Mayo v. Recycle to Conserve

Filing 73

ORDER signed by Judge William B. Shubb on 1/27/12 ORDERING that plaintiff's motion for a new trial be, and the same hereby is, DENIED.(Becknal, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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----oo0oo----

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EDISON MAYO,

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NO. CIV. 2:10-629 WBS EFB

Plaintiff,
ORDER RE: MOTION FOR NEW TRIAL

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v.
RECYCLE TO CONSERVE, INC.,
Defendant.
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----oo0oo----

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After a five-day trial, the jury returned a verdict in

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favor of defendant Recycle to Conserve, Inc., on plaintiff Edison

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Mayo’s sole claim for employment discrimination under Title VII,

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42 U.S.C. § 2000e-2.

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plaintiff had not proven that his race was a motivating factor

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for defendant’s decision to terminate him.

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In its verdict, the jury found that

(Docket No. 66.)

Pursuant to Federal Rule of Civil Procedure 59,

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plaintiff now moves for a new trial.

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court “severely prejudiced plaintiff by halting its closing

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argument on three occasions; and to refuse, in mid-presentation,
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Plaintiff claims that the

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to allow plaintiff’s counsel to use trial transcriptions in his

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presentation, and to then subsequently and unfairly allow defense

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counsel to use videotape deposition testimony of plaintiff in her

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own presentation.”

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complaint about the court’s decisions and interruptions during

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his closing statement, plaintiff does not argue that any other

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grounds merit a new trial.

(Docket No. 68 at 1:23-2:2.)

Aside from his

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Rule 59(a)(1)(A) “does not specify the grounds on which

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a motion for a new trial may be granted, but allows new trials to

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be granted for historically recognized grounds.”

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Guenther, 505 F.3d 987, 993 (9th Cir. 2007) (internal quotation

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marks omitted).

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only if the record shows actual bias or leaves an abiding

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impression that the jury perceived an appearance of advocacy or

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partiality.”

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(9th Cir. 1995) (“The standard for reversing a verdict because of

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general judicial misconduct during trial is rather stringent” and

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requires “an extremely high level of interference by the trial

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judge which creates a pervasive climate of partiality and

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unfairness.” (internal quotation marks and citation omitted)).

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Shimko v.

“A judge’s participation justifies a new trial

Id.; see also Duckett v. Godinez, 67 F.3d 734, 740

The court did not unfairly interrupt counsel’s closing

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argument

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This court recognizes that the closing arguments are an

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important part of any jury trial.

It is the last opportunity the

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lawyers have to speak before the case is finally submitted to the

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jury for deliberation.

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perhaps in the course of jury voir dire, it is the only time the

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lawyers can directly address the jury; and if the trial is

Other than the opening statements, and

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conducted properly, it is the only chance the lawyers have to

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summarize the evidence and to suggest to the jury how they should

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interpret that evidence in light of the instructions to be given

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by the court.

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The court also recognizes that each lawyer has his or

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her own style of arguing a case, and for that reason, as long as

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they keep within the bounds of the law and established

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procedures, they should be accorded substantial latitude in the

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manner in which they present their arguments.

For those reasons,

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this court is always hesitant to restrict, limit, or interrupt

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counsel in their closing arguments.

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On the other hand, the court has to recognize its own

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corresponding obligation to control the proceedings in order to

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assure a fair trial for both sides.

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recognized, “a trial judge is more than an umpire, and may

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participate in the examination of witnesses to clarify evidence,

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confine counsel to evidentiary rulings, ensure the orderly

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presentation of evidence, and prevent undue repetition.”

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States v. Laurins, 857 F.2d 529, 537 (9th Cir. 1988).

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As the Ninth Circuit has

United

For the very same reasons that closing arguments are

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viewed by the attorneys as so important, it is all the more

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important that the trial judge assure that those arguments are

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not abused or used improperly to gain unfair advantage.

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United States v. Guess, 745 F.2d 1286, 1288 (9th Cir. 1984) (“It

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is well-established that the trial judge has broad discretion in

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controlling closing argument.”).

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See

Here, the first time plaintiff’s attorney complains
that the court “interrupted” his argument was after he made the
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following statement:
Now, it can be difficult to remember – we’ve had four
days off or so since the last time we met, and it can be
difficult to remember a lot of the testimony that we
heard in this case. And so we have the benefit of the
Court Reporter who took down everything that everyone
said, and we have an opportunity to look at in writing
what it is that was said in this case.
(Nov. 8, 2011 Tr. at 2:16-22.)

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That remark took the court entirely by surprise.

To

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the best of the court’s knowledge at that time, there was no

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transcript of any part of the trial in existence.

The court had

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not ordered nor received a copy of any transcript.

In fact, the

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court had expressly informed the jury at the beginning of the

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trial that their would be no written transcript of the

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testimony.1

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of Mr. Bolanos’s statement, and believed he was mistaken.

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court accordingly took prompt action to correct Mr. Bolanos’s

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statement lest the jury be misled into believing, contrary to the

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court’s earlier instruction, that there was indeed a written

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transcript of the testimony for them to consult.

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interrupted to point out,

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The court, quite frankly, did not know what to think
The

Thus, the court

We really don’t, Mr. Bolanos. The jury does not have a
transcript and will not have a transcript.

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Specifically, the court stated:

You’ll note that the Court Reporter is taking down
everything that we say in shorthand. She can review that
on her screen, I also have a screen up here where I can
view her notes, but they’re not in a form that we could
just give to you as a transcript. There will not be a
written transcript of the testimony for you to consult.
That means that you must listen carefully to the
testimony of the witnesses as it is given.
(Id. at 4:5-12.)
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(Id. at 2:23-24.)

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It was only then, after Mr. Bolanos agreed that the

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jury did not have a transcript, but stated that he wanted to

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“show them the transcript of some of the testimony”2 that the

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court realized that Mr. Bolanos had apparently made arrangements

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with the Court Reporter, unbeknownst to the court, and apparently

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unbeknownst to opposing counsel as well, to have some of the

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trial testimony transcribed, and that was apparently only Mr.

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Bolanos who had a copy of that transcript.

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The court considered admonishing counsel then and there

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not to display his transcript to the jury, but in light of the

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court’s reluctance to interfere with closing arguments and Mr.

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Bolanos’s statement that he was going to show “just partial

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highlights,”3 the court refrained from making any further

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comments at that time.

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however, the court became increasingly concerned with his

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repeated showing of excerpts from the transcripts, marked with

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his own underscoring and highlights.

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beforehand that he intended to do that, it would have instructed

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him not to do so.

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the last, the court refrained from preventing him from displaying

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portions of the transcript to the jury.

As Mr. Bolanos’s argument progressed,

Had the court known

Nevertheless, hoping that each time would be

The second time plaintiff’s attorney complains that the

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court “interrupted” his argument was not an interruption at all.

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When Mr. Bolanos placed an inadmissible document on the screen

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(Id. at 2:25-3:2.)

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(Id. at 3:1-2.)
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for the jury to view, defense counsel objected. (Id. at 10:19.)

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It was in response to that objection that the court asked Mr.

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Bolanos what he was showing to the jury.

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determining that the document was an exhibit which the court had

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earlier refused to admit into evidence, the court instructed Mr.

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Bolanos to remove it from the screen.

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Mr. Bolanos’s summation had already been interrupted by a valid

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objection, that the court took the opportunity to more explicitly

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limit his use of the transcripts.

(Id. at 10:20.)

After

It was at that time, when

Specifically, the court

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instructed Mr. Bolanos to remove the transcripts from the screen

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and explained, “You can use them to refresh your own recollection

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for purposes of argument, but I’ve already explained to the jury

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there is no transcript for them to read.”

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(Id. at 11:7-10.)

The third time plaintiff’s attorney complains that the

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court “interrupted” his argument it was actually in his favor.

