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
FOR THE DISTRICT OF MARYLAND

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EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION

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Plaintiff,
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v.
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BLOCKBUSTER, INC.,
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Defendant.

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) Case No. 8:07-CV-02612
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DEPOSITION OF
JENNIFER MARIE FITZGERALD
SEPTEMBER 17, 2008
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On the 17th day of September, 2008, at 9:03 a.m.,

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the oral deposition of the above-named witness was taken

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at the instance of the Plaintiff before Lezley Cull,

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Certified Shorthand Reporter in and for the State of

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Texas, at the offices of Morgan, Lewis & Bockius, LLP,

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1717 Main Street, Suite 3200, in the City of Dallas,

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County of Dallas, State of Texas, pursuant to Notice and

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the agreement hereinafter set forth.

BLOCKBUSTER.transcript.fitzgerald

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MS. SPEIGHTS: Objection.
You can answer.
A. I don't recall.
Q. (BY MR. PHILLIPS) Were you -- were you an HR
consultant during the time period of late 2004 to August
of 2005?
A. Yes.
Q. What were your -- well, strike that.
Did you have a particular geographic area that
was assigned to you?
A. Yes, the corporate office here in Dallas and
the on-line subscription distribution centers. There
were about 15 of them across the U.S.
Q. So all of those distribution centers were
assigned to you?
A. Yes.
Q. Was that true throughout your tenure as an HR
consultant at Blockbuster?
A. I believe we -- as -- as the company added
more distribution -- they pretty much doubled the number
they had from the beginning -- I believe I had some
help. I don't recall the specifics as to how many or
who helped me.
Q. And did your geographic territory then include
the distribution center in Gaithersburg, Maryland?

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A. Yes.
Q. And do you recall when that distribution
center began its operations actually distributing DVDs
and things?
A. I believe it was late in 2004, like
November/December 2004, I think.
Q. And was that distribution center in
Gaithersburg then within your responsibility from the
time that it started operations through the summer of
2005?
A. Yes.
Q. Now, I want -- we talked generally about your
duties and responsibilities as an HR consultant. But I
want to focus now specifically on what your duties and
responsibilities were as they related specifically to
the distribution center in Gaithersburg, Maryland during
this time period of late 2004 through the summer of
2005. Okay?
A. Okay.
Q. Can you tell me as it relates to the
Gaithersburg center, what were your duties and
responsibilities as an HR consultant?
A. I was their kind of point of contact for
anything HR related. So they would call me if they had
questions on, you know, company policy or if they had

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any employee performance issues. Also any time they
would hire a new employee, they would send the new hire
paperwork to me for processing to get them enrolled in
payroll. And that was primarily -- I mean, anything HR
related, they would call me for.
Q. Did you have duties and responsibilities
related to Equal Employment Opportunity compliance at
the Gaithersburg distribution center?
A. Yes.
Q. And what were those?
A. If they had any sort of complaint, EEO-related
complaint, they would -- the manager or the employee -well, I can't remember exactly. The manager usually
would contact me.
Q. Do you recall the name -- and when you say
"manager," do you mean the distribution center manager?
A. Yes.
Q. Do you recall what his name was during the
period of late 2004 to summer of 2005?
A. Lincoln Barrett.
Q. Did Mr. Barrett ever contact you while he was
the distribution center manager in Gaithersburg to
discuss Equal Employment Opportunity matters?
A. No.
Q. Did Mr. Barrett ever inform you of any

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complaints or allegations of sexual harassment at the
Gaithersburg distribution center?
A. He did not.
Q. Did Mr. Barrett ever inform you of any
complaints or allegations of national origin or race
discrimination at the Gaithersburg center?
A. He did not.
Q. Now, it is my understanding that during this
time period of late 2004 to the summer of 2005, there
were both temporary and permanent Blockbuster employees
working at the Gaithersburg center.
Is that your understanding?
A. Yes.
Q. And do you recall who the temporary agency was
who supplied workers for the Gaithersburg distribution
center during this time period?
A. The agency we used was Venturi Staffing.
Q. Where are they located?
A. I don't know where they're headquartered, but
the contact we used was here in Dallas.
Q. And do you know whether Venturi subcontracted
anyone?
A. Yes.
Q. Do you recall who that was?
A. I don't remember the name.

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Pages 21 - 24

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Q. Did you have any communications with the
subcontractor?
A. I don't recall.
Q. If I said the name Express Personnel, does
that ring a bell -A. Yes.
Q. -- as the subcontractor?
So you recall now that Express Personnel was
the subcontractor for Venturi at the Gaithersburg
center?
A. Yes.
Q. Do you recognize the name Cynthia or
Cinnie Brown?
A. Yes.
Q. Did you ever have any communications with
Cinnie or Cynthia Brown?
A. I don't recall.
Q. Do you recognize the name Drew Lenear?
A. No.
Q. If I told you that he was the owner of Express
Personnel, does that refresh your memory as to whether
you ever knew him?
A. No.
Q. Do you recognize the name June Davis?
A. Yes.

