THE STL OFFICE AND INFORMED ME THAT SHE 16 OPENED THE WRONG VALVE. 17 ME IT WAS THE POTASSIUM TANK IN THE GRAVEL. 18 I ASKED HER WHICH ONE, AND SHE TOLD I ASKED HER IF SHE WAS OKAY, AND SHE SAID YES. I ASKED 19 HER HOW BIG THE LEAK WAS, AND SHE SAID IT WAS SMALL. 20 HER IF IT WAS THIS BIG, SHOWING MY ARMS ABOUT THE SIZE OF A 21 BASKETBALL, AND SHE SAID IT'S SMALL. 22 BIG AS AT THE STL OFFICE, AND SHE SAID NO. 23 CLOSED THE VALVE. 24 DEAL. 25 SHE SAID YES. I ASKED I ASKED HER IF IT WAS AS I ASKED HER IF SHE I SAID OKAY, IT'S NO BIG I WENT OUTSIDE ABOUT A HALF AN HOUR LATER AND LOOKED. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 275 CURRAN - CROSS / LAFAYETTE 1 THERE WAS A PUDDLE IN THE CONTAINMENT AREA THAT WAS 2 CONSIDERABLY BIGGER THAN WHAT I HAD EXPECTED. 3 SEVEN GALLONS. 4 VALVE SHE OPENED, AND SHE SHOWED ME THE 2-INCH BUTTERFLY VALVE 5 ON THE WEST SIDE OF THE BAKER TANK. I CALLED HER OUT AND ASKED HER TO SHOW ME THE 6 COURT REPORTER: 7 THE WITNESS: 8 COURT REPORTER: 9 THE WITNESS: 10 PROBABLY SIX OR YEAH. BY MR. LAFAYETTE: 12 Q. GO AHEAD. 13 A. (READING) WAIT. SORRY. THE BUTTERFLY VALVE ON THE -- WEST SIDE OF THE BAKER TANK. COURT REPORTER: 11 EXCUSE ME. I TOLD HER -- THANK YOU. 14 I TOLD HER THERE WAS MORE WATER IN THE CONTAINMENT AREA 15 THAN I THOUGHT, AND SHE TOLD ME THAT DONNIE TOLD HER HE WAS 16 WALKING BY AND SAW THE VALVE WAS NOT CLOSED ALL THE WAY AND IT 17 WAS LEAKING, SO HE CLOSED IT. 18 Q. 19 STOP THERE FOR A SECOND. WHEN SHE TOLD YOU INITIALLY ABOUT THIS BAKER TANK AND HER 20 TURNING THE WRONG VALVE, DID SHE TELL YOU THAT SHE HAD NOT 21 CLOSED IT ALL THE WAY? 22 A. NO. 23 Q. WAS THE FIRST TIME YOU REALIZED -- WHEN WAS THE FIRST TIME 24 YOU REALIZED THAT SHE HAD NOT CLOSED IT ALL THE WAY? 25 A. WHEN SHE TOLD ME. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 276 CURRAN - CROSS / LAFAYETTE 1 Q. AFTER YOU WENT OUT? 2 A. AFTER I WENT OUTSIDE, YES. 3 Q. KEEP READING. 4 A. (READING) 5 SO I TOLD CIARA I WAS CONCERNED ABOUT THE FACT THAT SHE 6 OPENED THE VALVE WITHOUT SEEING THAT IT WAS CONNECTED TO 7 ANYTHING. 8 JUST DID IT. 9 WHAT SHE WAS DOING. SHE SAID SHE WAS USED TO OPENING UP THE VALVE AND SHE SAID SHE WAS TIRED AND DIDN'T THINK ABOUT I TOLD HER IT WAS CRITICAL TO ALWAYS 10 THINK ABOUT WHAT WILL HAPPEN WHEN YOU MAKE A MOVE IN THE UNIT 11 AND, IF YOU DON'T UNDERSTAND TO ASK QUESTIONS. 12 AGREED. 13 DOING AT ALL TIMES. 14 Q. 15 COACHING IN HER FILE? 16 A. YES. 17 Q. DID YOU DO THAT BECAUSE SHE HAD RAISED WITH YOU ISSUES 18 CONCERNING ACID? 19 A. NO. 20 Q. NOW I WOULD LIKE FOR YOU TO TAKE A LOOK AT PAGE 167 OF 21 THAT SAME EXHIBIT. 22 A. YES. 23 Q. THERE'S AN ENTRY THERE ON 7/18/16. 24 A. YES. 25 Q. OKAY. AND SHE CIARA SAID SHE WOULD PAY ATTENTION TO WHAT SHE WAS ALL RIGHT. WAS THAT A PROPER THING TO PUT IN -- AS A DO YOU HAVE IT THERE? DO YOU SEE THAT? I THINK THIS GOES OVER TO TWO PAGES, BUT LET'S PULL DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 277 CURRAN - CROSS / LAFAYETTE 1 THAT UP. 2 A. YES, I DO. 3 Q. WHY DON'T YOU TELL US WHAT HAPPENED IN THAT INCIDENT? 4 A. TO SAY WHAT HAPPENED OR READ IT? 5 Q. TELL ME. 6 A. ALL RIGHT. 7 OKAY? DO YOU REMEMBER THIS INCIDENTS? SO I CLEANED UP A MESS AT A SAMPLE STATION THAT WE HAVE 8 OUT THERE. 9 SEE IT. 10 IT'S A COMMON THING I DO, PICKING UP THINGS WHEN I AND CLEANED EVERYTHING UP. THERE'S TWO NEW BOXES OF SAMPLING TUBES OUT THERE. AND 11 THEN A COUPLE OF NIGHTS LATER WHEN I WALKED BY, I NOTICED THAT 12 THE SAMPLE TUBE BOXES WERE UNOPENED. 13 IT, WHY -- WHERE IS SHE GETTING HER SAMPLE FROM, AND SHE SAID 14 SHE FOUND A TUBE ON THE GROUND. 15 SHE LOOKED AROUND AND COULDN'T PRODUCE THE TUBE. 16 SHE WASN'T TAKING THAT SAMPLE. 17 Q. 18 IT SOMEPLACE? 19 A. 20 ONTO. 21 Q. HAD SHE BEEN RECORDING ENTRIES IN THE SHEET? 22 A. YES. 23 Q. NOW, AND HAD SHE RECORDED AN ENTRY IN THE SHEET FOR THIS 24 PARTICULAR DAY? 25 A. AND I ASKED CIARA ABOUT I ASKED HER WHERE'S IT AT? SO I BELIEVE NOW, THIS SAMPLE THAT SHE TAKES, IS SHE SUPPOSED TO ENTER YES. WE HAVE A SHEET THAT WE RECORD THE SAMPLE RESULTS YES. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 278 CURRAN - CROSS / LAFAYETTE 1 Q. 2 USED? 3 A. NO. 4 Q. NOW, YOU USED THE TERM SAMPLE TUBE. 5 DRAEGER TUBE? 6 A. SAMPLE TUBE, DRAEGER TUBE, GASTEC TUBE. 7 Q. WERE YOU CONCERNED ABOUT THAT? 8 A. YES. 9 Q. EXPLAIN WHY. 10 A. IF WE HAVE THE GAS PRESENT IN THAT PART OF THE PLANT, IT'S 11 GOING TO DESTROY OUR HEATER. 12 CATALYST. 13 CATALYST THAT'S GOING TO NEED TO BE REPLACED IF WE PLUG IT UP 14 AND DESTROY IT. 15 Q. 16 COACH HER ON THAT? 17 A. NO. 18 Q. WAS THERE ANY REASON WHY YOU WOULDN'T PUT IT IN HER PD 19 LOG? 20 A. NO. 21 Q. NOW YOU CAN READ WHAT YOU WROTE, PLEASE. AND ON THIS DAY, DID SHE GIVE YOU THE SAMPLE TUBE THAT SHE IS THAT THE SAME AS A SAME THING. IT PLUGS IT UP AND DESTROYS THE I'M TALKING ABOUT 4-FOOT STORY BUILDING FULL OF IS THERE ANY REASON YOU CAN THINK OF WHY YOU WOULDN'T 22 MS. SMALLETS: 23 THE COURT: OBJECTION. OVERRULED. BEST EVIDENCE. YOU ARE BOTH ON TIME LIMITS. 24 I EXPECT THAT YOU WILL BE ONLY USING THE BEST EVIDENCE THAT 25 YOU BELIEVE WORKS FOR YOUR CASE. I DON'T FIND THAT A DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 279 CURRAN - CROSS / LAFAYETTE 1 PARTICULARLY GOOD OBJECTION FROM EITHER SIDE. 2 OVERRULED. 3 BY MR. LAFAYETTE: 4 Q. GO AHEAD. 5 A. (READING) 6 IT SAYS, TONIGHT I NOTICED THAT THE GASTEC TUBES THAT ARE 7 USED TO TAKE SAMPLES ON THE COLUMN 225 INLET AND OUTLET WERE 8 NOT BEING USED. 9 BOXES OUT WHICH NOW, TWO SHIFTS LATER, DIDN'T HAVE ANY MISSING I CLEANED THE AREA ON 7/17 AND PLACED TWO NEW 10 TUBES. 11 TUBES FOR HER SAMPLES. 12 LOOKED AROUND. 13 PICKED UP THE ONES ON THE GROUND TWO SHIFTS BEFORE, ON 7/17. 14 I ASKED WHERE SHE GOT HER GASTEC TUBES FOR TONIGHT'S SAMPLE, 15 AND SHE TOLD ME SHE USED THE BROKEN ONE SHE FOUND ON THE 16 GROUND BY THE HP-2 SHELTER. 17 ONE, AND SHE SAID SHE USED THE BROKEN ONE. 18 KNEW WHERE TO GET THE NEW TUBES, AND SHE TOLD ME IN THE 19 CONTROL CENTER. 20 SAMPLE AND WHAT CONSEQUENCES ARE OF SENDING H2S TO F104. 21 DIDN'T KNOW, AND I EXPLAINED TO HER THAT THE CATALYST WILL 22 PLUG CAUSING A SHUTDOWN. 23 THE SAMPLE EVERY NIGHT SHIFT AND USE A FRESH GASTEC TUBE AND 24 NOT USE BROKEN ONES FROM THE GROUND. 25 Q. I ASKED CIARA TO SHOW ME WHERE SHE GETS THE GASTEC SHE TOOK ME TO THE SAMPLE POINT AND SHE SAID THEY'RE USUALLY ON THE GROUND. I I ASKED HER IF SHE USED THE USED I ASKED HER IF SHE I ASKED HER IF SHE KNEW WHY WE TAKE THE SHE I TOLD HER IT IS IMPORTANT TO TAKE NOW, DO YOU -- IS THERE A RISK IN USING ONE WHERE ONE END DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 280 CURRAN - CROSS / LAFAYETTE 1 HAS ALREADY BEEN BROKEN OFF? 2 A. 3 A NEW ONE. 4 Q. I DON'T KNOW. IF THEY GET CONTAMINATED, IT IS BEST TO USE NOW, YOU WERE SHOWN THE EXHIBIT 1 -- EXHIBIT 99. 5 MR. LAFAYETTE: CAN YOU PULL EXHIBIT 99 UP AGAIN, 6 PLEASE? 7 BY MR. LAFAYETTE: 8 Q. DO YOU HAVE IT IN FRONT OF YOU? 9 A. YES. 10 Q. TAKE YOU TO PAGE 1600. 11 (DISPLAYED ON SCREEN.) 12 A. OKAY. 13 Q. IS THAT THE SECTION USE OF DRAEGER PUMP, IS THAT THE SAME 14 AS A DRAEGER TUBE? 15 A. 16 DRAW THE GAS THROUGH THE TUBE. 17 Q. 18 FOR TIGHTNESS USING AN UNOPENED TUBE. 19 20 THE PUMP IS PART OF IT. THE PUMP IS THE TOOL YOU USE TO SAYS ITEM 3, BEFORE USING A DRAEGER GASTEC TUBE, TEST IT FROM WHAT MS. CIARA NEWTON TOLD YOU, HAD SHE USED AN UNOPENED TUBE? 21 MS. SMALLETS: 22 THE COURT: 23 THE WITNESS: 24 BY MR. LAFAYETTE: 25 Q. OBJECTION, LEADING. OVERRULED. NO. NOW, ZERO SIXTY REPORTS. YOU PREPARED -- I THINK YOU SAID DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 281 CURRAN - CROSS / LAFAYETTE 1 THAT YOU PREPARED A ZERO TO SIXTY REPORT CONCERNING THE BAKER 2 TANK, RIGHT? 3 A. YES, I DID. 4 Q. WHY DID YOU PREPARE THAT AS OPPOSED TO, SAY, DONNIE GOFF? 5 A. FOR THE BAKER TANK? 6 Q. YES. 7 A. I WAS THE SHIFT TEAM LEADER. 8 THEY -- ULTIMATELY IT FALLS ON THE RESPONSIBILITY OF THE SHIFT 9 TEAM LEADER. OPERATORS CAN DO IT, BUT IT IS A GOOD EXPERIENCE FOR OPERATORS TO DO IT, 10 BUT SOMETIMES IT'S BETTER TO HAVE THE SHIFT TEAM LEADER DO IT. 11 Q. CAN YOU TAKE A LOOK AT EXHIBIT 21? 12 A. YES. 13 Q. NOW, FOR EXHIBIT 21, IS THIS THE ZERO SIXTY REPORT THAT 14 YOU PREPARED? 15 (DISPLAYED ON SCREEN.) 16 A. YES, IT IS. 17 Q. I WANT TO FOCUS YOUR ATTENTION ON THE FIRST PAGE OF THIS 18 AT ITEM 3. 19 DO YOU SEE THAT? 20 A. YES. 21 Q. THAT'S WHAT YOU WROTE, ISN'T IT? 22 A. IT IS. 23 Q. OKAY. 24 WHAT YOU WROTE IN THE PD LOG? 25 A. NOW, DO YOU RECOGNIZE THIS A LITTLE DIFFERENT THAN YES, IT IS. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 282 CURRAN - CROSS / LAFAYETTE 1 Q. EXPLAIN WHY YOU WROTE IT THIS WAY HERE. 2 A. I DIDN'T WANT TO DRAW ATTENTION TO THE OPERATOR THAT DID 3 THIS TO CIARA. 4 EVERYBODY IN THE REFINERY THAT AN OPERATOR OPENED UP A VALVE 5 CONNECTED TO NOTHING. 6 Q. 7 I WANTED TO -- IT WOULD LOOK BAD TO SAY TO ALL RIGHT. SO NOW, GOING BACK TO THIS ACID SPILL, OKAY? ON THE ACID 8 SPILL, DID IT TAKE PLACE ON YOUR SHIFT? 9 A. NO, IT DID NOT. 10 Q. WHICH SHIFT TEAM LEADER WOULD HAVE BEEN RESPONSIBLE FOR 11 PREPARING A ZERO SIXTY REPORT FOR THE ACID SPILL? 12 A. DONNIE GOFF. 13 Q. WHO? 14 A. DONNIE GOFF. 15 Q. THANK YOU. 16 17 SO NOW, LET'S TALK ABOUT WHAT YOU WERE AWARE OF THAT DAY WHEN YOU CAME IN. 18 DO YOU HAVE AN UNDERSTANDING AS TO HOW MANY DAYS HAD PAST 19 FROM THE DATE OF THE ACID SPILL UNTIL YOUR AWARENESS OF IT? 20 A. NOT EXACTLY, BUT I HAVE A GOOD ESTIMATE, YEAH. 21 Q. WHAT'S THAT? 22 A. FRIDAY DAY SHIFT, THE PREVIOUS DAY. 23 OF IT, IT WAS ON A MONDAY. 24 SATURDAY AND SUNDAY. 25 Q. SO WHEN I WAS AWARE SO IT WOULD HAVE BEEN FRIDAY, HOW DID YOU BECOME AWARE OF IT? DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 283 CURRAN - CROSS / LAFAYETTE 1 A. 2 SUPPLY COMPANY. 3 KNEW ABOUT IT, ASKING QUESTIONS AND MAKING SURE EVERYTHING WAS 4 OKAY. 5 Q. 6 AND SAID ANYTHING ABOUT AN ACID SPILL? I HAD A PHONE CALL FROM THE TRUCKING COMPANY OR CHEMICAL I CAN'T REMEMBER WHICH ONE, ASKING ME IF I PRIOR TO THAT PHONE CALL, HAD MS. CIARA NEWTON COME TO YOU 7 MS. SMALLETS: 8 THE COURT: 9 THE WITNESS: OBJECTION. LEADING. OVERRULED. NO. 10 BY MR. LAFAYETTE: 11 Q. ONCE YOU BECAME AWARE OF THE ACID SPILL, WHAT DID YOU DO? 12 A. I LOOKED THROUGH MY SHIFT REPORTS AND -- MY SHIFT TEAM 13 LEADERSHIP REPORTS ON THE DESK WHEN I WAS ON THE PHONE WITH 14 THE PERSON. 15 TOOK A LOOK. 16 AND WHEN I GOT OFF THE PHONE, I WENT OUTSIDE AND AND THEN WHEN I CAME BACK, I LOOKED THROUGH THE SHIFT 17 REPORTS ON THE COMPUTER FOR THE HP-2 OPERATOR JOB TO SEE IF 18 THERE WAS ANY... ANYTHING WRITTEN ABOUT IT. 19 Q. 20 THE ACID TANK, WHAT DID YOU OBSERVE? 21 A. 22 OYSTER SHELLS UNDERNEATH THE TANK. 23 KITTY LITTER. I CAN SEE A SPOT WHERE IT HAD BEEN WET, ALMOST 24 DISSOLVES IT. TURNS IT INTO LIKE A GLUE, LIKE USED KITTY 25 LITTER. WHEN YOU WENT OUTSIDE AND YOU LOOKED AT THE LOCATION OF IT LOOKED NORMAL. JUST THERE'S A LITTLE SPOT. WE KEEP IT IS SIMILAR TO LIKE A IT'S THE BEST WAY I CAN EXPLAIN IT. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 284 CURRAN - CROSS / LAFAYETTE 1 I COULD SEE THE EVIDENCE OF A PREVIOUS SPILL PER SE, BUT 2 THERE WASN'T ANYTHING ELSE GOING ON OUT THERE. 3 Q. 4 A RISK OF SAFETY TO ANYONE? 5 A. DID YOU SEE ANYTHING THAT LOOKED LIKE IT STILL REPRESENTED NO. 6 MS. SMALLETS: 7 THE COURT: 8 ANSWERED. 9 BY MR. LAFAYETTE: 10 Q. 11 LOOKS LIKE? 12 A. 13 OBJECTION, LEADING. THAT WAS LEADING, BUT HE ALREADY DID YOU -- CAN YOU DESCRIBE GENERALLY WHAT THIS ACID TANK SURE. THE ACID TANK IS A HORIZONTAL CYLINDER SIMILAR TO WHAT 14 PEOPLE WOULD STORE THEIR PROPANE GAS IN A CABIN UP IN THE 15 MOUNTAINS BUT A LITTLE BIT BIGGER. 16 OVERHEAD ON A STEEL STRUCTURE TO SUPPORT IT, LIKE STILTS TO 17 HOLD IT UP IN THE AIR. 18 INTO OUR CLEAN WATER TOWER. 19 CONCRETE CURB AROUND IT AS A CONTAINMENT AREA. 20 Q. 21 AROUND IT? 22 A. BEST GUESS IS 18 INCHES. 23 Q. DO YOU KNOW WHY THAT CURB EXISTS AROUND IT? 24 A. YES. 25 Q. AND SO WITHIN THE CONCRETE BUNKER, IS THERE ANYTHING AND IT SITS ABOUT 15 FEET WE USE THE GRAVITY TO FEED THE ACID AT THE BASE, IT HAS A RAISED AND HOW TALL IS THIS CONCRETE -- CONCRETE CURB THAT IS IT IS TO CONTAIN SPILLS. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 285 CURRAN - CROSS / LAFAYETTE 1 THERE? 2 A. YES. 3 Q. WHY OYSTER SHELLS? 4 A. THEY ARE A HIGHER PH MATERIAL AND THEY NEUTRALIZE ANY ACID 5 SPILLS. 6 VERY LOW, AND IT BRINGS THE PH BACK UP TO A NORMAL PH SO IT'S 7 NOT HAZARDOUS. 8 Q. 9 WHERE YOU CAN PUT THE ACID IN? WE KEEP OYSTER SHELLS IN THERE. THEY BRING THE PH -- THE PH OF ACID IS LOW, VERY, IT NEUTRALIZES IT. IS THERE A PLACE ON THIS TANK WHERE YOU CAN FILL IT? 10 A. YES, THERE IS. 11 Q. WHERE IS THAT LOCATED? 12 A. AT GRADE, ON THE GROUND. 13 Q. AT GRADE ON THE GROUND? 14 A. CORRECT. 15 Q. OKAY. 16 WEST OF THE TANK. AND SO IS THERE SOMETHING THERE AT THAT LOCATION AT GRADE 17 ON THE GROUND THAT IS DESIGNED TO PROTECT AGAINST SPILLS? 18 A. 19 WITH BRICKS THAT LEADS TO OUR PROCESS SEWER, AND WE KEEP THE 20 VALVE CLOSED. 21 WOULD OVERFILL DOWN INTO THE SEWER. 22 CLOSED. 23 CONTAIN IT INSIDE OF THERE. 24 Q. WHERE WERE -- GO AHEAD. 25 A. THERE IS ALSO A LEVEL TRANSMITTER, A LEVEL READING AT THE THERE'S A SAFETY SHOWER. THERE IS A DRAIN THAT'S FILLED SO IF THE SPILL WERE TO GET HIGH ENOUGH, IT BUT THAT VALVE IS KEPT IF WE WERE TO HAVE A SPILL BIG ENOUGH, IT WOULD DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 286 CURRAN - CROSS / LAFAYETTE 1 FILL STATION WHERE YOU FILL IT UP SO YOU CAN SEE THE LEVEL OF 2 THE TANK. 3 Q. 4 MECHANISM THERE TO CATCH WHATEVER COMES OVER IF THERE IS A 5 SPILL IF THERE IS AN OVERFILL? 6 A. 7 OUT A PIPE DOWN TO THE GROUND UNDERNEATH IN THE CONTAINMENT 8 AREA. 9 Q. IN THE CONTAINMENT AREA? 10 A. IT'S DESIGNED THAT WAY. 11 Q. SO WHEN YOU WENT OUT TO LOOK AT THE -- AT WHATEVER THERE 12 WAS, DID YOU LOOK AT THAT AREA? 13 A. YES. 14 Q. AND WHAT DID YOU SEE THERE? 15 A. OYSTER SHELLS AND WHAT LOOKS LIKE IT COULD HAVE BEEN A 16 PUDDLE PREVIOUSLY. 17 DRIED -- IT KIND OF DISSOLVES IT LIKE SMOOTH, NOT AS BIG A 18 TEXTURE, OYSTER SHELLS. 19 Q. 20 AT THAT POINT IN TIME, WHAT WOULD YOU HAVE DONE? 21 A. 22 CALL THE REFINERY SAFETY LEADER -- HE'S BASICALLY THE FIRE 23 CHIEF FOR THE REFINERY ON SHIFT, OR GET OYSTER SHELLS AND 24 NEUTRALIZE IT, DEPENDING ON HOW BIG A THREAT WE WERE DEALING 25 WITH. WHERE YOU CONNECT THE HOSE TO INPUT THE ACID, IS THERE A YES. WHEN YOU OVERFILL THE TANK, IT IS DESIGNED TO COME BUT IT WASN'T -- NOT A PUDDLE BUT A SO NOW IF YOU HAD SEEN SOMETHING THAT WAS STILL DANGEROUS WHATEVER THE APPROPRIATE ACTION WOULD HAVE BEEN, WHETHER DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 287 CURRAN - CROSS / LAFAYETTE 1 Q. 2 IT AND AFTER YOU -- DID YOU CALL SOMEONE ON THE PHONE? 3 SAID -- I THINK YOU SAID YOU CALLED THE SHIFT OPERATOR WHO IS 4 ON SHIFT? 5 A. 6 ANSWER HIS PHONE. 7 BEEN ON SHIFT DURING THOSE DATES. 8 Q. DID YOU TALK TO HIM? 9 A. I DID. 10 Q. DID YOU ASK HIM WHAT ACTION HAD BEEN TAKEN THE NIGHT OF 11 THE SPILL? 12 A. YES. 13 Q. WHAT DID HE SAY TO YOU? 14 A. HE SAID THEY PUT OYSTER SHELLS ON IT. 15 Q. DID YOU HAVE ANY REASON -- DID YOU REACH AN UNDERSTANDING 16 IN YOUR OWN MIND AS TO WHETHER OR NOT IT HAD BEEN PROPERLY 17 HANDLED? 18 A. I DID. 19 Q. AND WHAT WAS THAT? 20 A. THAT IT WAS FINE. 21 Q. OKAY. 22 CONVERSATION WITH CIARA NEWTON? 23 A. NO. 24 Q. WHEN DID YOU WIND UP HAVING A CONVERSATION WITH CIARA 25 NEWTON RELATIVE TO THE THINGS THAT YOU TOLD ME THAT YOU DID? NOW, AFTER THAT HAPPENED, AFTER YOU WENT OUT AND INSPECTED YES. I TRIED TO CALL THE SHIFT TEAM LEADER. YOU HE DIDN'T SO I CALLED THE OPERATOR WHO WOULD HAVE NOW, AFTER YOU DID ALL OF THAT, DID YOU HAVE A DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 288 CURRAN - CROSS / LAFAYETTE 1 A. THE NEXT DAY AT THE END OF THE SHIFT. 2 Q. THE NEXT DAY AT THE END OF THE SHIFT? 3 A. CORRECT. 4 Q. IS IT -- AT THAT POINT HOW MANY DAYS HAD PASSED SINCE THE 5 OVERFILL HAD TAKEN PLACE? 6 THE COURT: 7 MR. LAFAYETTE: 8 THE WITNESS: 9 KEEP THAT MICROPHONE NEXT TO YOU. I AM SORRY. I BELIEVE FIVE DAYS. BY MR. LAFAYETTE: 10 Q. HOW MANY? 11 A. FRIDAY, SATURDAY, SUNDAY, MONDAY, AND TUESDAY, FIVE DAYS. 12 Q. IN YOUR MIND WAS THERE AT THAT MOMENT IN TIME ANY RISK 13 THAT ANYBODY COULD BE HARMED BY THIS ACID OVERFILL? 14 MS. SMALLETS: 15 THE COURT: OBJECTION, LEADING. SUSTAINED. 16 BY MR. LAFAYETTE: 17 Q. 18 OPINION AS TO THE STATUS OF THE ACID FROM THE OVERFILL? 19 A. THE AREA AROUND THE TANK. 20 Q. SO YOU HAD A CONVERSATION ON THAT DAY WITH MS. NEWTON. 21 CAN YOU EXPLAIN THAT CONVERSATION TO US, PLEASE? 22 A. 23 SHIFT AND SAW THAT SHE HAD NOTATED THAT THERE WAS AN ACID LEAK 24 AT THE CLEAN WATER TOWER. 25 DID YOU HAVE AN OPINION -- FIVE DAYS LATER, WHAT WAS YOUR YES. THE TANK IS ITSELF IS FINE. I WAS READING THE SHIFT REPORTS AT THE END OF THE SO I ASKED HER, HEY, IS THERE AN ACID LEAK OUT HERE? DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 289 CURRAN - CROSS / LAFAYETTE 1 WHAT'S GOING ON? 2 THAT SHE HAD HEARD THAT THEY HAD OVERFILLED THE TANK. 3 I DIDN'T HEAR ANYTHING. AND SHE EXPLAINED AT THAT POINT I EXPLAINED TO HER THAT, HEY, WE DON'T KNOW 4 WHAT HAPPENED HERE. 5 US. 6 THIS TEAM IS COMING ON TONIGHT TO RELIEVE LET'S TALK TO THEM AND FIND OUT WHAT HAPPENED. AND WHEN YOU SEE THINGS OUT IN THE UNIT THAT ARE OUT OF 7 PLACE, THAT AREN'T RIGHT, THAT SOMETHING THAT YOU KNOW AN 8 OPERATOR DID AND IT'S NOT AN IMPENDING EMERGENCY THAT YOU NEED 9 TO TAKE CARE OF, IT'S BETTER TO HAVE A FACE-TO-FACE 10 CONVERSATION WITH THE OPERATOR TO FIND OUT WHAT HAPPENED AS 11 OPPOSED TO JUST WRITING IN THE SHIFT REPORT WHERE EVERYONE CAN 12 SEE IT. 13 YOU DO THAT. 14 Q. DID YOU TELL HER TO TAKE IT OUT OF THE REPORT? 15 A. I DID NOT. 16 Q. ALL RIGHT. 17 YOU CAN GET A REPUTATION AS A TATTLETALE OR A RAT IF NOW, AFTER THAT CONVERSATION WITH HER -- WELL, WHAT WAS 18 HER REACTION IN THE CONVERSATION? 19 A. 20 THAT WAS JUST THE END OF IT. 21 Q. 22 ABOUT THE ACID SPILL? 23 A. THAT SHIFT, NO. 24 Q. OKAY. 25 A. AND -- I DON'T WANT TO SAY SHE AGREED BUT THERE WAS NO CONTEST. DID YOU HAVE ANY OTHER CONVERSATIONS WITH HER AFTER THAT SO -- DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 290 CURRAN - CROSS / LAFAYETTE 1 Q. GO AHEAD. 2 A. THE NEXT SHIFT AFTER THE STARTER SHIFT MEETING, WE WENT 3 OUTSIDE. 4 PERMITS FOR WORK GOING ON IN THE UNIT. 5 WAS VISIBLY UPSET OR DISTURBED. 6 ASKED HER WHAT WAS -- WHAT'S THE MATTER? 7 I WENT OUTSIDE WITH CIARA TO ASSIST SOME WITH I LOOKED OVER AND SHE SOMETHING WAS WRONG. WHAT IS HAPPENING? SHE WAS LOOKING ACROSS THE STREET TOWARDS THE ACID TANK, 8 AND SHE POINTED AND SAID THE ACID, THE ACID. 9 GOING ON? IS SOMETHING HAPPENING OVER THERE? I SAID, WHAT IS AND THERE WAS A 10 PERSON -- IT'S A PARKING LOT AREA. 11 HANGING OUT BY THEIR TRUCK WAITING FOR SOMETHING. 12 DIDN'T UNDERSTAND WHAT THE THREAT WAS. 13 AND THERE WAS A PERSON AND I SO WE WALKED ACROSS THE STREET OVER TO THERE AND LOOKED AT 14 THE TANK AREA AND, LIKE, WHAT'S THE PROBLEM HERE? 15 LIKE THEY OVERFILLED THE TANK. 16 HER IT HAS BEEN NEUTRALIZED. 17 THEY'RE NEUTRALIZED. 