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Concerned that Mr. Bolanos might have misinterpreted the court’s

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ruling on defendant’s objection and its admonition not to show

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his transcripts to the jury to have been intended to also

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preclude him from continuing to show the jury the slides he had

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prepared to illustrate his argument, as Mr. Bolanos held an

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exhibit in his hand, the court politely interrupted him to point

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out:

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THE COURT: What -- let me clarify what you can show to
the jury. That’s fine. You also prepared a couple of
slides that you put on there to show the jury to
illustrate your argument. That kind of thing is okay.
If you have any more of those, you can show that to the
jury. It’s just that you can’t show them exhibits that
weren’t received in evidence. Okay?

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MR. BOLANOS: Got it.

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THE COURT: All right.

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(Id. at 12:23-13:6.)
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It is hard to imagine how these legitimate and limited
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interruptions addressing a specific issue could reflect a bias
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against plaintiff, let alone constitute an “extremely high level
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of interference” that created “a pervasive climate of partiality
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and unfairness.”

Duckett v. Godinez, 67 F.3d 734, 740 (9th Cir.

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1995).

The Ninth Circuit has found that a new trial was not

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merited when trial judges’ interruptions have been far more
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frequent and questionable than the three occasions in this case.
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See, e.g., United States v. Mostella, 802 F.2d 358, 361-62 (9th
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Cir. 1986) (trial judge’s numerous interruptions through a trial,
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including “extensive questioning” of expert witnesses and
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sarcastic comments did not merit a new trial); United States v.
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Poland, 659 F.2d 884, 894 (9th Cir. 1981) (trial judge’s
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impatience with defense, displays of irritation, and use of
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sarcasm, while inappropriate, were not prejudicial).4
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2.

The court did not err in not allowing plaintiff’s

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Even if the court’s interruption of Mr. Bolanos’s
closing argument could somehow be interpreted as indicating the
court’s view of the case or disagreement with Mr. Bolanos’s
position, any such suggestion was cured by the court’s
instructions to the jury at the beginning and close of the trial.
Specifically, in its opening instructions to the jury, the court
stated, “You should not take anything that I may say or do during
the course of the trial as an indication of what I think of the
evidence or what your verdict should be. That will be a matter
entirely for you to determine.” (Nov. 1, 2011 Tr. at 3:7-10.)
In giving the final instructions to the jury, the court reminded
the jury, “You must not read into these instructions or into
anything that I may have said or done any suggestion as to what
verdict you should return-–that is a matter entirely up to you.”
(Docket No. 63 at 2:17-19.) This court, like the Ninth Circuit,
“assume[s] that juries follow admonitions and curative
instructions,” United States v. Nolan, 700 F.2d 479, 485 (9th
Cir. 1983), and the court has no reason to believe that the jury
disregarded the court’s instructions in this case.
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counsel to publish the transcript to the jury during

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closing argument

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In jury trials, it is this court’s uniform practice not

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to permit counsel to show, or purport to read from, transcripts

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of the trial testimony during their closing arguments.

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several important reasons for this practice.

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of a trial transcript during trial is expensive.

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charge the more expensive “daily” rate for those transcripts.

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Accordingly, the party with less money to spend on a trial may

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find itself at a disadvantage if the other side has the benefit

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of a transcript during argument.

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There are

First, preparation
Court reporters

Second, preparation of a daily transcript poses an

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undue consumption of court time and resources.

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requested, two court reporters, working in shifts, are generally

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required in order to produce the transcripts while the trial is

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still in session.

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resources of the court.

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Whenever one is

That practice can unnecessarily drain the

Third, publishing excerpts of the transcript leads to

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the risk that the jurors will place undue emphasis on certain

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portions of the testimony because they saw those portions in

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writing.

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recognized that rereading a witness’s testimony from a transcript

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or giving a jury a partial copy of a transcript creates a risk

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that the jury will give undue weight to that part of the

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evidence, thus the “rereading of a witness’ testimony is

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disfavored when it unduly emphasizes that testimony.”

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States v. Binder, 769 F.2d 595, 600 (9th Cir. 1985).

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In that regard, the Ninth Circuit has repeatedly

United

Even when faced with a jury request to review a
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transcript, the judge must determine “whether the beneficial

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effects from allowing the jury to review a part of the transcript

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outweigh the risk that the jury will give undue weight to that

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part of the evidence.”

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F.2d 742, 746 (9th Cir. 1981).

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to rehear testimony, the “preferred method . . . is in open

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court, under the supervision of the court, with the defendant and

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attorneys present,” which can be accomplished by the court

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reporter reading from the transcript.

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United States v. An Article of Drug, 661
Thus, when the jury has requested

United States v.

Hernandez, 27 F.3d 1403, 1408 (9th Cir. 1994).5
In this court’s experience, consistent with Ninth

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Circuit caselaw, most other judges seem to follow the same

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practice.

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transcripts during oral argument “falls within the discretion of

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the trial judge.”

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v. Bradley, 869 F.2d 121, 123 (2d Cir. 1989) (“It was within the

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discretion of the district court whether to allow copies of the

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trial transcript to be distributed to the jury.”); United States

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v. Kuta, 518 F.2d 947, 954 (7th Cir. 1975) (“[W]e think it is

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also within the discretion of the trial court whether to permit

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counsel to read from the trial transcript during closing

The Ninth Circuit has held that counsel’s use of

Guess, 745 F.2d at 1288; accord United States

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See also Jury Instructions Committee of the Ninth
Circuit, A Manual on Jury Trial Procedures § 5.2.E.1 (2004) (“The
trial court should probably never send a transcript of testimony
into the jury room. If it decides to do so, great caution should
be exercised.”). This method is recommended because it decreases
the chance that the jury may give undue weight to evidence by
repeatedly reviewing a limited excerpt in the jury room. United
States v. Sacco, 869 F.2d 499, 502 (9th Cir. 1989).
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argument.”).6
Here, and consistent with the court’s uniform practice,

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the court restricted Mr. Bolanos from publishing a copy of the

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transcript for the jury to view during his closing argument.

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limitation initially stemmed from the court’s prior instruction

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to the jury when the jury was first empaneled that a transcript

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would not be available. (See Nov. 1, 2011 Tr. at 4:5-12.)

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instruction is based on the Ninth Circuit’s Model Instruction No.

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1.13, which states:

The

That

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During deliberations, you will have to make your decision
based on what you recall of the evidence. You will not
have a transcript of the trial. I urge you to pay close
attention to the testimony as it is given. If at any
time you cannot hear or see the testimony, evidence,
questions or arguments, let me know so that I can correct
the problem.

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Although it may be obvious, this instruction serves the important

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purpose of preventing the jury from relying on the possibility of

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reviewing transcripts at the close of trial, thus encouraging it

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to pay close attention throughout the entire trial.

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Mr. Bolanos should have been well aware of this court’s

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See also Robert E. Jones, Gerald E. Rosen, William E.
Wegner, & Jeffrey S. Jones, Rutter Group Practice Guide: Federal
Civil Trials and Evidence Ch. 14-B(2)(g)(1) (2011) (“It is within
the trial judge’s discretion to permit counsel to read from the
trial transcript during closing argument. . . . Likewise,
counsel’s use of transparencies (blowups) of portions of the
trial transcript during closing argument is within the court’s
discretion.”); Jacob Stein, Closing Arguments § 1:75 (2011-2012
ed.) (“[T]he recognized rule is that it is within the trial
court’s discretion whether to permit counsel to read from the
trial transcript during final argument to the jury.”); Federal
Trial Handbook Civil § 76:3 (4th ed.) (“The trial judge has
discretion to deny permission to counsel to distribute copies of
portions of the trial transcript to the jury during summation.”);
Federal Procedure, Lawyers Edition § 77:263 (Dec. 2011) (“The
trial judge has discretion to deny permission to the counsel to
distribute copies of portions of the trial transcript to the jury
during summation.”).

