EEOC v. Blockbuster Inc.

Filing 105

RESPONSE in Opposition re 100 MOTION for Summary Judgment and Brief in Support of Summary Judgment filed by EEOC. Replies due by 4/19/2010. (Attachments: # 1 Exhibit Exb. 1, # 2 Exhibit Exb. 2, # 3 Exhibit Exb. 3, # 4 Exhibit Exb. 4, # 5 Exhibit Exb. 5, # 6 Exhibit Exb. 6, # 7 Exhibit Exb. 7, # 8 Exhibit Exb. 8, # 9 Exhibit Exb. 9, # 10 Exhibit Exb. 10, # 11 Exhibit Exb. 11, # 12 Exhibit Exb. 12, # 13 Exhibit Exb. 13, # 14 Exhibit Exb. 14, # 15 Exhibit Exb. 15, # 16 Exhibit Exb. 16, # 17 Exhibit Exb. 17, # 18 Exhibit Exb. 18, # 19 Exhibit Exb. 19, # 20 Exhibit Exb. 20, # 21 Exhibit Exb. 21, # 22 Exhibit Exb. 22, # 23 Exhibit Exb. 23, # 24 Exhibit Exb. 24, # 25 Exhibit Exb. 25, # 26 Exhibit Exb. 27, # 27 Exhibit Exb. 28, # 28 Exhibit Exb. 29)(Phillips, Ronald)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF MARYLAND

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EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,

Case No. 8:07-CV-02612

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Plaintiff(s),
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v.
BLOCKBUSTER INC.,
Defendant(s).

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DEPOSITION OF LITA ZUBIATE

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Bethesda, Maryland

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August 22, 2008

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9:30 a.m.

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Job No. 1-135452

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Pages 1-52

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Reported by:

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Spanish Language Interpreter:

Linda S. Kinkade, CSR, RMR, CRR
David Sperling

BLOCKBUSTER.transcript.zubiate

Page 17

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Q And why did you leave Target?

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A I left Target -- do I -- do I have to

3 answer that question?
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Q Yes, ma'am.

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MR. PHILLIPS: Do you need legal advice?

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THE INTERPRETER: Should we go outside?

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MR. PHILLIPS: Hang on a second.

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(Discussion between interpreter and witness.)

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MS. KEILLER: We can mark this portion of

10 the deposition as confidential, if that would allay
11 some concerns.
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MR. PHILLIPS: I wouldn't ordinarily do

13 this, but I think what I'll need to do is briefly
14 consult with Ms. Zubiate off the record because of the
15 nature of the objection I think I'm going to pose to
16 the question. It's not necessarily a privilege issue,
17 but it's a matter that -- it may be a matter that I'll
18 have to instruct the witness to not answer the
19 question on. And if that's the case, then before I
20 instruct her to not answer, I want to make sure that
21 I'm on firm ground doing that. So I'll need to
22 consult with her in private. So I'm going to go ahead

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Q Let's move on. Where did you work before
Target?
A At a cleaning company that's called Able.
Q How long did you work there?
A Approximately nine or ten months.
Q And what was your hourly wage?
A Six fifty.
Q When did you begin working for Express
Personnel?
A In January of 2005.
Q And how did you hear about the position at
Express Personnel?
A My niece, Lolita, let me know about it.
Q Did you fill out an application?
A I don't recall.
Q Did you have an interview?
A No.
Q Do you know who made the decision to hire
you?
A Ms. Cindy Brown.
Q Do you mean Cynthia Brown, Cinnie?
A Mrs. Brown.

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Page 20

1 and consult with my witness right now and be back in

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2 very, very shortly.

2 for?

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MS. KEILLER: Let's go off the record.

Q Okay. And what position were you hired
A She told me -- she told me -- Lolita told

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(Discussion was had off the record.)

4 me the type of work it was, but -- that I was going to

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(Brief interruption.)

5 be performing, but I don't know exactly what the

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MR. PHILLIPS: We're back on the record.

6 position was.

7 For the record, EEOC posed objections to the question

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8 on the basis of relevancy and undue burdensomeness.

8 first for Express Personnel or did you do other

Q And was the Blockbuster assignment your

9 Based on the nature of the burden, EEOC will instruct

9 assignments for Express Personnel?

10 the witness to not answer the question. And the

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A No, it was the first assignment.

11 information involved is not -- we're not going to

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Q And was it the only assignment?

12 allow her to disclose that today.

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A Yes.

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Q And what were your job duties?

14 its right to, if it deems it necessary, to compel an

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A To put the labels onto the discs and to

15 answer to the question, and we would welcome any

15 check to see whether they were broken and to place

16 discussion before such motion to compel, but we're not

16 some stickers on them. That's all.

17 going to allow the witness to answer the question

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18 today.

18 began your assignment?

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We understand that the defendant will reserve

MS. KEILLER: For the record, Blockbuster

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Q And what were your work hours when you
A I don't -- I can't recall exactly what time

20 reserves its right to compel an answer to the

20 I would get on. On one occasion I would start at 9:00

21 question, if necessary.