18 OKAY. 19 AND I AND SHE'S THERE IS ACID IN HERE. I TOLD THERE ARE OYSTER SHELLS IN HERE, THERE'S NOTHING SCARY IN HERE. IT'S AT THIS POINT I HAD TO LEAVE TO MY NEXT MEETING, A 20 PRODUCTION MEETING. 21 OYSTER SHELLS AND WHAT TO DO WITH AN ACID LEAK AFTER THE 22 MEETING. 23 I SAID I WILL SHOW YOU WHERE TO GET THE SO I LEFT AND WENT TO THE MEETING. WHEN I CAME BACK, AN 24 OPERATOR PULLED ME ASIDE IN THE CONTROL CENTER AND SAID, 25 WHAT'S GOING ON WITH THE ACID TANK? WHAT -- WHAT DO YOU MEAN? DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 291 CURRAN - CROSS / LAFAYETTE 1 WE HAD A TANK OVERFILLED LAST WEEK. 2 IN THE BATHROOM CRYING, MUMBLING ABOUT THE ACID. 3 OKAY. SHE SAID CIARA IS -- WAS LIKE, WOW. 4 SO I DON'T RECALL IF I FOUND CIARA IN THE CONTROL CENTER 5 OR IF I CALLED HER ON THE RADIO TO MEET ME OUT THERE, BUT AT 6 SOME POINT WE CONNECTED BACK OUT AT THE ACID TANK. 7 THE TRUCK TO THE STORAGE SHED WHERE WE KEEP THE OYSTER SHELLS. 8 I SHOWED HER THAT AREA AND WHERE THEY ARE AT, WHAT THEY LOOK 9 LIKE. IT'S LIKE A BAG OF CEMENT BASICALLY. 10 YOU GET, 50-POUND BAG. 11 AROUND TO THE ACID TANK. WE TOOK IT'S A PAPER BAG PUT IT IN THE TRUCK, DROVE IT BACK 12 AND THEN I DEMONSTRATED, TAKING IT, OPENING IT, AND 13 PUTTING IT INTO THE CONTAINMENT AREA WHILE SHE WATCHED FROM 14 THE TRUCK. 15 Q. WHY DID YOU DO IS THAT? 16 A. SHE WAS UNCOMFORTABLE AND LOOKED SCARED TO ME, SO I WAS 17 DEMONSTRATING THAT TO MAKE HER FEEL BETTER. 18 Q. 19 REGARD TO THE ACID OVERFILL? 20 A. THAT WAS IT. 21 Q. NOW, DO YOU HAVE AN UNDERSTANDING AS TO WHETHER A ZERO 22 SIXTY REPORT WAS EVER PREPARED? 23 A. YES, I WAS. 24 Q. WERE UP THE ONE TO PREPARE IT? 25 A. NO. OKAY. ANYTHING ELSE HAPPEN BETWEEN YOU AND HER WITH DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 292 CURRAN - CROSS / LAFAYETTE 1 Q. WHO DID IT? 2 A. DONNIE GOFF. 3 Q. NOW WERE YOU DONNIE GOFF'S SUPERVISOR? 4 A. NO. 5 Q. DID YOU HAVE THE AUTHORITY TO TELL DONNIE GOFF WHAT TO DO, 6 WHEN, WHERE AND HOW? 7 A. NO. 8 Q. AND JUST TO CIRCLE BACK AROUND ON ONE OTHER THING, THE 9 SIGHT GLASS. 10 DO YOU KNOW WHAT I AM TALKING ABOUT? 11 THE ACID TANK? 12 A. YES. 13 Q. OKAY. 14 THE SIGHT GLASS ON DO YOU KNOW IF MS. NEWTON WAS THE ONLY PERSON TO REFERENCE 15 THE SIGHT GLASS IN SHIFT TEAM REPORTS? 16 A. I DON'T KNOW. 17 Q. DO YOU KNOW IF A REQUEST HAD BEEN SENT IN FOR REPAIR OF 18 THE SIGHT GLASS? 19 A. I DON'T KNOW. 20 Q. AT SOME POINT DID YOU AND MS. NEWTON DO SOMETHING WITH THE 21 SIGHT GLASS? 22 A. YES. 23 Q. YOU DID WHAT? 24 A. WE WORKED ON UNPLUGGING IT. 25 Q. OKAY. NOT AT THAT POINT. WE WORKED ON UNPLUGGING IT. WE UNPLUGGED IT. SO -- DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 293 CURRAN - CROSS / LAFAYETTE 1 A. 2 ARE BROKEN, WE TRY TO FIX THINGS WITHIN OUR MEANS BEFORE WE 3 CALL OUT THE CRAFTS PEOPLE. 4 REPAIR SCOPE. 5 IS SOMETHING THAT OPERATIONS WILL GO TO FIRST BEFORE WE CALL 6 OUT REPAIR PEOPLE. 7 Q. WHY DID YOU GUYS DO IT THAT? 8 A. TO FIX IT. 9 Q. DID YOU GO OUT THERE WITH JUST YOUR REGULAR RED JUMPSUIT 10 ON? 11 A. 12 PROTECTIVE EQUIPMENT. 13 GLOVES, GOGGLES. 14 Q. 15 IN THE -- I'LL CALL IT A TROUGH? 16 A. THAT'S FINE. 17 Q. OKAY. 18 PROTECTIVE -- 19 A. PERSONAL PROTECTIVE EQUIPMENT. 20 Q. DID YOU PUT ON THAT TYPE OF EQUIPMENT THAT DAY? 21 A. GLOVES AND GOGGLES. 22 Q. WHY NOT? 23 A. WHAT WOULD I BE PROTECTING MYSELF FROM. 24 THREAT, NO HAZARD. 25 Q. TYPICALLY, BEFORE YOU'LL SUBMIT A WORK REQUEST WHEN THINGS NO. IF IT'S SOMETHING WITHIN OUR AND UNPLUGGING TRANSMITTERS AND LEVEL GLASSES WHEN WE ARE DEALING WITH CHEMICALS, WE USE THE PROPER SO WITH ACID, IT'S AN ACID SUIT, RUBBER WHEN YOU WENT OUT TO PUT THE OYSTERS SHELLS IN THE PIT -- DID YOU PUT ON A PP -- WHAT DO YOU CALL IT? ALL RIGHT. PROPER PPE. NO ACID SUIT. THERE WAS NO NOW, YOU WERE ASKED ABOUT SOMETHING DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 294 CURRAN - CROSS / LAFAYETTE 1 EXHIBIT 37. 2 3 CAN YOU LOOK AT EXHIBIT 37, PLEASE? MR. LAFAYETTE: I DON'T THINK 37 IS ADMITTED INTO EVIDENCE, YOUR HONOR? 4 THE COURT: 5 MR. LAFAYETTE: 6 THE COURT: 7 37 IS ADMITTED. IT IS. THANK YOU, YOUR HONOR. IT WAS ADMITTED WITH MR. PEREZ. (DISPLAYED ON SCREEN.) 8 BY MR. LAFAYETTE: 9 Q. 10 SO THIS IS EXHIBIT 37. IT'S DATED JULY 29, 2016. DO YOU SEE THAT? 11 A. YES. 12 Q. NOW, PRIOR TO THAT DATE HAD YOU INTERVIEWED MS. NEWTON? 13 HAD YOU SAT DOWN WITH MS. NEWTON, GUY ROZAR, AND NICK BACKENS 14 TO REVIEW MS. NEWTON'S PD LOG? 15 A. YES. 16 Q. AND SO DID YOU DOCUMENT IN WRITING THE CONTENT OF THE 17 MEETING THAT YOU HAD THAT DAY? 18 A. YES. 19 Q. WE'LL TALK ABOUT THAT AT ANOTHER TIME. 20 OKAY? BUT SO DURING THAT MEETING, DID YOU HAVE A CONVERSATION IN 21 ANY WAY WHATSOEVER REGARDING MS. NEWTON'S TARDIES? 22 A. YES. 23 Q. ON THE 22ND, WHEN YOU HAD THAT MEETING, WAS MS. NEWTON 24 LATE TO WORK? 25 A. YES. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 295 CURRAN - CROSS / LAFAYETTE 1 Q. DID YOU SEE HER COME THROUGH THE DOOR? 2 A. I DON'T RECALL. 3 Q. OKAY. 4 SAID THAT SHE SAID -- SHE HAD AN ARRANGEMENT WITH PATRICK 5 NEUMAN. 6 YOU SAID THAT YOU LEARNED AT SOME POINT THAT SHE DO YOU REMEMBER THAT? 7 A. YES. 8 Q. WHO WAS IT THAT TOLD YOU THAT SHE HAD AN ARRANGEMENT WITH 9 PATRICK NEUMAN? 10 A. 11 SAID SHE WAS COMING. 12 Q. TEXTED HIM AND SAID SHE WAS COMING? 13 A. YES. 14 Q. NOW, DO YOU HAVE AN UNDERSTANDING AS TO WHEN IT WAS 15 RELATIVE TO 6:00 O'CLOCK A.M. SHE TEXTED PATRICK NEUMAN AND 16 SAID SHE WAS COMING? PATRICK. NOT AN ARRANGEMENT BUT THAT SHE TEXTED HIM AND 17 MS. SMALLETS: 18 THE COURT: OBJECTION, HEARSAY. FORM OF THE QUESTION COULD ELICIT 19 HEARSAY. 20 BY MR. LAFAYETTE: 21 Q. 22 6:00 O'CLOCK WHEN SHE TEXTED PATRICK NEUMAN? REPHRASE. DID YOU GET AN UNDERSTANDING AS TO HOW -- RELATIVE TO 23 MS. SMALLETS: 24 THE COURT: 25 OFFERED FOR? OBJECTION, HEARSAY. WELL, I DON'T KNOW. WHAT PURPOSE? WHAT IS IT BEING FOR THE EXACT TIME? DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 296 CURRAN - CROSS / LAFAYETTE 1 MR. LAFAYETTE: 2 THE COURT: 3 MR. LAFAYETTE: 4 THE COURT: AS CLOSE -- THE ACCURACY OF THAT TIME? YES. SUSTAINED. 5 BY MR. LAFAYETTE: 6 Q. 7 HAVE TO CALL SOMEONE OTHER THAN THE PERSON THEY ARE RELIEVING? 8 A. YES. 9 Q. WOULD THAT HAVE BEEN YOU? 10 A. YES. 11 Q. DID YOU GET A PHONE CALL FROM HER? 12 A. NO. 13 Q. OKAY. 14 PATRICK NEUMAN THAT SAID HE HAD GOTTEN TAKE TEXT? 15 A. AFTER I TOLD HIM TO GO HOME. 16 Q. AFTER YOU HAVE TOLD HIM TO GO HOME. 17 WHEN PEOPLE -- IF SOMEONE IS GOING TO BE LATE, DO THEY THEY SHOULD CALL THE SHIFT TEAM LEADER. NOW, WHEN WAS IT THAT YOU GOT SOMETHING FROM AND HOW LONG HAD SHE BEEN LATE WHEN YOU TOLD HIM TO GO 18 HOME? 19 A. 20 OF THE SHIFT. 21 OR P.M. 22 EACH OTHER. 23 PERSON ON THE SHIFT AND TOLD PATRICK TO GO HOME. 24 Q. IN YOUR MIND WAS SHE LATE? 25 A. YES. SHE HAD NOT BEEN LATE YET. IT WAS GETTING TOWARDS THE END THE SHIFT TECHNICALLY ENDS AT 6:00 O'CLOCK A.M. PEOPLE COME IN SOMETIME BETWEEN 5:30, 5:45 TO RELIEVE WHEN IT WAS GETTING CLOSE TO 6:00, I HAD AN EXTRA DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 297 CURRAN - REDIRECT / SMALLETS NOW, THE THREE TARDIES, DO YOU KNOW IF THAT MEANS 1 Q. 2 SOMETHING UNDER THE PD LOG -- 3 MS. SMALLETS: 4 BY MR. LAFAYETTE: 5 Q. -- UNDER THE POSITIVE DISCIPLINE POLICY? 6 THE COURT: 7 MR. LAFAYETTE: 8 OBJECTION, BEYOND THE SCOPE. SUSTAINED. BEYOND THE SCOPE. THANK YOU. I RESERVE ON THIS WITNESS, YOUR HONOR. 9 ALL RIGHT. THE COURT: 10 ANOTHER DAY. 11 THIS POINT? MR. CURRAN, WE WILL SEE YOU YOU MAY -- OH, SORRY. 12 MS. SMALLETS: 13 THE COURT: 14 DO YOU WANT TO EXAMINE AT YES. OKAY. GO AHEAD. REDIRECT EXAMINATION 15 BY MS. SMALLETS: 16 Q. 17 EXHIBIT 99? MR. CURRAN, COULD YOU PLEASE TAKE A LOOK BACK AT 18 THE COURT: 19 THE WITNESS: 20 THE COURT: DO YOU HAVE THAT? YES, I DO. GO AHEAD. 21 BY MS. SMALLETS: 22 Q. 23 SECTION C3 BEFORE USING A DRAEGER GASTEC PUMP TESTED FOR 24 TIGHTNESS USING AN UNOPENED TUBE. 25 USING A PUMP, CORRECT? AND MR. LAFAYETTE HAD ASKED YOU ABOUT AN INSTRUCTION IN THOSE ARE INSTRUCTIONS FOR DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 298 CURRAN - REDIRECT / SMALLETS 1 A. YOU WOULD HAVE TO USE THE PUMP TO PULL A SAMPLE. 2 Q. THOSE ARE INSTRUCTIONS FOR HOW TO USE THE PUMP, RIGHT? 3 A. SAYS, BEFORE USING A DRAEGER GASTEC PUMP, TEST IT FOR 4 TIGHTNESS USING AN UNOPENED TUBE. BREAK OFF THE TIPS OF THE 5 DRAEGER SENSIDYNE DETECTOR TUBE. INSERT THE TUBE TIGHTLY INTO 6 THE PUMP. 7 Q. 8 TIMES, CORRECT? 9 A. AND THEN IT SAYS THAT YOU CAN REUSE A TUBE UP TO TEN YES. SOMETIMES YOU NEED TO DO MORE THAN ONE PULL TO GET A 10 SAMPLE RESULT. 11 Q. 12 POLICIES, INFORMS OPERATORS THAT THEY CAN REUSE A TUBE, 13 CORRECT? 14 CORRECT? 15 A. 16 OF TUBES. 17 SOMETIMES WE USE HALF A PULL. 18 PULLS. 19 Q. IT SAYS TEN TIMES, DOESN'T IT? 20 A. I'LL TAKE YOUR WORD FOR IT. 21 Q. YOU ARE AWARE THAT MS. NEWTON THOUGHT THAT TRAPS WERE 22 BEING SET FOR HER, CORRECT? MR. CURRAN, THIS DOCUMENT, THAT IS SHELL'S OFFICIAL YES. IT SAYS THE TUBES CAN BE USED UP TO TEN TIMES, THERE'S ACTUALLY A PROCEDURE FOR THE DIFFERENT TYPES SO SOME USE TEN PULLS DEPENDING ON HOW MUCH. 23 MR. LAFAYETTE: 24 THE COURT: YES, IT SAYS WE CAN DO TEN SURE. OBJECTION, IT IS OUTSIDE THE SCOPE. SUSTAINED. 25 DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 299 CURRAN - REDIRECT / SMALLETS 1 BY MS. SMALLETS: 2 Q. 3 REPRESENTATIVE OF EITHER THE TRUCKING OR CHEMICAL COMPANY, 4 CORRECT? 5 A. YES. 6 Q. THAT REPRESENTATIVE WAS CONCERNED ABOUT THE SPILL, WASN'T 7 HE? 8 A. 9 SAFETY AT THE COMPANY, SAFETY -- YOU GOT A CALL ABOUT THE SULFURIC ACID SPILL FROM A IT WAS A FOLLOW-UP CALL. BUT, YEAH, HE WAS CONCERNED. 10 Q. 11 SULFURIC ACID TANK HADN'T BEEN FIXED EARLIER, DIDN'T HE? 12 A. NO. 13 Q. YOU GOT A FOLLOW-UP CALL FROM -- YOU GOT -- THE 14 REPRESENTATIVE FROM THE CHEMICAL COMPANY CAME INTO YOUR OFFICE 15 A FEW DAYS LATER. 16 A. YES. 17 Q. AND YOU TALKED TO THAT REPRESENTATIVE AT THAT TIME? 18 A. YES. 19 Q. AND THAT REPRESENTATIVE SAID THAT WAS -- ALSO EXPRESSED 20 CONCERNS, DIDN'T HE? 21 A. 22 TO PLUG UP, OR LEVEL GLASS. 23 MONTHS. 24 DELIVER ACID. 25 Q. AND HE TOLD -- HE ASKED SOME QUESTIONS ABOUT WHY THE YES. CORRECT? IT'S A COMMON OCCURRENCE FOR OUR LEVEL TRANSMITTER SO HE WAS CONCERNED. IT HAPPENS EVERY COUPLE OF HE WANTED IT FIXED SO HE CAN IT HADN'T BEEN FIXED AT THAT TIME, HAD IT? DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 300 CURRAN - REDIRECT / SMALLETS 1 A. CORRECT. 2 MS. SMALLETS: YOUR HONOR, I WOULD LIKE TO APPROACH 3 THE WITNESS TO GIVE HIM A COPY OF EXHIBIT 86, WHICH WAS NOT IN 4 OUR WITNESS BINDER BUT IS IN THE BINDERS WE DELIVERED TO THE 5 COURT. SO YOU SHOULD HAVE A COPY. 6 THE COURT: 7 MS. SMALLETS: 8 THE COURT: 9 YOU CANNOT APPROACH HIS WITNESS WITHOUT MR. LAFAYETTE: THE COURT: 13 MR. LAFAYETTE: 14 THE COURT: 15 MS. SMALLETS: I DON'T KNOW THAT. THE COURT: 18 WHAT IS THE ISSUE? WHAT DAY THE SULFURIC ACID SPILL I'LL ALLOW IT. LET ME KNOW WHEN YOU HAVE IT, MR. LAFAYETTE. 19 MR. LAFAYETTE: 20 THE COURT: 21 I HAVE IT. GO AHEAD. (EXHIBIT HANDED TO WITNESS.) 22 BY MS. SMALLETS: 23 Q. 25 DO YOU HAVE ONE I CAN USE? HAPPENED. 17 24 THIS IS OUTSIDE THE SCOPE, YOUR HONOR. 12 16 I HAVE NOT. GIVING HIM A COPY. 10 11 HAVE YOU GIVEN A COPY TO MR. LAFAYETTE? MR. CURRAN -THE COURT: HOLD ON. HE DOESN'T HAVE IT YET. DIDN'T GIVE HIM A COPY. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC YOU 301 CURRAN - REDIRECT / SMALLETS 1 MS. SMALLETS: I APOLOGIZE. 2 MR. LAFAYETTE: I HAVE IT. 3 THE COURT: OKAY. GO AHEAD. 4 BY MS. SMALLETS: 5 Q. 6 PAGES OF THAT EXHIBIT, IS THAT A SHIFT REPORT THAT MS. NEWTON 7 COMPLETED ON JULY 4TH, 2016? 8 A. YES. 9 Q. AND IF YOU LOOK THROUGH THE REST OF THE PAGES OF THAT MR. CURRAN, DIRECTING YOUR ATTENTION TO THE FIRST TWO 10 EXHIBIT, THOSE ARE SHIFT REPORTS MS. NEWTON COMPLETED IN JULY, 11 CORRECT? 12 A. IT APPEARS TO BE, YES. 13 14 MS. SMALLETS: YOUR HONOR, WE WOULD LIKE TO OFFER EXHIBIT 68 INTO EVIDENCE. 15 MR. LAFAYETTE: 16 THE COURT: 17 NO OBJECTION, YOUR HONOR. IT'S ADMITTED. (PLAINTIFF'S EXHIBIT 86 RECEIVED IN EVIDENCE) 18 BY MS. SMALLETS: 19 Q. 20 DOCUMENTED THAT THE SULFURIC ACID TANK WAS AT OVER A HUNDRED 21 PERCENT, DIDN'T SHE? 22 A. ON THAT JULY 4TH, 2016, SHIFT REPORT, MS. NEWTON YES. 23 MS. SMALLETS: 24 THE COURT: 25 MR. LAFAYETTE: NOTHING FURTHER. ANYTHING ON THAT QUESTION? YES, YOUR HONOR. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 302 CURRAN / RECROSS / LAFAYETTE 1 RECROSS-EXAMINATION 2 BY MR. LAFAYETTE: 3 Q. 4 OVER A HUNDRED PERCENT? 5 A. 6 TRANSMITTER PLUGS UP IT READS A HUNDRED BY NATURE OF HOW IT 7 WORKS. 8 Q. 9 POLICY DOCUMENT, IS THERE ANYTHING IN ANY POLICY THAT YOU'RE 10 SEEING THAT INDICATES THAT YOU CAN USE A BROKEN DRAEGER TUBE 11 TEN TIMES IN A DAY? THE -- IF IT HAS JUST BEEN FILLED, WOULD IT BE READING YES. AND ALSO WHEN THE TRANSMITTER THE LEVEL READING AND GOING BACK TO THAT DOCUMENT THAT YOU LOOKED AT, THE 12 MS. SMALLETS: 13 THE COURT: OBJECTION, LEADING. SUSTAINED. 14 BY MR. LAFAYETTE: 15 Q. 16 A BROKEN DRAEGER TUBE IN A DAY? 17 A. DO YOU KNOW OF ANY POLICY THAT SAYS HOW OFTEN YOU CAN USE I'M NOT AWARE. 18 MR. LAFAYETTE: 19 THE COURT: 20 MS. SMALLETS: 21 THE COURT: 22 REPHRASE. NO FURTHER QUESTIONS, YOUR HONOR. ANYTHING ON THAT? NO, YOUR HONOR. ALL RIGHT. NOW, YOU MAY STEP DOWN AND WE WILL SEE YOU ANOTHER DAY, I BELIEVE. 23 THE WITNESS: 24 THE COURT: 25 MS. NUGENT: THANK YOU. ALL RIGHT. CALL YOUR NEXT WITNESS. YOUR HONOR, THE PLAINTIFF CALLS DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 303 LAYNE - DIRECT / NUGENT 1 CHRISTINE LAYNE. 2 3 (CHRISTINE LAYNE, CALLED AS A WITNESS FOR THE PLAINTIFF, HAVING BEEN DULY SWORN, TESTIFIED AS FOLLOWS:) 4 THE WITNESS: 5 THE CLERK: 6 THE WITNESS: 7 THE COURT: 8 THE WITNESS: 9 THE COURT: 10 MS. NUGENT: 11 THE COURT: I DO. ADJUST THE MIC. CHRISTINE RENEE LAYNE. L-A-Y-N-E. GOOD MORNING. GOOD MORNING. PUSH YOUR CHAIR. YOUR HONOR, MAY I APPROACH? YOU MAY. 12 (EXHIBIT BINDER HANDED TO WITNESS.) 13 DIRECT EXAMINATION 14 BY MS. NUGENT: 15 Q. 16 GOOD MORNING. YOU HAVE BEEN HERE FOR ALL OF THE TESTIMONY IN THE CASE SO 17 FAR, HAVEN'T YOU? 18 A. YES. 19 Q. YOU SAT THROUGH THE OPENING STATEMENTS? 20 A. I DID. 21 Q. AND YOU WERE HERE WHEN WE WERE PREPARING FOR THIS CASE AT 22 THE PRETRIAL CONFERENCE, TOO, RIGHT? 23 A. PRETRIAL CONFERENCE? 24 Q. YOU HEARD THE ARGUMENTS OF THE PARTIES ABOUT EVIDENCE 25 THAT'S COMING IN AND NOT COMING IN IN THE CASE? DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 304 LAYNE - DIRECT / NUGENT 1 A. I WAS HERE FOR JURY SELECTION. 2 Q. WHO DO YOU WORK FOR? 3 A. SHELL OIL. 4 Q. HOW LONG HAVE YOU WORKED FOR SHELL? 5 A. ALMOST 12 YEARS. 6 Q. HAVE YOU HAD ANY OTHER FULL-TIME EMPLOYMENT OTHER THAN 7 WORKING FOR SHELL SINCE COLLEGE? 8 A. NO. 9 Q. YOUR ONLY JOB? 10 A. YES. 11 Q. HOW LONG HAVE YOU WORKED AT THE REFINERY IN MARTINEZ? 12 A. I WORKED THERE FROM JULY OF 2015. 13 Q. AND YOU STILL WORK THERE NOW? 14 A. NO. 15 Q. WHERE DO YOU WORK NOW? 16 A. FOR SHELL PIPELINE IN HOUSTON. 17 Q. WHEN DID YOU MOVE TO THAT JOB? 18 A. OCTOBER 1ST OF THIS YEAR. 19 Q. JUST A COUPLE OF MONTHS AGO? 20 A. UH-HUH. 21 Q. AND YOU HAD WORKED FOR SHELL IN HOUSTON BEFORE, RIGHT? 22 A. PRIOR TO THE MARTINEZ REFINERY, YEAH. 23 Q. WHAT IS YOUR CURRENT TITLE NOW? 24 A. HUMAN RESOURCES BUSINESS PARTNER FOR SHELL PIPELINE. 25 Q. WAS THAT A PROMOTION FROM THE TITLE YOU HAD WHEN YOU DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 305 LAYNE - DIRECT / NUGENT 1 WORKED FOR SHELL AT ITS MARTINEZ REFINERY? 2 A. NOT IN PAY. 3 Q. IN TITLE? 4 A. IN TITLE, I COULD SAY POSSIBLY. 5 Q. WHAT WAS YOUR TITLE WHEN YOU WERE WORKING FOR SHELL IN 6 2016 IN MARTINEZ? 7 A. INDUSTRIAL RELATIONS MANAGER. 8 Q. THAT IS HR, RIGHT? 9 A. INDUSTRIAL RELATIONS IS INTERFACED WITH THE UNION. 10 Q. WHAT ELSE DID YOU DO AS AN INDUSTRIAL RELATIONS MANAGER 11 OTHER THAN INTERFACING WITH THE UNION? 12 A. I SUPPORTED THE PRODUCTION LEADERSHIP TEAM. 13 Q. WHAT DOES THAT MEAN? 14 A. I SAT ON THE PRODUCTION LEADERSHIP TEAM AND GAVE ADVICE. 15 Q. WHAT KIND OF ADVICE? 16 A. ANY ADVICE RELATIVE TO WHAT THEY WERE DISCUSSING. 17 Q. DID YOU DEAL WITH PERSONNEL ISSUES? 18 A. YES. 19 Q. HOW? 20 A. I GUESS I DON'T UNDERSTAND. 21 Q. WHEN I ASKED YOU IF YOU DEAL WITH PERSONNEL ISSUES, WHAT 22 TYPES OF PERSONNEL ISSUES DID YOU DEAL WITH? 23 YOUR PURVIEW AS AN INDUSTRIAL RELATIONS MANAGER? 24 A. 25 VARIETY OF TOPICS. WHAT TYPES? WHAT WAS WITHIN SO GRIEVANCES FROM THE UNION, DISCIPLINE, MERIT AND PAY, A DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 306 LAYNE - DIRECT / NUGENT 1 Q. 2 INSTANCES, RIGHT? 3 A. FOR THE MARTINEZ REFINERY SPECIFICALLY, YES. 4 Q. IS THERE A DIFFERENCE BETWEEN INDUSTRIAL RELATIONS AND 5 HUMAN RESOURCES? 6 A. 7 MARTINEZ REFINERY, MY TITLE WAS INDUSTRIAL RELATIONS MANAGER. 8 I WAS WITHIN THE HUMAN RESOURCES DEPARTMENT. 9 Q. YOU WERE SHELL'S REPRESENTATIVE IN THOSE TYPES OF DEALING WITH GRIEVANCES FROM THE UNION? I MEAN, THEY ARE DISTINCTLY DIFFERENT FIELDS. BUT AT THE ALL YOUR POSITIONS FOR SHELL HAVE BEEN WITHIN THE HUMAN 10 RESOURCES DEPARTMENTS, RIGHT? 11 A. YES. 12 Q. DO YOU EXPECT TO STAY AT SHELL FOR THE FORESEEABLE FUTURE? 13 A. I DON'T KNOW. 14 Q. WHILE YOU'VE WORKED AT SHELL, YOU BECAME A MOTHER, RIGHT? 15 A. I DID. 16 Q. TOOK MATERNITY LEAVE? 17 A. I DID. 18 Q. DO YOU CONSIDER THE COMPANY TO HAVE PRETTY GOOD PAY AND 19 BENEFITS? 20 A. I WOULD GUESS SO. 21 Q. HOW ABOUT FOR YOU? 22 SO. 23 COLLEGE. 24 A. 25 PAY AND BENEFITS -- I'M ASKING FOR YOU. YOU'VE WORKED THERE. YOU WOULD GUESS IT'S YOUR ONLY FULL-TIME JOB SINCE I MEAN I DON'T -- I CAN'T GIVE YOU DATA ON OTHER COMPANY'S DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 307 LAYNE - DIRECT / NUGENT 1 Q. I'M ASKING WHAT YOU THINK -- 2 MR. LAFAYETTE: 3 THE COURT: 4 THE WITNESS: OBJECTION, ARGUMENTATIVE, YOUR HONOR. OVERRULED. SHE'S IN HR. SO FROM MY VIEW, THE PAY AND BENEFITS 5 FOR SPECIFICALLY MATERNITY AND PATERNITY, YEAH, I THINK 6 THEY'RE GREAT. 7 BY MS. NUGENT: 8 Q. 9 WORKED IN THE -- YOU SUPPORTED THE PRODUCTION LEADERSHIP TEAM. 10 YOU SAID WHEN YOU WERE AT THE MARTINEZ REFINERY, YOU IS PRODUCTION A DEPARTMENT, A SPECIFIC DEPARTMENT THERE? 11 A. YES. 12 Q. THAT WAS THE DEPARTMENT THAT MS. NEWTON WORKED IN, RIGHT? 13 A. SHE WORKED IN OPCEN. 14 Q. AND WHO WAS THE HEAD OF PRODUCTION AT THAT TIME? 15 A. THOR NYGAARD. 16 Q. COULD YOU SPELL HIS NAME, PLEASE? 17 A. N-Y-G-A-A-R-D, LAST NAME. 18 Q. AT THAT TIME HOW MANY EMPLOYEES WERE IN THAT PRODUCTION 19 UNIT? 20 A. OH, GOSH. 21 Q. AND WHO WAS YOUR DIRECT BOSS, LORI MARTINELLI? 22 A. YES. 23 Q. AT THE TIME THAT YOU WORKED IN MARTINEZ, ARE YOU AWARE OF 24 ANYBODY IN THAT PRODUCTION UNIT WHO WAS EVER FIRED FOR 25 SPECIFICALLY A SAFETY VIOLATION? OPCEN ROLLED UP THROUGH PRODUCTION. I DON'T KNOW. FIRST NAME THOR, T-H-O-R. FOUR TO 500. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 308 LAYNE - DIRECT / NUGENT 1 A. 2 THE REASONS. 3 Q. 4 SAFETY VIOLATION? SPECIFICALLY FOR A SAFETY VIOLATION. I DON'T RECALL ALL DO YOU RECALL ANYBODY WHO WAS FIRED SPECIFICALLY FOR A 5 MR. LAFAYETTE: 6 THE COURT: OBJECTION. OVERBROAD AND RELEVANCE. OVERRULED. 7 BY MS. NUGENT: 8 Q. YOU DON'T KNOW, DO YOU? 9 A. EXCUSE ME? 10 Q. YOU DON'T KNOW ANYBODY WHO WAS FIRED SPECIFICALLY FOR A 11 SAFETY VIOLATION AT THE REFINERY IN MARTINEZ? 