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Q. Was she -- did you ever have any direct
communications with June Davis concerning the
Gaithersburg center?
A. Yes.
Q. Do you recall how many times you communicated
with June Davis regarding the Gaithersburg distribution
center?
A. No.
Q. Do you recall the subjects that you
communicated with June Davis about regarding the
Gaithersburg center?
A. No. I remember there were just some employee
performance issues from the temporary workers. I don't
recall specifically what we talked about.
Q. Did you ever communicate with June Davis
concerning Equal Employment Opportunity matters that may
have existed at the Gaithersburg distribution center?
A. Yes. I don't recall the specifics, but I do
know I talked to her about that type of topic.
Q. Did any of those matters involve allegations
of sexual harassment at the Gaithersburg center?
A. I don't recall.
Q. Can you tell me by -- whether -- well, strike
that.
Did you communicate with June Davis by e-mail?

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A. I don't recall.
Q. Did you -- do you recall having conversations
with her verbally?
A. Yes.
Q. Did you take any notes of those conversations?
A. I don't recall.
Q. Do you recall communicating with Ms. Davis by
any other means, not verbal, not e-mail, but, say,
formal letters or a memo or notes, that kind of thing?
A. No.
Q. Did you have any duties or responsibilities
related specifically to the temporary workers at the
Gaithersburg distribution center during this 2004-2005
time frame we're talking about?
A. No.
Q. Are you aware of any other human resources
employee of Blockbuster who had responsibility for the
Gaithersburg distribution center during the 2004-2005
time frame?
A. My vice president in my department, her name
was Ana Rivera. She would have been also over that area
for HR purposes.
Q. And when you say "over that area," would she
have had direct contact with the center on HR matters or
would that have been through you?

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A. It would have been through me.
Q. Do you recognize the name Amado Hernandez?
A. Yes.
Q. Who is Amado Hernandez?
A. I believe he is one of the directors of human
resources who was over the field HR, meaning stores, the
stores division.
Q. So you did not have a reporting relationship
with Mr. Hernandez?
A. No.
Q. You mentioned some communications with
Ms. Davis regarding temporary employee performance
issues.
Do you recall what those issues were?
A. I do not. I don't recall.
Q. With respect to the permanent employees now of
Blockbuster who worked at the Gaithersburg distribution
center, did -- did you provide them with any training
related to Equal Employment Opportunity?
A. They -- yes. They watched a video and they
received a handbook.
Q. Now, did you -- do you recall personally
showing employees at the Gaithersburg distribution
center a video related to EEO?
A. No.

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Q. Can you describe for me the video.
A. The video is something that Blockbuster
produced. We show it at the corporate office, as well,
to all new hires. And it just goes over company
policies that employees need to be aware of, as well as
just company -- just kind of an introduction to the
company. But it does mention Blockbuster's EEO policy.
Q. How long is the video, do you recall?
A. It's about 20 minutes.
Q. And about how -- of that 20 minutes, how much
time is spent on Equal Employment Opportunity, do you
recall?
A. Probably three to four minutes.
Q. Do you recall specifically what is discussed
as far as EEO in that three- to four-minute time frame?
A. I believe it talks about how Blockbuster, you
know, does not discriminate based on any of the Title 7
categories. And it also talks about the zero tolerance
for harassment policy.
Q. Do you recall it discussing anything else?
A. I don't recall specifics.
Q. Do you know whether the video was shown to any
of the permanent employees at the Gaithersburg
distribution center at any time? Do you know whether it
was actually shown?

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A. I don't know. That was part of the policy,
was for the new hires to watch it. But since I wasn't
there in person to do it, I don't know.
Q. Whose responsibility was it to show the video?
A. The facility manager there, the distribution
center manager. That would be Lincoln Barrett.
Q. And you referenced that employees get a copy
of the policy.
A. Yes.
Q. What policy are you referring to?
A. Well, all of Blockbuster's policies that
relate to employees. But the EEO policy is included
there, as well as the zero tolerance for harassment
policy. The employees sign it and they have to send it
back with their new hire paperwork.
Q. Do you know whether the video is shown to -well, strike that.
Do you know whether the video that you
referenced in your testimony was shown to any of the
temporary workers at the Gaithersburg distribution
center?
A. I don't know.
Q. Do you know if Blockbuster has a practice of
showing or not showing the video to temporary workers at
its distribution centers?