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practice of instructing the jury that there would be no

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transcript, because not only had he heard it in this case but he

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had recently heard the instruction when he tried an unrelated

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case before the undersigned judge only five months prior to

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trying plaintiff’s case.7

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to the jury that a transcript would not be available for its

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review, Mr. Bolanos had a transcript prepared and, without

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talking to the court about it,8 sought to show it to the jury

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throughout his closing argument.

Despite the court’s clear instruction

The fact that he was even able

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to show several portions of the transcript to the jury before the

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court finally put a stop to the practice, if anything, gave Mr.

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Bolanos an unfair advantage.

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(See June 1, 2011 Tr. at 5:13-21 (“The Court Reporter
is taking down what we say in shorthand, and she has a screen on
which she can view her notes. I have another screen up here
which I can view them as well. That does not mean there is going
to be a written transcript for you to read at the end of the
trial or during the trial. There will not. She can read those
notes, and I can see them, but they’re not in a form that we
could give to you so that you can read them. And so it is
important that you listen to the testimony of the witnesses as it
is given.”).)
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According to one practice guide, Mr. Bolanos’s failure
to inform the court about his desire to use the transcript during
his closing argument is fatal to plaintiff’s request for a new
trial:
In determining whether an abuse of discretion has
resulted by the denial of an attorney’s request to read
from the trial transcript during closing argument, it is
first necessary that counsel offer to indicate to the
court that which is to be read, the purpose for the
request, and the need as seen by the party making the
request.
The underlying rationale is that just as
discretion should not be arbitrarily withheld, it cannot
be unexplainedly demanded.
Jacob Stein, Closing Arguments § 1:75.

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Although it was within its discretion, and would have

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been consistent with this court’s general practice, after

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instructing Mr. Bolanos not to continue showing portions of the

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transcript to the jury, the court did not restrict him from

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utilizing the transcript during the remainder of his summation.

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In fact, Mr. Bolanos read verbatim from his copy of the

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transcript after the court restricted him from publishing it.9

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Because Mr. Bolanos was still able to utilize the transcript to

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refresh his recollection and read extensively from it, his

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inability to publish the written copy of it did not even affect

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the substance of his closing argument.

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perceive, nor did Mr. Bolanos articulate, any need to show the

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jury portions of the transcript, as opposed to using it to

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refresh his recollection or, as Mr. Bolanos did, reading portions

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of it.

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explain why the jury needed to see the transcript.

The court did not

In his motion for a new trial, Mr. Bolanos still does not

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In an effort to preserve the credibility of the court’s

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prior instruction about the unavailability of a transcript and to

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prevent the jury from placing undue weight on limited testimony

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because it saw only that testimony in writing, the court was well

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within its discretion to restrict Mr. Bolanos from publishing

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excerpts of the transcript during his closing argument.

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(See, e.g., id. at 19:16-20:10 (“MR. BOLANOS: But then
on direct -- on cross-examination, he [Sean Odahl] admitted,
well, I thought he was making a misrepresentation about the
speed.
Question: So you believe that Mr. Mayo was making a
misrepresentation -- first, at the time of this report, did you
believe that Edison was making a misrepresentation about the
speed he was traveling? Answer: No. Two questions later: Okay.
After whether or not you could slip a truck at 20 miles an hour,
I asked him, So you believe that he was making a
misrepresentation about his speed? Answer: Correct.”).)
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Accordingly, because the limitation neither affected the

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substance of Mr. Bolanos’s closing argument nor was influenced by

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or suggested the existence of the court’s bias against plaintiff

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or his counsel, the limitation does not entitle plaintiff to a

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new trial.

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3.

Defendant’s use of the videotaped deposition
Lastly, plaintiff argues that the court should grant a

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new trial because, after preventing plaintiff from publishing the

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transcripts for the jury, the court did not prevent defendant

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from playing portions of plaintiff’s videotaped deposition during

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its closing argument.

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portions plaintiff’s videotaped deposition which were shown

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during defendant’s argument had been played to the jury during

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the cross-examination of plaintiff.

Unlike the transcripts, however, the

Moreover, plaintiff did not object to defendant’s use

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of the videotaped deposition during defendant’s closing argument.

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“There is an even ‘high[er] threshold’ for granting a new trial

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where [the party seeking a new trial] failed to object to the

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alleged misconduct during trial.”

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Schs., 371 F.3d 503, 517 (9th Cir. 1991) (alternation in

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original).

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objection, a new trial is merited only if the conduct by opposing

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counsel amounts to plain error.

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requires: (1) an error; (2) that the error be plain or obvious;

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(3) that the error have been prejudicial or affect substantial

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rights; and (4) that review be necessary to prevent a miscarriage

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of justice.”

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had already been showed to the jury without objection during the

Settlegoode v. Portland Pub.

When a counsel fails to raise a contemporaneous

Id.

Id.

“Plain error review

The use of the videotaped deposition, which

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trial, by defendant did not result in error, let alone plain

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error.

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IT IS THEREFORE ORDERED that plaintiff’s motion for a
new trial be, and the same hereby is, DENIED.
Defendant has ten days from the date of this Order to

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file an Amended Bill of Costs seeking any costs incurred in

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opposing plaintiff’s motion for a new trial.

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an Amended Bill of Costs, plaintiff shall file any opposition

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within five days of the date the Amended Bill of Costs is filed.

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DATED: January 27, 2012

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If Defendant files

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
---o0o--BEFORE THE HONORABLE WILLIAM B. SHUBB, JUDGE
---o0o--EDISON MAYO,
Plaintiff,
vs.

No. Civ.S-10-629

RECYCLE TO CONSERVE, INC.,
Defendant.
/

---o0o--REPORTER'S PARTIAL TRANSCRIPT
JURY TRIAL
PLAINTIFF'S CLOSING STATEMENT
TUESDAY, NOVEMBER 8, 2011
---o0o---

Reported by:

KATHY L. SWINHART, CSR #10150

KATHY L. SWINHART, OFFICIAL COURT REPORTER, USDC -- [phone]

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APPEARANCES

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For the Plaintiff:
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LAW OFFICE OF ALDON BOLANOS
925 G Street
Sacramento, California 95814
BY:
ALDON BOLANOS

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Also Present:

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EDISON MAYO

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For the Defendant:
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WILKE, FLEURY, HOFFELT, GOULD & BIRNEY
400 Capitol Mall, 22nd Floor
Sacramento, California 95814
BY:
KELLI M. KENNADAY

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Also Present:

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SEAN ODAHL

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KATHY L. SWINHART, OFFICIAL COURT REPORTER, USDC -- [phone]

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SACRAMENTO, CALIFORNIA

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TUESDAY, NOVEMBER 8, 2011, 9:01 A.M.

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---o0o---

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(The following proceedings were had in the

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presence of the jury:)

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* * * * *
THE COURT:

All right.

This is the time for the

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arguments of counsel.

As I explained at the beginning of the

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trial, Ladies and Gentlemen, the arguments of counsel are not

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evidence.

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as the lawyers remember it.

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They're intended to help you interpret the evidence

We'll begin with the argument on behalf of the

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plaintiff by Mr. Bolanos, then you'll hear the argument on

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behalf of the defendant by Ms. Kennaday, and Mr. Bolanos will

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have a rebuttal argument.

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You may proceed.

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MR. BOLANOS:

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And keeping with our trouble with technology, I'm just

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Thank you, Your Honor.

trying to turn the -- lectern laptop.

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Okay.

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All right.

All right.

Everyone can hear me all right, I hope.
Ladies and Gentlemen, I want to thank you

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again for serving on the jury.

We've tried to make this a

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relatively fast case, keep it straightforward and simple.

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It's been about a week long.

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of Mr. Mayo and myself for doing your duty as jurors and

So I want to thank you on behalf

KATHY L. SWINHART, OFFICIAL COURT REPORTER, USDC -- [phone]

2
1
2

serving on this jury.
This is now the time when you've had a chance to hear

3

all of the evidence in the case, and then soon you're going to

4

be asked to decide a couple of questions of fact.