12 A. WE'VE FIRED FOR LIFE-SAVING ROLE VIOLATIONS. 13 Q. WHAT DOES THAT MEAN? 14 A. LIFE-SAVING RULES ARE THE -- I FORGET HOW MANY, IF THERE'S 15 TEN OR TWELVE CRITICAL RULES THAT ENSURES EVERYONE CAN GO HOME 16 SAFE EVERY DAY. 17 Q. 18 LIFE-SAVING RULE? 19 A. NO. 20 Q. OKAY. 21 OPPORTUNITIES. 22 ABSOLUTELY. WAS MS. NEWTON EVER INVESTIGATED FOR BREAKING A LET'S SWITCH TOPICS AND TALK ABOUT EQUAL EMPLOYMENT YOU ARE FAMILIAR WITH THAT TERM, AREN'T YOU? 23 A. YES. 24 Q. AND EQUAL EMPLOYMENT OPPORTUNITIES INCLUDES NOT 25 DISCRIMINATING AGAINST EMPLOYEES BASED ON THEIR GENDER, RIGHT? DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 309 LAYNE - DIRECT / NUGENT 1 A. YES. 2 Q. IT ALSO INCLUDES ENSURING THAT EMPLOYEE -- EMPLOYEES ARE 3 FREE FROM HARASSMENT BASED ON THEIR GENDER, RIGHT? 4 A. YES. 5 Q. IS THERE ANYBODY AT THE SHELL MARTINEZ REFINERY THAT YOU 6 KNOW OF WHO IS RESPONSIBLE FOR MAKING SURE THERE ARE EQUAL 7 EMPLOYMENT OPPORTUNITIES FOR ITS EMPLOYEES? 8 A. I THINK EVERYONE IS RESPONSIBLE FOR IT. 9 Q. IS THERE ANYONE WHO HAS SPECIFIC RESPONSIBILITY FOR THAT? 10 A. I THINK ALL OF MANAGEMENT AND HR IS RESPONSIBLE FOR IT. 11 Q. DO YOU PERSONALLY BELIEVE OR DID YOU PERSONALLY BELIEVE 12 THAT YOU HAD RESPONSIBILITY FOR EQUAL EMPLOYMENT OPPORTUNITY 13 ISSUES THERE? 14 A. 15 YES. 16 Q. 17 AND YOUR TRAINING IN HR. 18 I SAID ALL OF MANAGEMENT AND HR. I WAS A PART OF HR, SO LET'S KEEP TALKING ABOUT EQUAL EMPLOYMENT OPPORTUNITIES YOU UNDERSTAND THAT THERE'S A DIFFERENCE, RIGHT, BETWEEN 19 HARASSMENT BASED ON SEX AND HARASSMENT BASED ON GENDER, DON'T 20 YOU? 21 A. YES. 22 Q. WHAT'S THE DIFFERENCE? 23 MR. LAFAYETTE: 24 A LEGAL CONCLUSION, YOUR HONOR. 25 MS. NUGENT: OBJECTION TO THE EXTENT IT CALLS FOR OKAY. I WILL REPHRASE. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 310 LAYNE - DIRECT / NUGENT 1 BY MS. NUGENT: 2 Q. 3 PROFESSIONAL OVER THESE YEARS, DO YOU UNDERSTAND THAT 4 HARASSMENT BASED ON SEX MEANS UNWANTED SEXUAL ADVANCES OR 5 OBSCENE COMMENTS, RIGHT? SO BASED ON YOUR HR TRAINING AND YOUR WORK AS AN HR 6 MR. LAFAYETTE: 7 A LEGAL CONCLUSION, YOUR HONOR. 8 THE COURT: 9 OBJECTION, TO THE EXTENT IT CALLS FOR SHE CAN ANSWER. I WILL TELL YOU, THE JURORS, WHAT THE LAW IS. I'M 10 ASSUMING THAT THIS IS FOUNDATIONAL WITH SOME QUESTIONS. 11 IN HR. 12 BUT SHE CAN'T TELL YOU WHAT THE LAW IS. 13 SHE'S SO I'M GOING TO ALLOW YOU HER TO ANSWER THE QUESTION GO AHEAD. 14 ANSWER THE QUESTION. THE WITNESS: I CAN SPEAK TO THE SHELL CODE OF 15 CONDUCT OUTLINING SEXUAL HARASSMENT AS UNWANTED SEXUAL 16 REQUESTS OR SOMETHING OF A SEXUAL NATURE, AND THEN IT GOES ON 17 TO DISCUSS INAPPROPRIATE MATERIALS. 18 BY MS. NUGENT: 19 Q. WHAT DO YOU MEAN BY INAPPROPRIATE MATERIALS? 20 A. LIKE PICTURES OR DOCUMENTS. 21 Q. STICKERS THAT HAVE INAPPROPRIATE MATERIAL ON IT? 22 A. YES. 23 Q. THAT VIOLATES SHELL'S CODE OF CONDUCT? 24 A. YES. 25 Q. ALL RIGHT. NOW, I WANT TO TALK ABOUT HARASSMENT BASED ON DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 311 LAYNE - DIRECT / NUGENT 1 GENDER. 2 SO YOU'VE GIVEN US THE DEFINITION OF HARASSMENT BASED ON 3 SEX ACCORDING TO SHELL'S CODE OF CONDUCT. 4 TRAINING AND YOUR KNOWLEDGE, HARASSMENT BASED ON GENDER IS A 5 LITTLE DIFFERENT, RIGHT? 6 MR. LAFAYETTE: 7 THE COURT: 8 SO BASED ON YOUR OBJECTION, SAME OBJECTION. SAME INSTRUCTION TO THE JURY. GO AHEAD. 9 UNDER EQUAL OPPORTUNITY, ALL EMPLOYMENT THE WITNESS: 10 DECISIONS SHOULD BE MADE BASED ON BUSINESS CRITERIA, NOT ON 11 ANY PROTECTED CLASSIFICATION INCLUDING GENDER. 12 BY MS. NUGENT: 13 Q. 14 ABOUT ALL PROTECTIVE CLASSES AND I'M NOT TALKING GENERALLY. 15 I WANT TO REALLY NARROW ON GENDER THOUGH. YOU UNDERSTAND. I'M NOT TALKING YOU WORK AT THE REFINERY, RIGHT? DO YOU 16 UNDERSTAND THAT -- WOULD YOU AGREE IT'S A MALE-DOMINATED 17 ENVIRONMENT? 18 A. THE REFINERY? 19 Q. AND GENDER HARASSMENT CAN BE AND YOU KNOW THIS BASED ON 20 YOUR TRAINING, CAN INCLUDE HOSTILITY TOWARDS WOMEN IN A 21 WORKPLACE BECAUSE IT IS A MALE-DOMINATED ENVIRONMENT AND WOMEN 22 ARE NOT WELCOME THERE, RIGHT? YES. 23 MR. LAFAYETTE: 24 THE COURT: THAT CAN BE GENDER HARASSMENT? THE QUESTION IS COMPOUND. SUSTAINED. 25 DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 312 LAYNE - DIRECT / NUGENT 1 BY MS. NUGENT: 2 Q. 3 OKAY. GENDER HARASSMENT CAN INCLUDE MEN NOT WANTING A WOMAN IN 4 THE WORKPLACE SPECIFICALLY BECAUSE SHE'S A WOMAN, RIGHT? 5 WOULD UNDERSTAND THAT TO BE GENDER HARASSMENT? 6 OBJECTION, TO THE EXTENT THAT IT MR. LAFAYETTE: 7 CALLS FOR A LEGAL CONCLUSION. 8 THE COURT: 9 I'LL ALLOW HER TO ANSWER IT. SAME INSTRUCTION TO THE JURY. 10 OKAY. 11 12 YOU GO AHEAD. THE WITNESS: I AM SORRY, CAN YOU RESTATE THE QUESTION? 13 THE COURT: 14 THE COURT REPORTER CAN REREAD IT. (QUESTION READ.) 15 THE WITNESS: THEIR PERSONAL BELIEFS WITHOUT IT 16 COMING INTO THE WORKFORCE, I DON'T KNOW. 17 BY MS. NUGENT: 18 Q. 19 PLEASE ANSWER THE QUESTION. WOULD YOU UNDERSTAND THAT MEN NOT WANTING A WOMAN TO BE IN 20 THE WORKPLACE SPECIFICALLY BECAUSE SHE'S A WOMAN; WOULD YOU 21 UNDERSTAND THAT TO BE GENDER HARASSMENT? 22 A. NO. 23 Q. AT SHELL THERE ARE MANY DIFFERENT WAYS FOR AN EMPLOYEE TO 24 RAISE CONCERNS THAT THEY ARE HAVING ABOUT THE WORKPLACE, 25 AREN'T THERE? DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 313 LAYNE - DIRECT / NUGENT 1 A. YES. 2 Q. THEY CAN RAISE CONCERNS TO THEIR DIRECT SUPERVISOR, YES? 3 A. YES. 4 Q. ANY MEMBER OF MANAGEMENT? 5 A. YES. 6 Q. TO THE UNION? 7 A. YES. 8 Q. TO ANYONE IN HR OR INDUSTRIAL RELATIONS? 9 A. YES. 10 Q. AND YOU'VE BEEN TAUGHT IN YOUR HR TRAINING THAT YOU HAVE 11 AN OBLIGATION TO LOOK INTO CONCERNS THAT AN EMPLOYEE TELLS YOU 12 THAT SHE'S HAVING ABOUT HER WORKING ENVIRONMENT, RIGHT? 13 A. SO CONCERNS ARE LOOKED INTO, YES. 14 Q. I'M ASKING ABOUT YOU AND YOUR OBLIGATION. 15 YOU KNOW FROM ALL THE TRAINING THAT YOU'VE HAD THAT YOU 16 HAVE AN OBLIGATION IF AN EMPLOYEE SAYS THAT SHE'S BEING 17 SINGLED OUT, THAT YOU NEED TO LOOK INTO THAT, RIGHT? 18 A. YES. 19 Q. AND YOU HAVE BEEN TAUGHT IN YOUR TRAINING THAT AN EMPLOYEE 20 DOES NOT HAVE TO USE ANY MAGIC WORDS IN ORDER FOR THAT TO 21 TRIGGER YOUR OBLIGATION TO LOOK INTO CONCERNS THAT SHE IS 22 RAISING, RIGHT? 23 A. YES. 24 Q. SO THE EMPLOYEE DOES NOT HAVE TO SAY, I HAVE BEEN 25 DISCRIMINATED AGAINST, IN ORDER TO TRIGGER YOUR OBLIGATION TO DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 314 LAYNE - DIRECT / NUGENT 1 LOOK INTO IT, RIGHT? 2 A. CORRECT. 3 Q. OR THE WORD "HARASSMENT", AN EMPLOYEE DOES NOT HAVE TO USE 4 THAT SPECIFIC WORD TO TRIGGER YOUR OBLIGATION AS THE HR 5 PROFESSIONAL TO LOOK INTO WHAT SHE'S RAISING, RIGHT? 6 A. CORRECT. 7 Q. AND YOU UNDERSTAND THAT WORDS LIKE "SINGLED OUT" IS A WAY 8 OF SAYING I FEEL LIKE I AM BEING TREATED IN A DISCRIMINATORY 9 WAY, DON'T YOU? 10 MR. LAFAYETTE: 11 THE COURT: 12 THE WITNESS: OBJECTION, INCOMPLETE HYPOTHETICAL. OVERRULED. YES. 13 BY MS. NUGENT: 14 Q. 15 UNFAIRLY" IS ANOTHER WAY OF SAYING I FEEL LIKE I'M BEING 16 DISCRIMINATED AGAINST, DON'T YOU? 17 A. YES. 18 Q. IN ALL OF THE TIME THAT YOU HAVE WORKED FOR SHELL, HAVE 19 YOU RECEIVED ANY WRITTEN GUIDANCE IN HOW TO CONDUCT AN 20 INVESTIGATION INTO CONCERNS ABOUT DISCRIMINATION OR 21 HARASSMENT? 22 A. NO. 23 Q. ALL RIGHT. 24 A. NOTHING LEFT. 25 AND YOU UNDERSTAND USING WORDS LIKE "I'M BEING TREATED LET'S -- WE'VE HEARD -- PLEASE. THAT'S OKAY. MS. NUGENT: MAY I? DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 315 LAYNE - DIRECT / NUGENT 1 2 THE COURT: SURE. THEN WE WILL REFILL IT AT THE BREAK. 3 (PAUSE IN THE PROCEEDINGS.) 4 BY MS. NUGENT: 5 Q. 6 WANT TO TALK ABOUT SHELL'S ATTENDANCE POLICY NOW. 7 WE'VE HEARD TESTIMONY IN THE CASE ABOUT ATTENDANCE. SO I YOU DON'T KNOW OF ANY SHELL POLICY SAYING HOW MANY MINUTES 8 AN EMPLOYEE CAN BE LATE BEFORE THEY ARE CONSIDERED TARDY; 9 ISN'T THAT TRUE? 10 A. 11 15 MINUTES. I BELIEVE THE ATTENDANCE MANAGEMENT PROCEDURE STATES IT IS 12 THE COURT: 13 THE WITNESS: 14 THE COURT: THAT IT IS WHAT? 15 MINUTES. THANK YOU. 15 BY MS. NUGENT: 16 Q. DID YOU LEARN THAT RECENTLY? 17 A. NO. 18 Q. DID YOU KNOW THAT AT THE TIME MS. NEWTON WAS AN EMPLOYEE 19 AT SHELL? 20 A. YEAH. 21 MS. NUGENT: 22 FROM MS. NEWTON'S DEPOSITION. 23 24 25 YOUR HONOR, I WOULD LIKE TO PLAY A CLIP BEFORE WE DO THAT, IT'S PAGE 67, LINES 22 THROUGH 25. THE COURT: GO AHEAD. (VIDEO CLIP PLAYED AND REPORTED AS FOLLOWS:) DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 316 LAYNE - DIRECT / NUGENT 1 "QUESTION: 2 ADDRESS HOW MANY MINUTES AN EMPLOYEE NEEDS TO BE LATE 3 BEFORE THEY'RE CONSIDERED TARDY? 4 "ANSWER: ARE YOU AWARE OF ANY SHELL POLICIES THAT NO." 5 BY MS. NUGENT: 6 Q. 7 THE REFINERY PUNCH, IS THERE? 8 A. NO. 9 Q. AND ISN'T IT TRUE THAT YOU ALSO DON'T KNOW WHETHER THERE IS NO TIME CARD THAT THE EMPLOYEES IN PRODUCTION IN 10 EMPLOYEES ARE EXPECTED TO REPORT THEIR START AND STOP TIMES TO 11 THE PRECISE MINUTE? 12 A. NO. 13 Q. YOU DON'T KNOW? 14 A. I'M SORRY, I COULDN'T REMEMBER THE FIRST PART OF YOUR 15 QUESTION. 16 Q. 17 AND STOP TIMES TO THE EXACT MINUTE, ARE THEY? 18 A. CORRECT. 19 Q. YOU DON'T RECALL ANY CONVERSATIONS YOU EVER HAD WITH ERIC 20 PEREZ ABOUT CIARA NEWTON BEING LATE, DO YOU? 21 A. 22 WAS WHEN HE REQUESTED THE GATE LOGS. 23 Q. DO YOU RECALL ANYTHING SPECIFIC SAID IN THAT CONVERSATION? 24 A. NO. 25 Q. SINCE YOU BROUGHT UP GATE LOGS, WHAT DOES THAT MEAN? OKAY. EMPLOYEES ARE NOT REQUIRED TO REPORT THEIR START THE ONLY CONVERSATION I HAD WITH ERIC AROUND HER TARDIES DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC WHAT 317 LAYNE - DIRECT / NUGENT 1 IS A GATE LOG? 2 A. 3 REFINERY, YOU HAVE TO HAVE A TWIC CARD, WHICH I BELIEVE STANDS 4 FOR TRANSPORTATION WORKERS IDENTIFICATION CARD, WHICH IS A 5 CLEARANCE GIVEN TO YOU TO SAY YOU ARE SAFE TO COME IN AND OUT 6 OF THE REFINERY. 7 THE TWIC CARD AGAINST A READER. 8 Q. 9 THAT RESULTS IN WHAT'S CALLED A GATE LOG? BECAUSE THE REFINERY HAS A WHARF TO GET IN AND OUT OF THE SO TO ENTER AND EXIT THE REFINERY YOU BADGE THE REPORT OF WHEN THE BADGE WAS PUT ONTO THE MACHINE, THAT'S THE REPORT 10 THAT YOU USE? 11 A. CORRECT. 12 Q. GATE LOGS AREN'T USED FOR TIMEKEEPING THOUGH, ARE THEY, 13 FOR AN EMPLOYEE'S TIMEKEEPING? 14 A. CORRECT, THEY ARE NOT. 15 Q. YOU HAVEN'T BEEN TRAINED IN READING THE GATE LOGS, HAVE 16 YOU? 17 A. NO. 18 Q. YOU HAVE NO UNDERSTANDING OF EVEN HOW TO READ THEM, DO 19 YOU? 20 A. 21 BEEN TRAINED, NO. 22 Q. YOU DON'T HAVE ANY UNDERSTANDING OF HOW TO DO IT, DO YOU? 23 A. NO. 24 Q. YOU HAVE NO BELIEF IN WHETHER THE GATE LOGS ARE ACCURATE 25 OR NOT; ISN'T THAT TRUE? THAT'S TRACKED BY OUR SECURITY DEPARTMENT. I THINK THEY ARE PRETTY STRAIGHTFORWARD BUT I HAVE NOT DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 318 LAYNE - DIRECT / NUGENT 1 A. 2 ACCURATE, BUT I DON'T HAVE ANY SPECIFIC KNOWLEDGE ONE WAY OR 3 ANOTHER. 4 Q. 5 IN A TERMINATION DECISION, HAVE YOU? 6 A. NO. 7 Q. OKAY. I MEAN, I DON'T HAVE ANY REASON TO NOT THINK THEY'RE YOU'VE NEVER PERSONALLY CONSIDERED GATE LOGS AS A FACTOR LET'S TALK MORE SPECIFICALLY ABOUT MS. NEWTON. 8 YOU HAVE, OTHER THAN SEEING HER THE PAST FEW DAYS, YOU 9 HAVE ONLY MET HER TWICE, RIGHT, WHILE YOU WERE BOTH WORKING AT 10 THE REFINERY? 11 A. CORRECT. 12 MS. NUGENT: YOUR HONOR, WE TALKED ABOUT THIS 13 YESTERDAY. 14 EXHIBIT 70, WHICH IS THE PERSONNEL FILE. 15 GOING TO MAKE A NEW EXHIBIT. 16 BY MS. NUGENT: 17 Q. MS. LAYNE, IN FRONT OF YOU THERE ARE SOME BINDERS. 18 A. OKAY. 19 Q. IF YOU CAN TURN TO EXHIBIT 70. AT THIS TIME I WOULD LIKE TO TALK ABOUT THE 20 MR. LAFAYETTE: 21 MS. NUGENT: 22 MR. LAFAYETTE: 23 MS. NUGENT: 24 AND I BELIEVE WE ARE WE MODIFIED THIS EXHIBIT? WE DID. CAN I SEE THE MODIFICATION? I WILL TELL YOU WHEN WE ARE ALL THERE, YES. 25 DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 319 LAYNE - DIRECT / NUGENT 1 BY MS. NUGENT: 2 Q. 3 LOOK AT THAT, MS. LAYNE. 4 A. OKAY. 5 Q. AND THAT LOOKS TO BE A LETTER THAT YOU SENT TO -- RIGHT NOW EXHIBIT 70 STARTS AT DEFENDANT 299. 6 7 THE COURT: COUNSEL, GO OVER TO MR. LAFAYETTE. MS. NUGENT: 9 THE COURT: 10 BY MS. NUGENT: 11 Q. 12 UNION, CORRECT? 13 A. I HAVEN'T MODIFIED IT YET. OKAY. 15 MS. NUGENT: 16 MR. LAFAYETTE: 22 YOUR HONOR, THAT'S WHAT -- I AM GOING TO DO IT NOW. I OBJECT AND MOVE TO STRIKE THE LAST ANSWER BECAUSE THAT'S WHAT WE WERE OBJECTING TO YESTERDAY. 18 21 ONE STEP AT A TIME. YES. MR. LAFAYETTE: 20 ALL RIGHT. THE FRONT PAGE IS A LETTER FROM YOU TO SOMEONE FROM THE 14 19 HE'S ENTITLED TO KNOW HOW YOU'VE MODIFIED THIS. 8 17 IF YOU WILL (COUNSEL CONFER.) THE COURT: TURN OFF THE MIC, PLEASE, FRANCES. (PAUSE IN THE PROCEEDINGS.) THE COURT: THE MICS ARE OFF OVER THERE. (PAUSE IN THE PROCEEDINGS.) 23 THE COURT: 24 MS. NUGENT: 25 THE COURT: IS THERE A RESOLUTION ON THE TOPIC? THERE IS, YOUR HONOR. MOTION TO STRIKE IS GRANTED. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 320 LAYNE - DIRECT / NUGENT 1 MS. NUGENT: 2 THE CLERK: THE PAGE NUMBER? 3 THE COURT: JUST THAT PAGE? 4 MS. NUGENT: 5 THE COURT: 6 OKAY. CONTINUE. 8 BY MS. NUGENT: 9 Q. MS. LAYNE, AS YOU'RE LOOKING AT THAT EXHIBIT, IF YOU WILL GO TO DEFENDANT'S 301. 11 12 UNTIL 325 AS EXHIBIT 70A. (PLAINTIFF'S EXHIBIT70A MARKED FOR IDENTIFICATION) 7 10 WE WOULD LIKE TO MARK DEFENDANT'S 301 -- THE COURT: SHE'S REFERRING TO THE LITTLE NUMBER ON THE BOTTOM RIGHT-HAND SIDE. 13 THE WITNESS: OKAY. 14 BY MS. NUGENT: 15 Q. ARE YOU THERE? 16 A. UH-HUH. 17 Q. STARTING AT THAT PAGE, IS THAT MS. NEWTON'S PERSONNEL 18 FILE? 19 A. NO. 20 Q. WHAT DO YOU RECOGNIZE IT TO BE? 21 A. THIS DEF 301? 22 Q. YES. 23 A. I'M SORRY, DEF 305. 24 HER TERMINATION MEETING. 25 Q. OKAY. AND GOING THROUGH TO DEF 325. THESE ARE MATERIALS GIVEN TO HER IN AND IF YOU GO NOT JUST TO THREE -- GO ALL THE WAY DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 321 LAYNE - DIRECT / NUGENT 1 TO THE END OF THE EXHIBIT, 325 ON THE BOTTOM RIGHT? 2 A. 3 OH, 325. YEAH, IT LOOKS LIKE HER PERSONNEL FILE. 4 5 MS. NUGENT: AT THIS TIME I WOULD LIKE TO OFFER EXHIBIT 70A INTO EVIDENCE. 6 MR. LAFAYETTE: 7 THE COURT: 8 9 NO OBJECTION, YOUR HONOR. 70A IS ADMITTED. (PLAINTIFF'S EXHIBIT 70A RECEIVED IN EVIDENCE) BY MS. NUGENT: 10 Q. 11 THINGS NOW. 12 YOU CAN PUT THAT AWAY. I WILL ASK YOU ABOUT SOME OTHER WE TALKED ABOUT THE FIRST -- YOU'VE ONLY MET MS. NEWTON 13 TWICE. 14 AUGUST 2ND, 2016 MEETING THAT YOU PARTICIPATED IN, RIGHT? 15 A. YES. 16 Q. YOU DON'T REMEMBER EVER SPEAKING TO HER BEFORE THEN; ISN'T 17 THAT TRUE? 18 A. CORRECT. 19 Q. ERIC PEREZ WAS THE PERSON WHO CALLED FOR THAT MEETING TO 20 OCCUR, RIGHT? 21 A. YES. 22 Q. AND HE WAS HER SUPERVISOR AT THAT TIME, RIGHT? 23 A. YES. 24 Q. AND HE WAS ACTUALLY HER SUPERVISOR THROUGHOUT HER 25 EMPLOYMENT? I WANT TO TALK ABOUT THE FIRST TIME. THAT WAS IN THE DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 322 LAYNE - DIRECT / NUGENT 1 A. I BELIEVE SO, YES. 2 Q. AND YOU KNEW BEFORE THAT MEETING THAT MS. NEWTON HAD SAID 3 THAT SHE FELT SHE WASN'T BEING TREATED THE SAME AS THE OTHER 4 GUYS, RIGHT? 5 A. YES. 6 Q. AND BEFORE THAT MEETING, YOU KNEW THAT MS. NEWTON HAD ALSO 7 COMPLAINED ABOUT BEING SINGLED OUT, RIGHT? 8 A. YES. 9 Q. AND BEING TREATED DIFFERENTLY AND UNFAIRLY? 10 A. IT WAS ALL THE SAME SENTENCE IN AN EMAIL, YES. 11 Q. YOU KNEW THAT GOING INTO THE MEETING? 12 A. YES. 13 Q. SO LET'S TALK ABOUT WHAT HAPPENED THERE. 14 BESIDES YOU AND MR. PEREZ AND MS. NEWTON, THERE WERE ALSO 15 TWO REPRESENTATIVES FROM THE UNION PRESENT, RIGHT? 16 A. CORRECT. 17 Q. ONE WAS RAY JONES? 18 A. YES. 19 Q. DO YOU KNOW WHO HE IS? 20 A. HE IS AN ENVIRONMENTAL REP FOR THE USW. 21 Q. USW? 22 A. UH-HUH. 23 Q. AND THEN WHO WAS THE OTHER UNION REMEMBER REP? 24 A. NICK BACKENS. 25 Q. HE WAS TRAINING TO BE A UNION STEWARD, THAT WAS YOUR DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 323 LAYNE - DIRECT / NUGENT 1 UNDERSTANDING AT THE TIME, RIGHT? 2 A. NO, HE WAS THE STEWARD. 3 Q. AS THE MEETING BEGAN, MR. PEREZ TOLD MS. NEWTON THAT HE 4 WAS GOING TO INVESTIGATE HER CLAIMS, RIGHT? 5 A. 6 THE INVESTIGATIONS THAT HAD ALREADY BEEN CONDUCTED, THEN THE 7 PERFORMANCE, AND THEN THE SECOND HALF -- 8 Q. I BELIEVE THE STRUCTURE OF THE MEETING WAS HE WENT THROUGH MS. LAYNE, I'M TALKING ABOUT -- 9 10 HE WAS THE STEWARD FOR OPCEN. MR. LAFAYETTE: SHE IS CUTTING THE WITNESS OFF, YOUR HONOR. 11 THE COURT: 12 QUESTION. 13 BY MS. NUGENT: 14 Q. 15 OVERRULED. SHE'S NOT ANSWERING THE PLEASE ANSWER MY QUESTION. AS THE MEETING BEGAN, ONE OF THE FIRST THINGS DISCUSSED 16 WAS MR. PEREZ TOLD MS. NEWTON HE WAS GOING TO INVESTIGATE HER 17 CLAIMS; ISN'T THAT TRUE? 18 A. 19 BY MS. NUGENT: 20 Q. DO YOU RECALL ANYTHING ABOUT THE MEETING AS YOU SIT HERE? 21 A. YES. 22 Q. DO YOU RECALL MR. PEREZ TELLING MS. NEWTON THERE WOULD BE 23 NO DISCIPLINE FOR HER TARDIES? 24 A. I DON'T RECALL THAT. 25 Q. DO YOU RECALL HIM SAYING THAT THERE WOULD BE NO DISCIPLINE I DON'T RECALL THAT. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 324 LAYNE - DIRECT / NUGENT 1 FOR THE DRAEGER INCIDENT? 2 A. I DON'T RECALL THAT. 3 Q. WHEN YOU ANSWERED, YOU STARTED TO SAY THAT SOME OF THE 4 INCIDENTS IN HER PD LOG WERE DISCUSSED; IS THAT RIGHT? 5 A. CORRECT. 6 Q. DID THEY DISCUSS THE SPILL AT THE SULFURIC ACID TANK; 7 ISN'T THAT TRUE? 8 A. I BELIEVE SO, YES. 9 Q. MS. NEWTON SAID IN THAT MEETING THAT MR. CURRAN -- THAT 10 SHE ASKED MR. CURRAN TO ROPE OFF THE SPILL, RIGHT? 11 A. SHE MAY HAVE. 12 MR. LAFAYETTE: 13 THE COURT: OBJECTION, HEARSAY, YOUR HONOR. OVERRULED. 14 BY MS. NUGENT: 15 Q. 16 MR. CURRAN HAD TOLD HER TO TAKE IT OFF, RIGHT? 17 A. I DON'T KNOW IF I RECALL THAT. 18 Q. SHE TOLD YOU THAT MR. CURRAN SAID THAT SHE WAS GOING TO 19 GET ALL OF THE GUYS IN TROUBLE? 20 A. YES. 21 Q. AND SHE TOLD YOU MR. CURRAN SAID THAT SHE SHOULD HANDLE IT 22 OPERATOR TO OPERATOR? 23 A. I BELIEVE SO, YES. 24 Q. SHE TOLD YOU MR. CURRAN ASKED HER POINT BLANK, DO YOU WANT 25 TO GET US ALL IN TROUBLE? SHE TOLD YOU THAT SHE HAD PUT IT ON HER SHIFT REPORT BUT DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 325 LAYNE - DIRECT / NUGENT 1 A. YES. 2 Q. SHE TOLD YOU SHE WAS BULLIED INTO SOMETHING THAT WASN'T 3 SHELL PROTOCOL? 4 A. I DON'T KNOW IF I RECALL THAT. 5 Q. WELL, DO YOU RECALL IT OR NOT? 6 A. NO. 7 Q. SHE TOLD YOU THAT MR. CURRAN WENT OUT OF HIS WAY TO 8 PROTECT THE GUYS ABOUT THE SPILL BUT DIDN'T TREAT HER THAT WAY 9 WHEN SHE TOLD HIM THAT SHE OPENED A VALVE AND WASH WATER CAME NOT RIGHT NOW. 10 OUT. 11 A. I DON'T REMEMBER. 12 Q. AT SOME POINT MS. NEWTON TOLD YOU AND MR. PEREZ SOME OF 13 THE HOSTILE TREATMENT SHE HAD BEEN SUBJECTED TO SINCE STARTING 14 TO WORK IN OPCEN, RIGHT? 15 16 MR. LAFAYETTE: CONCLUSION. 17 THE COURT: 18 THE WITNESS: 19 THE COURT: 20 OBJECTION, CALLS FOR A LEGAL OVERRULED. I DON'T RECALL. LET ME JUST SAY SOMETHING ON THAT. JURORS, YOU WILL ULTIMATELY DECIDE WHETHER SOMETHING IS 21 HOSTILE OR NOT. 22 WITNESS'S RECOLLECTION OF THAT PARTICULAR MEETING. 23 IT FOR THAT PURPOSE. 24 WE'RE JUST TRYING TO FIGURE OUT THIS GO AHEAD. 25 DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC YOU TAKE 326 LAYNE - DIRECT / NUGENT 1 BY MS. NUGENT: 2 Q. WOULD YOU LIKE ME TO REPEAT THAT ONE? 3 A. YES, PLEASE. 4 Q. AT SOME POINT DURING THE MEETING, MS. NEWTON TOLD YOU 5 THAT -- TOLD YOU AND MR. PEREZ ABOUT SOME OF THE TREATMENT 6 THAT SHE BELIEVED WAS HOSTILE THAT SHE HAD ENDURED WHILE 7 WORKING AT OPCEN, RIGHT? 