21 and then I would -- it was changed and I started at

22 BY MS. KEILLER:

22 7:00. And two or three times they changed our work

BLOCKBUSTER.transcript.zubiate

Pages 17 - 20

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Page 23

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Q Do you know why your work schedule changed? 2
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A Yes.
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Q Why?
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A Because there were people who wanted to
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come in earlier and they wanted to work for longer so
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that they could make overtime.
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Q And when did your assignment at Blockbuster
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end?
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A I worked approximately -- I thought I
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worked for two months, but I spoke with Marisol and
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she said that it's on record that I worked at Express
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for one month.
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MR. PHILLIPS: And, again, I'll instruct the
witness to not disclose the content of communications 15
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with EEOC counsel.
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BY MS. KEILLER:
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Q Try not to tell me about your conversations
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with Marisol or Mr. Phillips. Okay?
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A That's fine.
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Q Thank you. And why did your assignment
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end?

1 schedule.
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Q What's the name of the supervisor you're
speaking of?
A We knew him as Taj. I don't know exactly
what his name was.
MS. KEILLER: For the record, the spelling
is T-A-J.
BY MS. KEILLER:
Q And who would translate his comments for
you?
A Lolita, Elizabeth.
Q And did you ask them to translate for you
or did they just do it on their own?
A No, I asked them to translate, but they
would just say he's saying for us to get to work.
(Exhibit No. 2 marked for identification and
attached hereto.)
BY MS. KEILLER:
Q I'm handing you the complaint in this
lawsuit. Have you seen this document before?
A No, I haven't seen this document before.
The only document I've ever seen having to do with
this trial is this document right here.

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Page 24

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A How do you want me to answer?

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THE INTERPRETER: For the record, she is --

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Q Were you terminated or did you quit?

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MR. PHILLIPS: You can put that away.

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A I quit.

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THE INTERPRETER: And you said put that

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Q Why did you quit?

4 away.

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A Because I felt stressed out for the way

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MR. PHILLIPS: And there is no big mystery.

6 that we were treated.

6 Just for the record, it's a letter just telling her

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Q How were you treated?

7 about the location, date and time of the deposition.

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A Generally speaking?

8 That's all it is.

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Q Yes.

9 BY MS. KEILLER:

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A The supervisor, he would -- he would walk

11 around with something either like rolled-up newspaper

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Q It's okay.

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A No. Excuse me.

12 or cardboard and he would smack it down on his hands 12

Q Anything your counsel, Mr. Phillips, or Ms.

13 and he would shout out like sort of haranguing us.

13 Ramos gave you, you don't have to show me.

14 And he would be walking around like a military

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A Okay.

15 officer. And when they would translate what he was

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Q I'm going to ask you a few questions about

16 saying, they would say he was just saying get to work,

16 some of the allegations in the complaint. For the

17 but it was a lot more than that because he used to

17 record, I'm referring to paragraph 18, page 5.

18 speak a lot more than that. And I could tell by his

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Did anyone touch you while you were at your

19 gestures that they were angry gestures and he would be 19 assignment at Blockbuster?
20 smacking that thing on his hands. And then I would

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A Me?

21 feel very stressed out. And my shoulders and my neck

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Q Yes.

22 would -- would hurt because of it.

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A No.

BLOCKBUSTER.transcript.zubiate

Pages 21 - 24

Page 29

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Answer the question.

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1 move this way to the right, you could see a different

2 BY MS. KEILLER:

2 attitude in his face, in his facial expression, which

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3 was, like, more friendly towards the black people.

Q I'll clarify. Were you assigned duties

4 that were not part of your job?

4 BY MS. KEILLER:

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A No.

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Q Were you ever sent home prior to the time

6 non-Hispanics?

Q Did you ever see him shout at

7 you were supposed to get off of work?

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A Yes.

8 face you could tell that it was more friendly. It was

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Q Who sent you home?

9 something friendly. And his gestures showed that as

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A I can't remember, but I think it was Taj

A Yeah. He might have shouted, but in his

10 well.

11 who would let me know that I could or I should leave.

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Q Did anyone else yell at you or shout at

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Q Why?

12 you?

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A Because there wasn't enough work.

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A No.

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Q Did anyone yell at you at work?

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Q Did you ever do any training while you were

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A Not directly, but -- but Taj would do so

15 assigned to Blockbuster?

16 generally.

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17 when Lolita taught me what to do, the job she did and

Q When you say "generally," do you mean yell

A I don't know if you'd consider it training

18 at everyone at work or yell -- or was he yelling while

18 Elizabeth did.

19 he was around you?

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20 other than Lolita or Elizabeth?

A He would walk around shouting. He would

Q Did you ever ask for training from someone

21 walk around shouting. He would come up close. The

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A Who? Ask who?

22 distribution -- I don't know how to explain -- can I

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Q Anyone.