5

going to be given I believe three questions to answer.

6

going to be a yes or no format.

7

instruction on the law of the case as well from the judge, and

8

then it will be your time to deliberate.

9

You're
It's

You're going to be given

Essentially what you're going to be asked is did race

10

play a role in the termination of Mr. Edison Mayo?

11

question is going to be was race a factor?

12

It doesn't necessarily mean that race was the only reason for

13

Mr. Mayo being terminated or even the prevailing reason.

14

if it played a role, if it was a factor, that's going to be

15

the first question that you're going to be asked.

16

The

Was race a role?

But,

Now, it can be difficult to remember -- we've had four

17

days off or so since the last time we met, and it can be

18

difficult to remember a lot of the testimony that we heard in

19

this case.

20

who took down everything that everyone said, and we have an

21

opportunity to look at in writing what it is that was said in

22

this case.

23
24
25

And so we have the benefit of the Court Reporter

THE COURT:

We really don't, Mr. Bolanos.

The jury

does not have a transcript and will not have a transcript.
MR. BOLANOS:

Right, but I want to show them some of

KATHY L. SWINHART, OFFICIAL COURT REPORTER, USDC -- [phone]

3
1

the transcript from some of the testimony, just partial

2

highlights.

3

It's true that you won't have this transcript with you

4

when you deliberate.

5

heard, the witnesses, what they said; whether you believe they

6

were truthful or not; whether you believe they were testifying

7

about events that they recalled; and, generally speaking,

8

weigh the evidence in that regard.

9

transcript with you when you're in there, but I think that

10

You're going to have to go from what you

So you will not have this

there are some important points to show you here.

11

The first is that we know that Mr. Mayo started

12

working for these guys before they were called Recycle to

13

Conserve, they were called Dext, and he started with them in

14

1997.

15

twelve.

So he's been with them well over ten years, closer to

And we know that he had some problems with Mr.

16
17

Lindsay, Elwood Lindsay at work.

18

call him -- call him names, calling him out of my name was the

19

testimony that he gave; that there was some trouble with

20

fixing the trucks that he was driving, there was trouble with

21

getting parts for the trucks; and essentially that he would go

22

to his supervisor, Sean Odahl, and talk about these problems,

23

and that not a lot was done.
There was also an issue about drivers going into the

24
25

He testified that he would

shop.

Other drivers were permitted into the shop.

We heard

KATHY L. SWINHART, OFFICIAL COURT REPORTER, USDC -- [phone]

4
1

something from the defense that there was some agreement not

2

to allow drivers into the shop.

3

testimony was drivers were going into the shop, if you recall,

4

but Mr. Mayo himself, Edison Mayo was forbidden from going

5

into the shop.

6

But, for the most part, the

So we talked about the times that Mr. Mayo went and

7

spoke with Sean Odahl about some of the issues that he was

8

having with Elwood Lindsay.

9

him formally in his office, and he talked about meeting with

And he talked about meeting with

10

him three, four, five times in the office.

11

about Mr. Mayo meeting informally with Mr. Odahl, and that

12

that occurred also three, four, five times.

13

towards the end of this document, but here we see that he

14

talks about the formal meetings in the office, closed doors,

15

just the supervisor, the general manager and Mr. Mayo.

16

And then we talked

About -- it's

Now, one of the things that was discussed was that

17

there was problems with the trailer.

18

about this trailer and the issues with the trailer, where it

19

came from, what kind of work that was done on it and what kind

20

of problems that Mr. Mayo had with the trailer.

21

We've talked so much

And Mr. Mayo testified at length that he had numerous

22

problems with the trailer.

It was the Cottage Bakery trailer.

23

They found it in a wrecking yard.

24

He would report problems to Elwood, but Elwood more or less

25

wasn't listening to him or hearing anything he had to say.

It needed a lot of repairs.

KATHY L. SWINHART, OFFICIAL COURT REPORTER, USDC -- [phone]

5
1

And he would run him out of the shop was the testimony,

2

cussing me, calling me names.

3

So I think it's important to keep in mind the issues

4

that we had with this trailer because it's going to be a key

5

issue in this case.

6

And Mr. Mayo talked about some of the names that he

7

was being called.

8

Mr. Mayo, we had some testimony at length from Joe Serpa, and

9

we had some testimony from Sean Odahl on this subject as well.

10
11

And we had some testimony at length from

Again, more trouble with the trailer.

I want to keep

this clean for you.
The controls weren't in working order.

12

The box would

13

fall off the truck because the cables weren't stretched tight.

14

The trailer plays a central role in this case.
The cable was coming loose, clamped together.

15
16

wouldn't pull the box all the way up.

17

they had to call out on a number of occasions a tow truck

18

company to come and pick it up because the trailer and the

19

truck couldn't do it.
And that's undisputed.

20

It would slip.

It
And

Because a lot of times in this

21

case we heard one side say one thing and another side say

22

another.

23

particular side's word for anything.

24

you to look at what their testimony said and see if we can't

25

funnel down what we heard to come to a few basic truths about

And so I'm not going to ask you to take any one
I'm just going to ask

KATHY L. SWINHART, OFFICIAL COURT REPORTER, USDC -- [phone]

6
1
2

what took place in the workplace.
Next I asked Mr. Mayo what he would do about getting

3

the trailer fixed, and that Sean Odahl would go and talk to

4

Elwood about getting this trailer fixed; and that even on a

5

couple of occasions the president of the company went to

6

Elwood talking about the trailer, get it fixed.

7

trouble with the air lines, we're having trouble with the

8

brakes, we're having trouble with the cables.

9

We're having

All of these things undisputed because we heard both

10

Mr. Mayo testify about them and, as we get further into this,

11

we heard Mr. Lindsay testify about them.

12

Mr. Odahl testify about some of the problems with the trailer.

13

And we also heard

So then we come to October, October 13th, which is

14

when we had this accident.

15

miles an hour, 25 miles an hour.

16

starts braking.

17

even when he takes his foot off the brakes, the tires remain

18

locked, and the trailer slides causing damage to the cab of

19

the truck.

20

He's driving in wet conditions 20
He comes to a red light,

The rear tires on the trailer lock up.

Again, as you see here, the president comes down,

21

talks about getting the trailer fixed.

22

was not fixed.

23

And

He would fix it.

It was fixed, but it

It would break back down.

Now, I want to get into one of the important things

24

that we heard in this case which related to Sean Odahl.

We

25

heard that there were a number of occasions, several occasions

KATHY L. SWINHART, OFFICIAL COURT REPORTER, USDC -- [phone]

7
1

when Mr. Mayo would complain about Sean Odahl, and then we

2

heard Sean Odahl say, well, I didn't do any investigation or I

3

didn't do any follow-up or take any statements.

4

point something out to you, which is that Mr. Odahl has

5

essentially admitted that he failed to follow the company's

6

policy about reporting.

7

And I want to

Now, we have the benefit of looking at that company

8

policy.

And the defense gave you an exhibit, which you're

9

going to have with you in the room -- you're going to take all

10

the exhibits that have been admitted into evidence.

11

going to go back in with you when you deliberate.

12

You're going to take a look at Exhibit L.

13

is the employee handbook, and the employee handbook talks

14

about what a manager is supposed to do when he gets a

15

complaint.

16

They're

Exhibit L

There's a few relevant pages to it here.

Complaint procedure, this is page 7 of Exhibit L,

17

bring the issues to your supervisor.

18

problem, report the incident to your supervisor, who will

19

investigate the matter and take the appropriate action.

20

If you experience a

Page 8, if you're unsatisfied with the immediate

21

supervisor or you think he's involved, report directly to the

22

head of your department.

23

That's Sean Odahl again.

If the company determines the employee is guilty, it

24

would take appropriate disciplinary action.

25

about what is a bonafide complaint.

Then we have talk

If, after an

KATHY L. SWINHART, OFFICIAL COURT REPORTER, USDC -- [phone]

8
1

investigation of a complaint, the determination is that it's

2

not a legitimate complaint, there will be other action.