8 9 OBJECTION, QUESTION IS VAGUE AND MR. LAFAYETTE: AMBIGUOUS. 10 THE COURT: OVERRULED. THIS WITNESS'S KNOWLEDGE OF 11 WHAT HAPPENED DURING THAT MEETING IS RELEVANT WITH RESPECT TO 12 NOTICE AND OTHER MATTERS. 13 GO AHEAD. 14 THE WITNESS: YES. 15 BY MS. NUGENT: 16 Q. WHAT DID SHE TELL YOU? 17 A. SO I RECALL WE SPOKE ABOUT THE GATE LOGS, AND SHE HAD 18 CONCERNS THAT SHE WASN'T BEING TREATED THE SAME AS OTHERS IN 19 REGARDS TO THE GATE LOGS. 20 WHAT ELSE DID WE GO THROUGH? I RECALL WE WENT THROUGH -- 21 SHE DID, AT SOME POINT, MAKE A COMMENT THAT THINGS WERE BEING 22 WRITTEN IN HER PD LOG THAT WERE NOT BEING WRITTEN IN OTHER'S 23 PD LOGS. 24 Q. 25 FISCHER TREATED HER? DO YOU RECALL HER SAYING ANYTHING ABOUT THE WAY JEFF DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 327 LAYNE - DIRECT / NUGENT 1 A. 2 SHE HAD HER FAMILY EMERGENCY. 3 Q. ANYTHING ELSE? 4 A. NO. 5 Q. DID -- IN THE MEETING MS. NEWTON DID TELL YOU THAT THERE 6 WAS SOMEONE WHO USED SOME PRETTY COARSE LANGUAGE ABOUT -- 7 AROUND THE TIME THAT SHE WAS ASSIGNED TO OPCEN, RIGHT? 8 A. YES. 9 Q. WHAT DID SHE SAY ABOUT THAT? 10 A. I RECALL IT WAS A COMMENT AROUND... WHAT DID I DO TO GET 11 THESE MF -- I WON'T SAY THE WORD -- IN MY DEPARTMENT. 12 Q. DID YOU ASK HER WHO SAID THAT? 13 A. SHE JUST SAID A STL. 14 Q. DID YOU ASK WHO THE STL WAS? 15 A. I DON'T RECALL IF I SPECIFICALLY ASKED AGAIN. 16 Q. DID YOU ASK ANY OF THE STL'S IF THEY HAD SAID THAT? 17 A. ME PERSONALLY? 18 Q. DID ANYBODY? 19 A. I DID NOT. 20 Q. DO YOU KNOW IF ANYBODY DID? 21 A. NO. 22 Q. NEVER FOLLOWED UP ON THAT, DID YOU? 23 A. I DON'T KNOW. 24 Q. SHE TOLD YOU THAT A SHIFT TEAM LEADER ASKED HER, ARE YOU 25 SURE YOU WANT TO WORK HERE? I RECALL SHE FELT LIKE JEFF WASN'T VERY ACCOMMODATING WHEN SHE DIDN'T GIVE A NAME. NO. ME PERSONALLY? NO. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 328 LAYNE - DIRECT / NUGENT 1 A. I DON'T RECALL. 2 Q. SHE TOLD YOU THAT A SHIFT TEAM LEADER TOLD HER WOMEN DON'T 3 MAKE IT IN OPCEN. 4 A. YES. 5 Q. DID YOU ASK HER WHO SAID THAT? 6 A. I DON'T RECALL. 7 Q. NEVER FOLLOWED UP ON THAT EITHER, DID YOU? 8 A. ME PERSONALLY? 9 Q. SHE TOLD YOU SHE FELT UNWELCOME; ISN'T THAT TRUE? 10 A. NO, I DON'T RECALL THAT. 11 Q. YOU SAID SOME THINGS TO MS. NEWTON IN THAT MEETING TO 12 DISCOURAGE HER FROM COMPLAINING, DIDN'T YOU, MS. LAYNE? 13 A. NO. 14 Q. YOU DENY THAT? 15 A. YES. 16 Q. YOU TOLD HER TO STOP AND THINK ABOUT WHAT SHE WAS DOING BY 17 TELLING YOU SOME OF THE HOSTILE THINGS THAT HAD BEEN SAID TO 18 HER SINCE STARTING AT OPCEN; ISN'T THAT TRUE? 19 A. NO, I DON'T RECALL DOING THAT. 20 Q. YOU TOLD HER THAT SHE WAS MAKING SERIOUS ACCUSATIONS AND 21 SHE SHOULD THINK ABOUT WHAT SHE WAS SAYING? 22 A. NO. 23 Q. YOU DENY THAT? 24 A. I DON'T RECALL SAYING THAT. 25 Q. BUT YOU DON'T DENY IT? NO. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 329 LAYNE - DIRECT / NUGENT 1 A. I DO NOT BELIEVE I SAID THAT, NO. 2 Q. AFTER THIS MEETING ON AUGUST 2ND, YOU NEVER SAW OR TALKED 3 TO MS. NEWTON AGAIN UNTIL THE MEETING WHERE SHE WAS FIRED; 4 ISN'T THAT TRUE? 5 A. CORRECT. 6 Q. NEVER SENT HER AN EMAIL IN THE MEANTIME? 7 A. NO. 8 Q. NEVER WENT TO GO TALK TO HER? 9 A. IT'S NOT COMMON FOR ME TO GO OUT IN THE REFINERY, NO. 10 Q. LESS THAN A MONTH AFTER THAT AUGUST 2ND MEETING, YOU 11 BECAME AWARE THAT MS. NEWTON REPORTED THAT HARD HAT STICKER 12 THAT WE HAVE SEEN SEVERAL TIMES, RIGHT? 13 A. YES. 14 Q. DID THE PERSON WHO PUT THAT STICKER ON HER DESK VIOLATE 15 SHELL'S SEXUAL HARASSMENT POLICY? 16 A. YEAH, THEY VIOLATED SHELL'S CODE OF CONDUCT, YES. 17 Q. THAT PART OF THE CODE OF CONDUCT WE TALKED ABOUT EARLIER 18 IN THE EXAM? 19 A. YES. 20 Q. ABOUT INAPPROPRIATE MATERIALS? 21 A. YES. 22 Q. WHO WAS THAT PERSON? 23 A. I DON'T KNOW. 24 Q. WHAT DID YOU DO TO FIND OUT? 25 A. ME PERSONALLY? DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 330 LAYNE - DIRECT / NUGENT 1 Q. YES. 2 A. I DID NOT. 3 Q. YOU PARTICIPATED IN THE DECISION TO FIRE MS. NEWTON, 4 DIDN'T YOU? 5 A. THE DECISION? 6 Q. YOU RECOMMENDED SHE BE FIRED, THOUGH, RIGHT? 7 A. YES. 8 Q. AT THE TIME THAT YOU MADE YOUR RECOMMENDATION THAT 9 MS. NEWTON'S CAREER AT SHELL BE ENDED, HAD YOU LOOKED AT ANY NO. 10 OF HER PROGRESS REPORTS? 11 A. YES. 12 Q. WHEN DID YOU DO THAT? 13 A. I'M NOT SURE OF THE EXACT DATES. 14 RECOMMENDATION FOR TERMINATION. 15 Q. 16 THOSE PROGRESS REPORTS, EVERYONE WHO GAVE THEM TO HER, SAID 17 THAT BASED ON THEIR RECOMMENDATION, SHE SHOULD REMAIN AS AN 18 EQUILON EMPLOYEE, RIGHT? 19 A. YES. 20 Q. INCLUDING THE ONE SHE GOT A WEEK BEFORE SHE WAS FIRED; 21 ISN'T THAT TRUE? 22 A. 23 ONES SHE GOT SAID YES. 24 Q. 25 GIVEN TO HER AFTER SHE WAS FIRED, RIGHT? SOMETIME BEFORE THE AND YOU ARE AWARE THAT WHEN YOU LOOKED AT EVERY ONE OF I DON'T RECALL THE TIMING OF THE ONE SHE GOT, BUT ALL THE YOU'RE AWARE OF ONE THAT WAS PUT TOGETHER THAT WAS NEVER DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 331 LAYNE - DIRECT / NUGENT 1 A. YES. 2 Q. WHEN WAS THE DECISION TO FIRE HER MADE? 3 A. I DON'T RECALL THE EXACT DATE. 4 Q. ALL RIGHT. 5 YOUR BINDER AS WELL. LET'S TAKE A LOOK AT EXHIBIT 49. 6 THE WITNESS: 7 MS. NUGENT: 8 THE COURT: 9 CAN I HAVE A NAPKIN, PLEASE? MAY I APPROACH, YOUR HONOR? YOU MAY APPROACH. (PAUSE IN THE PROCEEDINGS.) 10 THANK YOU. THE WITNESS: 11 I'M SORRY, WHAT EXHIBIT? 12 BY MS. NUGENT: 13 Q. IT'S EXHIBIT 49. 14 A. OKAY. 15 Q. THERE ARE TWO EMAILS ON THE PAGE. 16 THE TOP? 17 A. YES. 18 Q. AND THIS WAS FROM ERIC PEREZ? 19 A. YES. 20 21 THAT'S IN OKAY. MS. NUGENT: DID YOU GET THE ONE AT YOUR HONOR, I WOULD LIKE TO OFFER EXHIBIT 49 INTO EVIDENCE. 22 MR. LAFAYETTE: 23 THE COURT: NO OBJECTION. ADMITTED. 24 (PLAINTIFF'S EXHIBIT 49 RECEIVED IN EVIDENCE) 25 (DISPLAYED ON SCREEN.) DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 332 LAYNE - DIRECT / NUGENT 1 BY MS. NUGENT: 2 Q. 3 BEING BLOWN UP. TAKING A LOOK AT EXHIBIT 49 IN THE ORIGINAL EMAIL. 4 IT IS (DISPLAYED ON SCREEN.) 5 THAT WAS FORWARDED TO YOU BY MR. PEREZ JUST A COUPLE OF 6 HOURS AFTER HE GOT IT, RIGHT? 7 A. YES. 8 Q. AND THAT WAS ON SEPTEMBER 17TH? 9 A. YES. 10 Q. AND IN THE EMAIL THAT HE FORWARDED TO YOU, MS. NEWTON WAS 11 FOLLOWING UP ON HER REPORTS OF BEING SINGLED OUT, RIGHT? 12 A. YES. 13 Q. AND ABOUT THE STICKER? 14 A. YES. 15 Q. AND YOU DIDN'T DO ANYTHING WHEN HE FORWARDED YOU THIS 16 EMAIL TO FOLLOW UP ON EITHER ONE OF THOSE TWO ISSUES, DID YOU? 17 A. I DON'T BELIEVE THAT'S CORRECT. 18 Q. WELL, WHAT DID YOU DO? 19 A. SO I THINK AT THIS POINT ERIC AND I REVIEWED OUR NOTES 20 FROM THE PRIOR MEETING AND TRIED TO FIND ANY EXAMPLES OF WHERE 21 SHE THOUGHT SHE WAS BEING SINGLED OUT, AND THEN ERIC 22 INVESTIGATED THOSE. 23 Q. 24 25 HE INVESTIGATED -- WELL, STRIKE THAT. LOOKING AT THIS EMAIL, THE DATES ON IT, DOES THAT HELP YOU REMEMBER WHEN THE DECISION TO FIRE MS. NEWTON WAS MADE? DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 333 LAYNE - DIRECT / NUGENT 1 A. NO. 2 Q. YOU DON'T KNOW HOW LONG AFTER? 3 A. I MEAN, IT WOULD HAVE BEEN SHORTLY AFTER BECAUSE HER 4 PROBATIONARY PERIOD WAS ENDING, BUT I DON'T REMEMBER THE DATE. 5 Q. 6 YOU? 7 A. I DID NOT, NO. 8 Q. YOU NEVER TALKED WITH CAMERON CURRAN ABOUT HER EITHER? 9 A. NO. 10 Q. NEVER TALKED WITH RICHARD METCALF ABOUT MS. NEWTON EITHER, 11 DID YOU? 12 A. NO. 13 Q. AND YOU CAN'T RECALL ANY OF THE SPECIFICS OF ANY OF YOUR 14 CONVERSATIONS WITH ERIC PEREZ ABOUT MS. NEWTON, CAN YOU? 15 A. NO. 16 Q. YOU CAN'T RECALL ANYTHING THAT YOU AND THOR NYGAARD 17 DISCUSSED ABOUT HER; ISN'T THAT TRUE? 18 A. CORRECT. 19 Q. AND YOU NEVER DISCUSSED HER WITH ERIC PEREZ'S BOSS, MIKE 20 BECK, DID YOU? 21 A. I JUST DON'T RECALL IF I DID OR DIDN'T. 22 Q. AND YOU ALSO CAN'T RECALL WHETHER YOU DISCUSSED MS. NEWTON 23 WITH YOUR BOSS, LORI MARTINELLI; ISN'T THAT TRUE? 24 A. CORRECT. 25 Q. AND YOU DON'T THINK YOU EVER DISCUSSED HER WITH ANYONE YOU NEVER TALKED WITH JEFF FISCHER ABOUT MS. NEWTON, DID DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 334 LAYNE - DIRECT / NUGENT 1 ELSE; ISN'T THAT TRUE? 2 A. CORRECT. 3 Q. SO YOU DIDN'T TALK TO MS. NEWTON ABOUT WHAT SHE WAS 4 COMPLAINING ABOUT, YOU CAN'T TELL THE JURY ABOUT ANY 5 CONVERSATIONS YOU HAD WITH ANYONE ELSE ABOUT HER, YOU KNEW SHE 6 WAS BEING TREATED UNEQUALLY ABOUT BEING SINGLED OUT AND ABOUT 7 THE STICKER, AND YOU RECOMMENDED THAT SHE BE FIRED AT SOME 8 POINT BETWEEN THE EMAIL WE JUST LOOKED AT, SEPTEMBER 17TH AND 9 THE DATE SHE WAS FIRED, SEPTEMBER 28TH; ISN'T THAT TRUE? 10 MR. LAFAYETTE: 11 THE COURT: 12 BY MS. NUGENT: 13 Q. 14 OBJECTION, THE QUESTION IS COMPOUND. SUSTAINED. LET'S TALK ABOUT THAT MEETING WHERE MS. NEWTON WAS FIRED. YOU WERE THERE, RIGHT? 15 A. YES. 16 Q. CAN YOU RECALL EVERYBODY WHO WAS THERE? 17 A. NO. 18 Q. YOU CAN'T RECALL ANYTHING THAT WAS SAID DURING THAT 19 MEETING, CAN YOU? 20 A. NO, I DON'T REMEMBER THAT MEETING VERY WELL. 21 Q. YOU CAN'T RECALL HOW MS. NEWTON REACTED TO BEING FIRED? 22 A. NO. 23 Q. HOW MANY TERMINATIONS HAVE YOU BEEN INVOLVED WITH WHERE 24 THE PERSON BEING TERMINATED HAD COMPLAINED ABOUT 25 DISCRIMINATION AND HARASSMENT? DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 335 LAYNE - CROSS / LAFAYETTE 1 2 OBJECTION, MISSTATES THE WITNESS'S MR. LAFAYETTE: TESTIMONY, IT'S COMPOUND. OVERRULED. 3 THE COURT: 4 MR. LAFAYETTE: 5 THE COURT: 6 THE WITNESS: AND ARGUMENTATIVE. OVERRULED. I DON'T REMEMBER ALL OF MY 7 TERMINATIONS, BUT OFFHAND I AM NOT RECALLING ANY. 8 BY MS. NUGENT: 9 Q. THAT'S SOMETHING THAT WOULD MAKE AN IMPACT ON YOU AS AN 10 INDUSTRIAL RELATIONS PROFESSIONAL, ISN'T IT? 11 A. WHAT WOULD MAKE AN IMPACT ON ME? 12 Q. FIRING A WOMAN WHO HAD COMPLAINED ABOUT DISCRIMINATION AND 13 HARASSMENT. 14 A. I'M SORRY. I DON'T KNOW. I HAVE NOTHING FURTHER. 15 MS. NUGENT: 16 THE COURT: 17 MR. LAFAYETTE: 18 YOUR EXAM. YES, YOUR HONOR. CROSS-EXAMINATION 19 BY MR. LAFAYETTE: 20 Q. GOOD MORNING. 21 A. HELLO. 22 Q. LET ME ASK YOU SOMETHING. 23 YOU DO EVERY DAY? 24 A. NO. 25 Q. ARE THERE DOCUMENTS THAT YOU SOMETIMES KEEP IN ORDER TO BE DO YOU REMEMBER EVERYTHING THAT DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 336 LAYNE - CROSS / LAFAYETTE 1 ABLE TO REFRESH YOUR RECOLLECTION? 2 A. YES. 3 Q. WHEN YOUR DEPOSITION WAS TAKEN IN THIS CASE, WHO TOOK IT? 4 A. SONYA. 5 Q. WHEN SHE ASKED YOU QUESTIONS IN THE DEPOSITION, DID SHE 6 ALWAYS LET YOU LOOK AT DOCUMENTS SO THAT YOU COULD REFRESH 7 YOUR RECOLLECTION? 8 A. NO. 9 Q. YOU WERE ASKED ABOUT THE AUGUST 2 MEETING JUST A FEW I BELIEVE HER LAST NAME IS SMALLETS. 10 MINUTES AGO, WEREN'T YOU? 11 A. YES. 12 Q. DID YOU TAKE NOTES IN THAT MEETING? 13 A. YES. 14 Q. DID ANYONE SHOW YOU YOUR NOTES SO THAT YOU COULD USE THEM 15 TO REFRESH YOUR RECOLLECTION? 16 THE COURT: WHEN? 17 BY MR. LAFAYETTE: 18 Q. 19 NOTES FROM THE AUGUST 2 MEETING TO REFRESH YOUR RECOLLECTION? 20 21 IN THE EXAMINATION, DID YOU HAVE IN FRONT OF YOU YOUR THE COURT: I DON'T UNDERSTAND THE QUESTION, COUNSEL. ARE WE TALKING ABOUT HERE? THE JURY KNOWS WHAT'S HERE. 22 AND IN TERMS OF THE DEPOSITION, IT'S NOT REALLY RELEVANT 23 EXCEPT FOR PURPOSES -- FOR CERTAIN EVIDENTIARY PURPOSES. 24 25 SO I DON'T KNOW WHAT THE POINT IS. MR. LAFAYETTE: I'LL MOVE ON, YOUR HONOR. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 337 LAYNE - CROSS / LAFAYETTE 1 BY MR. LAFAYETTE: 2 Q. 3 WAS GIVEN TO HER, EXHIBIT 576. 4 A. OKAY. 5 Q. DO YOU KNOW WHAT THAT IS? 6 A. YES. 7 Q. WHAT IS THAT? 8 A. THOSE ARE MY NOTES FROM THE MEETING ON AUGUST 2ND. 9 Q. WHY DON'T YOU TELL ME HOW YOU WENT ABOUT PREPARING THOSE I'LL HAVE THE WITNESS TAKE A LOOK AT IN THE BINDER THAT 10 NOTES FOR THE MEETING ON AUGUST 2ND. 11 A. 12 THE UNION, WE TRY AND TAKE NOTES TO UNDERSTAND WHAT IS 13 DISCUSSED AND HAVE DOCUMENT OF WHAT WAS DISCUSSED. 14 Q. WHY DO YOU TAKE NOTES IN THE FIRST INSTANCE? 15 A. THE FIRST INSTANCE? 16 Q. WHY DO YOU TAKE NOTES AT ALL? 17 A. IT'S GOOD RECORDKEEPING, DOCUMENTATION. 18 Q. TAKE A LOOK AT THIS AND TELL ME IF ALL OF THE HANDWRITING 19 ON THIS DOCUMENT IS YOURS. 20 A. YES. 21 Q. ALL RIGHT. 22 23 SO FAIRLY COMMON, WHENEVER WE HAVE A MEETING THAT INVOLVES MR. LAFAYETTE: I'M SORRY. I WOULD LIKE TO MOVE THIS INTO EVIDENCE, YOUR HONOR. 24 MS. NUGENT: 25 THE COURT: OBJECTION, HEARSAY. DENIED -- THE OBJECTION IS SUSTAINED. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC WE 338 LAYNE - CROSS / LAFAYETTE 1 HAVE THE WITNESS. 2 SHE CAN REFRESH HER RECOLLECTION. 3 MR. LAFAYETTE: 4 THE COURT: 5 IF YOU HAVE QUESTIONS, SHE CAN ANSWER AND THANK YOU, YOUR HONOR. JUST A POINT ON THAT SO THAT JURORS KNOW. BECAUSE SOMETIMES NOT EVEN LAW STUDENTS KNOW. 6 THE STANDARD KIND OF DOCUMENT THAT WOULD BE REQUESTED FOR 7 ADMISSION IS LIKE A POLICE REPORTS. 8 INTO EVIDENCE. 9 RECOLLECTION. POLICE REPORTS NEVER COME POLICE OFFICERS CAN USE THEM TO REFRESH THEIR RIGHT? THAT'S WHAT 10 WE ARE INTERESTED IN IS THE WITNESS'S TESTIMONY. BUT SHE CAN 11 USE THESE TO REFRESH. 12 13 BUT YOU HAVE THE WITNESS. TO THE EXTENT YOU NEED TO USE THEM TO REFRESH, I NEED TO KNOW AND THE JURY NEEDS TO KNOW. 14 THE WITNESS: 15 THE COURT: 16 YOU CAN'T READ THEM, OKAY? OKAY. YOU CAN READ THEM, TURN THEM OVER, AND ANSWER A QUESTION, BUT THAT'S THE PROCESS. 17 THE WITNESS: 18 THE COURT: OKAY. I UNDERSTAND. GO AHEAD. 19 BY MR. LAFAYETTE: 20 Q. 21 MEETING ON AUGUST 2ND, DO YOU KNOW WHO CALLED THE MEETING TO 22 TAKE PLACE? 23 A. I BELIEVE IT WAS ERIC. 24 Q. DID YOU HAVE AN UNDERSTANDING WHY ERIC PEREZ WAS 25 REQUESTING A MEETING TAKE PLACE ON AUGUST 2ND? AT THE BEGINNING OF THE MEETING THAT YOU HAD -- THIS DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 339 LAYNE - CROSS / LAFAYETTE 1 A. 2 THAT HAD GONE INTO HER PD LOG. 3 OPPORTUNITY TO PROVIDE EXAMPLES OF HOW SHE FELT SHE WAS BEING 4 TREATED DIFFERENT. 5 Q. 6 ERIC PEREZ SENT YOU ANY INFORMATION RELATIVE TO WHAT WAS TO BE 7 DISCUSSED? 8 A. 9 TARDIES AND COACHINGS THAT WERE GOING TO GO INTO HER PD LOG. YEAH, HE WANTED TO REVIEW THE TARDIES AND THE COACHINGS AND NUMBER TWO, TO GIVE HER AN PRIOR TO THIS MEETING ON AUGUST 2ND THAT YOU ATTENDED, HAD YEAH. HE PROVIDED TALKING POINTS IN REGARDS TO THE 10 Q. DID YOU GET A COPY OF THAT? 11 A. YES. 12 Q. AND IN HIS TALKING POINTS, WAS THERE ANY DISCUSSION 13 WHATSOEVER OF ANYTHING THAT HE HAD DONE RELATIVE TO HER 14 TARDIES? 15 MS. NUGENT: 16 THE COURT: 17 BY MR. LAFAYETTE: 18 Q. 19 TARDIES? MS. NUGENT: 21 THE COURT: 23 SUSTAINED AS TO THE FORM. DO YOU RECALL ANYTHING THAT HE ADVISED WITH REGARD TO THE 20 22 OBJECTION. OBJECTION. SUSTAINED. WE HAVE MR. PEREZ HERE. I DON'T UNDERSTAND WHAT YOU ARE TRYING TO GET AT. MR. LAFAYETTE: IT GOES TO HER STATE OF MIND GOING 24 INTO THE MEETING AS TO WHAT SHE UNDERSTOOD. 25 REASON I'M ASKING, YOUR HONOR. THAT'S THE ONLY DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 340 LAYNE - CROSS / LAFAYETTE 1 2 MS. NUGENT: IT'S STILL LEADING, YOUR HONOR. OBJECTION. 3 MR. LAFAYETTE: 4 THE COURT: 5 ALL RIGHT. IT'S NOT LEADING. IT'S NOT LEADING. SO I'M GOING TO ALLOW IT IN FOR THE LIMITED 6 PURPOSE OF YOU -- THINK OF WHEN YOU ARE GOING INTO A MEETING. 7 RIGHT? 8 THE TRUTH, IT'S FOR WHAT SHE WAS THINKING BEFORE GOING INTO 9 THE MEETING. 10 11 IF SOMEONE TELLS YOU SOMETHING, IT'S REALLY NOT FOR JUST FOR HER STATE OF MIND. DOES THAT MAKE ANY SENSE? LET'S TRY IT. ASK THE ONE QUESTION AND THEN WE ARE GOING TO TAKE OUR BREAK. 12 MR. LAFAYETTE: YES. 13 BY MR. LAFAYETTE: 14 Q. 15 BEGINNING OF THE MEETING ON AUGUST 2ND THAT YOU HAD TO TAKE 16 CARE OF? I'LL MAKE IT SIMPLE. 17 MS. NUGENT: 18 THE COURT: DID SOMETHING HAPPEN AT THE OBJECTION, LEADING. SUSTAINED. 19 LET'S TAKE OUR BREAK, LADIES AND GENTLEMEN. 20 ALL RIGHT. 21 (PROCEEDINGS HELD OUTSIDE THE PRESENCE OF THE JURY.) 22 23 24 25 WE WILL TAKE A 15-MINUTE BREAK. THE COURT: MS. LAYNE, PLEASE LEAVE THE COURTROOM. (PROCEEDINGS HELD OUTSIDE THE PRESENCE OF THE WITNESS.) THE COURT: OKAY. THE RECORD WILL REFLECT THAT THE WITNESS HAS LEFT THE COURTROOM AND THE JURY. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 341 LAYNE - CROSS / LAFAYETTE 1 SO CAN SOMEONE PLEASE GIVE ME A SENSE OF WHAT IS THE 2 PROBLEM HERE AND WHAT'S GOING ON? 3 MR. LAFAYETTE: 4 I CAN, YOUR HONOR. THEY HAVE ATTACKED HER CREDIBILITY BY FIRST GIVING HER -- 5 TAKING HER DEPOSITION WITHOUT SHOWING HER DOCUMENTS. 6 IS -- LET'S ME SAY WHAT I'VE GOT TO SAY. AND THIS 7 AND THEN WHAT I AM CONCERNED ABOUT IS THEY HAVE ATTACKED 8 HER CREDIBILITY IN THIS COURTROOM BY NOT LETTING HER REFRESH 9 HER RECOLLECTION. 10 THE COURT: 11 SHE HAD TO PREPARE FOR TRIAL. 12 SITTING AT THE TABLE WHO KNOWS ABSOLUTELY NOTHING SEEMS TO BE 13 ODD. 14 THAT'S YOUR JOB. MR. LAFAYETTE: EXAMINATION TO UNDERCUT THAT. 16 THE COURT: 17 MR. LAFAYETTE: 19 THE FACT THAT YOU HAVE SOMEONE ALL I WANT TO DO IS CONDUCT MY 15 18 SHE OBVIOUSLY -- LOOK, AND THAT'S MY JOB, YOUR HONOR. RIGHT. THAT'S ALL I'M TRYING TO DO. SO HERE'S THE DEAL. THIS AUGUST 2 MEETING, THERE ARE FIVE EMAILS THAT PREDATE 20 THAT THAT SHE'S INVOLVED IN RELATING TO THIS CONVERSATION THAT 21 IS GOING TO TAKE PLACE. 22 BECAUSE OTHERWISE, THIS BECOMES MISLEADING IN THIS CASE RIGHT 23 NOW, AND THAT'S RELEVANT AND THAT'S ON POINT WITH WHAT THEY 24 DISCUSSED. 25 THE COURT: AND I AM TRYING TO DEVELOP THAT. ALL RIGHT. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 342 LAYNE - CROSS / LAFAYETTE 1 MR. LAFAYETTE: THAT'S WHAT I'M TRYING TO GET TO 2 BECAUSE I NEED TO BUILD -- SHE DIDN'T JUST DROP IN OUT THE SKY 3 IN THIS MEETING. 4 THAT HAPPENED. 5 THERE IS A LOT MORE THAT HAPPENED BEFORE AND SINCE THEY'VE OPENED THE DOOR ON THIS IN THEIR CASE -- 6 MS. NUGENT: 7 THE COURT: 8 MS. NUGENT: 9 THE COURT: 10 MS. NUGENT: 11 THE COURT: 12 MS. NUGENT: 14 THE COURT: MORE DECORUM. 16 DON'T POINT AT ME. HEY, HEY, HEY. SORRY. YOU KNOW WHAT? FINISH WHAT YOU HAVE TO SAY AND A LITTLE THIS IS FEDERAL COURT, NOT STATE COURT. MEETING. THAT IS WHAT I WANT TO DO. THE COURT: 20 MR. LAFAYETTE: 21 THE COURT: 25 GIVE ME THE EXHIBITS THAT ARE -THE FIRST ONE SHE GETS -- JUST GIVE ME THE NUMBER SO I CAN LOOK AT THEM. 23 24 THANKS, YOUR HONOR. I'M JUST TRYING TO BUILD UP THE RECORD LEADING UP TO THE 19 22 YOU BOTH NEED TO CALM I APOLOGIZE, YOUR HONOR. MR. LAFAYETTE: 17 18 HUH-UH. DOWN. 13 15 DON'T POINT AT ME, PLEASE. MR. LAFAYETTE: 547, 554, 556, 558, 561, 563, 566, 573. THE COURT: WHAT'S YOUR RESPONSE? WHAT ARE YOU DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 343 LAYNE - CROSS / LAFAYETTE 1 TRYING TO HIDE? 2 HERE. 3 4 I'M TRYING TO FIGURE OUT WHAT'S GOING ON MS. NUGENT: OKAY. THE NOTES, EXHIBIT 33 AT TRIAL WERE EXHIBIT 29 AT HER 5 DEPOSITION. 6 ARE HEARSAY. 7 RECOLLECTION. 8 NOT GOING TO PUT THEM IN. 9 I'M NOT TRYING TO HIDE ANYTHING. SHE TESTIFIED ABOUT THEM IN HER DEPOSITION. THEY ARE -- SHE CAN USE THEM TO REFRESH HER I'M THE ONLY ONE WHO CAN PUT THEM IN, BUT I'M THE COURT: I DON'T DISAGREE WITH THAT. I DON'T KNOW 10 THAT YOU CAN -- THESE AREN'T ADMISSIBLE DOCUMENTS, AND YOU 11 KNOW THAT. 12 13 14 THEY MR. LAFAYETTE: THESE ARE EMAILS THAT SHE RECEIVED THAT I'M TALKING ABOUT NOW. THE COURT: WHAT CAN I ANTICIPATE SO WE CAN GET THIS 15 EXAMINATION WORKING? 16 SOMEONE'S -- THAT SOMEONE IS TRYING TO HIDE, THAT SOMEONE IS 17 TRYING TO DO SOMETHING? 