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1 explain by talking about how the things were

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2 distributed in there?

2 to the job, I would just ask Elizabeth or Lolita.

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Q Did you ever ask Linc or Taj?

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A No.

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Q Yes.
THE INTERPRETER: The interpreter is going

A I would ask -- well, I would -- with regard

5 to -- because the times of the gesture that

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MS. KEILLER: For the record, Linc is

6 accompany -- that will accompany the text, the

6 L-I-N-C.

7 interpreter is going to ask her to break it down.

7 BY MS. KEILLER:

8 Because she makes gestures which are not verbal and

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9 they can't go on the record and I can't -- I'm unable

9 you, I mean comments about your race?

Q Did anyone ever make racial comments to

10 to recall the multiple gestures, at least five of them

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11 that were just made.

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12 can't remember -- excuse me -- I can't remember. But

So I'm going to ask the witness, if the

A (In English): I don't remember.
THE WITNESS (through the interpreter): I

13 attorneys are okay with it, to repeat it from the very

13 one time, on one occasion, I heard something about

14 beginning and then I can break it down and do it

14 Hispanics, you know. They would sort of set up

15 accurately.

15 competitions. They would say, like, this table is the

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MS. KEILLER: Thank you.

16 Hispanics. This table are you all. I don't know if

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THE WITNESS (through the interpreter):

17 you consider that racial.

18 There was a central alleyway. He would walk along

18 BY MS. KEILLER:

19 that lane or alleyway and he would be banging away on 19

Q Who set up the competitions?

20 the newspaper or piece of cardboard shouting. And he

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A Taj.

21 would address or shout towards the area where almost

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Q And can you tell me about the competitions?

22 all of the Hispanics were. And that when he would

22 What were they like?

BLOCKBUSTER.transcript.zubiate

Pages 29 - 32

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1 providers?

1 hands. She is really small and thin and she looks

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A No.

2 very -- she looks very subdued. And she would turn --

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Q And what are you seeking from this lawsuit?

3 or submissive.

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MR. PHILLIPS: I'll object to the

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THE INTERPRETER: Interpreter correction.

5 foundation, but she can answer.

5 Not "subdued," submissive.

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THE WITNESS: Just to be a witness.

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MS. KEILLER: I have no further questions

7 would turn red and get very nervous. And yet he would

THE WITNESS (through the interpreter): She

8 for now.

8 continue to be staring at her. He would stare and

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9 stare at her. I would -- he would sit right across

MR. PHILLIPS: Just a couple of questions.

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EXAMINATION

10 from me, but he would not look at me. And I, the way

11 BY MR. PHILLIPS:

11 I saw it is that she felt humiliated as he did this.

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12 At least that's what I observed for the time that I

Q When you were working at the Blockbuster

13 warehouse, were the black employees allowed to take

13 worked there.

14 longer breaks than the Hispanics?

14 BY MR. PHILLIPS:

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A I never timed it per se, but I do know that

Q And would you consider Taj's attitude

16 they were given longer breaks.

16 toward the Hispanics hostile?

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Q Was that fairly frequent?

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A Yes.

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MR. PHILLIPS: No more questions.

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Q You mentioned that Taj would do a lot of

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MS. KEILLER: Just one follow-up question.

A Yes, I would consider it hostile.

20 yelling; is that correct?

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A Yes.

21 BY MS. KEILLER:

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Q Was that a daily occurrence?

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EXAMINATION
Q You said that you knew that the blacks had

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A Yes.

1 longer breaks?

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Q Was that a constant occurrence throughout

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A Yes.

3 the day?

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Q How did you know that?

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A Because we would all have a break and they

A What do you mean constant? Do you mean

5 whether the whole day long he was shouting?

5 would come back after we would. Because they would

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6 exit through the garage door.

Q I'll withdraw the question and rephrase.

7 Was the shouting at the workers frequent during the

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Q Did everyone take breaks at the same time?

8 day?

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A No, but sometimes it would coincide that

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9 the black people and we would have our breaks at the

A They were every day? Are you talking

10 about -- are you asking whether they were every day?

10 same time.

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Q Did it happen often during each day?

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A I believe that when the morning would start

12 every day?

Q Did you take your break at the same time

13 he would shout. And then by noon once again. And

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A No. We would take it at the time that they

14 then in the afternoon I think -- the routine was

14 would tell us to.

15 pretty much like that, three times a day.

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MS. KEILLER: No further questions.

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Q How did Taj treat Milagros Ledesma?

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MR. PHILLIPS: We'll read and sign.

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A Taj would sit right across from me, in

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18 front of me, but he would never look at me. But he

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(Signature having not been waived, the

19 would be watching Milagros who sat next to me. He

19 deposition of LITA ZUBIATE was concluded at 11:07

20 would watch while we did our job, which was to look

20 a.m.)

21 for the broken DVDs and put the stickers on. He would 21
22 watch her for a long time. He would look at her
BLOCKBUSTER.transcript.zubiate

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