3

Over and over again we hear there needs to be an

4

investigation.

5

Promptly report the incident to your supervisor, who will

6

investigate the matter and take appropriate action.

7

head of the department.

8
9

The supervisor needs to do something.

This is page 51 of the employee handbook.
dispute resolution, problem resolution.

Again,

Step one,

Discuss the problem

10

with your supervisor as a first step.

11

to make a complaint in writing as a first step in order for

12

the supervisor to take it seriously.

13

have to go to human resources.

14

supervisor.

15

It doesn't say you have

It doesn't say that you

It says talk to your

Step two, encouraged to request a meeting with your

16

supervisor's supervisor.

17

formal written complaint detailing exactly all of the

18

allegations that you have to your supervisor or your

19

supervisor's supervisor.

20

All right.

Again, it does not say submit a

Sean Odahl was required, when he gets a

21

complaint verbally, to conduct an investigation and to

22

generate a report.

23

it's what undisputedly Mr. Mayo went to him on a couple of

24

occasions undisputedly and did.

25

It's what the company policy says, and

Now, you remember what Sean Odahl told us about what

KATHY L. SWINHART, OFFICIAL COURT REPORTER, USDC -- [phone]

9
1

he did.

2

someone verbally complains to me, I give them a verbal

3

response.

4

looking for an answer, they're going to get a written

5

response.

6

He said, When I get a complaint in writing, when

If they give me something in writing when they're

That's how I work.

But that's not how the company is supposed to work.

7

That's not what the company policy is.

The company policy is

8

you need to conduct an investigation.

9

something when an employee comes to you.

You need to do
You don't just have

10

this -- this attitude where if it's a written complaint, it's

11

more serious than a verbal complaint.

12

over again.

He said this over and

13

I asked him, Have you ever documented a verbal

14

complaint in your time as a supervisor for Recycle to Conserve

15

for anything?

16
17
18
19
20

No.

If you make a complaint orally, you get something back
orally, right?

Right.

If they give me a verbal complaint, I'll look into it,
and I'll give them a verbal response.
So it's important to point out here that the company

21

policy said one thing about when you receive a verbal

22

complaint.

23

supervisor verbally.

24

as a step one.

25

supervisor's supervisor verbally as a step two.

In fact, the company policy says go to your
It says talk to your supervisor verbally

It says, if that doesn't work, talk to your

KATHY L. SWINHART, OFFICIAL COURT REPORTER, USDC -- [phone]

10
1

In this instance, Sean Odahl was the general manager.

2

There was no supervisor's supervisor.

3

supervisor at the plant.

4

report.

5

He was the only

But we have no investigation and no

So the question then becomes -- we heard Sean Odahl

6

say, well, Edison Mayo didn't come to me, he didn't report

7

anything to me.

8

number of occasions.

9

here's where you go.

But we have Edison saying he went to him on a
So where do you go with that?

Well,

10

We have at least two instances where Sean Odahl has

11

agreed that he spoke with Edison Mayo about problems he was

12

having with Elwood Lindsay, the mechanic.

13

ask you to take one person's word over the other.

14

going to ask you to look at the evidence, where we can agree

15

on the evidence.

16

I'm not going to
I'm only

First I asked him about how many times did he come?

17

Had you ever said that Mr. Mayo came to you on several

18

occasions and made complaints about Elwood Lindsay?

19

MS. KENNADAY:

20

THE COURT:

21

MR. BOLANOS:

22

Your Honor, this isn't in evidence.

with the court by --

What are you showing them now?

23

THE COURT:

24

MR. BOLANOS:

25

THE COURT:

This is page 2 of a declaration filed

Is it evidence?
It is not in evidence, no.
Oh, it's not in evidence.

You can't show

KATHY L. SWINHART, OFFICIAL COURT REPORTER, USDC -- [phone]

11
1

them something that's not in evidence.

2

MR. BOLANOS:

3

THE COURT:

4

MR. BOLANOS:

5

We had this incident in the testimony --

6

THE COURT:

This is closing argument.
Take that off the screen.
It's off the screen.

And while we're at it, take those

7

transcripts off the screen, they're not evidence either.

8

can use them to refresh your own recollection for purposes of

9

argument, but I've already explained to the jury there is no

10

transcript for them to read.

11

MR. BOLANOS:

You

Okay.

So, for clarification, should I

12

be limited to just exhibits that have been admitted into

13

evidence?

14

THE COURT:

Yes.

15

MR. BOLANOS:

The first incident that Mr. Odahl agreed

16

that he talked to Edison Mayo about related to the throwing of

17

parts at his feet.

18

he would go into the shop, and Elwood Lindsay would throw

19

things; and he would go to bring him a part, and then he would

20

drop it at his feet and say there, you get that, boy.

21

You recall that Edison Mayo testified that

And he went to Sean Odahl.

Undisputedly Sean Odahl

22

received that complaint at least once.

No investigation, no

23

written statements, no discipline undisputedly.

24

you know, I talked to him, I talked to him about it, I talked

25

to Edison about it.

He just said,

KATHY L. SWINHART, OFFICIAL COURT REPORTER, USDC -- [phone]

12
1

Sean Odahl also admitted that there were a number of

2

problems with the trailer, and that Edison Mayo came to him on

3

a number of occasions and reported the problems.

4

that he was having trouble with Elwood Lindsay; that he was

5

bringing these repair issues to Elwood, that Elwood was

6

chasing him out of the shop, calling him names, throwing

7

things at him, and the trailer was still having problems.

8

dispute about that either.

9
10

He reported

No

No written statement from the employee [verbatim].
Now, then you remember that Sean Odahl told us that he

11

knew there was nothing wrong with that trailer because it had

12

been used by another driver, Kevin Christian, on a number of

13

occasions, and there were no complaints about the trailer.

14

The defense introduced something called Exhibit P,

15

like Peter, and that's going to be with you back in the

16

deliberation room.

17

trial that I objected to this exhibit, and I said this is --

18

there's no foundation for this.

19

this exhibit.

20

purposes of the trial.

21

objection prior to the trial, I had waived that objection.

22

this is -- this is evidence now.

23
24
25

There's -- there's nothing to

It looks like they made it up just for the

THE COURT:
to the jury.

And you'll recall during the course of the

And because I had not lodged a formal
So

What -- let me clarify what you can show

That's fine.

You also prepared a couple of slides that you put on

KATHY L. SWINHART, OFFICIAL COURT REPORTER, USDC -- [phone]

13
1

there to show the jury to illustrate your argument.

2

of thing is okay.

If you have any more of those, you can show

3

that to the jury.

It's just that you can't show them exhibits

4

that weren't received in evidence.

5

MR. BOLANOS:

6

THE COURT:

7

MR. BOLANOS:

That kind

Okay?

Got it.
All right.
So Exhibit P was received in evidence,

8

and the defense represented to you that this shows who drove

9

the truck in the time before Mr. Mayo's accident.

They

10

represented to you that this showed who drove the same truck

11

and trailer that Mr. Mayo wrecked.

12

words, not mine.

13

this Exhibit P show the same truck and trailer?

14

answered that is correct, yes, like I said.

15

That's Ms. Kennaday's

She asked that question to Sean Odahl.

Does

And Mr. Odahl

Well, if this is the same truck and trailer, if this

16

is the same truck and trailer, how is it that there's no

17

record of this trailer being used on October 13th, 2009?

18

That's the date that Mr. Mayo used it.

19

that that's the date that Mr. Mayo used it.

20

There's no dispute

How is it that this same truck and trailer was driven

21

twice by Edison Mayo on October 14th?

22

wrecked and damaged on the 13th.

23

again twice on the 15th, and that Edison and Kevin both drove

24

it on the 16th?

25

We thought it was

How was it that he drove it

That doesn't make any sense.