18 MR. LAFAYETTE: 19 MAKE SURE THE RECORD IS COMPLETE. 20 THESE ARE EMAILS THAT SHE RECEIVED LEADING UP TO THAT MEETING. IS THERE SOMETHING OUT THERE THAT 21 THE COURT: 22 MR. LAFAYETTE: 23 MS. NUGENT: 24 25 I'M NOT, YOUR HONOR. I'M TRYING TO THAT'S WHAT THESE SHOW. YOU HAVE TEN MINUTES LEFT ON YOUR BREAK. THANK YOU, YOUR HONOR. THANK YOU, YOUR HONOR. (RECESS TAKEN AT 11:50 A.M.; RESUMED AT 12:00 P.M.) THE COURT: ALL RIGHT. LET'S CALL THE JURY BACK. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 344 LAYNE - CROSS / LAFAYETTE 1 (PROCEEDINGS HELD IN THE PRESENCE OF THE JURY.) 2 THE COURT: ALL RIGHT. WE'RE BACK ON THE RECORD. 3 THE RECORD WILL REFLECT THE JURY IS BACK. 4 BACK. 5 THE WITNESS IS YOU MAY PROCEED. 6 MR. LAFAYETTE: THANK YOU, YOUR HONOR. 7 BY MR. LAFAYETTE: 8 Q. 9 LIKE FOR YOU TO TURN TO WHAT'S KNOWN AS TAB 546, PLEASE. 10 MA'AM, THERE'S A BLACK BINDER IN FRONT OF YOU. I WOULD DO YOU HAVE IT THERE? 11 A. YES. 12 Q. DO YOU RECOGNIZE THAT DOCUMENT? 13 A. YES. 14 Q. IS THAT AN EMAIL THAT YOU RECEIVED ON OR ABOUT JULY 18, 15 2016? 16 A. YES. 17 Q. WHO DID YOU RECEIVE IT FROM? 18 A. ERIC PEREZ. 19 MR. LAFAYETTE: 20 DOCUMENT INTO EVIDENCE. 21 MS. NUGENT: 22 THE COURT: YOUR HONOR, I WOULD LIKE TO MOVE THIS IT'S HEARSAY, YOUR HONOR. THE RULE WE HAVE BEEN FOLLOWING ON THIS 23 IS THAT IF A WITNESS IS PERSONALLY INVOLVED IN AN EMAIL, THESE 24 ARE STANDARD BUSINESS COMMUNICATIONS. 25 I'VE ALLOWED THEM IN. THE OBJECTION IS OVERRULED. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 345 LAYNE - CROSS / LAFAYETTE 1 IT'S ADMITTED. 2 (DEFENDANT'S EXHIBIT 546 RECEIVED IN EVIDENCE) 3 BY MR. LAFAYETTE: 4 Q. 5 FROM MR. PEREZ ALERTING YOU TO SOME CONCERNS INVOLVING 6 MS. NEWTON? 7 A. PRIOR TO THIS EMAIL? 8 Q. YES. 9 A. I DON'T -- NO. 10 Q. CAN YOU READ THE FIRST PARAGRAPH WHERE HE SENDS IT TO YOU? 11 A. YES. 12 Q. GO AHEAD. 13 A. THE FIRST PARAGRAPH? PRIOR TO THIS EMAIL, HAD YOU RECEIVED ANY COMMUNICATIONS (READING) 14 I RECEIVED A CALL FROM CAMERON OVER THE WEEKEND. 15 SOME RED FLAGS ABOUT CIARA'S PERFORMANCE AS AN OPERATOR. 16 TOLD HIM BE SURE WE ARE DOCUMENTING. 17 HER PROBATION PERIOD IS OVER. 18 Q. 19 EXHIBIT 547. 20 CAN YOU LET ME KNOW WHEN THANK YOU. CAN YOU TELL ME WHAT THAT IS? A. 22 CIARA, AND I AM COPIED. 23 MR. LAFAYETTE: 25 I NOW I'M GOING TO ASK YOU TO TAKE A LOOK AT THE NEXT 21 24 HE HAS THAT LOOKS LIKE AN EMAIL FROM ERIC TO CAMERON DISCUSSING I WOULD LIKE TO MOVE THIS DOCUMENT INTO EVIDENCE. MS. NUGENT: NO OBJECTION. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 346 LAYNE - CROSS / LAFAYETTE 1 THE COURT: OKAY. I WOULD LIKE TO KNOW WHETHER SHE'S 2 REVIEWED IT, LOOKED AT IT, OR SOMETHING. 3 PERSON IS COPIED DOESN'T MEAN THEY ACTUALLY LOOK AT IT. 4 BY MR. LAFAYETTE: 5 Q. DID YOU REVIEW THIS DOCUMENT AT THE TIME YOU RECEIVED IT? 6 A. YEAH, I BELIEVE I DID. 7 Q. AND -- 8 JUST BECAUSE A (DISPLAYED ON SCREEN.) 9 NOW, WHEN YOU READ THIS EMAIL, DID YOU SEE ANYTHING IN THE 10 EMAIL THAT INDICATED THAT ERIC PEREZ WAS RECOMMENDING AN 11 INAPPROPRIATE COURSE OF ACTION? 12 A. NO. 13 Q. TAKE A LOOK AT EXHIBIT 556. 14 (DISPLAYED ON SCREEN.) 15 IS EXHIBIT 556 ANOTHER EMAIL? 16 A. YES. 17 Q. WHO IS IT FROM? 18 19 THE COURT: COUNSEL, YOU NEED TO STOP PUBLISHING THESE BEFORE I ADMIT THEM. 20 MR. LAFAYETTE: 21 WASN'T TRYING TO DO IT. 22 THE COURT: 23 MR. LAFAYETTE: 24 YOU KNOW WHAT THE RULE IS. IT'S INADVERTENT, YOUR HONOR. I I UNDERSTAND. IT WAS INADVERTENT. I APOLOGIZE TO THE COURT. 25 DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 347 LAYNE - CROSS / LAFAYETTE 1 BY MR. LAFAYETTE: 2 Q. EXHIBIT 556 IS AN EMAIL. 3 A. IT'S AN EMAIL FROM ERIC TO ME REQUESTING THE GATE LOGS FOR 4 CIARA. 5 Q. AND DID YOU READ IT AT THE TIME YOU GOT IT? 6 A. YES. 7 8 MR. LAFAYETTE: CAN YOU TELL ME WHAT IT IS? I WOULD LIKE TO MOVE IT INTO EVIDENCE, YOUR HONOR. 9 IT'S ADMITTED. THE COURT: 10 (DEFENDANT'S EXHIBIT 556 RECEIVED IN EVIDENCE) 11 BY MR. LAFAYETTE: 12 Q. IN THIS EMAIL WAS THERE A DISCUSSION OF THE GATE LOGS? 13 A. YEAH. 14 Q. AND WAS THERE A DISCUSSION OF WHY HE WAS DISCUSSING THE 15 GATE LOGS? ERIC WAS REQUESTING THE GATE LOGS. 16 17 (DISPLAYED ON SCREEN.) A. IT SAYS HE'S LOOKING INTO CIARA'S ALLEGATION. 18 THE COURT: 19 THE WITNESS: 20 THE COURT: 21 THE WITNESS: 22 THE COURT: SO DO YOU HAVE AN ANSWER TO HIS QUESTION? YES. HE DIDN'T ASK YOU TO READ -I'M SORRY. -- THE DOCUMENT. 23 BY MR. LAFAYETTE: 24 Q. 25 THAT SHE WAS BEING TREATED DIFFERENTLY OTHER THAN WITH REGARD AT THIS POINT WERE YOU AWARE OF ANY CLAIMS BY MS. NEWTON DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 348 LAYNE - CROSS / LAFAYETTE 1 TO TARDIES? 2 A. NO. 3 Q. DID YOU TAKE ANY ACTION TO GET THE GATE LOGS? 4 A. YEAH. THE REQUEST -- 5 MS. NUGENT: THIS IS BEYOND THE SCOPE, YOUR HONOR. 6 THE COURT: I BELIEVE YOU RAISED THE CONTENT OF THAT 7 MEETING DURING YOUR EXAMINATION, DIDN'T YOU? 8 9 10 I DID, YOUR HONOR, BUT THE GATE LOGS MS. NUGENT: WERE NOT -- THAT MEETING -- THE GATE LOGS WERE NOT DISCUSSED IN THAT MEETING. 11 MR. LAFAYETTE: 12 THE COURT: 13 MR. LAFAYETTE: I -- I'M NOT GOING TO ARGUE THAT -- OVERRULED. THANK YOU. 14 BY MR. LAFAYETTE: 15 Q. DID YOU TAKE ACTION TO GET THE GATE LOGS? 16 A. YES. 17 Q. TAKE A LOOK AT EXHIBIT 558. 18 HAVE YOU SEEN THAT EXHIBIT BEFORE? 19 A. YES. 20 Q. TELL ME WHAT THAT IS. 21 A. I SENT THE REQUEST FOR THE GATE LOGS TO OUR SECURITY 22 REPRESENTATIVE AND SHE SENT THEM BACK. 23 24 25 MR. LAFAYETTE: I WOULD LIKE TO MOVE THAT INTO EVIDENCE, YOUR HONOR. THE COURT: ANY OBJECTION? DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 349 LAYNE - CROSS / LAFAYETTE 1 2 THE GATE LOGS THEMSELVES ARE HEARSAY. MS. NUGENT: I DON'T HAVE AN OBJECTION TO THE EMAIL. 3 THE COURT: 4 ALL RIGHT. I'LL DEAL WITH IT LATER. YOU CAN SHOW HER THE FIRST PAGE. 5 MR. LAFAYETTE: THANK YOU, YOUR HONOR. 6 BY MR. LAFAYETTE: 7 Q. 8 KULDEEP? 9 A. KAUR, CORRECT. 10 Q. AND THEN WHAT'S THAT AT THE TOP OF THE PAGE? 11 A. I'M SORRY? 12 Q. THE TOP OF THE PAGE, THERE'S AN EMAIL FROM KULDEEP TO YOU? 13 A. OH, YEAH. 14 REQUEST FOR GATE LOGS. 15 Q. WHAT DID YOU DO WITH THE GATE LOGS WHEN YOU RECEIVED THEM? 16 A. I SENT THEM ON TO ERIC PEREZ. 17 Q. CAN YOU TAKE A LOOK AT EXHIBIT 561? 18 A. YES. 19 Q. DO YOU RECOGNIZE EXHIBIT 561? 20 A. YES. 21 Q. SPECIFICALLY, THE PART AT THE TOP OF THE DOCUMENT, WHAT IS 22 THAT? 23 A. 24 THE GATE LOGS THAT WAS REQUESTED. 25 THE GATE LOG WASN'T WORKING, SO WE MISSED THAT ONE MONTH. SO THE FIRST PAGE HERE, THAT'S AN EMAIL FROM YOU TO SHE'S THE SECURITY REP. SHE RETURNED THE SO SHE PROVIDED THE GATE LOGS. IT'S JUST ME SENDING AN EMAIL TO ERIC SAYING WE PROVIDED THERE WAS ONE MONTH WHERE DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 350 LAYNE - CROSS / LAFAYETTE 1 2 MR. LAFAYETTE: INTO EVIDENCE, YOUR HONOR. 3 4 I WOULD LIKE TO MOVE THE DOCUMENT THE COURT: SAME ISSUE. I'LL DISCUSS IT LATER, BUT YOU CAN SHOW HER THE TRANSMISSION. 5 MR. LAFAYETTE: 6 BY MR. LAFAYETTE: 7 Q. THANK YOU, YOUR HONOR. IS THAT THE TRANSMISSION YOU WERE TALKING ABOUT? 8 THE COURT: IT IS NOT SHOWING UP. 9 THE CLERK: IT IS NOT SHOWING. 10 (DISPLAYED ON SCREEN.) 11 BY MR. LAFAYETTE: 12 Q. IS THAT THE TRANSMISSION YOU WERE TALKING ABOUT? 13 A. YES. 14 Q. THANK YOU. 15 NOW I'M GOING TO ASK YOU TO TAKE A LOOK AT EXHIBIT 563. 16 DO YOU KNOW WHAT THIS IS? 17 A. YEAH. 18 Q. DON'T TELL ME, JUST ANSWER YES OR NO. 19 A. YES. 20 Q. YES, OKAY. 21 IT WAS AN EMAIL -- NOW, DID YOU RECEIVE THIS DOCUMENT ON OR ABOUT JULY 26, 22 2016? 23 A. YES. 24 Q. FROM WHOM? 25 A. ERIC PEREZ. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 351 LAYNE - CROSS / LAFAYETTE 1 Q. 2 AUGUST 2? 3 A. YES. 4 Q. DID YOU READ IT AT THE TIME YOU GOT IT? 5 A. YES. ALL RIGHT. 6 7 AND THIS IS BEFORE YOU GOT TO THE MEETING ON MR. LAFAYETTE: EVIDENCE, YOUR HONOR. 8 THE COURT: 9 MS. NUGENT: 10 ANY OBJECTION? YES, AN OBJECTION TO THE SECOND PAGE OF IT IS HEARSAY, BUT NOT TO THE EMAIL ITSELF. 11 THAT WOULD BE THE THIRD PAGE IS WHAT THE COURT: 12 YOU'RE OBJECTING TO? 13 MS. NUGENT: 14 THE COURT: 15 I WOULD LIKE TO MOVE IT INTO LATER. YES, I'M SORRY, 113. WE'LL DEAL WITH THE GATE LOG ISSUES THE FIRST TWO PAGES. 16 MR. LAFAYETTE: 17 THANK YOU, YOUR HONOR. (DISPLAYED ON SCREEN.) 18 BY MR. LAFAYETTE: 19 Q. 20 TO WHAT IT WAS THAT MR. PEREZ HAD BEEN DOING WITH THE GATE 21 LOGS? 22 A. YES. 23 Q. HOW DID YOU GET AN UNDERSTANDING AS TO WHAT HE HAD BEEN 24 DOING WITH THE GATE LOGS? 25 A. NOW, UP UNTIL THIS POINT, DID YOU HAVE AN UNDERSTANDING AS YES OR NO. FROM ERIC. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 352 LAYNE - CROSS / LAFAYETTE 1 Q. 2 LOGS? 3 A. 4 INDIVIDUAL ENTERED THE FACILITY TO SEE WHAT TIME TO TRY TO SEE 5 HOW MANY TIMES INDIVIDUALS HAD BEEN BADGED INTO THE FACILITY 6 AFTER 6:15. 7 Q. WHAT WAS IT YOU UNDERSTOOD HE HAD DONE WITH THOSE GATE HE HAD REVIEWED THE ENTRANCE OR WHEN THE BADGE FOR THAT AND DID YOU UNDERSTAND -- WELL -- 8 THE COURT: 9 MR. LAFAYETTE: NO LEADING. I CHANGED IT, YOUR HONOR. 10 BY MR. LAFAYETTE: 11 Q. 12 WHAT HIS FINDINGS WERE? 13 A. YEAH. 14 Q. IS THIS IT? 15 A. UH-HUH, YES. 16 Q. NOW, I'M GOING TO GO FURTHER HERE. 17 PROVIDE A WRITTEN SUMMARY? 18 A. YES. 19 Q. SO DID HE CALCULATE HOW MANY TIMES HE THOUGHT MS. NEWTON 20 HAD BEEN LATE BASED UPON THE GATE LOG REPORT? 21 A. YES. 22 Q. DID HE PROVIDE WHAT HE THOUGHT WERE THE LATENESS FOR HER 23 THREE COWORKERS? DID HE PROVIDE YOU AT ANY POINT IN TIME WITH A SUMMARY OF 24 MS. NUGENT: LEADING. 25 THE COURT: SUSTAINED. THE BOTTOM, DID HE DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 353 LAYNE - CROSS / LAFAYETTE 1 BY MR. LAFAYETTE: 2 Q. 3 TARDINESS OF HER COWORKERS? 4 A. YES. 5 Q. AND DID YOU RECEIVE A SUMMARY OF HIS FINDINGS WHERE HE WAS 6 ATTEMPTING TO EVALUATE WHETHER OR NOT SHE HAD BEEN TREATED 7 DIFFERENTLY WITH REGARD TO TARDIES AND HER COWORKERS? 8 A. YES. 9 Q. IS THIS IT? 10 A. YES. 11 Q. WHEN YOU READ IT, DID YOU HAVE AN UNDERSTANDING AS TO 12 WHETHER OR NOT SHE HAD BEEN TREATED DIFFERENTIALLY THAN HER 13 COWORKERS? DID HE DO ANYTHING TO -- DO YOU KNOW IF HE EVALUATED THE HE REQUESTED THEIR GATE LOGS AS WELL. 14 MS. NUGENT: LEADING. 15 THE COURT: SUSTAINED. 16 BY MR. LAFAYETTE: 17 Q. 18 BEEN TREATED UNFAIRLY? 19 A. 20 INFORMATION PROVIDED, SHE HAD BEEN TARDY SIX TIMES, AND IT WAS 21 DOCUMENTED TWICE. 22 DID YOU COME TO A CONCLUSION AS TO WHETHER OR NOT SHE HAD IT DIDN'T APPEAR SHE WAS TREATED UNFAIRLY. BASIS, THE AND TWO OTHER OPERATORS HAD NOT BEEN TARDY AT ALL, AND ONE 23 OPERATOR HAD BEEN TARDY ONCE, AND THAT HAD NOT BEEN 24 DOCUMENTED. 25 Q. NOW TAKE A LOOK AT EXHIBIT 566. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 354 LAYNE - CROSS / LAFAYETTE 1 YES OR NO, DO YOU KNOW WHAT THIS IS? 2 A. YES. 3 Q. WHAT IS, WITHOUT GOING INTO THE DETAILS OF THE DOCUMENT, 4 WHAT IS IT? 5 A. 6 AUGUST 2ND. 7 Q. OKAY. 8 A. YES. IT'S ERIC'S TALKING POINTS GOING INTO THE MEETING ON 9 10 MR. LAFAYETTE: I WOULD LIKE TO MOVE THIS DOCUMENT INTO EVIDENCE, YOUR HONOR. 11 12 DID YOU READ IT AT THE TIME YOU GOT IT? MS. NUGENT: SAME OBJECTION AS TO THE THIRD PAGE. OTHERWISE NO OBJECTION TO THE FIRST TWO. 13 THE COURT: 14 MR. LAFAYETTE: 15 THE COURT: 16 MR. LAFAYETTE: 17 ALL RIGHT. SAME RULING. THE FIRST TWO PAGES, YOUR HONOR? YES. THANK YOU. (DISPLAYED ON SCREEN.) 18 BY MR. LAFAYETTE: 19 Q. FIRST PAGE HE WRITES: 20 CHRISTINE, HERE IS MY DRAFT OF THE DISCUSSION WITH CIARA. 21 AND THEN HE SAID AT THE LAST SENTENCE THERE: 22 WE WILL FINISH UP WITH HER ALLEGATIONS OF BEING TREATED 23 DIFFERENTLY AND UNFAIR SINGLED OUT. 24 25 DO YOU SEE THAT? A. YES. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 355 LAYNE - CROSS / LAFAYETTE 1 Q. LET'S LOOK AT THE SECOND PAGE. 2 (DISPLAYED ON SCREEN.) 3 WHAT DID YOU UNDERSTAND THAT TO BE? 4 A. 5 TARDIES. 6 Q. 7 THAT WAS A SUMMARY OF HIS FINDINGS IN REGARDS TO THE THANK YOU. TAKE A LOOK AT EXHIBIT 573, PLEASE. IS THIS AN EMAIL 8 DATED JULY 1, 2016? 9 A. AUGUST 1. 10 Q. AUGUST 1. 11 A. YES. 12 Q. DID YOU RECEIVE IT ON OR ABOUT THAT DATE? 13 A. YES. 14 Q. DID YOU RECEIVE -- DID YOU REVIEW IT? 15 A. YES. 16 Q. BASED UPON THIS DOCUMENT, DID YOU HAVE AN UNDERSTANDING 17 ONE WAY OR THE OTHER AS TO WHETHER OR NOT SOME NOTES WOULD BE 18 PRESENTED AT THE MEETING BY MS. NEWTON? 19 A. YES. I BELIEVED SHE WAS GOING TO PROVIDE NOTES. 20 MR. LAFAYETTE: 21 DOCUMENT INTO EVIDENCE. 22 MS. NUGENT: 23 THE COURT: YOUR HONOR, I WOULD LIKE TO MOVE THIS NO OBJECTION, YOUR HONOR. IT'S ADMITTED. 24 (DEFENDANT'S EXHIBIT 573 RECEIVED IN EVIDENCE) 25 (DISPLAYED ON SCREEN.) DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 356 LAYNE - CROSS / LAFAYETTE 1 BY MR. LAFAYETTE: 2 Q. 3 INEQUALITY THAT SHE WILL BRING IN. 4 SAYS HERE SHE HAS NOTES THAT SHE HAS BEEN TAKING OF DO YOU SEE THAT? 5 A. YES. 6 Q. THIS IS ON AUGUST 1, 7:59 A.M. THE DAY BEFORE THE 7 AUGUST 22 MEETING, RIGHT? 8 A. THE AUGUST 2ND MEETING, YES. 9 Q. AUGUST 2ND MEETING. 10 THANK YOU. DID MS. NEWTON BRING IN ANY NOTES FOR THE AUGUST 2 11 MEETING? 12 A. NO. 13 Q. DID MS. NEWTON PROVIDE ANY SPECIFIC INCIDENCES WHERE SHE 14 CLAIMS SHE WAS TREATED DIFFERENTLY OTHER THAN THE TARDIES? 15 MS. NUGENT: 16 THE COURT: 17 MR. LAFAYETTE: 18 THE COURT: LEADING. WHAT DID YOU SAY? LEADING. SUSTAINED. 19 BY MR. LAFAYETTE: 20 Q. 21 INCIDENCES OF WHERE SHE WAS TREATED DIFFERENTLY OTHER THAN THE 22 TARDIES? 23 A. NO. 24 Q. NOW, DID YOU TAKE MEETINGS DURING -- NOTES DURING THAT 25 MEETING? IN THE MEETING, DID MS. NEWTON DESCRIBE ANY SPECIFIC DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 357 LAYNE - CROSS / LAFAYETTE 1 MS. NUGENT: ON AUGUST 2ND? 2 BY MR. LAFAYETTE: 3 Q. ON AUGUST 2ND? 4 A. YES. 5 Q. IN THAT MEETING WHILE YOU WERE TAKING NOTES, WHAT HAPPENED 6 AT THE BEGINNING OF THE MEETING? 7 A. 8 HER TWO UNION STEWARDS. 9 AND THEN WE STARTED THE MEETING. AT THE START OF THE MEETING SHE STEPPED OUT TO MEET WITH I DON'T KNOW APPROXIMATELY HOW LONG, 10 Q. OKAY. 11 A. DURING THE MEETING SHE, UNDERNEATH THE TABLE, PICKED UP 12 HER CELL PHONE AND TRIED TO RECORD THE MEETING. 13 Q. 14 MEETING? 15 A. 16 IT. 17 Q. THEN WHAT DID YOU DO? 18 A. I ASKED HER IF SHE WAS RECORDING, AND SHE SAID YES. 19 Q. AND THEN WHAT HAPPENED? 20 A. I JUST SAID I DID NOT CONSENT. 21 Q. OKAY. 22 A. BECAUSE I DID NOT COME INTO THAT MEETING PREPARED TO BE 23 RECORDED NOR TO RECORD THE CONVERSATION. 24 Q. 25 WAS FOLLOWED FOR THIS MEETING? ONCE YOU STARTED THE MEETING, DID SOMETHING HAPPEN? DID SHE ANNOUNCE THAT SHE WAS GOING TO TRY AND RECORD THIS NO. I WAS JUST SITTING NEXT TO HER AND I HAPPENED TO SEE WHY DID YOU DO THAT? NOW DURING THE MEETING, DID -- WAS THERE AN AGENDA THAT DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 358 LAYNE - CROSS / LAFAYETTE 1 A. 2 PERFORMANCE AND TARDIES FIRST, AND THEN AN OPPORTUNITY FOR HER 3 TO SHARE EXAMPLES. 4 Q. 5 WE FOLLOWED ERIC'S TALKING POINTS TO GO THROUGH OKAY. SO WHEN YOU GOT TO TALKING ABOUT THE TARDIES, DID 6 MR. PEREZ DESCRIBE FOR EVERYBODY IN THE ROOM WHAT HE HAD FOUND 7 ABOUT THE TARDIES? 8 A. YEAH, I BELIEVE HE DID. 9 Q. OKAY. DID MS. NEWTON SAY ANYTHING RELATIVE TO HIS 10 FINDINGS ABOUT THE TARDIES? 11 A. I DON'T RECALL. 12 Q. TAKE A LOOK AT YOUR NOTES THEN IF YOU CAN'T RECALL AND SEE 13 IF THERE'S A REFERENCE THERE. 14 A. WHAT EXHIBIT IS IT? 15 Q. IN THE SMALLER BINDER, THEY ARE EXHIBIT 576. 16 17 THE COURT: WHAT YOU NEED TO DO IS TAKE A LOOK AND TELL US WHEN YOU'RE DONE. 18 THE WITNESS: 19 MR. LAFAYETTE: 20 576. IT'S A REALLY SMALL BINDER LIKE THIS (INDICATING). 21 THE WITNESS: 22 MR. LAFAYETTE: 23 THE WITNESS: 24 BY MR. LAFAYETTE: 25 Q. I GOT IT. I SEE IT. OKAY. OKAY. DID SHE SAY ANYTHING RELATIVE TO HER -- ON THE TARDIES? DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 359 LAYNE - CROSS / LAFAYETTE 1 A. 2 THE SAME BECAUSE THE OTHERS BROUGHT IN DONUTS AND DID NOT HAVE 3 IT DOCUMENTED. 4 Q. 5 BELIEVE -- DID SHE SAY ANYTHING CONCERNING HER GENDER WITH 6 REGARD TO THE TARDIES? 7 A. NO. 8 Q. DID SHE OFFER ANY OTHER EXPLANATION ABOUT THIS OTHER THAN 9 DONUTS? YEAH. SHE SAID THAT SHE DIDN'T FEEL SHE WAS BEING TREATED AT THAT POINT DID SHE SAY ANYTHING THAT LED YOU TO 10 A. NO. 11 Q. NOW, DURING THE MEETING, WAS THERE A DISCUSSION OF SOME OF 12 THE ITEMS ON HER PD LOG? 13 A. YES. 14 Q. DID ANYBODY PRESENT WHAT THEY HAD FOUND RELATIVE TO THOSE 15 ITEMS ON HER PD LOG? 16 A. 17 THE FINDINGS. 18 Q. 19 OF THOSE VIOLATIONS REFLECTED ON HER PD LOG? YEAH. ONLY DONUTS. I THINK ERIC WENT THROUGH THE INVESTIGATIONS AND DID SHE, IN THAT MEETING, DENY THAT SHE HAD COMMITTED ANY 20 MS. NUGENT: 21 FOUNDATION, LEADING. 22 THE COURT: 23 THE WITNESS: 24 BY MR. LAFAYETTE: 25 Q. OBJECTION, ARGUMENTATIVE, LACKS OVERRULED. NO, I DON'T BELIEVE SHE DID. OKAY. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 360 LAYNE - CROSS / LAFAYETTE 1 SO ONCE MR. PEREZ WENT THROUGH THE TARDIES AND WENT 2 THROUGH THE PD LOGS, OKAY, WHAT HAPPENED? 3 A. 4 HER AN OPPORTUNITY TO SHARE HOW SHE BELIEVED SHE WAS BEING 5 TREATED DIFFERENTLY. 6 Q. I THINK WE TRANSITIONED THE DISCUSSION TO CIARA TO GIVE NOW, WAS SHE IN THIS MEETING SOLELY BY HERSELF? 7 THE COURT: 8 THE WITNESS: 9 STAND NEXT TO THE MIC. SHE HAD TWO UNION STEWARDS. BY MR. LAFAYETTE: 10 Q. TWO UNION STEWARDS? 11 A. CORRECT. 12 Q. NOW, WHEN SHE WAS GIVEN AN OPPORTUNITY TO POINT OUT THINGS 13 WHERE SHE THOUGHT SHE WAS BEING TREATED DIFFERENTLY, THAT IS 14 WHERE WE ARE GOING TO FOCUS RIGHT NOW, OKAY? 15 A. OKAY. 16 Q. FIRST, DID SHE PRODUCE THE NOTES? 17 A. NO. 18 Q. NO. 19 DID SHE IDENTIFY ANYBODY WHO SHE THOUGHT SHOULD HAVE BEEN 20 DISCIPLINED BUT WHO WAS NOT? 21 A. NO. 22 Q. DID SHE IDENTIFY ANYBODY WHO SHE THOUGHT HAD BEEN TARDY 23 BUT WHO HAD NOT BEEN COACHED AND COUNSELED? 24 A. NO. 25 Q. DID SHE IDENTIFY ANY EVENT WHERE SHE THOUGHT -- WHERE SHE DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 361 LAYNE - CROSS / LAFAYETTE 1 SAID SOMETHING TO THE EFFECT OF, HERE, THIS SHOWS I'VE BEEN 2 SINGLED OUT. 3 DID SHE DO THAT? 4 A. NO. 5 Q. DID SHE IDENTIFY ANY STATEMENTS THAT SHE THOUGHT WERE 6 WRONG FROM CAMERON CURRAN? 7 A. NO. 8 Q. YOU TESTIFIED EARLIER TODAY THAT SHE MADE SOME COMMENTS 9 ABOUT SOME STL, A TEMPORARY TEAM LEADER SOMEONE? 10 A. SHIFT TEAM LEADER. 11 Q. OKAY. 12 EXHIBIT -- THE SAME EXHIBIT YOU HAVE IN FRONT OF YOU, 576. 13 AND -- 14 I THINK YOU SAID SOMETHING ABOUT... TAKE A LOOK AT THE COURT: SUSTAINED. 15 DO YOU HAVE A QUESTION? 16 MR. LAFAYETTE: YES, YOUR HONOR. 17 BY MR. LAFAYETTE: 18 Q. 19 UNDERSTANDING OF WHO THE PEOPLE WERE THAT SHE THOUGHT SHE HAD 20 NOT BEEN TREATED AS WELL AGAINST? 21 A. NO. 22 Q. DID YOU HAVE AN UNDERSTANDING OF ANY SPECIFIC EVENT WHERE 23 SHE THOUGHT SHE WAS BEING SINGLED OUT? 24 A. NO. 25 Q. HAD YOU ASKED FOR THAT INFORMATION? SO WHEN YOU LEFT THIS MEETING, DID YOU HAVE AN DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 362 LAYNE - CROSS / LAFAYETTE 1 A. AT THAT PORTION OF THE MEETING, YES. 2 Q. AND AT THAT PORTION OF THE MEETING, DID HER UNION STEWARDS 3 OFFER UP ANY SPECIFIC INFORMATION? 4 A. NO. 5 Q. DID THEY OFFER UP THE NAMES OF ANY INDIVIDUALS? 