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A. I don't think they do.
Q. Do you -- do you know whether Blockbuster
provides copies of its EEO and zero tolerance policies
to temporary workers at its distribution centers?
A. I don't believe they do.
MR. PHILLIPS: Just for the record,
Grace, the EEOC requests production of the video
referenced in Ms. Fitzgerald's testimony.
Q. (BY MR. PHILLIPS) Do you know if Blockbuster
has any -- again, we're referencing the 2004-2005 time
frame -- if Blockbuster had any mechanism for follow-up
to make sure that the video was, in fact, shown at the
distribution centers?
A. I don't recall.
Q. Do you know if anyone at Blockbuster, not just
yourself, but anyone, whether within the HR department
or outside the HR department, provided Equal Employment
Opportunity training to the permanent employees, which
would include managers, at the distribution center in
Gaithersburg during the 2004-2005 time frame?
MS. SPEIGHTS: Objection.
You can answer.
A. Yes. Before the distribution centers opened,
all of the managers came to Dallas for training. And I
believe our in-house counsel, Julie Burnett, provided

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employment law training to the managers.
Q. (BY MR. PHILLIPS) What is your basis for that
belief?
A. I was part of that orientation session with
the managers. So I was on the agenda for speaking on
other HR-related topics, just like how to process new
hires and such. So I know that she was on the agenda to
speak to them.
Q. Were you present during her presentation?
A. I believe I was during part of it.
Q. Do you know how long that presentation ran?
A. I don't recall exactly, but I know it was at
least two hours.
Q. And this was on -- do you know if the
presentation -- from what you could see on the agenda
and from being there for part of it, was the
presentation restricted to Equal Employment Opportunity
or did it cover all employment law related matters -- or
other employment law related matters?
MS. SPEIGHTS: Objection.
You can answer.
A. It covered other employment-related matters,
as well.
Q. (BY MR. PHILLIPS) As well as EEO?
A. As well as EE O, yes.

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about the termination of her assignment?
A. I don't recall.
Q. Do you know why her assignment was ended?
A. No.
Q. No one ever provided you with any information
about that?
A. I don't recall.
Q. Now, you testified earlier -- and actually
just now -- that ultimately, Mr. Barrett and Mr. Johnson
were fired, correct?
A. Yes.
Q. And let's talk about them one at a time.
With respect to Mr. Johnson, do you know why
he was fired by Blockbuster?
A. Through the course of multiple complaints
about his behavior, we were able to establish a pattern
of behavior that was obviously unacceptable. And after
establishing that pattern of behavior, we were able to
decide to terminate him.
Q. You mentioned we.
Who is the "we" you're referring to there?
A. Scott Collen and myself.
Q. So the two of you were both involved in the
decision to terminate Mr. Johnson?
A. Yes.

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Q. And you -- were you both also involved in the
decision to terminate Mr. Barrett?
A. Yes.
Q. You referenced a pattern of behavior that
you -- you used the word "unacceptable."
What pattern of behavior caused you to
determine that Mr. Johnson should be discharged?
A. Behavior that was sexual harassment in nature
towards various individuals and behavior that created an
uncomfortable working environment, such as yelling at
people, losing his temper, not being -- not being very
patient, a combination of all of those behaviors.
Q. Sexual harassment in nature against various
individuals, which individuals?
A. Based on my own recollection, I don't remember
who they were. Based on this documentation, the
individuals named in the documents, meaning
Michelle Despertt, Say Wing, all the people listed right
here on Exhibit 8.
Q. Did you discuss with Mr. Collen what his
reasons were for agreeing that discharge was appropriate
for Mr. Johnson?
A. Yes. I don't remember specifics, though.
Q. Do you recall anything he said about what his
reasons were for approving discharge for Mr. Johnson?

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A. No, I don't recall.
Q. Did you express to him your belief that part
of the reason for discharge for Mr. Johnson was sexual
harassment? Did you communicate that to Mr. Collen?
A. I don't recall.
Q. Regarding yelling, do you recall who -- who
you concluded Mr. Johnson was yelling at?
A. No, I don't recall.
Q. Do you know if there was any inquiry by anyone
into whether or not that yelling was being done in a
discriminatory way or a selective way, only certain
persons being yelled at?
A. No, I don't recall.
Q. Did you have a concern upon discharge of
Mr. Johnson that there might be a safety issue regarding
him and the Gaithersburg center?
A. I don't recall that on my own. After
reviewing the documents, I remember seeing that I had a
concern about that. I think that was due to Taj's
volatile, you know, temper and yelling. I probably was
concerned that after he was terminated, that he might
come back to the facility.
Q. Do you know whether Mr. Johnson had made any
threats to anyone?
A. I don't recall, no.

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Q. Do you know whether Mr. Barrett had made any
threats to anyone?
A. I don't recall.
Q. After Mr. Johnson was terminated, did you -do you know of him having any communications with anyone
at Blockbuster?
A. I don't recall that, no.
Q. Did you ever receive any information about
whether Mr. Johnson was rehired by Blockbuster at some
point?
A. No. I don't recall.
Q. Did you -- in formulating your conclusion that
Mr. Johnson should be discharged, did you consult with
anyone other than Mr. Collen?
A. I don't recall.
Q. What were your reasons for concluding that
Mr. Barrett should be discharged from his employment at
Blockbuster?
A. He was not meeting the standards of -- of an
effective manager of the facility. Even after the
corrective actions and after his action plan, he kept -I guess he kept reverting back to being an ineffective
manager both from the managing employees standpoint and
managing the actual production of the facility.
Q. With respect to the standards for a manager

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