And I want you to question the accuracy and the

KATHY L. SWINHART, OFFICIAL COURT REPORTER, USDC -- [phone]

14
1

truthfulness of this exhibit because this is not some report

2

that was kept in the normal course of business of the

3

bakery -- of the company.

4

prepared for this case to show to you to try and prove that

5

there was no problem with the brakes.

6

This is something that they

Now we get into the issue of mechanical problems with

7

the trailer.

8

talked about it.

9

according to his testimony, there was no mechanical problem

10
11

We've talked about it and talked about it and
And the question became for Sean Odahl,

with this trailer, it couldn't have been a mechanical problem.
But the sole basis for him concluding that it could

12

not have been a mechanical problem was because that's what

13

Elwood Lindsay told him.

14

said -- looked at the brakes and said this trailer is fine,

15

don't worry about this trailer.

16

Elwood Lindsay went out there and

So Sean Odahl writes in his report, his supervisor's

17

incident/accident report, Mr. Lindsay did not find any

18

mechanical problems with the trailer.

19

He was asked where did you get this information in the

20

second paragraph about there being no problem with the

21

mechanics of the trailer?

22

And he said from Elwood Lindsay.

So then it's up to us to look at what Elwood Lindsay

23

told him.

If the basis for his decision that there was no

24

mechanical problem with the trailer is what Elwood told him,

25

what is it that Elwood told him?

And we have that, too.

KATHY L. SWINHART, OFFICIAL COURT REPORTER, USDC -- [phone]

15
1

Because this is another exhibit that's going to be back in the

2

jury room.

3

two days after the incident.

4

This is Elwood's report dated October 15th, 2009,

Now, you would expect this report to talk about the

5

brakes, the trailer, the wet conditions, the wheels, the road,

6

the cables, something about the incident of October 13th.

7

it doesn't open up with that.

8

Edison Mayo and all the problems Edison Mayo has had.

9

The driver complained.

But

It opens up with a history of

The driver got mad and told

10

Sean something.

Other drivers have told me that this driver

11

is a problem and that he's done other things wrong at the

12

shop.

13

that I asked him to do because he couldn't learn to do his

14

job.

This is the same driver who won't do something else

Does this sound like someone who's talking about an

15
16

incident that occurred two days before, or does this sound

17

like a hatchet job to you, like someone who is deliberately

18

going out of his way to try and get someone fired?

19

He concludes, I know, I refuse to talk about the truck

20

and trailer incident.

That's the whole purpose of this

21

report.

22

He says I refuse to talk about it except that, you know, the

23

brakes, we adjusted those as part of this BIT inspection.

24

Another key point.

25

the brakes repaired?

It's two days after this truck and trailer incident.

When were the brakes adjusted?

When were

That's going to be something that we're

KATHY L. SWINHART, OFFICIAL COURT REPORTER, USDC -- [phone]

16
1

going to move on to next.

2

But this is just -- this is just Elwood Lindsay

3

spouting about all the things that he thinks are wrong with

4

Edison Mayo.

5

mechanical problem.

On that basis, Sean Odahl concludes there was no
Mr. Mayo is fired.

6

You remember I asked Sean Odahl about what kind of

7

brakes -- what kind of work had been done on this trailer.

8

And his response was there was nothing done on the preceding

9

month.

We have to do a 90-day inspection as part of this BIT

10

inspection for regulations, and everything was fine.

11

nobody else complained about it, specifically Kevin Christian.

12

And then I asked Elwood Lindsay about what he did with

13

the brakes.

14

that if there was a problem with the brakes, it would have

15

been Elwood Lindsay's responsibility to fix them.

16

established -- I asked him, How often did you inspect this

17

trailer?

18

recall any recurring issues with the trailer?

19

You'll recall that testimony.

And

We established

He said about every three months.

We

I said, Do you
He said no.

I asked him about the history of the trailer.

He

20

said, you know, I got it from this -- from this recycling

21

yard, and it was out of service for a few months, but then it

22

was fine.

23

You know, we got this trailer for one purpose and one

24

purpose only, one customer and one customer only -- that's the

25

Cottage Bakery route that we have been talking about -- and it

KATHY L. SWINHART, OFFICIAL COURT REPORTER, USDC -- [phone]

17
1

was the only one we had.

2

I asked him if Edison ever came directly to him and

3

said, look, I'm having problems with this trailer, can you

4

please help me fix it?

5

for anything.

He said, no, Edison never came to me

6

I said -- I asked him did Mr. Odahl ever come to you

7

and say, look, I spoke with Edison, there's trouble with the

8

trailer, can you please get the trailer fixed?

9

nothing like that.

10

He said no,

Nothing at all wrong with this trailer

according to Elwood Lindsay.

11

And then you remember I put some receipts in front of

12

him.

13

handwriting on them, and they said this is for the new

14

trailer.

15

says, well, this is the used trailer that we were talking

16

about.

17

And the receipts had his signature on them, they had his

And I asked him, well, is it a new trailer?

He

And I said, so, you know, were you still buying parts

18

for this thing leading right up to the accident?

19

response, I was buying parts the whole time.

20

His

And so I asked him, So you were still doing work on

21

the trailer, right?

22

all the time.

23

no work was done on the trailer for approximately 90 days.

24
25

He said, Yes, I did work on the trailer

He directly contradicted his own testimony that

How often did you work on this trailer?
the time?

Was it all

Because it was the only trailer for this job, I

KATHY L. SWINHART, OFFICIAL COURT REPORTER, USDC -- [phone]

18
1

looked at that trailer every -- I'd say every week at least.

2

So just to recap where we are right now, we have Sean

3

Odahl admitting that he was aware of issues between Elwood

4

Lindsay and Edison Mayo.

5

or investigate anything or take any statements because that

6

was how he operated.

7

That's how I work.

8

there was nothing wrong with that trailer was based on what

9

Elwood Lindsay told him.

10

He admitted that he didn't document

That was the way he did business.
And he admitted that his conclusion that

So then you're left with why did you fire Edison Mayo?

11

Well, because there was nothing mechanically wrong with that

12

trailer.

13

because Elwood Lindsay told me there was nothing mechanically

14

wrong with that trailer.

And how did you arrive at that conclusion?

Well,

Then consider that you've got this document that looks

15
16

very official, but is really not.

17

generated these documents.

18

these in the course of my business.

19

that.

20

and this other driver uses it just as much as Edison and

21

doesn't complain.

22

has some serious factual problems with this document and the

23

way it's set up.

24
25

No one told you, yes, I

No one told you, yes, I prepare
No one told you any of

They just said, look, it's the same truck and trailer,

Well, we've talked about this document.

It

You know, you throw also in that Sean Odahl said he
didn't know that there was any work being done on the trailer.

KATHY L. SWINHART, OFFICIAL COURT REPORTER, USDC -- [phone]

19
1

He said as far as he was concerned, 90 days, no work on the

2

trailer.

3

that Sean Odahl didn't know what Elwood Lindsay was doing on

4

that trailer.

5

He was ordering parts for it all the time.

6

broken down piece of junk is the only way to characterize it.

7

So what should that tell you?

That should tell you

Elwood Lindsay was working on it every week.
The trailer was a

We heard Edison Mayo talk about the controls didn't

8

work, the brakes didn't work, the box couldn't be lifted onto

9

the back of the trailer, it was rusted out, it had bad tires.

10

All these things were wrong with this trailer.

Sean Odahl

11

found there was no mechanical problem with the trailer, and

12

yet Sean Odahl didn't know that Elwood Lindsay was tinkering

13

on this trailer every week on a weekly basis.
Incidentally, Sean Odahl also included in his report

14
15

that Mr. Mayo was traveling approximately 20 to 25 miles an

16

hour.

17

admitted, well, I thought he was making a misrepresentation

18

about the speed.

19

But then on direct -- on cross-examination, he

Question:

So you believe that Mr. Mayo was making a

20

misrepresentation -- first, at the time of this report, did

21

you believe that Edison was making a misrepresentation about

22

the speed he was traveling?