6 A. NO. 7 Q. DID THEY SAY THAT THERE WAS SOME EVENT THAT HAD TAKEN 8 PLACE THAT THEY COULD DIRECT YOU TO TO SAY THIS HAPPENED AND 9 THIS IS NOT IN THAT PERSON'S PD LOG? 10 A. NO. 11 Q. SO DID YOU GUYS JUST LEAVE IT AT THAT, OR WAS THERE SOME 12 AGREEMENT MADE? 13 A. THE AGREEMENT WAS -- 14 Q. YES OR NO. 15 A. THERE WAS AN AGREEMENT, YES. 16 Q. WHAT WAS THE AGREEMENT? 17 A. THE AGREEMENT WAS THAT AFTER CIARA'S LONG CHANGE, SHE 18 WOULD FOLLOW BACK UP WITH US AND PROVIDE SPECIFIC EXAMPLES AND 19 ANY WITNESSES. 20 Q. 21 RIGHT? 22 A. PROBABLY SOMETIME MID-AUGUST. 23 Q. SOMETIME IN AUGUST. 24 25 NOW YOU'VE REFERENCED SOMETHING CALLED A LONG CHANGE, DO YOU KNOW WHEN CIARA NEWTON'S LONG CHANGE ENDED? AND WHEN HER LONG CHANGE ENDED, DID SHE PROVIDE TO YOU ANY NOTES IDENTIFYING PEOPLE AND EVENTS? DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 363 LAYNE - CROSS / LAFAYETTE 1 A. NO. 2 Q. DID SHE CALL YOU ON THE PHONE AND TELL YOU THESE ARE THE 3 PEOPLE AND THESE ARE THE EVENTS THAT I THINK YOU SHOULD LOOK 4 INTO? 5 MS. NUGENT: 6 THE COURT: OBJECTION. SUSTAINED. 7 BY MR. LAFAYETTE: 8 Q. DID SHE CALL YOU ON THE PHONE? 9 A. NO. 10 Q. DID HER UNION STEWARDS COME TO YOU WITH ANY ADDITIONAL 11 INFORMATION? 12 A. NO. 13 Q. AS OF AUGUST 29, HAD YOU RECEIVED ANY ADDITIONAL 14 INFORMATION FROM MS. NEWTON RELATIVE TO HER CLAIM THAT SHE WAS 15 BEING TREATED DIFFERENTLY? 16 A. NO. 17 Q. HAD YOU RECEIVED ANY INFORMATION RELATIVE TO HER CLAIM 18 THAT SHE THOUGHT SHE WAS BEING SINGLED OUT? 19 A. NO. 20 Q. ON AUGUST 29, DID YOU RECEIVE AN EMAIL FROM MR. PEREZ? 21 A. YES. 22 Q. TAKE A LOOK AT EXHIBIT 577. 23 DID YOU RECEIVE THIS? 24 A. YES. 25 Q. DID YOU REVIEW IT? DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 364 LAYNE - CROSS / LAFAYETTE 1 A. YES. 2 Q. ALL RIGHT. 3 4 MR. LAFAYETTE: EVIDENCE, YOUR HONOR. 5 6 I HAVE NO OBJECTION, ALTHOUGH I THINK IT MS. NUGENT: IS ALREADY IN EVIDENCE UNDER A DIFFERENT NUMBER. 7 8 I WOULD LIKE TO MOVE IT INTO THE COURT: ADMIT IT. I DON'T KNOW THAT FOR A FACT. SO I'LL 577. 9 (DEFENDANT'S EXHIBIT 577 RECEIVED IN EVIDENCE) 10 (DISPLAYED ON SCREEN.) 11 BY MR. LAFAYETTE: 12 Q. THIS IS AN EMAIL YOU RECEIVED FROM ERIC PEREZ? 13 A. YES. 14 Q. FOCUS ON THE TOP. 15 DID YOU READ THIS? 16 A. YES. 17 Q. DID YOU GET AN UNDERSTANDING ONE WAY OR THE OTHER AS TO 18 WHETHER OR NOT HE HAD BEEN ABLE TO SECURE SOME ADDITIONAL 19 INFORMATION FROM MS. NEWTON CONCERNING HER CLAIMS OF BEING 20 TREATED DIFFERENTLY IN THE WORKPLACE? 21 A. HE HAD NOT. 22 Q. SO, AS OF AUGUST 29, YOU HADN'T RECEIVED ANYTHING MORE, 23 RIGHT? 24 25 HE ALSO BROUGHT UP SOMETHING ELSE IN THIS DOCUMENT, DIDN'T HE? DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 365 LAYNE - CROSS / LAFAYETTE 1 A. YES. 2 Q. HE BROUGHT UP THIS (INDICATING). 3 (DISPLAYED ON SCREEN.) 4 A. YES. 5 Q. THEN HE SAID SHE DOESN'T KNOW IF IT WAS MEANT FOR HER OR 6 NOT. 7 IS THAT WHAT HE TOLD YOU? 8 MS. NUGENT: 9 THE COURT: OBJECTION, LEADING. SUSTAINED. 10 BY MR. LAFAYETTE: 11 Q. DID YOU READ THAT PASSAGE? 12 A. YES. 13 Q. SO, DID YOU TALK TO ERIC PEREZ ABOUT THIS? 14 A. I BELIEVE I DID. 15 Q. WHAT IS YOUR BEST RECOLLECTION OF WHAT YOU SAID TO ERIC 16 PEREZ? 17 A. 18 EMAIL TO THE DEPARTMENT UNTIL HE ASKS AROUND AND TRIES TO FIND 19 OUT WHO BROUGHT IN THE STICKER. 20 Q. 21 MY BEST RECOLLECTION IS I TOLD HIM NOT TO SEND OUT AN ALL RIGHT. NOW, DID YOU EVER RECEIVE ANY INFORMATION FROM MR. PEREZ 22 THAT HE HAD FOUND OUT WHO BROUGHT THE STICKER INTO THE 23 WORKPLACE? 24 A. NO. 25 Q. SO NOW AFTER THAT HAPPENS, DID YOU EVER GET -- DID DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 366 LAYNE - CROSS / LAFAYETTE 1 MS. NEWTON EVER CONTACT YOU AND PROVIDE INFORMATION RELATIVE 2 TO HOW SHE THOUGHT SHE WAS BEING TREATED DIFFERENTLY? 3 A. NO. 4 Q. DID HER UNION EVER COME TO YOU WITH ANY SUCH INFORMATION? 5 A. NO. 6 Q. SO NOW I WANT YOU TO TAKE A LOOK AT A DOCUMENT THAT IS 7 REFERENCED AS EXHIBIT 581. 8 9 10 THIS IS AN EMAIL THAT YOU RECEIVED FROM MR. PEREZ ON SEPTEMBER 19. A. YES. 11 EXCUSE ME. MS. NUGENT: 12 YOU SAID 531? 13 THE COURT: 14 MR. LAFAYETTE: 581. 15 BY MR. LAFAYETTE: 16 Q. 17 RECEIVE THIS DOCUMENT? 18 A. 19 20 I NEED TO GET THERE. 581. DO YOU HAVE AN UNDERSTANDING AS TO WHY -- SO DID YOU YES. MR. LAFAYETTE: I WOULD LIKE TO MOVE THIS DOCUMENT INTO EVIDENCE, YOUR HONOR. 21 MS. NUGENT: 22 THE COURT: NO OBJECTION. ADMITTED. 23 (DEFENDANT'S EXHIBIT 581 RECEIVED IN EVIDENCE) 24 (DISPLAYED ON SCREEN.) 25 DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 367 LAYNE - CROSS / LAFAYETTE 1 BY MR. LAFAYETTE: 2 Q. 3 ON SEPTEMBER 19,2016? 4 A. YES. 5 Q. WHY? 6 A. ERIC AND I, WHEN WE DID NOT GET FURTHER EXAMPLES FROM 7 CIARA, HAD GONE BACK THROUGH THE NOTES ON AUGUST 2ND TO 8 DETERMINE ANY AREAS WHERE WE BELIEVE SHE MAY HAVE BEEN 9 INDICATING DIFFERENT TREATMENT. 10 DO YOU KNOW WHY IT IS MR. PEREZ IS SENDING YOU THIS EMAIL AND ERIC WAS GOING TO GO AND GATHER ADDITIONAL INFORMATION 11 ON THOSE INCIDENTS. 12 TARDIES AND WHAT TIME THEY WERE INSTRUCTED TO COME INTO WORK. 13 Q. 14 TIME WHEN MS. NEWTON HASN'T SHARED THIS -- THIS EMAIL IN PARTICULAR WAS AROUND THE SO WHY ARE YOU AND MR. PEREZ DOING THIS AT THIS POINT IN 15 THE COURT: 16 MR. LAFAYETTE: CAN YOU STOP LEAVING THE MIC? YES, YOUR HONOR. 17 BY MR. LAFAYETTE: 18 Q. 19 WITH YOU? 20 A. 21 BEING TREATED DIFFERENT. 22 SO WE TRIED TO GO BACK THROUGH THE EXAMPLES WE THOUGHT SHE HAD 23 PROVIDED. 24 Q. 25 WHY ARE YOU DOING THIS WHEN SHE HASN'T SHARED INFORMATION WELL, SHE MENTIONED IN THE AUGUST 2ND MEETING SHE WAS WE DIDN'T GET ANY FURTHER EXAMPLES, ALL RIGHT. SO NOW WHAT ALL DID YOU GUYS DO AT THIS POINT TO TRY AND DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 368 LAYNE - CROSS / LAFAYETTE 1 FIND OUT MORE ABOUT WHAT SHE WAS SAYING? 2 A. 3 CAMERON CURRAN AS FOLLOW UP. 4 Q. 5 SO I KNOW ERIC WENT AND INTERVIEWED JEFF FISCHER AND I WOULD LIKE YOU TO TAKE A LOOK AT EXHIBIT 594. IS THAT AN EMAIL THAT YOU RECEIVED? 6 A. YES. 7 Q. WHEN DID YOU GET IT? 8 A. SEPTEMBER 21ST. 9 Q. AND THIS EMAIL THAT YOU RECEIVED ON SEPTEMBER 21ST, DID 10 YOU REVIEW IT? 11 A. 12 13 YES. MR. LAFAYETTE: I WOULD LIKE TO MOVE THE DOCUMENT INTO EVIDENCE, YOUR HONOR. 14 MS. NUGENT: 15 THE COURT: NO OBJECTION. ADMITTED. 16 (DEFENDANT'S EXHIBIT 594 RECEIVED IN EVIDENCE) 17 (DISPLAYED ON SCREEN.) 18 BY MR. LAFAYETTE: 19 Q. SO TELL ME WHAT IT IS. 20 A. IT'S INTERVIEW NOTES OF JEFF FISCHER, ERIC PEREZ, AND GUY 21 ROZAR CONDUCTED THE INTERVIEW. 22 Q. 23 SO THAT'S THE FIRST PART OF THIS, RIGHT? I WANT YOU TO TAKE A LOOK NOW AT BATES STAMP PAGE 126, 24 THREE PAGES IN. 25 A. WHAT'S THAT? IT'S INTERVIEW NOTES OF GUY ROZAR AND ERIC PEREZ OF DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 369 LAYNE - CROSS / LAFAYETTE 1 CAMERON. 2 Q. 3 ALL RIGHT. OTHER THAN THE TWO OF THEM, HAD MS. NEWTON IDENTIFIED ANY 4 OTHER PEOPLE RELATIVE TO HER CLAIMS OF BEING TREATED 5 DIFFERENTLY? 6 A. NO. 7 Q. SO NOW I WOULD LIKE YOU TO TAKE A LOOK AT EXHIBIT 595, 8 PLEASE. 9 A. OKAY. 10 Q. DID YOU RECEIVE THIS DOCUMENT BACK IN SEPTEMBER OF 2016? 11 A. YES. 12 Q. AND TAKE A LOOK AT EXHIBIT 49, PLEASE. 13 A. EXHIBIT 49? 14 Q. IT IS IN THAT SMALLER BINDER. 15 A. YES. 16 Q. DOES EXHIBIT 49 SHOW UP AT THE BOTTOM OF EXHIBIT 595? 17 A. YES. 18 19 MR. LAFAYETTE: I WOULD LIKE TO MOVE EXHIBIT 595 INTO EVIDENCE, YOUR HONOR. 20 MS. NUGENT: 21 THE COURT: NO OBJECTION. ADMITTED. 22 (DEFENDANT'S EXHIBIT 595 RECEIVED IN EVIDENCE) 23 (DISPLAYED ON SCREEN.) 24 BY MR. LAFAYETTE: 25 Q. DID MR. PEREZ PROVIDE A RESPONSE TO MS. NEUMAN'S -- DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 370 LAYNE - CROSS / LAFAYETTE 1 MS. NEWTON'S QUESTION? 2 MS. NUGENT: 3 THE COURT: 4 THE WITNESS: OBJECTION, LEADING. OVERRULED. YOU CAN ANSWER. YES. 5 BY MR. LAFAYETTE: 6 Q. WHAT DID HE SAY? 7 A. HE SAID HE DISCUSSED IT WITH THE STL, AND IT WILL NOT BE 8 TOLERATED, AND ASKED THEM TO TALK TO THEIR TEAMS. 9 Q. 10 ALL RIGHT. NOW, AT THE TIME THAT YOU ARE DOING THIS WORK WITH 11 MR. PEREZ, WERE YOU DOING ANYTHING RELATIVE TO THE FINAL 12 RECOMMENDATIONS OF THE 22 PROBATIONARY EMPLOYEES? 13 MS. NUGENT: 14 MR. LAFAYETTE: 15 DECISION WAS MADE TO TERMINATE. BEYOND THE SCOPE. 16 THE COURT: 17 MR. LAFAYETTE: 18 THE CLERK: 19 MR. LAFAYETTE: 20 DOCUMENTS AS WELL. 21 BY MR. LAFAYETTE: 22 Q. 23 24 25 I DON'T THINK SO. SUSTAINED. SHE ASKED WHEN THE YOU CAN DO IT IN YOUR CASE. OKAY. YOU KEEP MOVING SO I'M ADJUSTING THE MIC. I'M TRYING TO GET OVER TO THE I WOULD LIKE YOU TO TAKE A LOOK AT EXHIBIT 599. IS THIS A DOCUMENT STARTING AT THE EMAIL THAT'S DATED SEPTEMBER 21, 2016 AT 1:52 P.M. WHO PREPARED THAT? DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 371 LAYNE - CROSS / LAFAYETTE 1 A. I DID. 2 Q. WHAT IS THAT? 3 A. IT IS A RECOMMENDATION AROUND A COUPLE OF THE PROBATIONARY 4 PERIOD EMPLOYEES. 5 Q. 6 THAT THE DECISION WAS MADE TO TERMINATE MS. NEWTON. 7 NOW YOU WERE ASKED A LITTLE WHILE AGO WHEN WAS THE DATE DO YOU REMEMBER THIS? 8 A. YES. 9 Q. OKAY. SO ON SEPTEMBER 21, 2016, DID YOU MAKE A 10 RECOMMENDATION REGARDING MS. NEWTON? 11 A. YES. 12 Q. AND THE BASIS FOR YOUR RECOMMENDATION, WHERE IS THAT 13 STATED? 14 A. YOU MEAN STATED? 15 16 IT'S BELOW. MR. LAFAYETTE: I WOULD LIKE TO MOVE THIS DOCUMENT INTO EVIDENCE, YOUR HONOR. 17 MS. NUGENT: 18 THE COURT: NO OBJECTION. ADMITTED. 19 (DEFENDANT'S EXHIBIT 599 RECEIVED IN EVIDENCE) 20 (DISPLAYED ON SCREEN.) 21 BY MR. LAFAYETTE: 22 Q. 23 NAMED LORI MARTINELLI. 24 25 NOW, AT THE TOP OF THE PAGE IS SOMETHING FROM SOMEONE DO YOU SEE THAT? A. YES. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 372 LAYNE - CROSS / LAFAYETTE 1 Q. WHO IS SHE? 2 A. SHE WAS MY SUPERVISOR AT THE TIME. 3 Q. AND IS SHE -- WHAT IS SHE ADVISING YOU OF? 4 A. THAT THE RECOMMENDATION FOR TERMINATION WAS APPROVED OR 5 SUPPORTED. 6 Q. 7 REASONING? 8 A. YES. 9 Q. ARE THESE SOME OF THE REASONS WHY YOU RECOMMENDED 10 TERMINATION? 11 12 SO NOW THE REST OF THIS DOCUMENT, DOES IT DESCRIBE YOUR I'M CALLING OUT WHERE IT SAYS, CIARA NEWTON RECOMMENDED TERMINATION, ATTENDANCE, SIX TARDIES. 13 WAS THAT PART OF YOUR RECOMMENDATION? 14 A. YES. 15 Q. THEN IT SAYS, PERFORMANCE, SOME EXAMPLES, NOT ALL, AND 16 THEN IT SAYS BAKER TANK VALVE. 17 IS THAT PART OF YOUR RECOMMENDATION? 18 A. YES. 19 Q. THIS IS THE SECOND PAGE OF THE DOCUMENT. 20 OUT THE REMAINDER OF YOUR RECOMMENDATION. 21 A. YES. 22 Q. NOW, ONE OF THOSE IS SOMETHING THAT'S REFERRED TO AS A HOT 23 WORK PERMIT. 24 25 THIS IS CALLING DO YOU SEE THAT? A. YES. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 373 LAYNE - CROSS / LAFAYETTE 1 Q. WHERE DID YOU GET THAT INFORMATION FROM? 2 A. FROM ERIC PEREZ. 3 Q. THE INFORMATION THAT YOU HAVE HERE THAT YOU ARE RELYING 4 UPON, WHERE ALL DID IT COME FROM? 5 A. FROM DISCUSSIONS WITH ERIC. 6 Q. OKAY. 7 YOU HAVE ANYTHING THAT INDICATED THAT WHAT MR. PEREZ WAS 8 TELLING YOU WAS UNTRUTHFUL? 9 A. NO. 10 Q. WITH REGARD TO THE TARDIES, FOR EXAMPLE, HAD MS. NEWTON 11 EVER SHOWN YOU ANYTHING THAT INDICATED THAT THE DISCUSSION OF 12 THE TARDIES WAS UNTRUTHFUL? AND AT THE TIME THAT YOU RECEIVED IT FROM ERIC, DID 13 MS. NUGENT: LEADING. 14 THE COURT: SUSTAINED. 15 BY MR. LAFAYETTE: 16 Q. 17 THERE'S A DISCUSSION HERE ABOUT BEHAVIORS. DID YOU WRITE THAT? 18 A. YES. 19 Q. THE INFORMATION THAT YOU RECEIVED HERE CONCERNING 20 MS. NEWTON, DID YOU RECEIVE ANY INFORMATION SUCH AS THIS ON 21 HER THREE PEOPLE WHO WENT WITH HER TO OPCEN? 22 MS. NUGENT: LEADING. 23 THE COURT: SUSTAINED. 24 BY MR. LAFAYETTE: 25 Q. BASED UPON THE INFORMATION THAT YOU RECEIVED, DID YOU DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 374 LAYNE - CROSS / LAFAYETTE 1 INDEPENDENTLY FORMULATE A RECOMMENDATION? 2 A. YES. 3 Q. AND WHAT WAS YOUR INDEPENDENT RECOMMENDATION BASED UPON 4 THE INFORMATION YOU RECEIVED? 5 A. FOR TERMINATION. 6 Q. DID YOU DO THAT BECAUSE OF HER GENDER? 7 MS. NUGENT: LEADING. 8 THE COURT: OVERRULED. 9 THE WITNESS: 10 BY MR. LAFAYETTE: 11 Q. 12 SPILL? NO. DID YOU DO IT BECAUSE OF SOMETHING RELATING TO AN ACID 13 MS. NUGENT: LEADING. 14 THE COURT: SUSTAINED. 15 BY MR. LAFAYETTE: 16 Q. DID THE ACID SPILL COME INTO YOUR RECOMMENDATION AT ALL? 17 A. NO. 18 Q. DID YOU DO IT BECAUSE SHE PRESENTED THE STICKER? 19 MS. NUGENT: LEADING. 20 THE COURT: SUSTAINED. 21 BY MR. LAFAYETTE: 22 Q. 23 ANYTHING, DID HER PRESENTING THE STICKER HAVE TO DO WITH YOUR 24 RECOMMENDATION? 25 A. DID THE STICKER, THE FACT THAT SHE HAD -- WHAT, IF NONE. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 375 LAYNE - CROSS / LAFAYETTE 1 Q. 2 YOU BECOME AWARE OF THEM BEFORE THE STICKER? 3 A. YES. 4 Q. THIS ONE, THE HOT WORK PERMIT, DO YOU KNOW WHEN THE HOT 5 WORK PERMIT ISSUE ACTUALLY AROSE? 6 A. I DON'T RECALL. 7 Q. DO YOU RECALL IF THE HOT WORK PERMIT WAS DISCUSSED DURING 8 THE AUGUST 2 MEETING WITH MS. NEWTON? 9 THE ISSUES THAT RELATE TO HER -- YOUR RECOMMENDATION, DID AND IF YOU NEED TO LOOK AT YOUR NOTES AND SEE. 10 MS. NUGENT: 11 THE COURT: 12 MS. NUGENT: 13 THE COURT: 14 WHAT IS THE OBJECTION? ALL RIGHT. 16 AS TO THE FORM, IT'S SUSTAINED. WAS IT DISCUSSED ON AUGUST 2ND? THE WITNESS: BY MR. LAFAYETTE: 18 Q. 19 NO. OKAY. SO DO YOU KNOW IF THIS WAS SOMETHING THAT OCCURRED AFTER 20 THE AUGUST 2 MEETING? 21 A. 24 BUT SHE DO YOU KNOW, YES OR NO? 17 23 SHE HASN'T SAID SHE HASN'T RECALLED YET. KNOWS THAT THEY ARE THERE. 15 22 OBJECTION. IT MUST HAVE. IT WASN'T DISCUSSED ON AUGUST 2ND. MR. LAFAYETTE: YOUR HONOR, I'LL RESERVE THE REST OF MY -- FOR MY CASE-IN-CHIEF. THE COURT: ALL RIGHT. RE-EXAM. 25 DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 376 LAYNE - REDIRECT / NUGENT 1 REDIRECT EXAMINATION 2 BY MS. NUGENT: 3 Q. 4 JUST WENT THROUGH WITH MR. LAFAYETTE, BUT I DO JUST WANT TO 5 LOOK AT A COUPLE OF THEM. 6 I'M NOT GOING TO GO THROUGH ALL OF THE EXHIBITS THAT YOU HE SHOWED YOU EXHIBIT 566. IF YOU WILL FIND THAT ONE. 7 A. OKAY. 8 Q. AND HE ASKED YOU IF YOU REVIEWED THAT EMAIL TODAY, RIGHT? 9 HE ASKED YOU THAT, AND YOU SAID YES, RIGHT? 10 A. YES. 11 Q. YOU TALKED ABOUT THAT EMAIL IN YOUR DEPOSITION, DIDN'T 12 YOU? 13 A. I MAY HAVE. 14 Q. OKAY. 15 LET'S TAKE A LOOK AT IT. YOUR DEPOSITION SHOULD BE IN YOUR WITNESS BINDER IN THE 16 BACK. 17 A. THIS ONE (INDICATING). 18 Q. YES, IN THAT ONE. 19 THE LAST TAB SHOULD START WITH YOUR DEPOSITION. 20 A. OKAY. 21 Q. IF YOU WILL TURN TO PAGE 159. 22 A. OKAY. 23 Q. OKAY. 24 SO WHAT YOU JUST LOOKED AT WITH MR. LAFAYETTE FOR 25 EXHIBIT 566 WAS AN EMAIL FROM ERIC PEREZ TO YOU JULY 28 AT DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 377 LAYNE - REDIRECT / NUGENT 1 10:48 A.M., RIGHT? 2 A. YES. 3 Q. YOU WILL SEE ON PAGE 159 OF YOUR DEPOSITION, YOU WERE 4 ASKED ABOUT THAT SAME EXHIBIT. 5 IT IS THE EMAIL FROM ERIC PEREZ TO YOU JULY 26, 10:48. 6 IT HAD A DIFFERENT NUMBER, BUT ISN'T IT TRUE AT THAT TIME YOU WERE ASKED IF YOU RECALL 7 RECEIVING THAT EMAIL, AND YOU SAID I DON'T REMEMBER? 8 A. YES. 9 Q. YOU WERE ASKED WHETHER YOU REVIEWED THAT, AND YOU SAID I 10 DON'T REMEMBER; ISN'T THAT TRUE? 11 A. YES. 12 Q. LET'S JUST TAKE A LOOK AT ONE MORE. 13 MR. LAFAYETTE ASKED YOU ABOUT EXHIBIT 573. AND THAT WAS 14 AN EMAIL FROM MR. PEREZ TO YOU CC'G MIKE BECK ON AUGUST 1ST, 15 2016? 16 A. YES. 17 Q. IF YOU WILL TURN TO PAGE 161 OF YOUR DEPOSITION 18 TRANSCRIPT. 19 20 YOU WERE ASKED ABOUT THAT DOCUMENT AS WELL. AND ISN'T IT TRUE THAT THEN YOU DIDN'T RECALL EVER SEEING THAT EMAIL? 21 MR. LAFAYETTE: 22 THE COURT: 23 THE WITNESS: 24 BY MS. NUGENT: 25 Q. OBJECTION, MISSTATES THE TESTIMONY. OVERRULED. I'M SORRY, THE QUESTION AGAIN? YOU NEVER RECALLED RECEIVING THAT EMAIL, DID YOU, NOT DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 378 LAYNE - REDIRECT / NUGENT 1 UNTIL TODAY? 2 A. I DID NOT AT THE DEPOSITION. 3 Q. YOU WERE LOOKING AT IT WHEN YOU SAID NO AT THE DEPOSITION, 4 TOO, WEREN'T YOU? 5 A. YES. 6 Q. ALL RIGHT. 7 ISN'T IT TRUE THAT YOU DON'T KNOW WHAT THE PURPOSE OF THAT 8 AUGUST 2ND MEETING WAS? 9 A. NO. 10 MS. NUGENT: 11 FROM THE WITNESS'S DEPOSITION. 12 YOUR HONOR, I WOULD LIKE TO PLAY A CLIP (PAUSE IN THE PROCEEDINGS.) YOU MAY. THE COURT: 15 (PAUSE IN THE PROCEEDINGS.) 16 THE COURT: 17 MR. LAFAYETTE: 18 THE COURT: 19 MS. NUGENT: 20 PAGE 62, LINE 15 THROUGH 20. GO AHEAD. THE COURT: 13 14 IT SAYS NO. THE OBJECTION IS NOTED OR OVERRULED. YES, YOUR HONOR. IT'S UNSPECIFIC. OVERRULED. IT DOESN'T LOOK LIKE WE WILL BE ABLE TO GET IT UP SO I'LL READ THE TESTIMONY. 21 "QUESTION: 22 HAD WITH CIARA, WHAT WAS THE PURPOSE OF THAT MEETING? 23 "ANSWER: 24 THE PURPOSE OF WHO CALLED THE MEETING. 25 "IT WAS ERIC PEREZ WHO CALLED IT, RIGHT?" OKAY. SO AT THE FIRST MEETING THAT YOU I DIDN'T CALL THE MEETING SO I DON'T KNOW DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 379 LAYNE - RECROSS / LAFAYETTE 1 MR. LAFAYETTE: 2 IT NEEDS TO GO FURTHER. YOUR HONOR, I THINK FOR COMPLETENESS I'D BE HAPPY TO READ FURTHER. 3 MS. NUGENT: 4 THE COURT: 5 MS. NUGENT: 6 "DO YOU KNOW WHO CALLED THE MEETING? 7 "ANSWER: 8 "DO YOU KNOW WHY YOU WERE ASKED TO BE THERE -- OR 9 STRIKE THAT. GO AHEAD. UNTIL 63:8. OKAY. I BELIEVE IT WAS ERIC PEREZ. WHO ASKED YOU TO BE THERE? 10 "ANSWER: 11 ERIC PEREZ. 12 "QUESTION: 13 "ANSWER: 14 "QUESTION: 15 YOU WERE SUPPOSED TO -- WHY YOU WERE BEING ASKED TO 16 BE THERE? 17 "ANSWER: 18 MS. NUGENT: 19 THE COURT: 20 I DON'T RECALL, BUT I WOULD SUSPECT IT WAS DID HE TELL YOU WHY? I DON'T REMEMBER. DID YOU HAVE AN UNDERSTANDING AS TO WHY I DON'T REMEMBER." I HAVE NOTHING FURTHER. ANYTHING ON THOSE THREE QUESTIONS OR THOSE THREE SETS OF QUESTIONS? 21 MR. LAFAYETTE: 22 YES, YOUR HONOR. RECROSS-EXAMINATION 23 BY MR. LAFAYETTE: 24 Q. 25 THEM? THE DOCUMENTS THAT SHE REFERRED TO YOU, HAVE YOU SEEN DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 380 LAYNE - RECROSS / LAFAYETTE 1 A. YES. 2 Q. WERE THEY SENT TO YOU? 3 A. YES. 4 Q. IS THERE ANY DOUBT IN YOUR MIND THAT THEY WERE SENT TO 5 YOU? 6 A. NO. 7 Q. AT YOUR DEPOSITION, DID YOU REMEMBER THAT THEY WERE SENT 8 TO YOU? 9 A. NO. 10 Q. WERE YOU ASKED IF YOU DENIED RECEIVING THEM? 11 A. NO. 12 MS. NUGENT: 13 THE COURT: 14 BY MR. LAFAYETTE: 15 Q. OBJECTION, LEADING. SUSTAINED. AT ANY POINT IN TIME DID ANY -- 16 THE COURT: 17 MR. LAFAYETTE: THE ANSWER IS STRICKEN. OKAY. 18 BY MR. LAFAYETTE: 19 Q. DID YOU EVER DENY RECEIVING THEM, THE EMAILS? 20 A. NO. 21 MR. LAFAYETTE: 22 THE COURT: 23 MS. NUGENT: 24 THE COURT: 25 NO FURTHER QUESTIONS. ANYTHING ON THOSE QUESTIONS? NO. THANK YOU, YOUR HONOR. ALL RIGHT. YOU MAY STEP DOWN. NEXT WITNESS. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 381 NEWTON - DIRECT / SMALLETS 1 MS. SMALLETS: (CIARA NEWTON, CALLED AS A WITNESS FOR THE PLAINTIFF, 2 3 HAVING BEEN DULY SWORN, TESTIFIED AS FOLLOWS:) 4 THE WITNESS: 5 THE CLERK: 6 PLAINTIFF CALLS CIARA NEWTON. MICROPHONE UP. I DO. PLEASE BE SEATED. SCOOT OR PULL THE THERE YOU GO. PLEASE STATE YOUR FULL NAME AND SPELL YOUR LAST NAME. 7 8 THE WITNESS: MY NAME IS CIARA NEWTON, C-I-A-R-A. 9 LAST NAME, NEWTON, N-E-W-T-O-N. GOOD AFTERNOON. 10 THE COURT: 11 THE WITNESS: 12 THE COURT: 13 MS. SMALLETS: 14 THE COURT: GOOD AFTERNOON. YOU MAY PROCEED. MAY I APPROACH? YOU MAY. 15 (EXHIBIT BINDER HANDED TO WITNESS.) 16 DIRECT EXAMINATION 17 BY MS. SMALLETS: 18 Q. GOOD AFTERNOON, MS. NEWTON. 19 A. GOOD AFTERNOON. 20 Q. I WOULD LIKE TO START TODAY BY HAVING YOU TELL THE JURY A 21 LITTLE BIT ABOUT YOUR BACKGROUND. WHERE DID YOU GROW UP? 22 23 A. I'M FROM PINOLE, SAN PABLO. 