23

Two questions later:

Answer:
Okay.

No.
After whether or not you

24

could slip a truck at 20 miles an hour, I asked him, So you

25

believe that he was making a misrepresentation about his

KATHY L. SWINHART, OFFICIAL COURT REPORTER, USDC -- [phone]

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speed?

Answer:

2

Correct.

Then there was some testimony about the white drivers

3

and whether they had any injuries or accidents.

4

the white drivers was Ralph Lantz.

5

the other white driver was Kevin Christian, and we heard from

6

him.

7

specifically by his attorney, Did Kevin Christian have any

8

accidents while you were the supervisor?

9

has not, no accidents involving damage to company property or

10
11

And one of

We heard from him.

And

And when we talked to Sean Odahl he was asked

The answer, no, he

injury.
Well, this is Plaintiff's Exhibit 5.

You heard Edison

12

Mayo talk about this exhibit.

13

Joaquin County small claims division.

14

defendant.

15

cents, $1,166.41.

16

Mayo's vehicle on July 28th, 2006, at Recycle to Conserve.

17

This is a document from San
Kevin Christian is the

Payment made of eleven hundred dollars and 41
Full and final settlement of damages to Mr.

What was this lawsuit about?

Why does the defendant

18

owe plaintiff money?

19

was parked in the parking lot.

20

a bin, a bin that they hold the dough, he dropped it, hit the

21

car, damaged the car.

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it caused property damage, so why didn't it count against

23

Kevin Christian under the accident policy?

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25

The defendant damaged my car while it
You remember that?

He dropped

This was after the accident policy, and

I asked Sean Odahl about that.
property damage was property damage.

His answer was

It could be ours or it

KATHY L. SWINHART, OFFICIAL COURT REPORTER, USDC -- [phone]

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could be a third party's.

2

Christian?

3

Why didn't it count against Kevin

Now, at the beginning of this trial, I told you that

4

it is always difficult to show that there is race

5

discrimination.

6

years old at this point, and we as a society have become very

7

good at masking or hiding our prejudices.

8

e-mail or writes a memo about the prejudice that they have

9

against other people.

The law that we're dealing with is over 40

No one sends an

Things are done verbally.

And so that

10

can be hard to prove when you're in a court of law because, as

11

you've seen the last week or so, we look at a lot of

12

documents.

We look at a lot of exhibits.

13

But I think you were able to discern from the

14

testimony that you heard that there was some bad blood between

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Elwood Lindsay and Edison Mayo.

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you know, he come out telling me my job.

17

And you don't tell me what to change on the truck.

You don't do that.

I asked him, Did you ever call Edison any names?

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19

We had Elwood tell us that,

Answer:

Not that I remember.

20

These names that we have been talking about, you know,

21

coon, I don't even -- I don't even want to say them, you know,

22

lazy nigger.
Have you ever called him any ethnic or racial names at

23
24

all?

Not that I remember.

25

Don't you think he would have said

no if he didn't do it?

KATHY L. SWINHART, OFFICIAL COURT REPORTER, USDC -- [phone]

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We all know that we can only be held to testify about

2

what we remember.

3

saying I'm not going to say no to that because I don't want to

4

commit perjury, but I don't want to admit it either.

5

I remember.

6

Well, not that I recall is an easy way of

Not that

So on this issue of bad blood, then, we had --

7

obviously we had Edison Mayo talk, and then we had Elwood

8

Lindsay talk, and then we had Joe Serpa talk.

9

disinterested witness presumably.

Joe Serpa,

He had a little bit of a

10

run-in with Elwood, that's not disputed.

He was let go in

11

November of 2009.

12

too high.

13

interest in this case at all.

14

being done to Edison or that he was not getting a fair shake.

The reason given was that his salary was

He made 12.50 an hour.

We remember Joe Serpa.

Just thought that things were

Joe Serpa testified about the words.

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No

What kind of

16

comments would you hear Elwood say about Edison?

17

lazy "N" word.

18

he doesn't need to be here, so forth.

19

Ah, coon.

He was a

Just he's no good, he's worthless,

These are the things that Elwood Lindsay was saying

20

about and to Edison Mayo.

This is evidence of the bad blood

21

between those two.

22

why it was decided there was no mechanical failure with that

23

trailer.

Keep in mind, Elwood Lindsay is the reason

24

Joe Serpa testified about the frustration that Edison

25

Mayo was feeling, that he was going to his supervisor, he was

KATHY L. SWINHART, OFFICIAL COURT REPORTER, USDC -- [phone]

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2

trying to correct these issues, and nothing was getting done.
He testified that he saw that other drivers were going

3

into the shop to get minor repairs done for little nicks or

4

bumpers going bad or little things like that that occurred in

5

the course of driving.

6

quickly and be out the door.

They would get their repairs done

7

And we, again, established there's only one

8

supervisor, there's only one general manager at this plant,

9

and it's Sean Odahl.

There was some talk about, well, if Sean

10

Odahl is not being responsive to your complaints, go higher.

11

But there was no one higher.

12

There was no one else there.

We talked a little bit about human resources.

They're

13

down in L.A.

14

resources previously was he went to the secretary and said, I

15

need to talk with someone about a payroll issue I'm having.

16

The secretary connected him to human resources.

17

years prior and had nothing to do with complaints of

18

discrimination or inappropriate conduct by a co-worker in the

19

workplace.

20

The way that Edison Mayo contacted human

That was

My point here is that you've got Edison telling you,

21

Edison Mayo telling you that there was this problem, this

22

inappropriate conduct in the workplace.

23

Lindsay admitting it to a degree.

24

admitting that he came to -- that Edison came to him on

25

several occasions with problems related to Elwood Lindsay.

You've got Elwood

You've got Sean Odahl

KATHY L. SWINHART, OFFICIAL COURT REPORTER, USDC -- [phone]

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And then you've got Joe Serpa, who was just an

2

employee there at the time and really is as close to an

3

impartial witness as we're going to get in this case because

4

all the other witnesses were either on the plaintiff's side or

5

the defense side, employed by the defendant.

6

yeah, there was problems.

7

guys.

There was bad blood between those

There was racial stuff going on in the workplace.

8
9

And he told us,

Joe also talked about the trailer and the problems
with the trailer.

10

So you're going to be asked a couple of questions, and

11

the first is going to be whether race played a role in the

12

firing, and that's what we have been talking about this entire

13

time.

14

whether -- even if race didn't play a role in the termination,

15

whether Recycle to Conserve, Incorporated, still would have

16

terminated Mr. Mayo anyway.

The second question you're going to be asked is

That's question two essentially.

And what I want to point out to you is that the basis

17
18

for the termination, as we have been talking about this entire

19

morning, is that there was no mechanical problem with the

20

trailer.

21

never investigated, there was never any look at the brakes,

22

but they determined there was no mechanical problem with the

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trailer.

24

told them.

25

The trailer was never checked out, the trailer was

How did they determine that?

Because of what Elwood

But that was the basis for the termination.

So my question would be, if there was a mechanical

KATHY L. SWINHART, OFFICIAL COURT REPORTER, USDC -- [phone]

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problem with the trailer, clearly you wouldn't have terminated

2

Edison Mayo, right?

3

their termination.

4

equation, you're still left with the only reason they fired

5

him is because of what the racist guy told him about Edison

6

Mayo and all the things that he said in that two-page report

7

going back to August of that year.

8
9

Because that was the whole basis for
So even if you try to take race out of the

You know, I don't think that Sean Odahl is a racist
guy.

I don't think that he deliberately set Edison Mayo up to

10

get fired.

And I don't think he had anything against Edison

11

Mayo or anybody at his job.

12

pretty straightforward guy.

To me Sean Odahl seemed like a

But the thing that we heard repeatedly from the

13
14

witnesses in this case was that he was an office guy.

15

didn't much try to get involved with some of the problems that

16

the employees were having.

We heard Elwood Lindsay say, you

17

know, he's an office guy.

He doesn't know what's going on in

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my shop.

19

the numbers.

20

The shop is my area.

He

He stays up front, deals with

We heard Sean Odahl tell us himself that he was

21

brought in to make the company more profitable from the Los

22

Angeles office.

23

feeling was he wasn't going to do anything about any

24

complaints, you might as well just shred them, nothing gets

25

sent to corporate.

We heard Joe Serpa say, well, you know, my

And he's a numbers guy, he's there for

KATHY L. SWINHART, OFFICIAL COURT REPORTER, USDC -- [phone]

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that reason.

2

So I think what you had happen is you had this culture

3

of truck drivers, and there was inappropriate conduct in the

4

workplace, but Sean Odahl, for whatever reason, just didn't

5

want to address it.

6

came to him and said there was an issue, but for whatever

7

reason he was focused on the profitability of the company.

8

And there's nothing wrong with focusing on the profitability

9

of a company, but you also need to -- as the general manager,

10

as the only supervisor, you also need to turn your attention

11

to your people when there is an allegation or there's evidence

12

of improper conduct in the workplace.

He was notified of it, several employees

Now, at the conclusion of the jury verdict form,

13
14

you're going to be asked a question that if you found that

15

there was race as a factor, and if you found that there was no

16

way they could have terminated him absent this racial factor,

17

those two first questions, the third question says, okay, what

18

kind of damages are going to be involved here?

19

In a criminal case, if the defendant is found guilty,

20

he's sentenced to jail time.

But in a civil case, if you

21

found the defendant liable, then the penalty is damages, it's

22

not jail time.
And so you're going to be asked for two categories of

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24

damages.

The first is called compensatory damages.

Now these

25

are, generally speaking, damages to make the plaintiff whole

KATHY L. SWINHART, OFFICIAL COURT REPORTER, USDC -- [phone]

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again, to compensate him for having to deal with this case,

2

for having to be out of work, for having to bring a lawsuit in

3

federal court, for having to do all of the things that go with

4

the problems of being involved in a lawsuit.

5

And this lawsuit has been going on for two years now.

6

It's stressful.

So I talked to Mr. Mayo, and we would submit to you

7

that, if you are inclined to award compensatory damages to Mr.

8

Mayo, you consider these factors.

9
10

THE COURT:

MR. BOLANOS:

I'm asking them to calculate

compensatory damages using his wages as a baseline.
THE COURT:

13
14

You can't consider wages.

We've talked about that.

11
12

No, you don't.

I suppose you can get away with that.

Go

ahead.
MR. BOLANOS:

15

Mr. Mayo does not want to or seek a

16

windfall from this case.

He doesn't want to say that the

17

mental stress was so burdensome for him that he should be

18

entitled to what would essentially be like winning the

19

lottery.

20

judgments that are in the millions of dollars.

21

what we're looking for here.

Sometimes we see some of these outrageous civil
That's not

What Mr. Mayo is saying is that he did have a

22
23

substantial problem after this incident took place, and he

24

would just like to be compensated for the trouble that he went

25

through.

The trouble that he went through was essentially

KATHY L. SWINHART, OFFICIAL COURT REPORTER, USDC -- [phone]

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2

this.
He made nineteen an hour at Recycle to Conserve.

3

was out of work for six months.

4

hours a week is seven sixty.

5

3,000 bucks a month.

6

He

out of work, $18,000.

7

Nineteen an hour times 40

Seven sixty times four, that's

$3,000 a month times six months he was

Then he got another job at Cherokee Truck Lines, but

8

he made substantially less at Cherokee, he made fourteen an

9

hour, and he still works there now.

So same analysis.

10

Fourteen an hour times 40 hours a week is approximately $500.

11

$500 times four weeks is approximately $2,200 a month, which

12

comes out to, per year, $26,880.

13

Now you'll see I also did the analysis at the Recycle

14

to Conserve wage times a year.

15

essentially made 36,000 at Recycle to Conserve and twenty-six

16

at Cherokee.

17

He made 36,000 a year.

So he

So it's about a $10,000 difference.

So our request to you would be the loss of $18,000

18

over six months --

19

THE COURT:

20

I just can't let you -- I'm sorry.

I

cannot let you make this argument.

21

MR. BOLANOS:

22

THE COURT:

All right.
The law is, Ladies and Gentlemen, that you

23

may not award any damages for lost wages.

If you decide

24

liability, it will be for the Court to determine how much, if

25

any, to award the plaintiff for his lost wages.

You may only

KATHY L. SWINHART, OFFICIAL COURT REPORTER, USDC -- [phone]

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award compensatory damages for the emotional distress.

2

may not award damages for lost wages.

3
4
5
6
7

You

I just can't let you make that argument, Mr. Bolanos.
I'm sorry.
MR. BOLANOS:

All right.

Then let me phrase it a

different way.
The compensatory damages Mr. Mayo requests for his

8

pain and suffering, for his emotional distress, for the mental

9

anguish of going through this process is $34,000.

10

Now, on the issue of punitive damages, punitive

11

damages are a second category of damages that deal with

12

punishing a defendant.

13

defendant acted in willful disregard for a federally protected

14

right or deliberately turned a blind eye or was indifferent to

15

a federally protected right.

16

some of Mr. Odahl's conduct in failing to take any action at

17

all and just really not taking any action to correct what was

18

inappropriate conduct in the workplace could constitute a

19

deliberate indifference to the occurrence of that conduct.

20

You're going to be asked if the

And I would submit to you that

And so you're going to be asked to determine what, if

21

any, punitive damages, which are to -- essentially to punish

22

or deter an employer from doing this kind of thing again.

23

know, you want the employer to say or the defendant to say,

24

look, we need to do something differently so that this kind of

25

stuff doesn't happen again.

You

And unfortunately, you know, in

KATHY L. SWINHART, OFFICIAL COURT REPORTER, USDC -- [phone]

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our world, in a profit-driven world, in a corporate-driven

2

world, that sort of incentive only comes with having to write

3

a check.

4
5
6

Companies don't listen to anything besides that.
Now, the way I've seen punitive damages computed is as

follows, and here's what I would submit to you.
If you want to consider punitive damages, I would put

7

it at three tiers.

I would say, if the level of culpability

8

is low, we don't want to punish them too much, just consider

9

half of the compensatory damages, whatever you award.

If you

10

want to say it's sort of in the middle range of culpability,

11

consider an amount equal to the compensatory damages award.

12

And then if you believe that there is an egregious need for

13

punitive damages, you would want to double the compensatory

14

damages award.

15

high -- if you're inclined to award punitive damages.

16

that's completely up to you.

17

Those are your three -- low, medium and
And

I will tell you that any award of ten times or greater

18

compensatory damages is not going to work.

19

thrown out by the Court.

20

So limit your -- if you do award punitive damages, keep that

21

limit in mind.

22
23
24
25

It's going to get

They're going to say it's too much.

Otherwise, I would thank you again for your jury
service, and we appreciate your time.
THE COURT:

All right.

Ms. Kennaday, would you rather

have a break or would you rather start right now and then we

KATHY L. SWINHART, OFFICIAL COURT REPORTER, USDC -- [phone]

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can break when you decide that you would like to ask me to do

2

that?

3

MS. KENNADAY:

Well, Your Honor, if we could take a

4

break right now, then I can finish up probably in about 35

5

minutes.

6
7
8

THE COURT:

All right.

We'll take a 10-minute recess.

Ladies and Gentlemen, remember the admonition.
(Recess taken.)

9

(End of requested proceedings.)

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---o0o---

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KATHY L. SWINHART, OFFICIAL COURT REPORTER, USDC -- [phone]

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I certify that the foregoing is a correct partial

3

transcript from the record of proceedings in the

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above-entitled matter.

5
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/s/ Kathy L. Swinhart
KATHY L. SWINHART, CSR #10150

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KATHY L. SWINHART, OFFICIAL COURT REPORTER, USDC -- [phone]