24 25 THE COURT: PLEASE. OKAY. GREW UP IN THE BAY AREA. MS. NEWTON, CLOSER TO THE MIC, IT'S OKAY, I'M SORRY. WE CAN ALSO INCREASE THE DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 382 NEWTON - DIRECT / SMALLETS 1 VOLUME. 2 THE CLERK: I HAVE IT UP. 3 THE COURT: LET'S TRY THAT. 4 BY MS. SMALLETS: 5 Q. WHAT DID YOUR PARENTS DO? 6 A. MY FATHER WAS AN IRON WORKER AND A PIPEFITTER, AND MY 7 MOTHER WORKED AT TARGET. 8 Q. DO YOU HAVE ANY SIBLINGS? 9 A. I HAVE AN OLDER BROTHER AND YOUNGER SISTER. 10 Q. WHAT WAS YOUR FIRST JOB? 11 A. I STARTED WORKING AT A PIZZA PLACE WHEN I WAS 15 IN HIGH 12 SCHOOL. 13 Q. WHERE DID YOU GO TO HIGH SCHOOL? 14 A. PINOLE VALLEY HIGH SCHOOL. 15 Q. WHEN DID YOU GRADUATE? 16 A. I GRADUATED IN 2004. 17 Q. AT THAT TIME DID YOU HAVE ANY INTEREST IN WORKING IN THE 18 TRADES? 19 A. 20 SIMILAR FIELD THAT HE DID. 21 MY HANDS. 22 I ALWAYS LOOKED UP TO MY DAD AND WANTED TO WORK IN A I LIKE BEING OUTSIDE WORKING WITH SO I ALWAYS INQUIRED WITH HIM ABOUT ONE DAY WORKING THERE 23 MAYBE WITH ME OR JUST IN THE FIELD. 24 Q. WHAT DID YOUR DAD SAY? 25 A. WELL, AS I WAS GETTING CLOSER TO GRADUATING, HE KIND OF DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 383 NEWTON - DIRECT / SMALLETS 1 TOLD ME THAT MAYBE I SHOULD TRY SOMETHING ELSE FIRST BECAUSE 2 HE KNEW I COULD DO IT, BUT HE DIDN'T WANT TO SEE ME IN THIS 3 ENVIRONMENT. 4 MAYBE I SHOULD TRY SOMETHING ELSE FIRST. 5 Q. WHAT DID YOU END UP DOING? 6 A. I WENT TO DENTAL ASSISTING SCHOOL AND BECAME A DENTAL 7 ASSISTANT. 8 Q. WHERE WAS THAT SCHOOL? 9 A. IN MARIN. 10 Q. WHEN DID YOU GRADUATE? 11 A. 2005. 12 Q. DID YOU GET A JOB AS A DENTAL ASSISTANT? 13 A. YES. 14 Q. HOW MUCH DID YOU EARN AS A DENTAL ASSISTANT? 15 A. WE STARTED AT $18 AN HOUR. 16 Q. AND HOW LONG DID YOU WORK AS A DENTAL ASSISTANT FOR? 17 A. OVER SIX YEARS. 18 Q. DID YOU LIKE IT? 19 A. I DID IT LIKE IT, BUT I WANTED SOMETHING MORE CHALLENGING 20 AND WITH MORE ROOM FOR GROWTH. 21 Q. DID YOU FIND THAT? 22 A. EVENTUALLY I HEARD ABOUT THE ROP PROGRAM. 23 REALLY TOO GOOD TO BE TRUE AT FIRST BECAUSE IT'S A FREE 24 PROGRAM AND THEN YOU GET THIS REALLY GOOD JOB. 25 HE SAID IT'S KIND OF LIKE ROUGH ENVIRONMENT, AND AND IT SOUNDED SO I LOOKED INTO THAT AND APPLIED TO START THAT ROP DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 384 NEWTON - DIRECT / SMALLETS 1 PROGRAM. 2 Q. 3 ATTEND THE PROGRAM? 4 A. NO. 5 Q. AND WHAT IS THE ROP PROGRAM? 6 A. THE ROP PROGRAM IS A PROGRAM FOR PEOPLE WHO WANT TO WORK 7 IN THE REFINERY EITHER AS MACHINISTS OR PROCESS OPERATORS. 8 Q. DID YOU LEARN ABOUT SAFETY? 9 A. YEAH, IT WAS MOSTLY FOCUSED ON SAFETY. 10 Q. WHAT WAS THE MAIN THING YOU LEARNED ABOUT SAFETY? 11 A. THE MAIN THING I LEARNED ABOUT SAFETY IS THAT IT'S 12 IMPORTANT TO FOLLOW ALL THE PROCEDURES AND TO ASK QUESTIONS 13 AND TO NOT BE COMPLACENT. 14 DID YOU TALK TO ANYONE IN YOUR FAMILY ABOUT WHETHER TO SO IF YOU SEE SOMETHING THAT'S NOT WORKING, TO BRING IT 15 UP, RAISE AWARENESS ABOUT THOSE THINGS THAT YOU THINK ARE NOT 16 SAFE. 17 Q. 18 WOMEN WHO WORK IN THE REFINERY? 19 A. DURING YOUR TIME IN THE ROP PROGRAM, DID YOU TALK TO ANY I TALKED TO ONE WOMAN. 20 MR. LAFAYETTE: 21 THE COURT: 22 MS. SMALLETS: 23 THE COURT: 24 THE WITNESS: 25 MR. LAFAYETTE: SHE CAME IN -- OBJECTION, HEARSAY. FOR WHAT PURPOSE IS IT BEING OFFERED? HER STATE OF MIND. I'LL ALLOW IT. ONE WOMAN CAME IN TO TALK TO US -RELEVANCE WITH REGARD TO HER STATE OF DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 385 NEWTON - DIRECT / SMALLETS 1 MIND. 2 OVERRULED. THE COURT: I'M GOING TO GIVE HER A 3 LITTLE BIT OF FLEXIBILITY HERE. 4 THE WITNESS: 5 SUCCESSFUL CAREER AT CHEVRON. 6 PROVIDED FOR HER SON WHO SHE PUT THROUGH CAL, AND SHE OVERALL 7 HAD A GOOD EXPERIENCE. 8 9 BASICALLY SHE JUST HAD A REALLY AND SHE WAS A SINGLE MOM AND SO IT WAS REALLY EXCITING TO SEE HOW WELL SHE DID. WORKED HER WAY UP IN THE COMPANY. SHE AND AT THE END, SHE KIND OF 10 TOOK US TWO FEMALES TO THE SIDE AND TOLD US THAT IT'S A LITTLE 11 ROUGH ENVIRONMENT, BUT IT IS POSSIBLE TO JUST DO FINE AS LONG 12 AS YOU DEMAND RESPECT, I THINK SHE SAID. 13 ALL RIGHT. THE COURT: 14 SO JUST FURTHER INSTRUCTION. WE DON'T KNOW IF ANY OF WHAT SHE JUST SAID IS TRUE ABOUT 15 THAT OTHER PERSON'S EXPERIENCE. 16 OTHER PERSON HERE. 17 UNDERSTAND WHAT SHE WAS THINKING AT THE TIME WHEN SHE WAS 18 THINKING ABOUT THAT JOB. 19 YOU CAN CONSIDER IT. 20 PROCEED. 21 BY MS. SMALLETS: 22 Q. 23 SHELL. 24 25 RIGHT? WE DON'T HAVE THAT BUT I ALLOWED IT IN SO THAT YOU COULD THAT'S THE ONLY PURPOSE FOR WHICH NOW I WOULD LIKE TO TURN TO YOUR APPLICATION TO WORK AT AT SOME POINT DID YOU LEARN THAT SHELL WAS HIRING? A. YEAH. ABOUT THE MIDDLE OF THE ROP PROGRAM, THE CHEVRON DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 386 NEWTON - DIRECT / SMALLETS 1 INSTRUCTOR, MIKE, WHO WAS HERE EARLIER, HE TOLD US THAT SHELL 2 WAS HIRING AND WE SHOULD APPLY. 3 OPPORTUNITY FOR US TO PRACTICE INTERVIEWING AND PRACTICE THE 4 MECHANICAL APTITUDE TEST. 5 Q. DID YOU APPLY? 6 A. I THINK WE -- HE ASSIGNED US TO APPLY, ALL OF US, AND I 7 DID APPLY. 8 Q. CAN YOU DESCRIBE THE APPLICATION PROCESS FOR US? 9 A. IT WAS AN ONLINE APPLICATION. IT WOULD BE A GOOD AND THEN AFTER THAT SOME OF 10 US GOT INVITED TO TAKE THE MECHANICAL APTITUDE TEST. 11 AFTER THAT WE GOT INVITED TO INTERVIEW. 12 Q. WERE YOU EVER -- WERE YOU OFFERED A POSITION AT SHELL. 13 A. YEAH. 14 Q. HOW DID THAT MAKE YOU FEEL? 15 A. I FELT REALLY LUCKY AND I FELT KIND OF PROUD BECAUSE I WAS 16 EXCITED ABOUT THE OPPORTUNITY. 17 Q. DID YOU TELL YOUR DAD? 18 A. YES. 19 Q. WHAT DID HE SAY? 20 A. HE WAS -- I WAS LIKE REALLY EXCITED. 21 DON'T SEEM AS EXCITED. 22 THAT I'M NOT SURPRISED. 23 Q. 24 ROP PROGRAM? 25 A. AND THEN I WAS LIKE, YOU HE SAID, OH, IT'S NOT THAT, IT'S JUST I THINK THAT'S WHAT HE SAID. WHEN YOU WERE OFFERED THE JOB BY SHELL, DID YOU FINISH THE I CONTINUED THE ROP PROGRAM UNTIL ABOUT THE LAST MONTH DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 387 NEWTON - DIRECT / SMALLETS 1 WHEN THEY WERE JUST DOING MOCK INTERVIEWS. 2 MIKE TOLD ME, MAYBE SINCE I ALREADY HAVE THIS JOB, AND NOW WE 3 ARE PRACTICING INTERVIEWS, THAT IT DIDN'T MAKE SENSE TO 4 CONTINUE. 5 Q. WHEN DID YOU BEGIN WORKING AT SHELL? 6 A. JANUARY, 2015. 7 Q. I'M SORRY, WHAT WAS THE YEAR? 8 A. JANUARY 2016. 9 Q. DID YOUR JOB BEGIN WITH AN ORIENTATION PERIOD? 10 A. YES. 11 Q. WHAT DID YOU LEARN ABOUT YOUR INITIAL TRAINING? 12 A. JUST AN ORIENTATION, THE HISTORY OF SHELL. 13 POLICIES AND WHAT THEY EXPECT OF THEIR WORKERS. 14 Q. WERE YOU PART OF A CLASS OF NEW HIRES? 15 A. YES, 22 NEW HIRES. 16 Q. HOW MANY OF THEM WERE WOMEN? 17 A. FOUR. 18 Q. AS PART OF YOUR INITIAL TRAINING, DID YOU GO TO TEXAS FOR 19 FIRE SAFETY TRAINING? 20 A. YES. 21 Q. AND DO YOU RECALL HOW MANY PEOPLE ATTENDED THAT TRAINING? 22 A. IT WAS A LOT OF PEOPLE. 23 Q. HOW MANY WOMEN WERE THERE? 24 A. MAYBE SIX. 25 Q. DID YOU RECEIVE ANY PROGRESS REVIEWS DURING YOUR INITIAL AND EVENTUALLY SORRY. WE HAD ABOUT A MONTH OR TWO IN A CLASSROOM STUDYING. ALL THEIR OVER A HUNDRED PEOPLE. SIX. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 388 NEWTON - DIRECT / SMALLETS 1 TRAINING PERIOD? 2 A. YES. 3 Q. I WOULD LIKE YOU TO TAKE A LOOK IN YOUR WITNESS BINDER AT 4 EXHIBIT 3. 5 THE CLERK: 6 MS. SMALLETS: CAN YOU SAY EXHIBIT? 3. 7 BY MS. SMALLETS: 8 Q. DO YOU RECOGNIZE THIS DOCUMENT? 9 A. YES. 10 Q. TELL ME WHAT THIS IS. 11 A. PROGRESS REVIEW FROM JEFF ANDRE, OUR INITIAL TRAINER. 12 Q. WHAT WAS MR. -- I AM SORRY. 13 14 MS. SMALLETS: YOUR HONOR, WE MOVE THAT EXHIBIT 3 BE MOVED INTO EVIDENCE. 15 MR. LAFAYETTE: 16 THE COURT: NO OBJECTION. 3 IS ADMITTED. 17 (PLAINTIFF'S EXHIBIT 3 RECEIVED IN EVIDENCE) 18 (DISPLAYED ON SCREEN.) 19 BY MS. SMALLETS: 20 Q. DID YOU DISCUSS THIS PROGRESS REVIEW WITH MR. ANDRE? 21 A. YES. 22 Q. WHAT DID HE TELL YOU? 23 MR. LAFAYETTE: 24 THE WITNESS: 25 THE COURT: OBJECTION, HEARSAY. HE TOLD ME -- HOLD ON. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 389 NEWTON - DIRECT / SMALLETS 1 2 IT'S A SHELL MANAGEMENT EMPLOYEE MS. SMALLETS: STATEMENT. IT'S WHAT DID HE TELL HER. 3 THE COURT: 4 MR. LAFAYETTE: 5 MS. SMALLETS: 6 THE WITNESS: 7 FIRST TWO MONTHS. 8 CHARGE OF US. 9 THE COURT: IS HE HER SUPERVISOR? NO, TRAINER. HE WAS A TRAINER. HE WAS OUR INITIAL SUPERVISOR FOR THE WE DIDN'T HAVE A SUPERVISOR. ALL RIGHT. HE WAS IN OVERRULED. 10 BY MS. SMALLETS: 11 Q. 12 THAT MEETING? 13 A. 14 OTHER THAN THAT EVERYTHING WAS GOOD. 15 Q. 16 TRAINING PERIOD? 17 A. 18 OF MY FIRST ENCOUNTERS WITH JEFF FISCHER. 19 Q. CAN YOU TELL ME WHAT HAPPENED THAT DAY? 20 A. WE WERE TAKING A CASUAL HANDS-ON TEST. 21 INSTRUCTORS AND A GROUP OF US 22 STUDENTS WAITING TO TEST ONE 22 BY ONE. 23 WHAT DID MR. ANDRE TELL YOU ABOUT YOUR PROGRESS DURING HE SAID IT WAS GOOD. HE SAID I WAS A LITTLE QUIET, BUT DID JEFF FISCHER GIVE YOU ANY TEST DURING THIS INITIAL YES. THIS WAS A HANDS-ON TEST. MY FIRST ENCOUNTER, ONE IT WAS TWO AND THEN WE WERE ALL WATCHING EACH OTHER TEST. IT WAS VERY CASUAL FOR EVERYONE. PEOPLE ASK QUESTIONS AND 24 SOMETIMES THE INSTRUCTORS SHOWED THEM AS THEY TESTED. 25 WAS THE LAST ONE TO TEST, SO EVERYONE HAD ALREADY WENT HOME DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC BUT I 390 NEWTON - DIRECT / SMALLETS 1 WHEN I STARTED MY TEST. 2 AND IT WAS JUST ME AND JEFF FISCHER. BEFORE I EVEN REALLY GOT TO MOVE FORWARD ON MY TEST, HE 3 SAID, I DON'T HAVE TIME FOR THIS. 4 TEST. 5 TOMORROW. 6 YOU -- YOU DIDN'T PASS THE WE WILL HAVE TO DO THIS -- YOU'LL HAVE TO DO THIS AGAIN I ASKED WHAT I DID WRONG. I STILL DON'T KNOW. 7 SAID IT WAS JUST GETTING LATE, WE NEED TO GO. 8 AGAIN TOMORROW. 9 Q. 10 WE CAN TRY THIS DID MR. FISCHER TRAIN YOU ON WHAT MISTAKE HE CLAIMED YOU MADE DURING THAT CONVERSATION? 11 MR. LAFAYETTE: 12 THE COURT: OBJECTION, LEADING. SUSTAINED. 13 BY MS. SMALLETS: 14 Q. 15 THE TEST ONCE HE TOLD YOU YOU HAD MADE A MISTAKE? DID MR. FISCHER OFFER YOU ANY ADDITIONAL INFORMATION ABOUT 16 MR. LAFAYETTE: 17 THE COURT: 18 OPEN-ENDED QUESTIONS ONLY. BY MS. SMALLETS: 20 Q. 21 ALL, THE SUBSTANCE OF IT? 22 A. 24 25 OBJECTION, LEADING. AS TO THE FORM, SUSTAINED. 19 23 AND HE DID YOU AND MR. FISCHER DISCUSS WHAT -- YOUR MISTAKE AT NO. SO AFTER THAT HE -MR. LAFAYETTE: OBJECTION, BEYOND THE SCOPE AFTER THE ANSWER NO. THE COURT: OVERRULED. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 391 NEWTON - DIRECT / SMALLETS 1 HE DIDN'T EXPLAIN TO ME WHAT THE THE WITNESS: 2 MISTAKE WAS. 3 INSTRUCTOR I DIDN'T PASS THE TEST. WE DROVE IN HIS CAR, AND I WENT BACK AND TOLD MY 4 MR. LAFAYETTE: 5 THE COURT: 6 I DON'T KNOW WHY. OBJECTION, YOUR HONOR, IT BECOMES -- JUST GIVE ME THE LEGAL OBJECTION. STOP EXPLAINING YOUR OBJECTIONS IN VIOLATION OF MY ORDER. 7 MR. LAFAYETTE: 8 THE COURT: 9 UNRESPONSIVE, YOUR HONOR. BEYOND.... SUSTAINED AT THIS POINT. KEEP IT UNDER CONTROL. 10 BY MS. SMALLETS: 11 Q. 12 FISCHER? DID YOU -- DID YOU TELL JEFF ANDRE WHAT HAPPENED WITH JEFF 13 MR. LAFAYETTE: 14 THE COURT: 15 BY MS. SMALLETS: 16 Q. 17 JEFF FISCHER? OBJECTION, LEADING. SUSTAINED. DID YOU DISCUSS WITH JEFF ANDRE YOUR CONVERSATION WITH 18 MR. LAFAYETTE: 19 THE COURT: 20 BY MS. SMALLETS: 21 Q. 22 FISCHER? 23 A. OBJECTION, LEADING. HOW IS THAT ANY DIFFERENT? SUSTAINED. DID YOU TELL ANYONE ABOUT YOUR CONVERSATION WITH JEFF SO I CAME BACK TO THE CLASSROOM -- 24 THE COURT: 25 THE WITNESS: THAT'S A YES OR NO. DID I -- DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 392 NEWTON - DIRECT / SMALLETS 1 THE COURT: 2 THE WITNESS: DID YOU TELL ANYONE ELSE? YES, I DID. 3 BY MS. SMALLETS: 4 Q. WHO DID YOU TELL? 5 A. MY INSTRUCTOR JEFF ANDRE. 6 Q. WHAT DID YOU TELL MR. ANDRE? 7 A. I TOLD JEFF ANDRE I DIDN'T PASS THE TEST. 8 WHY. 9 Q. WHAT DID MR. ANDRE SAY OR DO IN RESPONSE? 10 A. HE JUST KIND OF ROLLED HIS EYES LIKE HE THOUGHT IT WAS 11 RIDICULOUS. 12 MR. LAFAYETTE: 13 THE COURT: 14 THE WITNESS: 15 THE COURT: I DON'T KNOW OBJECTION, IMPROPER OPINION. ALL RIGHT. THE ROLLED YOUR EYES -- OKAY, SORRY. -- IS FINE. WHAT HE WAS THINKING SHE 16 CANNOT TESTIFY TO. 17 BY MS. SMALLETS: 18 Q. DID YOU RETAKE THE TEST? 19 A. I RE-TOOK THE TEST THE NEXT DAY. 20 Q. WHO ISSUED THE TEST TO YOU THE NEXT DAY? 21 A. THIS TIME WITH SOMEBODY NAMED JONATHAN ALDRAGE (PHONETIC). 22 Q. DID YOU PASS? 23 A. YES. 24 Q. DURING THIS ORIENTATION PERIOD, WERE YOU ASKED TO CHOOSE 25 WHAT DEPARTMENT YOU WOULD LIKE TO WORK IN? THAT IS SUSTAINED. THAT PART IS STRICKEN. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 393 NEWTON - DIRECT / SMALLETS 1 A. YES. 2 Q. WHAT DEPARTMENT WAS YOUR FIRST CHOICE? 3 A. MY FIRST CHOICE WAS LOGISTICS. 4 Q. WHY WAS THAT YOUR FIRST CHOICE? 5 A. WE GOT SHORT DESCRIPTIONS OF EACH DEPARTMENT FROM THE 6 DIFFERENT EMPLOYEES THAT WERE CURRENTLY WORKING THERE, AND ALL 7 THE EMPLOYEES WHO CAME FROM LOGISTICS WERE VERY HAPPY, AND 8 THEY HAD ALL MOVED UP AND QUALIFIED ON LOTS OF DIFFERENT JOBS 9 MUCH FASTER THAN THE OTHER UNITS. 10 SO IT SEEMED LIKE THERE WAS A LOT MORE ROOM FOR GROWTH AND 11 THEY JUST SEEMED GENERALLY HAPPIER. 12 Q. WAS OPCEN ONE OF YOUR CHOICES? 13 A. I DON'T THINK THAT IT WAS. 14 Q. WHY NOT? 15 A. NOT FOR REALLY ANY SPECIFIC REASON OTHER THAN JUST HEARING 16 A LOT OF THE GUYS THAT WORK THERE SAY, WHATEVER YOU DO, DON'T 17 COME TO OPCEN. 18 HEARD FROM CURRENT EMPLOYEES. 19 ME, THEY SAID IT TO THE CLASS. 20 Q. 21 SAY ANYTHING ABOUT THE KIND OF EMPLOYEES THEY NEEDED IN OPCEN? I WAS JUST BASING MY OPINION OFF ADVICE I HAD THEY DIDN'T JUST SAY THAT TO DID THE PEOPLE THAT CAME TO SPEAK TO THE CLASS ABOUT OPCEN 22 MR. LAFAYETTE: 23 THE COURT: 24 BY MS. SMALLETS: 25 Q. OBJECTION, LEADING. SUSTAINED. DID... DO YOU RECALL ANYTHING ELSE THAT THE PEOPLE WHO DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 394 NEWTON - DIRECT / SMALLETS 1 CAME TO THE CLASS SAID ABOUT WORKING IN OPCEN? 2 A. 3 THAT IT WAS ONE OF THE OLDER DEPARTMENTS. 4 VALVES WERE HEAVIER. 5 TO GET LIKE BURLY, BIG BURLY MEN AND POINTED OUT A COUPLE OF 6 GUYS IN THE CLASS. 7 THEY SAID THAT THEY COOK A LOT OF GOOD FOOD THERE, BUT AND A LOT OF THE SO I THINK THEY JOKINGLY SAID, WE TEND THEY JUST MENTIONED THAT IT WAS ONE OF THE OLDER PLANTS 8 AND SOME OF THE VALVES TOOK TWO GUYS TO TURN. 9 Q. WHERE WERE YOU ASSIGNED TO WORK? 10 A. OPCEN NORTH IN THE HYDROGEN PLANT. 11 Q. DID YOU HAVE ANY CONCERNS WHEN YOU LEARNED ABOUT THAT 12 ASSIGNMENT? 13 A. 14 FISCHER WHO WAS THE SUPERVISOR OF THAT PLANT. 15 WHO WAS COMING TO HIS PLANT -- NO. MY ONLY CONCERN WAS WE WERE IN THE VICINITY OF JEFF 16 MR. LAFAYETTE: 17 THE COURT: WHEN HE LEARNED OBJECTION, IT'S BEYOND THE SCOPE. I'LL LEAVE IT AT THAT. NEXT QUESTION. 18 BY MS. SMALLETS: 19 Q. WHAT DID MR. FISCHER SAY? 20 A. AND WE HEARD HIM SAY, WHO... WHO OF THE F DID I PISS OFF 21 TO HAVE THESE A HOLES COMING TO OPCEN. 22 SO AT THAT MOMENT -- 23 Q. HOW DID THAT MAKE YOU FEEL? 24 A. MADE ME FEEL WORRIED THAT HE ALREADY WASN'T HAPPY WITH US 25 BEING IN HIS DEPARTMENT. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 395 NEWTON - DIRECT / SMALLETS 1 Q. DO YOU THINK THAT WAS DIRECTED AT YOU? 2 MR. LAFAYETTE: 3 THE COURT: 4 THE WITNESS: OBJECTION. OVERRULED. I WASN'T SURE, BUT I THOUGHT THAT IT 5 WAS. 6 BY MS. SMALLETS: 7 Q. DID YOU RECEIVE A 60-DAY PROGRESS REVIEW? 8 A. YES. 9 Q. DID YOU RECEIVE -- TAKE A LOOK AT EXHIBIT 4, PLEASE. 10 CAN YOU TELL ME WHAT THIS IS? 11 A. 12 TEACHER. THIS WAS MY LAST REVIEW WITH JEFF ANDRE, OUR INITIAL 13 MS. SMALLETS: 14 ADMITTED INTO EVIDENCE. 15 MR. LAFAYETTE: 16 THE COURT: YOUR HONOR, WE MOVE THAT EXHIBIT 4 BE NO OBJECTION, YOUR HONOR. IT'S ADMITTED. 17 (PLAINTIFF'S EXHIBIT 4 RECEIVED IN EVIDENCE) 18 (DISPLAYED ON SCREEN.) 19 BY MS. SMALLETS: 20 Q. DID YOU AND MR. ANDRE DISCUSS THIS REVIEW? 21 A. YES. 22 Q. WHAT DID HE TELL YOU ABOUT YOUR PROGRESS IN THE FIRST 60 23 DAYS? 24 A. THAT IT WAS WHERE IT WAS EXPECTED TO BE. 25 Q. DID YOU RECEIVE ANY ADDITIONAL TRAINING ONCE YOU WERE DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 396 NEWTON - DIRECT / SMALLETS 1 ASSIGNED TO OPCEN? 2 A. 3 AND IT'S KIND OF A CLASSROOM SETTING WITH JEFF FISCHER. 4 Q. WAS MR. FISCHER TRAINING ANY NEW HIRES OTHER -- WITH YOU? 5 A. PATRICK NEUMAN, MENA EKELEMU, AND BILL WESSELMAN. 6 NOT BILL WESSELMAN. 7 SOUTH. SO I WORKED WITH HIM A LOT. 8 NORTH. INITIALLY OUR TRAINING WAS JOSE NAVARRO, PATRICK 9 NEUMAN, AND MENA. ONCE WE WERE ASSIGNED TO OPCEN, WE HAD ADDITIONAL TRAINING I MEAN, BILL WESSELMAN WAS ASSIGNED TO OPCEN BUT WE WERE IN OPCEN 10 Q. 11 JEFF FISCHER? 12 A. 13 TOURS AND DO SOME HANDS-ON WORK IN THE UNIT. 14 Q. WAS OPCEN RUNNING DURING MOST YOUR TRAINING? 15 A. IT WAS DOWN. 16 ALL DOWN. 17 Q. 18 WITH MR. FISCHER? 19 A. 20 IT WAS -- WE WERE KIND OF TAKING IT DAY BY DAY ACCORDING TO 21 WHAT WORKED FOR JEFF'S COMMUTE. 22 WE ESTABLISHED THE 9/80 SCHEDULE, WHICH WAS MONDAY THROUGH 23 THURSDAY AND THEN ROTATING FRIDAYS OFF. 24 Q. HOW MANY HOURS WERE YOU WORKING MONDAY TO THURSDAY? 25 A. NINE. WERE YOU OUT IN THE UNIT DURING THAT TRAINING PERIOD WITH WE WERE MOSTLY IN THE CLASSROOM AND WE ALSO WOULD TAKE IT WAS IN TURNAROUND SO THE EQUIPMENT WAS WHAT WAS YOUR SCHEDULE DURING THE TIME THAT YOU TRAINED OUR SCHEDULE WAS A ROTATING 9/80 SCHEDULE. WELL, AT FIRST I THINK WITHIN THE NEXT WEEK DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 397 NEWTON - DIRECT / SMALLETS 1 Q. 2 WORK? 3 A. EIGHT. 4 Q. DO YOU KNOW WHAT TIME YOU WERE SUPPOSED TO BE AT WORK 5 DURING THE TIME THAT YOU WERE WITH JEFF FISCHER? 6 A. 7 BEGINNING IT WAS 6:00, SOMETIMES 6:30, DEPENDING ON WHAT TIME 8 WE WERE GOING TO LEAVE. 9 TIME BECAUSE WE NEEDED TO ARRIVE EARLY ENOUGH TO BE THERE FOR HOW MANY HOURS DID YOU WORK ON THE FRIDAYS YOU WERE AT IT WAS REALLY UNCLEAR. I BELIEVE IT WAS 6:00 -- IN THE THEN EVENTUALLY WE ESTABLISHED A SET 10 THE OPERATORS' MEETING. 11 A.M. 12 Q. 13 MEETING? 14 A. NO. 15 Q. DO YOU KNOW IF IT WAS BEFORE OR AFTER YOU TOOK YOUR FINAL 16 TEST? 17 A. BEFORE. 18 Q. I WOULD LIKE TO TALK TO YOU A LITTLE BIT ABOUT THE 19 TRAINING ENVIRONMENT DURING THE TIME YOU WORKED FOR JEFF 20 FISCHER. 21 22 AND I BELIEVE THAT WAS 6:15, 6:00 DO YOU REMEMBER WHEN YOU STARTED TO ATTEND THE OPERATORS' DID MR. FISCHER ASK YOU AND YOUR FELLOW TRAINEES WHAT TEAM YOU WOULD LIKE TO BE ON? 23 MR. LAFAYETTE: 24 THE COURT: 25 THE WITNESS: OBJECTION, LEADING. OVERRULED. YEAH. ONCE WE GOT THERE, WE WERE GOING DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 398 NEWTON - DIRECT / SMALLETS 1 TO -- EVENTUALLY AFTER OUR TRAINING WITH JEFF FISCHER, HE 2 WOULD ASSIGN US TO FOUR DIFFERENT TEAMS WITH FOUR DIFFERENT 3 SCHEDULES BUT ALL OPERATING IN HP-2. 4 INTO CONSIDERATION WHICH SCHEDULE WE'D PREFER. 5 BY MS. SMALLETS: 6 Q. 7 YOUR TEAM AND YOUR SCHEDULE? 8 A. 9 ALL HAVE THE SAME THREE DAYS ON, TWO DAYS -- JUST DIFFERENT SO HE WANTED TO TAKE CAN YOU TELL ME, EXPLAIN TO ME THE RELATIONSHIP BETWEEN YOUR SCHEDULE JUST DETERMINES WHO YOU WORK WITH. BUT WE 10 DAYS. 11 Q. 12 BE ON? 13 A. 14 WHICH -- WHAT THE TEAM NUMBER WAS ANYMORE. 15 IMMEDIATELY TOLD ME I COULDN'T BE ON THAT TEAM BECAUSE THEY 16 ALREADY HAD A GIRL. 17 Q. DID ANYONE IN YOUR CLASS RESPOND WHEN HE SAID THAT? 18 A. SOMEBODY SAID WHO'S ON THAT TEAM? 19 ONE, RANDY'S ON THAT TEAM AND HE'S BASICALLY A GIRL BECAUSE 20 HE... BECAUSE HE BITCHES ALL THE TIME. 21 Q. HOW DID THAT MAKE YOU FEEL? 22 A. IT MADE ME FEEL LIKE HE DIDN'T THINK -- LIKE HE THOUGHT I 23 WAS INFERIOR BECAUSE I WAS A GIRL AND THAT HE WAS PLACING ME 24 IN A SMALL BOX LIKE ASSUMING I WAS THE SAME AS -- THAT WE WERE 25 ALL THE SAME BUT WE ARE ALL DIFFERENT. DID YOU EXPRESS A PREFERENCE AS TO WHAT TEAM YOU WANTED TO I WANTED TO BE ON A CERTAIN TEAM. I CAN'T REMEMBER AND JEFF FISCHER AND HE SAID, WELL, FOR AND IT MADE ME FEEL DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 399 NEWTON - DIRECT / SMALLETS 1 LIKE I WASN'T GIVEN THE SAME CHANCE AS EVERYONE ELSE TO PICK 2 THE TEAM THAT I WANTED TO BE ON. 3 Q. 4 DECISION TO HIRE YOU? 5 A. DID MR. FISCHER MAKE ANY STATEMENTS TO YOU ABOUT SHELL'S YEAH. PRETTY QUICKLY -- 6 MR. LAFAYETTE: 7 THE COURT: 8 THE WITNESS: 9 10 OBJECTION, LEADING. OVERRULED. WITHIN MY FIRST FEW DAYS THERE, HE ASKED WHO INTERVIEWED ME. AND HE SAID, I MUST HAVE PUT ON A GOOD SHOW. 11 THEN HE WENT ON HIS BREAK. BECAUSE I DIDN'T REMEMBER WHO 12 INTERVIEWED ME, I DIDN'T KNOW THEIR NAME. 13 BREAK TO FIND OUT WHO IT WAS WHO -- 14 15 MR. LAFAYETTE: OBJECTION, BEYOND THE SCOPE OF THE QUESTION. 16 17 AND HE WENT ON HIS THE COURT: SUSTAINED. WELL, IT IS A NARRATIVE AT THIS POINT. 18 SUSTAINED. 19 BY MS. SMALLETS: 20 Q. 21 ABOUT THIS? 22 A. 23 MUST HAVE PUT ON A GOOD SHOW. DID YOU HAVE ANY FURTHER CONVERSATION WITH MR. FISCHER YEAH. HE JUST SAID, YOU KNOW, WHO WOULD HIRE YOU, AND YOU 24 IN THAT SINCE SHELL STARTED THESE NEW POLICIES THAT THEY 25 WEREN'T GETTING THE SAME QUALITY OF OPERATORS THAT THEY USED DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 400 NEWTON - DIRECT / SMALLETS 1 TO; THAT HAD BEEN THERE FOR LIKE OVER 20 YEARS AND THEY USED 2 TO HIRE REFERRALS. 3 HALF HOUR BEFORE ME -- 4 5 OBJECTION, BEYOND THE SCOPE. MR. LAFAYETTE: IT IS A NARRATIVE. 6 7 AND HE SAW THAT SOMEBODY INTERVIEWED A THE COURT: LET'S HAVE SOME STRUCTURE TO THIS, MS. SMALLETS. 8 SUSTAINED. 9 OTHERWISE SHE CAN GO ON AND ON. 10 BY MS. SMALLETS: 11 Q. I NEED STRUCTURE. WHAT DID HE TELL YOU? 12 MR. LAFAYETTE: 13 THE COURT: 14 THE WITNESS: OBJECTION. OVERRULED. HE JUST BASICALLY TOLD ME THAT HE WAS 15 UNHAPPY THAT I WAS THERE. 16 BY MS. SMALLETS: 17 Q. DID HE -- 18 A. THINGS WOULD HAVE BEEN DIFFERENT IF HE DID THE HIRING. 19 Q. DID HE DESCRIBE THE POLICIES THAT HE WAS REFERRING TO? 20 A. NO. 21 Q. AND HOW DID THAT CONVERSATION MAKE YOU FEEL? 22 A. IT MADE ME FEEL THAT HE DIDN'T KNOW ME YET. 23 LITTLE TIME, HE'S GOING TO SEE I'M A GOOD OPERATOR. 24 I COULD PROVE HIM -- PROVE HIS -- LIKE PROVE HIM WRONG. 25 ALSO MADE ME WORRIED THAT HE HAD ALREADY PUT ME -- HAD ALREADY AND WITH A DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC AND MAYBE IT 401 NEWTON - DIRECT / SMALLETS 1 DECIDED THAT I WASN'T GOOD ENOUGH TO BE THERE. 2 Q. 3 TO THE GATE? DID MR. FISCHER MAKE ANY COMMENTS ABOUT WALKING EMPLOYEES 4 MR. LAFAYETTE: 5 THE COURT: 6 BY MS. SMALLETS: 7 Q. 8 OFFENSIVE? OBJECTION, YOUR HONOR, LEADING. SUSTAINED. DID MR. FISCHER MAKE ANY OTHER COMMENTS THAT YOU FOUND 9 OBJECTION, OVERBROAD. MR. LAFAYETTE: 10 THE COURT: 11 THE WITNESS: OVERRULED. HE MADE A LOT OF STATEMENTS. HE 12 CONSTANTLY TALKED ABOUT WALKING ME TO THE GATE, WHICH MEANS 13 LIKE FIRING YOU. 14 AND HE CONSTANTLY TOLD THE STORY OF A FEMALE OPERATOR WHO 15 WAS WALKED TO THE GATE IN TEARS. 16 WOULD TELL THAT STORY MORE THAN ONE TIME. 17 BY MS. SMALLETS: 18 Q. HOW DID THAT MAKE YOU FEEL? 19 A. I FELT LIKE HE WAS THREATENING ME. 20 Q. DID MR. FISCHER MAKE ANY COMMENTS ABOUT THE ROLE OF WOMEN 21 IN OPCEN? 22 A. 23 MAKE IT IN OPCEN. 24 Q. HOW OFTEN DID MR. FISCHER SAY THAT? 25 A. AT LEAST FIVE TIMES. IT WAS JUST LIKE RANDOMLY HE SAID THAT WOMEN DON'T LAST LONG IN OPCEN. WOMEN DON'T DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 402 NEWTON - DIRECT / SMALLETS 1 Q. HOW DID THAT MAKE YOU FEEL? 2 A. AGAIN, I JUST FELT THREATENED. 3 Q. DID YOU EVER TALK TO ERIC PEREZ ABOUT ANY CONCERNS THAT 4 YOU HAD ABOUT MR. FISCHER? 5 A. I DID TALK TO ERIC PEREZ PRETTY, PRETTY EARLY ON. 6 Q. DO YOU RECALL WHEN THAT TIME WAS, WHEN IT WAS? 7 A. YES. 8 Q. WHEN WAS THAT? 9 A. I BELIEVE IT WAS IN MARCH. 10 Q. WHAT DID YOU TELL MR. PEREZ? 11 A. WELL, WE HAD A MEETING BECAUSE -- BEFORE BEING HIRED I HAD 12 SOME TIME APPROVED OFF -- 13 MR. LAFAYETTE: 14 THE WITNESS: OBJECTION, NONRESPONSIVE. WHAT WAS THE QUESTION? 15 BY MS. SMALLETS: 16 Q. THE QUESTION WAS WHAT DID YOU TELL MR. PEREZ? 17 A. I TOLD MR. PEREZ THAT -- ABOUT THE INCIDENT WHERE HE SAID 18 I COULDN'T BE ON THE TEAM BECAUSE I WAS A GIRL. 19 Q. 20 AND -- LET ME TAKE A STEP BACK JUST SO WE ARE CLEAR. WHY DID YOU -- WHY DID YOU HAVE A MEETING WITH MR. PEREZ? 21 A. WE WERE TALKING ABOUT THE SCHEDULES. 22 Q. AND SO WHAT DID YOU TELL MR. PEREZ? 23 A. I TOLD HIM, BECAUSE I THOUGHT EVERYONE KNEW HOW JEFF 24 FISCHER WAS, SO I SAID, I KNOW YOU PROBABLY HEARD THIS BEFORE, 25 BUT JEFF FISCHER IS REALLY NOT A GOOD TRAINER. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 403 NEWTON - DIRECT / SMALLETS 1 AND THEN HE SAID, NO, ACTUALLY JEFF HAS BEEN HERE FOR A 2 LONG TIME. 3 FELT THAT WAY AND I GAVE HIM SOME EXAMPLES. 4 HE'S A REALLY WELL-LIKED GUY. HE ASKED ME WHY I AND AT THAT TIME ONE OF THE MAIN EXAMPLES SINCE WE WERE 5 TALKING ABOUT THE NEW SCHEDULE WAS THE FACT THAT HE DIDN'T 6 TAKE MY TEAM INTO CONSIDERATION BECAUSE HE SAID IT WAS BECAUSE 7 I WAS A GIRL. 8 Q. WHAT WAS MR. PEREZ'S RESPONSE WHEN YOU TOLD HIM THAT? 9 A. WHEN I TOLD HIM THE PART ABOUT SAYING RANDY WAS BASICALLY 10 A GIRL, HE KIND OF JUST LAUGHED. 11 IT SOME TIME, THAT JEFF'S A GOOD GUY, HE HAD BEEN HERE A LONG 12 TIME. 13 Q. WHY DID YOU GIVE MR. PEREZ THAT SPECIFIC EXAMPLE? 14 A. BECAUSE WE WERE TALKING ABOUT TIME OFF THAT I REQUESTED. 15 AND I -- IF I WOULD HAVE GOTTEN THE TIME -- THE TEAM THAT I 16 HAD REQUESTED, I WOULD HAVE HAD THOSE DAYS OFF. 17 TALKING ABOUT SCHEDULING. 18 MR. LAFAYETTE: 19 THE COURT: AND HE TOLD ME JUST TO GIVE SO WE WERE THAT WAS THE PURPOSE -OBJECTION, BEYOND THE SCOPE -- OVERRULED. LET HER FINISH. 20 BY MS. SMALLETS: 21 Q. 22 WAY? 23 A. NO. 24 Q. DID MR. PEREZ SAY ANYTHING TO YOU ABOUT JEFF FISCHER 25 DURING THAT MEETING? DURING THAT MEETING, DID MR. PEREZ OFFER TO HELP IN ANY DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 404 NEWTON - DIRECT / SMALLETS 1 MR. LAFAYETTE: 2 THE WITNESS: 3 THE COURT: SO IF THERE IS AN OBJECTION, YOU NEED TO STOP. 6 THE WITNESS: 7 THE COURT: 8 THE WITNESS: 9 JUST THAT HE HAD BEEN THERE FOR A LONG TIME. 4 5 OBJECTION, LEADING. OKAY. OVERRULED. FINISH YOUR ANSWER. ERIC JUST TOLD ME THAT JEFF HAD BEEN THERE FOR A LONG TIME AND THAT HE WAS A REALLY WELL-LIKED GUY. 10 BY MS. SMALLETS: 11 Q. 12 YOU EVER HAVE TO MISS CLASS? 13 A. YEAH. 14 Q. WHY DID YOU MISS CLASS? 15 A. I GOT A TEXT MESSAGE THAT MY DAD WAS SUDDENLY UNEXPECTEDLY 16 IN A COMA, SO I LEFT CLASS. 17 Q. AND WHAT HAPPENED WITH YOUR DAD? 18 A. HE PASSED AWAY SHORTLY AFTER. 19 Q. DO YOU REMEMBER THE DAY? 20 A. MARCH 2ND. 21 Q. I'M SORRY. 22 DURING THE TIME THAT YOU TRAINED UNDER JEFF FISCHER, DID PRETTY EARLY AGAIN WITH JEFF FISCHER I DID. DID YOU TELL ANYONE IN SHELL WHAT HAD HAPPENED? 23 A. 24 THEM KNOW THAT I WOULD BE MISSING -- THAT I WOULD BE AT THE 25 HOSPITAL DURING THIS TIME. I COMMUNICATED WITH ERIC PEREZ AND JEFF FISCHER LETTING DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 405 NEWTON - DIRECT / SMALLETS 1 Q. DO YOU KNOW HOW MANY DAYS YOU ENDED UP MISSING? 2 A. A TOTAL OF FOUR OR FIVE. 3 Q. WHEN YOU CAME BACK TO WORK, DID YOU HAVE ANY CONVERSATIONS 4 WITH JEFF FISCHER ABOUT MISSING WORK? 5 A. 6 I WAS ENTITLED TO HAVE THOSE FOUR OR FIVE DAYS OFF, AND THAT 7 WHEN HIS FAMILY MEMBER, I THINK IT WAS HIS FATHER, TOO, DIED, 8 THAT HE MISSED ONE DAY OF WORK. 9 Q. YEAH. HE MADE IT REALLY CLEAR TO ME THAT HE DIDN'T THINK DID YOU TALK WITH MR. FISCHER ABOUT HOW YOU WERE GOING TO 10 CATCH UP FOR THE TIME YOU MISSED? 11 A. 12 SO BASICALLY JUST TO START WORKING ON CATCHING UP ON MY OWN. 13 Q. DID MR. FISCHER HELP YOU CATCH UP? 14 A. NO. 15 Q. AFTER YOUR DAD DIED, WERE YOU EVER LATE FOR WORK? 16 A. YES. 17 Q. DO YOU RECALL WHEN? 18 A. I RECALL MARCH 23RD. 19 Q. WHY WERE YOU LATE THAT DAY? 20 A. IT WAS A FEW DAYS, I THINK TWO DAYS AFTER MY DAD'S 21 FUNERAL, AND I WAS CONSOLING MY MOTHER WHO I DIDN'T FEEL 22 COMFORTABLE LEAVING ALONE THAT MORNING. 23 TOLD HIM I WAS HAVING A FAMILY EMERGENCY AND I WOULD BE THERE 24 SHORTLY. 25 Q. THEN HE TOLD ME THAT HE DIDN'T HAVE TIME TO CATCH ME UP. SO I CALLED JEFF AND DID MR. FISCHER REPORT THIS TARDY ON YOUR PD LOG? DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 406 NEWTON - DIRECT / SMALLETS 1 A. YES. 2 Q. DID MR. FISCHER WRITE YOU UP FOR BEING LATE ON ANY OTHER 3 DAY? 4 A. APRIL 7TH. 5 Q. WERE YOU LATE ON THE DAY HE WROTE YOU UP FOR? 6 A. NO. 7 Q. DID YOU EVER TELL ERIC PEREZ THAT YOU WERE NOT LATE ON 8 THAT DAY? 9 A. I TOLD ERIC PEREZ THAT I DIDN'T THINK I WAS LATE THAT DAY. 10 Q. WHAT LED TO YOUR CONVERSATION WITH MR. PEREZ? 11 A. JEFF FISCHER STARTED WRITING ME UP FOR BEING TARDY THAT 12 DAY. 13 BECAUSE I DIDN'T THINK I WAS LATE. 14 ERIC TO COME JOIN US TO FIGURE OUT -- SOMETIME IN APRIL. AND I WAS CONFUSED. 15 MR. LAFAYETTE: 16 THE WITNESS: 17 THE COURT: I DON'T WANT TO SIGN THE PAPER SO I THINK JEFF CALLED OBJECTION, HEARSAY. SO EVENTUALLY -- HOLD ON. 18 THE OBJECTION IS SUSTAINED AS TO THE LAST SENTENCE. 19 NEXT QUESTION. 20 BY MS. SMALLETS: 21 Q. DID YOU TALK TO MR. PEREZ ABOUT THAT TARDY? 22 A. YES. 23 Q. WHAT DID YOU TELL MR. PEREZ? 24 A. I SAID I DON'T THINK I'M LATE. 25 AND ALSO I FEEL LIKE THE GUYS HAVE BEEN LATE AND I'VE BEEN I DON'T THINK I WAS LATE. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 407 NEWTON - DIRECT / SMALLETS 1 HERE BEFORE THEM, BUT I'VE TALKED TO THEM AND THEY HAVEN'T 2 BEEN WRITTEN UP. 3 Q. DID YOU BELIEVE THE GUYS WERE LATE? 4 MR. LAFAYETTE: 5 THE COURT: 6 MR. LAFAYETTE: 7 THE COURT: 8 THE WITNESS: 9 OBJECTION. OVERRULED. LACK OF FOUNDATION. OVERRULED. YEAH. WE STARTED IN THE CLASSROOM AND I BELIEVED THAT THEY WERE LATE BECAUSE I SAW THEM ARRIVE LATER 10 THAN I DID SOMETIMES. 11 BY MS. SMALLETS: 12 Q. IS THERE A CARD READER OUTSIDE THE DOOR TO THE CLASSROOM? 13 A. NO. 14 15 THE COURT: YOU HAVE ONE MINUTE. UP A LINE, THAT'S FINE. 16 MS. SMALLETS: 17 THE COURT: 18 OKAY. 19 ANY QUESTIONS? 22 23 ACTUALLY, NOW IS FINE. ALL RIGHT. LADIES AND GENTLEMEN, LOT OF INFORMATION TODAY. 20 21 IF YOU WANT TO WRAP (NO RESPONSE) HAVE ENOUGH SNACKS FOR TOMORROW? FREE TO BRING THINGS IN. THE DAY AFTER? FEEL THERE IS THAT MICROWAVE IN THERE. WHEN MY SON WAS YOUNGER, HE WOULD BAKE FOR MY JURORS BUT 24 HE'S NOW A SENIOR AND WE ARE DOING COLLEGE APPS, SO 25 UNFORTUNATELY HE'S NOT DOING ANY BAKING, BUT WE WILL SEE WHAT DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 408 1 WE CAN DO. 2 ALL RIGHT. HAVE A GREAT AFTERNOON. SEE YOU BACK HERE 3 TOMORROW MORNING 8:00 A.M. REMEMBER ALL MY DO NOTS. 4 RIGHT. 5 AND LEAVE YOUR BINDERS IN THERE. ALL THANK YOU. (PROCEEDINGS HELD OUTSIDE THE PRESENCE OF THE JURY.) 6 THE COURT: YOU MAY STEP DOWN. 7 LET'S DO A FEW THINGS BEFORE WE LEAVE TODAY. 8 ONE, WE NEED TO DEAL WITH THESE EXHIBITS. 9 SO AS OF YESTERDAY, IN NUMERICAL ORDER, I HAVE ADMITTED 10 THE FOLLOWING DOCUMENTS OR THE FOLLOWING EXHIBITS: 11 31, 34, 37, 41, 45, 46, 48, 50, 51, 60, 137A, AND 145. 12 I DO NOT HAVE 137A FROM THE PLAINTIFFS. 13 TOMORROW MORNING BY 8:00 A.M. 14 5724. 15 THAT IS ONLY PAGES 5721 TO TODAY I HAVE ADMITTED IN ORDER OF BEING ADMITTED: 16 97, 109, 121, 83, 21, 38, 99, 40, 86, 70A. 17 DOCUMENT, 8:00 A.M. TOMORROW. 18 19 I NEED IT 19, 85, I NEED THAT 49, 546. I WILL ADMIT 547, BUT MR. LAFAYETTE, YOU DID NOT REASK AFTER I ASKED YOU FOR MORE FOUNDATION. 20 I AM NOW ADMITTING IT. (DEFENDANT'S EXHIBIT 547 RECEIVED IN EVIDENCE) 21 556. 22 THE FOLLOWING HAVE ISSUES WITH RESPECT TO THE GATE LOGS: 23 SO PORTIONS OF THEM HAVE BEEN ADMITTED. 24 566. 25 REASON TO ADMIT THE GATE LOGS. 558, 561, 563 AND I WILL DESIGNATE ALL OF THOSE AS A UNLESS THERE IS SOME I NEED THOSE DOCUMENTS DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 409 1 2 3 TOMORROW. (DEFENDANT'S EXHIBITS 558A, 561A, 563A, 566A RECEIVED IN EVIDENCE) 4 LET ME FINISH THIS PIECE. 5 573, 577, 581, 594, 595, 599, 3, AND 4. 6 IF THERE ARE ANY DISPUTES WITH RESPECT TO THE EXHIBITS 7 THAT HAVE BEEN ADMITTED THUS FAR, YOU NEED TO LET ME KNOW 8 TOMORROW MORNING. 9 10 ALL RIGHT. WHAT IS THE DEAL WITH THE GATE LOGS? MR. LAFAYETTE: 11 OBJECTION. 12 THAT HE RELIED UPON. I DON'T UNDERSTAND THE HEARSAY THEY ARE THE GATE LOGS THAT HE GOT, THAT HE USED, 13 THE COURT: 14 MS. NUGENT: SO THEY GO -- IT IS A BUSINESS RECORD. WHY AREN'T THEY A BUSINESS RECORD? THE BUSINESS RECORD, THE ACTUAL RECORDS 15 THAT WERE ATTACHED TO, I THINK, 594 AND 595, THE -- WE HAVEN'T 16 HEARD FROM THE CUSTODIAN ABOUT THOSE. 17 SHEET FROM THE GATE LOGS. 18 INFORMATION TAKEN FROM THEM, AND THAT IS HEARSAY. 19 20 21 22 23 24 25 AND THERE'S ANOTHER IT'S AN EXCEL SHEET WITH SO THERE'S THE GATE LOGS THEMSELVES, WHICH IS ONE ISSUE. THE COURT: YOU OBJECTED TO THE GATE LOGS. LET'S DEAL WITH THAT FIRST. WHY ARE THEY NOT A BUSINESS RECORD? MS. NUGENT: THERE WAS NO FOUNDATION LAID FOR A BUSINESS RECORD. MR. LAFAYETTE: THE EMAIL THAT SHE GOT FROM KULDEEP DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 410 1 SAYS HERE ARE THE GATE LOGS. 2 THIS IS WHAT THEY ARE AND STUFF, BUT I THINK WE ARE JUST 3 WASTING TIME HERE. 4 THE COURT: I AGREE. 5 AGREE TO THINGS IN ADVANCE. 6 FOR THE GANDER. 7 GOT TO BRING YOUR WITNESS IN. 8 9 I CAN BRING IN A WITNESS TO SAY IT'S BECAUSE YOU ALL DIDN'T WHAT'S GOOD FOR THE GOOSE IS GOOD YOU DON'T AGREE, THEY DON'T AGREE. MR. LAFAYETTE: WE WILL BRING HIM IN. YOU'VE THAT'S FINE, YOUR HONOR. 10 THE COURT: PEREZ CAN TESTIFY AS TO WHAT HE DID IN 11 THAT SUMMARY BASED UPON THOSE RECORDS I THINK IS ULTIMATELY 12 ADMISSIBLE. 13 YOU ARE STUCK WITH IT. 14 I DON'T THINK HE HAS LAID THE FOUNDATION YET, SO AT THIS POINT I NEED THE DESIGNATIONS OF A, 558, 561, 563, 15 566, AND I NEED THE PLAINTIFF'S AS WELL ON THE ONE THAT I 16 MENTIONED FROM YESTERDAY. 17 18 MS. NUGENT: AND 70A. WE WILL BRING THEM BOTH. THANK YOU. 19 THE COURT: YOU KNOW, YOU GUYS KEEP OBJECTING AS MUCH 20 AS YOU ARE, YOU ARE GOING TO PISS OFF THIS JURY. 21 COUNTING. 22 OBJECTING ALL THE TIME? 23 INFORMATION. 24 25 THEY START I'VE HAD PLENTY OF JURORS SAY, AND WHY WERE THEY IT'S LIKE YOU ARE TRYING TO HIDE SO BE CAUTIOUS ABOUT WHAT YOU'RE DOING. VERDICT FORM; YOU WERE GOING TO GIVE ME YOUR PERSPECTIVE. NOW IS THE TIME. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 411 1 MS. LYONS: THANK YOU, YOUR HONOR. 2 ON THE VERDICT FORMS, THE KEY POINTS FOR THE HARASSMENT 3 ARE REALLY THE SUPERVISORY STATUS AND SEVERE AND PERVASIVE. 4 AND WITHOUT THAT I THINK YOU END UP WITH SOMETHING THAT IS NOT 5 SUFFICIENTLY DESCRIPTIVE OF THE FEHA VIOLATION. 6 WHY WE PREFER -- I APPRECIATE THAT YOU WILL WORK WITH IT AND 7 WORK WITH WHAT WORKS IN YOUR COURTROOM AND WHAT YOUR 8 EXPERIENCE TELLS YOU WILL WORK. 9 10 11 AND THAT'S THOSE ARE THE THINGS THAT I THINK ARE REALLY THE MORE SIGNIFICANT THINGS TO HAVE IN THAT PARTICULAR VERDICT FORM. THE COURT: I UNDERSTAND THE FIRST PIECE. I 12 UNDERSTAND THE ISSUES WITH RESPECT TO SUPERVISORY STATUS. 13 THERE SOMETHING ELSE? 14 ISSUES OR ONE? 15 MS. LYONS: IS ARE YOU SAYING THAT THERE ARE TWO THERE ARE TWO. THERE IS -- TO THE EXTENT 16 THAT YOU WOULD SIMPLIFY THE LANGUAGE, I WOULD ENCOURAGE YOU TO 17 LEAVE IN SEVERE AND PERSUASIVE WHICH IS THE PRESENT CALIFORNIA 18 STANDARD NOTWITHSTANDING LEGISLATIVE CHANGES TAKING EFFECT 19 JANUARY 1. 20 FOR THE SUPERVISORY STATUS, BECAUSE THERE ARE SO MANY 21 ACTORS HERE, THERE IS A NEED FOR PLAINTIFF TO, RATHER THAN 22 USING THE BUZZ WORDS "SUPERVISORY", TO ESTABLISH SUPERVISORY 23 STATUS UNDER THE STANDARD THAT IS SET FORTH IN THE APPLICABLE 24 JURY INSTRUCTION. 25 THE COURT: ISN'T SEVERE AND PERSUASIVE ONE OF THE DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 412 1 ELEMENTS? 2 MS. LYONS: YES. 3 THE COURT: THEN WHY WOULD I SINGLE OUT ONE ELEMENT 4 OVER SOMETHING ELSE? 5 MS. LYONS: 6 TWO TERMS OF ART -- 7 THE COURT: IT STRIKES ME THAT THAT IS -- THERE ARE THERE ARE MANY TERMS OF ART. I HAVE 8 DEFINED AT LEAST HALF A DOZEN, IF NOT MORE, IN THESE JURY 9 INSTRUCTIONS. 10 11 12 SO THERE ARE MANY TERMS OF ART. MS. LYONS: OKAY. THE TWO -- THAT IS -- YOUR HONOR, IT'S GOING TO BE YOUR CALL. THE COURT: THAT'S SIMPLY OUR POSITION. I'M TRYING TO UNDERSTAND IF THERE IS ANY 13 LEGAL REASON TO DO IT, TO SEPARATE OUT ONE ELEMENT OUT OF THE 14 30 ELEMENTS THEY HAVE TO LOOK AT. 15 MS. LYONS: THERE AREN'T QUITE 30 FOR HARASSMENT. 16 THE COURT: NO? FOR SIX DIFFERENT CLAIMS, EACH CLAIM 17 HAS FIVE TO SIX ELEMENTS APIECE IF NOT MORE, MANY OF WHICH ARE 18 DEFINED TERMS. 19 HAVE A JURY ANSWER AN INTERROGATORY. 20 21 22 23 SOMETIMES THERE ARE, IN FACT, LEGAL REASONS TO IS THERE ANY LEGAL REASON THAT YOU KNOW OF TO HAVE THEM ANSWER AN INTERROGATORY ON SEVERE AND PERSUASIVE? MS. LYONS: NOT THAT I CAN CITE TO, YOUR HONOR, AT THIS MOMENT. 24 THE COURT: 25 MS. SMALLETS: ALL RIGHT. ANYTHING FROM THE PLAINTIFFS? JUST TWO MINOR THINGS. ONE, IT'S DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 413 1 2 3 SEVERE OR PERVASIVE, NOT AND. SECONDLY, OUR CONCERN WOULD BE IF THAT'S THE ONLY ELEMENT MENTIONED, IT WOULD PUT UNDUE WEIGHT ON IT. 4 AND AS FOR THE SUPERVISOR ISSUE, SHELL IS THE DEFENDANT. 5 THE LIABILITY IS BASED UPON THE CONDUCT OF SHELL AS A WHOLE. 6 THE COURT: YES, BUT YOU HAVE TO HAVE SUPERVISORS. 7 THEY ARE NOT LIABLE FOR JUST ANYTHING AND EVERYTHING THAT 8 EVERYBODY DOES. 9 MS. SMALLETS: THEY ARE LIABLE FOR ANYTHING AND 10 EVERYONE DOES IF THEY EITHER KNEW ABOUT IT OR SHOULD HAVE 11 KNOWN ABOUT IT. 12 THE COURT: 13 MS. SMALLETS: 14 THE COURT: 15 16 IT DEPENDS ON WHO IT IS. YES. SO YOU CAN'T THROW IT UP ALL AGAINST THE WALL, YOU ACTUALLY HAVE TO TRACK IT. ALL RIGHT. THE OTHER QUESTION THAT I HAVE IS THERE IS A 17 SIXTH CLAIM IN THE COMPLAINT, A CLAIM WITH RESPECT TO PUBLIC 18 POLICY. 19 20 MS. SMALLETS: YOUR HONOR, WE ARE NOT PURSUING THAT AT THIS TIME. 21 THE COURT: 22 MS. SMALLETS: 23 THE COURT: 24 MS. SMALLETS: 25 THE COURT: I DON'T HAVE A DISMISSAL. OKAY. WE CAN DO THAT. SO ARE YOU DISMISSING THAT? YEAH. ALL RIGHT. I WANT THE DISMISSAL IN DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 414 1 WRITING BY TOMORROW MORNING. 2 MS. SMALLETS: 3 THE COURT: ANYTHING ELSE YOU WANT TO TALK ABOUT? 4 MS. LYONS: NOT HERE, YOUR HONOR. 5 MS. SMALLETS: 6 THE COURT: WE WILL STAND IN RECESS UNTIL 8:00 A.M. MS. LYONS: THANK YOU. 7 8 9 OKAY. THANK YOU. NO. TOMORROW. (PROCEEDINGS CONCLUDED AT 1:41 P.M.) 10 11 12 CERTIFICATE OF REPORTER I, DIANE E. SKILLMAN, OFFICIAL REPORTER FOR THE 13 UNITED STATES COURT, NORTHERN DISTRICT OF CALIFORNIA, HEREBY 14 CERTIFY THAT THE FOREGOING IS A CORRECT TRANSCRIPT FROM THE 15 RECORD OF PROCEEDINGS IN THE ABOVE-ENTITLED MATTER. 16 17 _____________________________ 18 DIANE E. SKILLMAN, CSR 4909, RPR, FCRR 19 WEDNESDAY, DECEMBER 12, 2018 20 21 22 23 24 25 DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC