Bird v. West Valley City et al
Filing
175
MEMORANDUM DECISION AND ORDER denying 169 Motion for New Trial. Signed by Magistrate Judge Evelyn J. Furse on 3/28/2019. (las)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
KAREN BIRD, an individual,
MEMORANDUM DECISION AND
ORDER DENYING PLAINTIFF’S
MOTION FOR NEW TRIAL (ECF
NO. 169)
Plaintiff,
v.
WEST VALLEY CITY, a political subdivision of
Civil No. 2:12-cv-00903
the State of Utah, and KELLY DAVIS, in his
official and individual capacities,
Magistrate Judge Evelyn J. Furse
Defendants.
Before the Court1 is Plaintiff Karen Bird’s Motion for New Trial (ECF No. 169)
brought pursuant to Federal Rule of Civil Procedure 59. Ms. Bird seeks a new trial “due
to the misconduct” of counsel for Defendants West Valley City and Kelly Davis
(collectively, “West Valley Defendants”) that she claims “unfairly prejudiced [Ms.] Bird’s
presentation of her case.” (Pl.’s Mot. for New Trial (“Mot.”) 1, ECF No. 169.)
Specifically, Ms. Bird claims that West Valley’s counsel improperly (1) questioned Layne
Morris, Director of West Valley City’s Community Preservation Department, regarding
his military experience in an effort to “arouse sympathy” for Mr. Morris, (2) stopped the
redirect/cross-examination2 of Mr. Morris “by falsely claiming he would otherwise not
1
The parties consented to proceed before a magistrate judge in accordance with 28
U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. (ECF No. 11.)
2 Ms. Bird refers to the examination as a redirect, but given that both sides called many
of the same witnesses, including Mr. Morris, the examination at issue constituted both a
redirect and cross-examination.
1
have time to put on Defendants’ case,” (3) relied on Mr. Morris’s military experience
during his closing argument to suggest that Mr. Morris would not lie, and in so doing,
vouched for his credibility, and (4) suggested during his closing argument that Mr.
Morris was the subject of a new movie and portrayed by a famous actor. (Id. at 2–3.)
Ms. Bird asserts that “[t]his conduct as a whole was sufficiently egregious that it had the
ability to influence the outcome of the case, and likely did, as the jury finding of no
liability was against the weight of the evidence.”3 (Id. at 1–2.)
The West Valley Defendants counter that courts highly disfavor motions for a
new trial and only grant them “in the face of very serious and prejudicial misconduct.”
(Opp’n to Pl.’s Mot. for a New Trial (“Opp’n”) i–ii, ECF No. 172.) As to the specific
instances of alleged misconduct, the West Valley Defendants assert (1) that Mr.
Morris’s military experience “was admissible background information that bears on his
reliability and credibility,” and in any event, “provided only a small part of his trial
testimony,” (2) that counsel did not mislead the Court in arguing that the West Valley
Defendants may not have time to put on their case because they only made the
strategic decision not to call additional witnesses after Mr. Morris concluded his
testimony, (3) that during closing argument, counsel confined his argument to the record
and did not vouch for Mr. Morris’s credibility, and (4) that counsel did not say during
closing argument that Mr. Morris was the subject of a movie or portrayed by a famous
actor but instead referred to the movie to make an analogy. (Id. at ii–iii.) The West
3
Ms. Bird does not move for judgment as a matter of law under Federal Rule of Civil
Procedure 50. (Id.; Reply in Supp. of Pl.’s Mot. for New Trial (“Reply”) 3, ECF No. 173.)
2
Valley Defendants also claim that the alleged misconduct reflects “a minor part of the
case” in any event and does warrant a new trial. (Id. at iii.)
The Court finds the alleged conduct does not warrant a new trial. Ms. Bird’s
complaints relating to the redirect/cross-examination of Mr. Morris and the introduction
of testimony concerning his military service lack any basis and do not amount to
misconduct by West Valley Defendants’ counsel. However, some of the remarks of
West Valley Defendants’ counsel during closing argument qualify as improper.
Nonetheless, that conduct does not support the extreme remedy of a new trial. The
remarks lasted only a few minutes, the Court instructed the jury on multiple occasions
that attorney arguments are not evidence, and nothing indicates that these arguments
clearly influenced the verdict or obviously prejudiced Ms. Bird. Accordingly, as
addressed in detail below, the Court DENIES Plaintiff’s Motion for New Trial.
BACKGROUND
In September 2012, Ms. Bird filed this employment discrimination case against
her former employer, West Valley City, and Kelly Davis, her former supervisor. (Compl.,
ECF No. 2.) Ms. Bird alleges that on November 29, 2011, West Valley City unlawfully
terminated her from her position as the manager of the West Valley City Animal Shelter
(“Animal Shelter”). (See id.) In February 2015, the Court granted the West Valley
Defendants summary judgment on Ms. Bird’s Title VII claims, § 1983 equal protection
claim, contract claims, and § 1983 First Amendment retaliation claim. (Mem. Dec. &
Order, ECF No. 44.) Ms. Bird appealed that decision, and the Tenth Circuit affirmed as
to all the claims except her § 1983 First Amendment retaliation claim. Bird v. West
3
Valley City, 832 F.3d 1188, 1213 (10th Cir. 2016). As to that claim, the Tenth Circuit
reversed the grant of summary judgment based on an intervening Supreme Court case
and remanded for further proceedings consistent with its opinion. Id. at 1211–13.
In September 2017, the Court denied West Valley Defendants’ motion for
summary judgment on Ms. Bird’s § 1983 First Amendment retaliation claim. (Mem.
Decision & Order Denying Defs.’ Mot. for Summ. J., ECF No. 76.) The case then
proceeded to trial from March 12 to March 16, 2018. (ECF Nos. 150, 151, 152, 154, &
161.) The preliminary instructions given to the jury described the case as follows:
To help you understand what you will see and hear, I will now explain the
background of the case. Karen Bird worked as manager of the West Valley
City Animal Shelter until her termination in November 2011. She worked
directly for Defendant Kelly Davis, the shelter’s Director of Operations, who
worked for Layne Morris, the Director of West Valley City’s Community
Preservation Department. On November 29, 2011, Mr. Morris terminated
Ms. Bird. Ms. Bird brought this lawsuit against West Valley City and Mr.
Davis, alleging that her termination was motivated by their belief that she
was the source of leaks to the media about the animal shelter, in violation
of her First Amendment right to free speech. West Valley City and Mr. Davis
claim that Ms. Bird was terminated for legitimate reasons, specifically, for
being insubordinate, discourteous, and uncooperative.
(Preliminary Instructions, Instruction No. 1, ECF No. 143.) On October 17, 2011,
several news outlets published articles about a cat named Andrea who twice survived
West Valley City’s attempts to euthanize her in the Animal Shelter’s carbon monoxide
chamber. (Mem. Decision & Order Denying Defs.’ Mot. for Summ. J. 4, ECF No. 76.)
Later that month, on October 26, 2011, a reporter contacted West Valley City about an
anonymous tip he received that Mr. Davis was ordering a mass execution at the Animal
Shelter. (Id.) The final instructions to the jury provided:
4
Ms. Bird claims the City and Mr. Davis deprived Ms. Bird of her rights under
the First Amendment of the U.S. Constitution by terminating her because
they believed she leaked information to the press regarding: (1) Andrea the
cat, and/or (2) a mass execution at the animal shelter allegedly ordered by
Mr. Davis, collectively referred to in these instructions as “the speech at
issue.” Section 1983 provides that Ms. Bird may recover an award of money
damages against the City or Mr. Davis if either violated her First
Amendment rights under the U.S. Constitution.
The City and Mr. Davis deny violating Ms. Bird’s First Amendment rights in
any way, and allege that they terminated Ms. Bird for legitimate reasons,
specifically, for being insubordinate, discourteous, and uncooperative.
You will be asked to return a verdict on Ms. Bird’s First Amendment claim
with respect to both the City and Mr. Davis.
(Jury Instructions, Instruction No. 10, ECF No. 160.)
The jury returned a verdict in favor of the West Valley Defendants. (Special
Verdict Form, ECF No. 166.) The jury found that Ms. Bird proved by a preponderance
of the evidence that West Valley City’s belief that she leaked information to the press
regarding Andrea the cat was a substantial or motivating factor in the decision to
terminate her employment. (Id., ¶¶ 2, 3.) However, the jury also found that West Valley
City proved by a preponderance of the evidence that it would have terminated Ms. Bird's
employment in the absence of any belief that she leaked information to the press
regarding Andrea the cat, (id., ¶ 4), resulting in a verdict in the West Valley Defendants’
favor.
LEGAL STANDARD
Pursuant to Federal Rule of Civil Procedure 59, a district court may, on the
motion of a party, grant a new trial on all or some of the issues “after a jury trial, for any
reason for which a new trial has heretofore been granted in an action at law in federal
5
court.” Fed R. Civ. P. 59(a)(1)(A). District courts have “broad discretion” in ruling on
motions for a new trial. McHargue v. Stokes Div. of Pennwalt Corp., 912 F.2d 394, 396
(10th Cir. 1990); Shugart v. Cent. Rural Elec. Co-op., 110 F.3d 1501, 1506 (10th Cir.
1997) (“A motion for new trial is addressed to the sound discretion of the trial court . . .”
(quoting Canady v. J.B. Hunt Transp., Inc., 970 F.2d 710, 716 (10th Cir.1992))).
A district court is given “‘wide latitude with respect to [a] motion for a new trial
because [the trial judge] [is] uniquely able to assess the likelihood that the [evidence]
was prejudicial.’” Henning v. Union Pac. R. Co., 530 F.3d 1206, 1217 (10th Cir. 2008)
(1st, 3d, & 4th alterations in original) (quoting Mayhue v. St. Francis Hosp. of Wichita,
Inc., 969 F.2d 919, 922 (10th Cir. 1992). Likewise, with respect to alleged improper
conduct or argument by an attorney, “[t]he decision on whether counsel's misconduct at
trial was so egregious as to require retrial is left largely to the discretion of the district
court.” Abuan v. Level 3 Commc'ns, Inc., 353 F.3d 1158, 1175 (10th Cir. 2003); see
also Whittenburg v. Werner Enterprises Inc., 561 F.3d 1122, 1127 (10th Cir. 2009)
(stating that “‘[t]he trial judge is in the best position to determine’ the prejudicial effect of
improper arguments, and thus whether a new trial is warranted” (quoting Ketchum v.
Nall, 425 F.2d 242, 244 (10th Cir. 1970))).
“ ‘A motion for a new trial is not regarded with favor and should only be granted
with great caution.’ ” Franklin v. Thompson, 981 F.2d 1168, 1171 (10th Cir. 1992)
(quoting United States v. Thornbrugh, 962 F.2d 1438, 1443 (10th Cir. 1992)); see also
Moody v. Ford Motor Co., 506 F. Supp. 2d 823, 847 (N.D. Okla. 2007) (stating that
granting a new trial and setting aside a jury’s verdict “is rarely appropriate”). “Requiring
6
a new trial is . . . a serious and costly remedy for all involved.” Whittenburg, 561 F.3d at
1128.
DISCUSSION
Ms. Bird asserts that West Valley Defendants’ counsel engaged in various
instances of misconduct. The Court addresses each of her arguments below.
A. Ms. Bird’s Argument that the West Valley Defendants’ Counsel Cut Off the
Redirect/Cross-Examination of Mr. Morris Without Legitimate Basis and for
an Improper Purpose Lacks Merit
Ms. Bird argues that the West Valley Defendants’ counsel improperly cut off her
counsel’s redirect examination of Mr. Morris “without legitimate basis.” (Mot. 5, ECF No.
169.) She argues that “from early on in the trial” the West Valley Defendants’ counsel
“complained about how long [Ms.] Bird was taking to present her case,” “demanded that
the court put [Ms. Bird’s] case on a timer, which ran out during [the] redirect of [Mr.]
Morris,” and “insisted that the court stop . . . further questioning of [Mr.] Morris, claiming
[the West Valley] Defendants needed time to put on their case.” (Id.) She claims that
the West Valley Defendants’ counsel improperly stopped further questioning of Mr.
Morris because they “had no more case to put on” and rested after Mr. Morris’s redirect.
(Id.) Ms. Bird complains that this conduct violated the Utah and Model Rules of
Professional Conduct requiring candor toward the tribunal and fairness to the opposing
party and counsel and that “[t]his tactic was prejudicial” because it stopped counsel from
impeaching Mr. Morris. (Id. at 5–6.) Ms. Bird claims “[t]his was undoubtedly [West
Valley] Defendants’ intention, as [they] would certainly have known at that point that
they did not intend to put on any more witnesses.” (Id. at 6.) Ms. Bird cites no case law
7
in either her opening or her reply brief to support this claim of error. (Mot. 5-6, ECF No.
169; Reply 5-6, ECF No. 173.)
The West Valley Defendants respond that Ms. Bird’s “telling of the subject events
is misleading.” (Opp’n 5, ECF No. 172.) They argue that Ms. Bird had ample time to
put on her case and that by its calculations, Ms. Bird’s counsel had over eleven hours
with witnesses compared to under seven hours for the West Valley Defendants. (Id.)
They further point out that the Court repeatedly addressed with the parties the amount
of time Ms. Bird was taking to put on her case and that Ms. Bird’s counsel went over the
additional time the Court allowed for her redirect/cross-examination of Mr. Morris. (Id.)
The West Valley Defendants further argue that Ms. Bird’s assertions that they “misled
the Court about the time that they needed to put on their case are unwarranted and
without merit.” (Id. at 6.) The West Valley Defendants point out that they intended to
call additional witnesses after Mr. Morris but that after Ms. Bird rested they “evaluated
where things stood” and made a “strategic decision” not to call any additional witnesses.
(Id.) As addressed below, the Court finds the West Valley Defendants’ counsel’s
conduct with respect to Mr. Morris’s redirect/cross-examination and timing issues
generally during trial do not provide a basis for a new trial.
First, the Court finds Ms. Bird’s argument, made through her counsel, improper.
The Utah Standards of Professionalism and Civility state that “[l]awyers shall not,
without an adequate factual basis, attribute to other counsel . . . improper motives,
purpose, or conduct.” Utah R. Jud. Admin. 14-301(3). Ms. Bird and her counsel do not
provide any factual basis for the assertions that West Valley Defendants’ counsel knew
8
they did not intend to call any additional witness after Mr. Morris’s redirect/crossexamination and cut off Mr. Morris’s redirect/cross-examination to prevent Ms. Bird’s
counsel from impeaching Mr. Morris. Ms. Bird’s counsel’s arguments make objective
statements of fact without factual basis and are thus improper since they attribute
improper motivations and conduct to West Valley Defendants’ counsel without any
factual support.
Second, Ms. Bird distorts the events that occurred with respect to time limits
imposed in this case. From the outset of this case, both sides maintained that they
needed four days for trial. (Stip. Attorneys’ Planning Meeting Report 5, ECF No. 15.)
The Court relied on these representations in scheduling the trial. (Scheduling Order 4,
ECF No. 18 (setting four-day trial); Scheduling Order from Hr’g 2, ECF No. 58(setting
four-day trial); Scheduling Order, ECF No. 72 (setting four-day trial); Am. Scheduling
Order, ECF No. 77 (setting four-day trial).) The Court’s Trial Order indicated that trial
would run from 8:30 a.m. to 2:30 p.m. each day, from March 12 to March 15, 2018.
(Am. Trial Order 1, 5, ECF No. 82.) At the final pretrial conference, Ms. Bird’s counsel
raised for the first time extending either the length of each trial day beyond 2:30 p.m. or
extending trial into Friday, March 16. At that time, the Court kept the trial set at four
days but left open the possibility to extend the trial days past 2:30 p.m. The Court
indicated that it would later assess the need to extend the hours for trial but instructed
the parties to make every effort narrow their cases, to exchange realistic estimates of
time for each witness, and to contact the Court if they needed additional time.
9
Prior to trial commencing, the parties contacted the Court via e-mail and
indicated that after conferring, they agreed to extend trial days to 4:00 p.m. (3/6/18
Preston E-mail, attached as Appendix (“App.”) 1.) Despite this extension of trial days,
on the second day of trial, West Valley Defendants’ counsel expressed concerns about
the amount of time Ms. Bird’s counsel was taking and the time that would remain to
present their case. (3/13/18 Trial Tr. 22:5–22:15, attached as App. 3.4) The Court
instructed the parties to make every effort to tighten up their examinations so that they
could complete as much of the trial as possible the next day. (Id. at 21:12–25:15.)
Halfway through the third day of trial, the Court indicated its concern with timing
and West Valley Defendants’ ability to present their case. Ultimately, the Court divided
the remaining eight hours of trial time between the parties, allocating three of the
remaining hours to Ms. Bird’s counsel and the other five to the West Valley Defendants.
(3/14/18 Trial Tr. 3:8–6:22, attached as App. 4). By the end of the third day of trial, Ms.
Bird’s counsel had only thirty-eight minutes left to present the remainder of her case.
(Id. at 62:6–17.) The next morning Ms. Bird’s counsel asked for an additional half hour
and for the Court to extend the trial into Friday. (3/15/18 Trial Tr. 3:6–11:8, attached as
App. 5.) She indicated that the Court could inform the jury that it was “[her] fault” that
trial would continue an extra day. (Id.) The Court ultimately extended trial into Friday
and allowed Ms. Bird an additional half hour, on top of the remaining thirty-eight
4
Neither of the parties requested a complete version of the trial transcript in this matter
so the court reporter has not prepared or finalized a complete transcript. The Court
requested that the court reporter prepare additional, relevant portions of the transcript
for purposes of this Order and attaches those portions of the transcript to this Order as
Appendices.
10
minutes, to complete her case. (Id.) Again, Ms. Bird’s counsel used up all her time,
leaving no additional time for her redirect/cross-examination of Layne Morris. (Id. at
59:17–61:1.) Nevertheless, the Court gave Ms. Bird’s counsel an additional half hour
for the cross examination. (Id.) This extension occurred following a discussion at the
bench. (Id.) During this discussion, West Valley Defendants’ counsel indicated he had
three witnesses to call. (Id. at 60:25-61:4.) Once Ms. Bird’s counsel again went over
the time limit, West Valley Defendants’ counsel objected. (Id. at 62:6–63:11.)
Nonetheless, the Court allowed Ms. Bird’s attorney to ask an additional question. (Id.)
Following Ms. Bird’s counsel’s questioning, West Valley Defendants’ counsel conducted
a short redirect examination. (Id. at 63:20-64:21.)
After Ms. Bird rested, West Valley Defendants’ counsel then made a motion for
judgment as a matter of law, which he argued briefly. (3/15/18 Trial Tr. 64:24–69:15,
App. 5.) After a minimal recess, West Valley Defendants’ counsel returned and
informed the Court that after discussing things with his clients they decided to rest their
case and not call any additional witnesses:
Your Honor, I had not anticipated this at all but we feel very good how this
ended. I've talked to my client at length and I don't think -- I think to take
another couple of hours to put these last three witnesses on will be, if
anything, cumulative. So we're willing -- we are going to rest when the jury
comes in without calling any more witnesses.
(Id. at 70:1–10.)
“A trial court necessarily possesses considerable discretion in determining the
conduct of a trial, including the orderly presentation of evidence.” Thweatt v. Ontko, 814
F.2d 1466, 1470 (10th Cir. 1987). As outlined above, West Valley Defendants’ counsel
11
did not cut off the redirect/cross-examination of Mr. Morris, as Ms. Bird claims. Ms.
Bird’s counsel exceeded the time that the Court provided for the examination, which the
Court already extended multiple times. Further, West Valley Defendants’ counsel was
well within his rights to point out that Ms. Bird’s counsel was consuming the majority of
trial time presenting her client’s case and that she repeatedly exceeded the time limits
imposed by the Court to present her case at trial. Ms. Bird’s counsel showed a
complete disregard for the time she took to present her case forcing the Court to impose
time limits that she then exceeded. To the extent Ms. Bird’s counsel felt she did not
have adequate time to impeach Mr. Morris, this problem arose from her own strategic
choices about how to use her trial time.
Certainly one could question whether an attorney had not anticipated the
possibility of not putting on a defense one hour prior to making that decision when fairly
predictable testimony by that attorney’s own witness came out over that time. However,
the Court has no reason to doubt the representation of West Valley Defendants’ counsel
that he did not make his decision not to call any additional witnesses until after Mr.
Morris’s testimony finished, and he consulted with his client. See Selsor v. Kaiser, 81
F.3d 1492, 1501 (10th Cir. 1996) (indicating that the court is entitled to rely on
representations to the court by the attorneys, because they are officers of the court).
After a break, West Valley Defendants’ counsel represented that he discussed the
matter with his clients, they were happy with how things went with Mr. Morris’s
testimony and therefore decided not to call any additional witnesses. The decision of a
defendant to rest immediately following the plaintiff’s resting is a big decision that a
12
party would not likely, and does not have to make, until right before the court asks it to
proceed with its case. In the civil realm, counsel, in consultation with their clients, rarely
forgo to opportunity to put on evidence in their case in chief. Ms. Bird argues that West
Valley Defendants’ counsel knew he did not intend to call additional witnesses before
that time but offers no support for that accusation.
In sum, the moving party bears the burden to show that a reason for a new trial
exists based on prior federal law. Fed. R. Civ. P. 59. Ms. Bird fails to meet that burden
given the complete lack of citation to any case law on the point. The Court further finds
that West Valley Defendants’ counsel did not engage in any misconduct relating to the
redirect/cross-examination of Mr. Morris or, more generally, with respect to the
arguments he made during trial concerning Ms. Bird’s disproportionate use of trial time
and concerns about his ability to present his clients’ case. Given the lack of
misconduct, Ms. Bird’s argument fails to support the need for a new trial.
B. The Court Properly Admitted Mr. Morris’s Testimony Concerning His
Military Experience as Background Evidence
Ms. Bird argues that West Valley Defendants’ counsel improperly introduced Mr.
Morris’ military experience and consequent recognition for that service during his
examination of Mr. Morris. (Mot. 4, ECF No. 169.) She claims that evidence
concerning his military experience bore no relevance and that counsel introduced it “to
paint [Mr.] Morris as a patriot and a war hero, for the purpose of influencing the jury to
side with him.” (Id. at 5.) The West Valley Defendants counter that they properly
introduced background information such as military experience at trial because it bears
on the credibility and reliability of the witness. (Opp’n at 4, ECF No. 172.) They further
13
argue that the Court already overruled Ms. Bird’s objection to the introduction of this
evidence during trial and that an appeals court will not disturb such decisions absent a
clear abuse of discretion. (Id.) Finally, the West Valley Defendants argue that
testimony concerning Mr. Morris’s military background occupied only a small portion of
his examination, which lasted over two hours, and that the introduction of such
testimony at worst constitutes harmless error and certainly does not justify ordering a
new trial. (Id. at 4–5.) The Court agrees with the West Valley Defendants.
District courts enjoy “broad discretion in ruling on the relevancy of evidence.”
United States v. Alexander, 849 F.2d 1293, 1301 (10th Cir. 1988); see also United
States v. Blackwell, 853 F.2d 86, 88 (2d Cir. 1988) (stating that “the trial court is entitled
to wide discretion concerning the admissibility of background evidence”). The Advisory
Committee Notes to Federal Rule of Evidence 401 state that “[e]vidence which is
essentially background in nature can scarcely be said to involve disputed matter, yet it
is universally offered and admitted as an aid to understanding.” Fed. R. Evid. 401,
Advisory Committee Note; see also Roger Park & Tom Lininger, The New Wigmore, §
9.1(3) (“[T]he proponent of a witness is allowed to put the witness at ease and to let the
jury ‘get to know’ the witness by bringing out facts such as residence, employment, and
military service.”) Further, various courts have found background evidence, including
military service, relevant to assessing the credibility of witnesses. See Blackwell, 853
F.2d at 88 (indicating that courts should admit background evidence to assist the jury “in
gauging the credibility of a witness”); Gov’t of Virgin Is. v. Grant, 775 F.2d 508, 513 (3d
Cir. 1985) (stating that background evidence “bear[s] on the credibility of the witness by
14
showing the witness to be a stable person”); Wells v. Davis, No. 05-CV-0811-DRH,
2009 WL 3352642, at *2 (S.D. Ill. Oct. 16, 2009) (unpublished) (finding evidence
concerning a party’s military service relevant and admissible as “[t]he credibility and the
reliability of all the witnesses are crucial, relevant and reasonable”); United States v.
Deel, No. 1:09CR00022, 2010 WL 519836, at *1 (W.D. Va. Feb. 11, 2010)
(unpublished) (finding background evidence, including military service, admissible “for
the jury's benefit to judge [a defendant’s] credibility”).
Mr. Morris’s testimony concerning his military experience was relevant and
admissible as background evidence. Such evidence helped the jury to get to know the
witness and assess his credibility. Notably, Ms. Bird does not cite any cases to the
contrary, simply arguing without support that evidence concerning Mr. Morris’s military
experience is irrelevant, and West Valley Defendants’ counsel should not have
introduced it. Accordingly, the Court finds West Valley Defendants’ counsel did not
improperly introduce evidence concerning Mr. Morris’s military background. Again Ms.
Bird fails to meet her burden in showing the need for the drastic remedy of a new trial.
C. While Portions of West Valley Defendants’ Closing Argument Were
Improper, Any Errors Do Not Warrant the Extreme Remedy of a New Trial
Ms. Bird asserts that West Valley Defendants’ counsel engaged in improper
conduct during his closing argument. She claims that counsel improperly implied that a
movie, 12 Strong, had Mr. Morris, portrayed by Chris Hemsworth, as its subject. (Mot.
at 10–11, ECF No. 169.) Ms. Bird also argues that counsel vouched for Mr. Morris’s
credibility and improperly based his argument that Mr. Morris would not lie on his
military service. (Id. at 6–10.) She further asserts the outcome of the case is a “close
15
case” and that “[i]mproper vouching and reliance on improper evidence has the most
potential to be damaging in close cases that turn on credibility of witnesses,” which
weighs in favor of granting a new trial. (Id. at 4, 9.)
“In the Tenth Circuit, vacating a jury award and ordering a new trial on the basis
of an inappropriate closing argument is an extreme remedy only to be granted in
unusual cases.” Spahr v. Ferber Resorts, LLC, 686 F. Supp. 2d 1214, 1223 (D. Utah
2010), aff'd, 419 F. App'x 796 (10th Cir. 2011) (unpublished); see also Ramsey v.
Culpepper, 738 F.2d 1092, 1100 (10th Cir. 1984) (stating that even with an improper
closing argument, “ ‘judgment should not be disturbed unless it clearly appears that the
remarks in question unduly aroused the sympathy of the jury and thereby influenced the
verdict.’ ” (quoting Julander v. Ford Motor Co., 488 F.2d 839, 842 (10th Cir. 1973))). In
Whittenburg, the Tenth Circuit identified a number of factors that district courts should
consider in determining whether improper closing arguments warrant a new trial: (1) the
extensiveness of the improper remarks, (2) whether the Court gave curative instructions
after the remarks, and (3) the size of the verdict. 561 F.3d at 1131–33. The court also
emphasized that
closing argument need not, nor should, be a sterile exercise devoid of
passion. Parties are entitled to have someone speak with eloquence and
compassion for their cause. [] Arguments may be forceful, colorful, or
dramatic, without constituting reversible error. [] Counsel may resort to
poetry, cite history, fiction, personal experiences, anecdotes, biblical
stories, or tell jokes. []
Id. at 1133 (internal citations and quotations omitted).
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1. 12 Strong
Ms. Bird argues that during closing argument West Valley Defendants’ counsel
“suggest[ed] that [Mr.] Morris was the subject of a new movie out, 12 Strong, and his
character was being played by Chris Hemsworth.” (Mot. at 10, ECF No. 169.) She
claims that “counsel put the jurors in the position of having to find against [Ms.] Bird, or
against a war hero who was the subject of a new movie played by Chris Hemsworth.”
(Id.) The West Valley Defendants counter that counsel stated the movie is about “one
group” of first responders, not Mr. Morris’s group; so he “never suggested that Mr.
Morris was the subject of 12 Strong or that he was played by Chris Hemsworth.” (Opp’n
at 10, ECF No. 172.) They further assert that the closing argument falls within the
permissible parameters of a closing argument, as outlined in the Tenth Circuit’s decision
in Whittenburg. (Id.)
During the portion of the closing argument at issue, West Valley Defendants’
counsel stated:
There is a movie out called 12 Strong. It's about one group of the first
special forces responders that was sent to Afghanistan right after 9-11. . . .
Layne Morris was one of the first responders in the Green Berets to go out
there as a special forces man to go to Afghanistan. Now, he is not as tall,
doesn’t have as much hair, and he is not as handsome as Chris Hemsworth
who stars in that movie, but Layne Morris is the real deal.
(3/16/18 Partial Tr. 28:2–14, ECF 169-2.) At trial, the Court interpreted counsel’s
argument as drawing a comparison between Mr. Morris’s first responder group and the
first responder group in the movie. Counsel did not directly state that Mr. Morris’s group
was the subject of the movie or that Chris Hemsworth portrayed Mr. Morris.
Accordingly, the Court finds Ms. Bird’s argument that counsel improperly suggested that
17
Mr. Morris was the subject of 12 Strong and portrayed by Chris Hemsworth
unpersuasive. Further, counsel may properly reference a movie in closing argument.
As the Tenth Circuit set forth in Whittenburg, closing “arguments may be forceful,
colorful, or dramatic . . . [and] [c]ounsel may resort to poetry, cite history, fiction,
personal experiences, anecdotes, biblical stories, or tell jokes.” 561 F.3d at 1133
(internal quotations omitted).
This portion of the closing argument formed part of counsel’s argument
concerning Mr. Morris’s credibility, which Ms. Bird attacks on other grounds. The Court
recognizes that the jury does not have the benefit of the transcript and may not have
parsed the argument the same way. Therefore, below, the Court will assume the
impropriety of this portion of the closing argument.
2. Vouching/Bolstering
Ms. Bird also argues that during closing, West Valley Defendants’ counsel
“vouch[ed] for [Mr.] Morris’s credibility and integrity, based on his irrelevant military
experience.” (Mot. 6, ECF No. 169.) Ms. Bird states that counsel also “teared up while
arguing about how patriotic [Mr.] Morris is.” (Id. at 7.) The relevant portion of the
closing argument that Ms. Bird argues is improper states as follows:
Layne Morris is not a man who would lie. Look at his character. He has
been a public servant. He has served this country and the citizens of West
Valley City his entire life. You don't become a First Class Sergeant in the
Green Beret unless you are a leader and a man of integrity. . . .
Did you see how emotional he got when I asked him about his oath to
defend the Constitution? He knows by firsthand what it is to live and fight
against a country, a leadership, a government, that doesn't have these
constitutional rights. The Taliban. And he put his life on the line doing that.
18
But now you're asked to find that he would violate Karen Bird's
Constitutional rights and he would lie in a United States Courtroom about it.
(3/16/18 Partial Tr. 27:22–28:2, 28:14–21, ECF No. 169-2.) The piece of the argument
about 12 Strong falls right between these two paragraphs. (Id. at 28:2-14.)
Ms. Bird claims that Mr. Morris’s military experience “has nothing to do with [Mr.]
Morris’ decision-making in his role at West Valley City, but was invoked (complete with
counsel’s tears) to play on the jury’s sympathies.” (Mot. 7, ECF No. 169.) Ms. Bird
points out that she objected to these remarks, and the Court overruled that objection,
but “the fact that the court allowed it signaled to the jurors that they were allowed to
consider the evidence/argument.” (Id. at 9.) Finally, she argues that the jury’s decision
in the West Valley Defendants’ favor “suggest[ed] that the improper evidence and
argument prejudiced [Ms.] Bird in her presentation of her case,” since “no credible
evidence” existed “that [Ms.] Bird was going to be fired absent the public relations
problems [Mr.] Davis and [Mr.] Morris believed she created.” (Id. at 9–10.)
The West Valley Defendants dispute that counsel “vouched for the credibility of
Mr. Morris.” (Opp’n 7, ECF No. 172.) They state that counsel “never expressed a
personal belief in Mr. Morris’ credibility and confined his argument to the evidence
already presented to the jury regarding Mr. Morris’[s]” military service. (Id. at 8.)
Specifically, the West Valley Defendants argue that counsel never used the word “I”
when referring to Mr. Morris, so he did not vouch for Mr. Morris’s credibility. (Id.) West
Valley Defendants further state that counsel
appropriately used evidence of Mr. Morris’ military record and his oath to
defend the Constitution to bolster his already credible testimony that he fired
19
[Ms. Bird] for legitimate reasons and not in violation of her First Amendment
rights.
(Id. at 10.)
In reply, Ms. Bird claims that counsel did not confine his closing argument to
evidence in the record. (Reply 8, ECF No. 173.) She claims that no testimony exists in
the record that Mr. Morris is a “First Class Sergeant” as counsel stated in his closing
remarks and that Mr. Morris’s testimony does not make clear that he is a “Sergeant first
class.” (Id.) Ms. Bird argues that even if counsel transposed the words to “First Class
Sergeant,” this transposition is “misleading, as it suggests some superior-ranking or
award-winning sergeant.” (Id.)
First, Mr. Morris testified during trial that he “retired as sergeant first class.”
(3/15/18 Trial Tr. 14:2–4, App. 5.) West Valley Defendants’ counsel transposed the
words when he said “First Class Sergeant” during his closing argument. “Closing
arguments of counsel[] are seldom carefully constructed in toto before the event[] [and]
improvisation frequently results in syntax left imperfect and meaning less than crystal
clear . . .[,] [so] a court should not lightly infer that [an attorney] intends an ambiguous
remark to have its most damaging meaning.” Donnelly v. DeChristoforo, 416 U.S. 637,
646–47 (1974). The Court will not hold a minor change such as this against counsel
given Mr. Morris testified as to his military rank during trial.
As to the substantive argument Ms. Bird advances, the Court notes that the
parties use vouching and bolstering interchangeably. However, the Tenth Circuit treats
them as distinct concepts. See United States v. Bowie, 892 F.2d 1494, 1499 n.1 (10th
Cir. 1990) (stating that while “[a] number of courts appear to regard credibility-bolstering
20
as no different from credibility-vouching, and merge the two concepts. . . . We consider
these to be different issues.” (citations omitted)). Vouching occurs where an attorney
“personally vouched for the credibility of its witness”, and bolstering occurs where an
attorney “improperly bolstered the witness’s credibility prior to any challenge to the
witness’s credibility, contrary to Rule 608.” United States v. Lord, 907 F.2d 1028, 1030
n.2 (10th Cir. 1990).
The Court finds that certain of counsel’s remarks during closing constitute
vouching. The Tenth Circuit has held that
impermissible vouching occurs only when “the jury could reasonably believe
that [an attorney] is indicating a personal belief in the witness’s credibility,
either through explicit personal assurances of the witness's veracity or by
implicitly indicating that information not presented to the jury supports the
witness’s testimony.”
United States v. Orr, 692 F.3d 1079, 1097 (10th Cir. 2012) (quoting Bowie, 892 F.2d at
1498). West Valley Defendants’ counsel did not use phrases such as “I believe” or “I
think” when addressing Mr. Morris’s credibility—hallmarks of improper vouching—or
directly insert himself into the argument. However, since no one testified that “Layne
Morris is not a man who would lie” one can only interpret counsel’s statement as a
personal belief and assurance as to Mr. Morris’s veracity. The same holds true for
counsel’s statement that “[y]ou don’t become a First Class Sergeant in the Green Beret
unless you are a leader and a man of integrity.” Further, the fact that counsel choked
up while addressing Mr. Morris’s truthfulness and integrity gave his arguments a more
personal tone. Thus the Court finds these statements constitute improper vouching in
this context.
21
The Court also finds that some of counsel’s remarks during closing constitute
improper bolstering. While, as addressed above, the Court can admit testimony
concerning military service as background evidence as it allows the jury to get to know a
witness and establish that he or she is a stable person worthy of belief, counsel’s use of
that evidence during closing argument to suggest directly that Mr. Morris would not lie
presents problems. See Roger Park & Tom Lininger, The New Wigmore, § 9.1(3)
(stating that where “background evidence” is used to bolster a witness’s credibility, this
may run afoul of Federal Rule of Evidence 608). Federal Rule of Evidence 608(a)
provides that “evidence of truthful character is admissible only after the witness’s
character for truthfulness has been attacked.” Fed. R. Evid. 608(a). Ms. Bird did not
directly attack Mr. Morris’s veracity. Therefore, West Valley Defendants’ counsel’s use
of Mr. Morris’s military experience to suggest he would not lie crossed the line into
improper argument.
The Court notes that other courts have found that military service does not
necessarily afford witnesses a higher degree of credibility. See Howard v. Horn, 56 F.
Supp. 3d 709, 727 (E.D. Pa. 2014) (stating that the petitioner “offered no support for the
conclusion that referring to [witness’s] military background would necessarily afford him
higher credibility—and other courts have held that it does not.”); Illinois v. Lane, 922
N.E.2d 575, 586 (Ill. App. 2010) (“[W]e do not believe that support for members of the
military automatically accords them a higher degree of credibility as witnesses.”).
However, counsel’s remarks directly linked Mr. Morris’s military experience to his
truthfulness thus removing any potential ambiguity about the purpose of the evidence.
22
Thus the Court finds certain of the closing remarks made by West Valley
Defendants’ counsel concerning Mr. Morris improper. The Court must now consider,
using the factors set forth in Whittenburg, whether those improper remarks, in
combination with the 12 Strong comments, warrant the extreme remedy of a new trial.
a. Extensiveness of Remarks
The first factor outlined by the Tenth Circuit—the extensiveness of the improper
remarks, or lack thereof—weighs against granting a new trial in this case. Counsel’s
arguably improper remarks during closing argument concerning Mr. Morris’s credibility
were very brief, lasting less than two minutes during an almost hour-long closing
argument. (See 3/16/18 Trial Tr. 7:20–37:11, attached as App. 6 (West Valley
Defendants’ entire closing argument).) Where improper closing remarks are brief,
courts generally find a new trial unwarranted. See Ramsey, 738 F.2d at 1100 (finding
that an arguably improper rebuttal argument during closing did not warrant reversal of
the jury verdict because the remarks “consumed only a couple of minutes at the end of
a full trial”, and the district judge supervising the trial “did not believe that the argument
unduly aroused the sympathy of the jury”); Garcia v. Sam Tanksley Trucking, Inc., 708
F.2d 519, 522 (10th Cir. 1983) (finding a new trial unwarranted where counsel
improperly referenced the wealth of the parties during closing argument because the
statements reflect “minor aberrations”); Canada Dry Corp. v. Nehi Beverage Co., 723
F.2d 512, 526–27 (7th Cir. 1983) (finding district court did not abuse its discretion in
refusing to grant a new trial where counsel’s improper vouching for the honesty and
23
credibility of his client “occupied about one minute in a ninety minute closing
statement”).
In contrast, where improper remarks permeate the closing argument, courts will
more likely grant a new trial. For example, in Whittenburg, the court found a new trial
appropriate where, among other things, “counsel's improper comments were repeated
and emphasized throughout closing argument” and in fact “were the heart and soul of
the argument.” 561 F.3d at 1131; see also Gilster v. Primebank, 747 F.3d 1007, 1010–
13 (8th Cir. 2014) (finding new trial warranted in sexual harassment case where
“improper vouching permeated counsel’s rebuttal argument,” and counsel introduced
facts not in evidence when recounting her own similar experiences with sexual
harassment).
Courts will also more likely grant new trials where counsel engages in improper
conduct throughout trial. See Cadorna v. City & Cty. of Denver, 245 F.R.D. 490, 494–
97 (D. Colo. 2007) (ordering a new trial where counsel engaged in “continual,
contumacious conduct” throughout trial); Moody v. Ford Motor Co., 506 F. Supp. 2d
823, 831–47 (N.D. Okla. 2007) (ordering a new trial where plaintiff’s counsel engaged in
misconduct throughout trial, including violating in limine rulings, making personal attacks
on defense witnesses and counsel, and asking the jury to place themselves in the
plaintiff’s position); Stollings v. Ryobi Techs., Inc., 725 F.3d 753, 758–763 (7th Cir.
2013) (finding new trial appropriate where counsel attacked the motivations of opposing
counsel throughout trial, beginning with the opening statement and continuing through
the closing statement).
24
Here, the only misconduct by West Valley Defendants’ counsel that Ms. Bird
raised occurred during a few brief minutes of closing argument. Therefore this factor
weighs against the extreme remedy of a new trial in this case.
b. Curative Instructions
The second factor outlined by the Tenth Circuit—whether the Court gave curative
instructions after the remarks—also weighs against granting a new trial. In Spahr, “the
court g[a]ve[] weight to the fact that . . . the jury was instructed that attorney argument is
not evidence on two occasions: once before the opening statements and once before
the closing arguments.” Spahr, 686 F. Supp. 2d at 1224. Further, the court provided
each juror with a written copy of the instructions, allowing jurors to follow along while the
court read them and take their copies to the jury room. Id. The court also stated that
“[t]he Tenth Circuit has emphasized that such instructions can mitigate the effects of
references to matters not in evidence.” Id. (citing Whittenburg, 561 F.3d at 1131 (“[W]e
have sometimes suggested that a general instruction at the close of trial, reminding the
jury that counsels' arguments are not evidence, can help mitigate an improper closing
argument.”) (citation omitted)). In affirming the district court’s decision in Spahr, the
Tenth Circuit recognized “that the jury was instructed that ‘statements and arguments of
counsel are not evidence.’ ” 419 F. App’x at 806. Further, other courts have found that
such instructions help mitigate improper attorney remarks during closing. See Canada
Dry, 723 F.2d at 527 (finding district court did not abuse its discretion in refusing to
grant a new trial where the improper remarks during closing were brief, and the trial
judge reminded “the jury that statements of counsel are not evidence”).
25
In this case, as in Spahr, the court instructed jurors both before and after trial that
arguments of counsel are not evidence. (See Preliminary Instructions, Instruction No. 4,
ECF No. 143 (“Statements, arguments and questions by lawyers are not evidence.”);
3/12/18 Trial Tr. 7:16–19, attached as App. 2; Jury Instructions, Instruction No. 2, ECF
No. 160 (“Statements and arguments of counsel are not evidence in this case.”);
3/16/18 Trial Tr. 5:23–24, App. 6.) The Court also gave copies of the final instructions
to the jurors, allowing them to follow along while the Court read the instructions, and to
take them into the jury room. (Id. at 3:11–19.) Of course such an instruction may not
always sufficiently mitigate improper remarks, depending on the context. Whittenburg,
561 F.3d at 1132 (“Here, where the improper comments were extensive and the district
court expressly overruled a contemporaneous objection, we cannot say a general
instruction, issued much later and merely reminding the jury that the lawyers' arguments
are not evidence, is fairly scaled to the size of the problem.”). However, in this case,
similar to Canada Dry, the Court finds that these instructions, combined with the brevity
of the arguably improper remarks, helped mitigate any prejudicial effect those
comments may have had. Accordingly, the Court finds that this factor weighs against a
new trial.
c. Influence on Verdict/Prejudicial Impact
The third factor outlined by the Tenth Circuit—the size of the verdict—is not
directly applicable here since the jury found in favor of the West Valley Defendants.
Nevertheless, the Court considers whether the counsel’s misconduct clearly influenced
the verdict or obviously prejudiced the opposing party. See Lambert v. Midwest City
26
Mem'l Hosp. Auth., 671 F.2d 372, 375 (10th Cir. 1982) (stating that “even though an
argument may be improper, a judgment will not be disturbed unless it clearly appears
that the challenged remarks influenced the verdict”); Ramsey, 738 F.2d at 1100 (stating
that a “‘judgment should not be disturbed unless it clearly appears that the remarks in
question unduly aroused the sympathy of the jury and thereby influenced the verdict.’”
(quoting Julander, 488 F.2d at 842)); Smith v. Atl. Richfield Co., 814 F.2d 1481, 1488
(10th Cir. 1987) (indicating that a new trial is not warranted where counsel makes an
improper argument during closing “unless it obviously prejudiced one of the parties”);
Moody, 506 F. Supp. 2d at 835 (stating that a court “should consider the prejudicial
impact of plaintiffs' counsel's statements when ruling on [a] motion for a new trial”). In
considering this factor, the Court also considers the effect of its overruling Ms. Bird’s
counsel’s objection to the 12 Strong argument. (3/16/18 Partial Tr. 28:2-14, ECF No.
169-2.) This factor also weighs against granting a new trial.
First, the verdict itself indicates that the jury did not find Mr. Morris fully, if at all,
credible. Ms. Bird claims that the West Valley Defendants’ closing argument had the
prejudicial effect of forcing the jury to either side with Mr. Morris, “a patriot and war
hero,” or Ms. Bird. (Reply 2, ECF No. 173; see also Mot. 5, 10, ECF No. 169.) The
parties stipulated that for purposes of establishing municipal liability this case, Mr.
Morris was the final decision maker in Ms. Bird’s termination, and accordingly, the Court
instructed the jury that it “must consider Mr. Morris’s motivation in terminating Ms. Bird
in making decisions about West Valley City’s liability.” (Jury Instructions, Instruction No.
11, ECF No. 160.) At trial, Mr. Morris unequivocally testified that leaks to the press and
27
played no role in his decision to terminate Ms. Bird’s employment. (3/15/18 Trial Tr.
48:8–58:1, App. 5.) However, the jury found that Ms. Bird proved by a preponderance
of the evidence that West Valley City’s belief that she leaked information to the press
regarding Andrea the cat was a “substantial or motivating factor” in its decision to
terminate her. (Special Verdict Form, ¶¶ 2, 3, ECF No. 166); see Trant v. Oklahoma,
754 F.3d 1158, 1166 (10th Cir. 2014) (stating that to prove a First Amendment
retaliation claim, “the employee must show that the speech was a ‘substantial factor or a
motivating factor in a detrimental employment decision.’” (quoting Brammer–Hoelter v.
Twin Peaks Charter Acad., 492 F.3d 1192, 1203 (10th Cir. 2007))). Thus the jury’s
decision reflects that they did not find Mr. Morris’s testimony credible. Therefore any
arguably improper attempts to bolster or vouch for his credibility did not work, as the jury
expressly disagreed with Mr. Morris’s statements about his motive. Similarly, while a
judge’s overruling of an objection can make an error worse, Whittenburg, 561 F.3d at
1132, in this case the jury did not allow argument to drive its factual determinations
concerning Mr. Morris’s credibility.
The jury then went on to find that the West Valley City proved its defense by a
preponderance of the evidence—that it would have terminated Ms. Bird regardless of
the Andrea the cat incident. (Special Verdict Form, ¶ 4, ECF No. 166); see Trant, 754
F.3d t 1167 (stating that “if the employee establishes that his or her protected speech
was a motivating factor in the adverse employment decision, ‘the burden then shifts to
the defendant, who must show by a preponderance of the evidence it would have
reached the same employment decision in the absence of the protected activity’ ”
28
(quoting Cragg v. City of Osawatomie, 143 F.3d 1343, 1346 (10th Cir.1998))). The trial
record contains ample evidence concerning Ms. Bird’s performance at West Valley City,
including problems with her communication and management style, and her contentious
relationship with and insubordinate conduct toward her supervisor Mr. Davis, much of
which predates the October 2011 leaks to the press concerning Andrea the cat. (See,
e.g., 3/13/18 Trial Tr. (Bird Testimony) 3:6–21:4, App. 3; 3/14/18 Trial Tr. (Davis
Testimony) 7:7–31:12, App. 4; 3/14/18 Trial Tr. (George Testimony)5 31:19–59:2, App.
4; 3/15/18 Trial Tr. (Morris Testimony) 14:20–32:8, 32:25–53:8, App. 5.) Thus a
reasonable jury could have and ultimately did conclude that West Valley would have
fired Ms. Bird in the absence of any belief that she leaked information concerning
Andrea the cat to the press.
Further, the Court recognizes that this case is, as Ms. Bird argues, a “close case”
and that improper vouching may prove more damaging in close cases turning on the
credibility of witnesses. However, as explained above, the arguably improper attempts
to bolster or vouch for Mr. Morris’s credibility during closing arguments did not unfairly
prejudice Ms. Bird because the jury’s verdict reflects that it did not find Mr. Morris
credible. Accordingly, the close nature of this case does not weigh in favor of granting a
new trial.
Second, Ms. Bird’s counsel had an opportunity to address—and did in fact
address—the remarks that West Valley Defendants’ counsel made concerning Mr.
Morris’s credibility during her rebuttal argument. (3/16/18 Trial Tr. 40:9–25, App. 6.)
5
Shirlayne George served as the human resources manager at West Valley City.
29
She argued that while “[c]ounsel talked about that Mr. Morris wouldn’t lie about these
motivations,” the recordings offered during trial “show both Mr. Davis’s and Mr. Morris’s
motivations. That they were concerned about the negative information that was in the
press.” (Id.) That Ms. Bird’s counsel had the opportunity to respond to the arguments
West Valley Defendants’ counsel made during his closing argument concerning Mr.
Morris’s veracity lessens any prejudicial impact those comments may have had on the
jury. Cf. Gilster, 747 F.3d at 1011 (finding prejudice greater where counsel made
improper comments “at the end of rebuttal closing argument, when they would have the
greatest emotional impact on the jury, and when opposing counsel would have no
opportunity to respond”). Thus this factor too weighs against granting a new trial.
***
Importantly, the Tenth Circuit indicated that its decision to grant a new trial in
Whittenburg was “not based on any of these factors singly, but rather their combination
after considering the argument as a whole.” 561 F.3d at 1133. There, the court found
that “the confluence of these three factors—the extensiveness of the improper remarks,
the absence of any meaningful curative action, and the size of the verdict” required a
new trial. Id.
Here, as addressed in detail above, the three factors weigh against a new trial.
The improper and arguably improper remarks of West Valley Defendants’ counsel
during closing arguments lasted only a few minutes, the Court instructed the jury on
multiple occasions that attorney arguments are not evidence, and there is no indication
that these arguments clearly influenced the verdict or obviously prejudiced Ms. Bird.
30
Thus the conduct at issue in this case falls well below the level needed to order a new
trial. See Spahr, 686 F. Supp. 2d at 1224 (finding that even where “closing arguments
in a few instances crossed the sometimes fuzzy line between proper and improper[,] . . .
as a whole, the court is confident that the closing fell considerably and decisively short
of the level of impropriety that would merit a new trial.”) Accordingly, the Court finds a
new trial unwarranted.
CONCLUSION
For the foregoing reasons, the Court DENIES Ms. Bird’s Motion for New Trial.
DATED this 28th day of March, 2019.
_____________________________
EVELYN J. FURSE
United States Magistrate Judge
31
APPENDIX 1
FW: Case 2:12-cv-00903-EJF Bird v. West Valley City et al
Stanley Preston
to:
'utdecf_furse@utd.uscourts.gov', Lindsey_Pagel@utd.uscourts.gov
03/06/2018 10:00 AM
Cc:
"'HollingsworthLaw (april@aprilhollingsworthlaw.com)'", Kass Harstad, xerniafortson,
"Bryan M. Scott", Brandon Crowther
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To: "'utdecf_furse@utd.uscourts.gov'" ,
"Lindsey_Pagel@utd.uscourts.gov"
Cc: "'HollingsworthLaw (april@aprilhollingsworthlaw.com)'"
, Kass Harstad ,
xerniafortson , "Bryan M. Scott" ,
Brandon Crowther
History: This message has been forwarded.
Judge Furse,
As the Court requested, the parties have now conferred about witnesses and the amount of time the parties will
need to present their casesinchief. The parties have agreed that we will need to have extended trial days until
4:00 p.m. each day, including Tuesday, if that can be arranged. If we are done by 4:00 pm on Tuesday, that will
allow me to make my other commitment that evening. Regards, Stan
Stanley J. Preston
PRESTON & SCOTT
111 S. Main Street, Suite 1600
SLC, UT 84111
DD: 801-869-1623
Cell: 801-860-9239
Fax: 801-869-1621
sjp@prestonandscott.com
www.prestonandscott.com
The information contained in this email and any attachments is confidential and solely for the use of the intended recipient. If the
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APPENDIX 2
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
In re:
KAREN BIRD,
Plaintiff,
vs.
WEST VALLEY CITY, a
political subdivision
of the State of Utah,
KELLY DAVIS, in his
official and
individual
capacities,
Defendants.
_____________________
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Case No.
2:12-CV-903EJF
BEFORE THE HONORABLE EVELYN J. FURSE
March 12, 2018
Partial Transcript
Excerpts from Trial
Laura W. Robinson, RPR, FCRR, CSR, CP
351 South West Temple
8.430 U.S. Courthouse
Salt Lake City, Utah 84101
(801)328-4800
1
Appearances of Counsel:
For the Plaintiff:
April L. Hollingsworth
Attorney at Law
Hollingsworth Law Office LLC
1115 South 900 East
Salt Lake City, Utah 84105
Kathryn K. Harstad
Attorney at Law
Strindberg & Scholnick LLC
Plaza 721
675 East 2100 South
Suite 350
Salt Lake City, Utah 84106
Xernia L. Fortson
Attorney at Law
2935 Duke Of Windsor
Atlanta, Georgia 84106
For the Defendants:
Stanley J. Preston
Bryan M. Scott
Brandon T. Crowther
Attorneys at Law
Preston & Scott
111 E. Broadway
Suite 1200
Salt Lake City, Utah 84111
2
Salt Lake City, Utah March 12, 2018
1
2
(Whereupon, preceding portion of the trial
3
were not transcribed.)
4
THE COURT:
All right.
So I am -- welcome
5
back.
6
preliminary instructions to give you some orientation
7
about what you're going to hear and the rules you
8
need to follow.
9
00:00:02
I am going to read to you a number of
take a half hour break and you can grab some lunch.
And then following that, we will
10
Then we will come back and we will hear opening
11
00:00:19
statements at that time.
12
So preliminary instruction number one is
13
14
case during the process of jury selection.
the trial begins, however, there are certain
instructions I will give you to better understand
18
what will be presented to you and how you should
19
conduct yourself during the trial.
20
an introduction only and are not evidence in the
21
case.
22
later.
23
of my instructions.
24
00:01:05
15
17
00:00:49
of this case.
16
00:00:34
members of the jury, we are about to begin the trial
trial.
25
You have heard some details about this
Before
These remarks are
I will give you some instructions now and some
You are required to consider and follow all
Keep an open mind throughout the
At the end of the trial you will discuss the
3
1
evidence and reach a verdict as a group.
During the
2
trial, you will hear me use a few terms that you may
3
not have heard before.
4
of the most common to you.
Let me briefly explain some
5
You will sometimes hear me refer to counsel.
6
Counsel is another way of saying lawyer or attorney.
7
00:01:20
I will sometimes refer to myself as the court.
8
9
I will now give you some preliminary
instructions to guide your participation in the
trial.
then I will explain what your duties are as jurors
12
and how the trial will proceed.
13
the evidence I will give you more detailed
14
00:01:54
10
11
00:01:37
instructions on the required proof and how you should
15
proceed to reach a verdict.
16
First I will explain the nature of the case
At the conclusion of
This case is a civil case.
A party who
17
18
Bird.
20
brought is called the defendant.
21
defendants are West Valley City which I or the
22
parties may refer to as the City, and Kelly Davis is
23
also a defendant.
24
00:02:24
plaintiff.
19
00:02:09
brings a lawsuit in a civil case is called a
sometimes refer to them collectively as the
25
defendants.
In this action the plaintiff is Karen
The party against whom a civil lawsuit is
In this action, the
I or the parties may also
4
1
To help you understand what you will see and
2
hear, I will now explain the background of the case.
3
Karen Bird worked as a manager of the West
4
5
November 2011.
6
Kelly Davis, the shelter's director of operations,
7
who worked for Layne Morris, the director of West
8
00:02:41
Valley City Animal Shelter until her termination in
Valley City's Community Preservation Department.
9
She worked directly for defendant
On November 29th, 2011, Mr. Morris terminated
Ms. Bird.
Valley City and Mr. Davis alleging that her
12
termination was motivated by their belief that she
13
was the source of leaks to the media about the animal
14
shelter in violation of her First Amendment Right to
15
free speech.
16
that Ms. Bird was terminated for legitimate reasons
17
specifically for being insubordinate, discourteous,
18
00:03:16
10
11
00:02:59
and uncooperative.
19
Ms. Bird brought this lawsuit against West
West Valley City and Mr. Davis claim
Preliminary instruction number two.
Your duty
is to find from the evidence what the facts are.
and you alone are the judges of the facts.
22
then have to apply those -- apply to those facts the
23
law as the court instructs you.
24
00:03:53
20
21
00:03:33
You
law whether you agree with it or not.
25
the court may say or do during the course of the
You will
You must follow that
Nothing that
5
1
2
you as any indication of what your verdict should be.
3
Justice through trial by jury must always depend on
4
the willingness of each individual juror to seek the
5
truth as to the facts from the same evidence
6
presented to all of the jurors and to arrive at a
7
verdict by applying the same rules of law as given in
8
00:04:12
trial is intended to indicate nor should be taken by
the instructions of the court.
9
Generally speaking -- or preliminary
the truth as to the facts of the case exist.
direct evidence, such as testimony of an eyewitness.
14
The other is indirect or circumstantial evidence
15
which is proof of a chain of circumstances pointing
16
to the existence or nonexistence of certain facts.
17
The law makes no distinction between the weight to be
18
given to either direct or circumstantial evidence but
19
simply requires that the jury find the facts in
20
accordance with the preponderance of the evidence in
21
the case both direct and circumstantial.
22
consider both direct and circumstantial evidence.
23
Direct evidence is the testimony of one who asserts
24
00:05:24
types of evidence from which a jury may properly find
13
00:05:06
instruction number three.
12
00:04:49
10
11
00:04:31
Generally speaking, two
actual knowledge of a fact such as an eyewitness.
25
Circumstantial evidence is proof of a chain of facts
One is
You may
6
1
or circumstances indicating the existence or
2
nonexistence of a particular fact, or the occurrence
3
or nonoccurrence of a particular event.
4
For example, if someone walked into the
5
courtroom wearing a raincoat covered with drops of
6
water and carrying a wet umbrella, that would be
7
circumstantial evidence from which you could conclude
8
00:05:39
that it was raining.
9
Preliminary instruction number four.
The
evidence from which you will find the facts will
consist of sworn testimony of witnesses, documents,
12
and other things received into the record as
13
exhibits, any facts the lawyers agree or stipulate
14
00:06:12
10
11
00:05:54
to, and any applicable presumptions outlined by the
15
court.
16
Certain things are not evidence and you must
17
18
not evidence.
20
sides stipulate and agree as to the existence of a
21
fact, the jury must, unless otherwise instructed,
22
accept that stipulation and regard that fact as
23
conclusively proved.
24
00:06:44
Statements, arguments, and questions by lawyers are
19
00:06:27
not consider them.
I will list them for you now.
evidence.
25
clients to make an objection when they think opposing
When, however, the attorneys on both
Objections to questions are not
Lawyers have an obligation to their
7
1
2
ruling on it should influence you.
4
sustains the objection, ignore the question.
5
question is overruled, treat the answer like any
6
other.
7
evidence is received for a limited purpose only, you
8
must only consider that evidence for that limited
9
00:07:18
of evidence.
3
00:07:04
counsel has offered improper evidence under the rules
purpose.
10
Neither the objection nor the court's
If the court
If the
If the court instructs you that some item of
Testimony that the court has excluded or told
11
12
must disregard it.
15
sorry.
16
case.
17
evidence, you are not limited to the bald statements
18
of the witnesses.
19
the facts that you find have been proved such
20
reasonable inferences as seem justified in light of
21
your experience.
22
conclusion that reason and commonsense would lead you
23
to draw from the facts that are established by the
24
00:08:15
outside of this courtroom is not evidence and you
14
00:07:55
consider it.
13
00:07:38
you to disregard is not evidence and you must not
evidence in the case.
25
Anything you may have seen or heard
You are not to consider -- or
You are to consider only the evidence in this
However, in your consideration of the
On the contrary, you may draw from
An inference is a deduction or
Preliminary instruction number five.
This is
8
1
2
proving its case by what is called the preponderance
3
of the evidence.
4
has to produce evidence which considered in the light
5
of all of the facts leads you to believe that what
6
Ms. Bird claims is more likely true than not.
7
it differently, if you were to put Ms. Bird's and the
8
City and Mr. Davis's evidence on opposite sides of
9
00:08:30
a civil case.
The plaintiff has the burden of
the scales, Ms. Bird would have to make the scales
That means Ms. Bird has to prove --
10
tip toward her side.
11
burden, the verdict must be for the City and
12
00:08:48
To put
Mr. Davis.
13
If Ms. Bird fails to meet this
A preponderance of the evidence is not alone
14
00:09:03
determined by the number of witnesses, nor the amount
15
of testimony or documentary evidence, but rather by
16
the convincing character of the testimony and other
17
evidence and the inferences reasonably drawn
18
therefrom weighted by the impartial minds of the
19
jury.
20
21
(Whereupon, the trial proceeded but was
not transcribed.)
22
23
24
25
9
REPORTER'S CERTIFICATE
1
2
3
I, Laura W. Robinson, Certified Shorthand
4
Reporter, Registered Professional Reporter and Notary
5
Public within and for the County of Salt Lake, State
6
of Utah, do hereby certify:
7
That the foregoing proceedings were taken
8
before me at the time and place set forth herein and
9
were taken down by me in shorthand and thereafter
10
transcribed into typewriting under my direction and
11
supervision;
12
That the foregoing pages contain a true and
13
correct transcription of my said shorthand notes so
14
taken.
15
16
In witness whereof I have subscribed my name
this 12th day of March, 2019.
17
18
________________________________
19
Laura W. Robinson
20
RPR, FCRR, CSR, CP
21
22
23
24
25
10
APPENDIX 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
In re:
KAREN BIRD,
Plaintiff,
vs.
WEST VALLEY CITY, a
political subdivision
of the State of Utah,
KELLY DAVIS, in his
official and
individual
capacities,
Defendants.
_____________________
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Case No.
2:12-CV-903EJF
BEFORE THE HONORABLE EVELYN J. FURSE
March 13, 2018
Partial Transcript
Excerpts from Trial
Laura W. Robinson, RPR, FCRR, CSR, CP
351 South West Temple
8.430 U.S. Courthouse
Salt Lake City, Utah 84101
(801)328-4800
1
Appearances of Counsel:
For the Plaintiff:
April L. Hollingsworth
Attorney at Law
Hollingsworth Law Office LLC
1115 South 900 East
Salt Lake City, Utah 84105
Kathryn K. Harstad
Attorney at Law
Strindberg & Scholnick LLC
Plaza 721
675 East 2100 South
Suite 350
Salt Lake City, Utah 84106
Xernia L. Fortson
Attorney at Law
2935 Duke Of Windsor
Atlanta, Georgia 84106
For the Defendants:
Stanley J. Preston
Bryan M. Scott
Brandon T. Crowther
Attorneys at Law
Preston & Scott
111 E. Broadway
Suite 1200
Salt Lake City, Utah 84111
2
Salt Lake City, Utah, March 13, 2018
1
2
(Whereupon, the trial was held.
3
were not transcribed.)
4
(The following is an excerpt of Karen Bird's
5
6
Portions
cross-examination by Mr. Preston.)
Q.
(By Mr. Preston) Do you remember an
7
investigation being done among employees at the
8
shelter by Shirlayne George in 2005?
9
00:00:09
A.
Yes.
10
Q.
And you remember reading that, don't you,
11
and thinking that you had reason to improve.
12
recall that?
13
14
00:00:16
MS. HOLLINGSWORTH:
Your Honor,
relevance.
15
16
Objection.
Do you
THE COURT:
Sustained.
Or sorry, overruled.
Go ahead.
17
Q.
(By Mr. Preston)
Did you hear the question?
18
A.
Could you repeat it?
19
Q.
Yes, certainly.
You had an opportunity to
20
review that investigation and when you read it you
21
00:00:28
knew there were -- you needed to improve?
22
23
24
00:00:45
25
A.
I had been a manager for about three years
at that time so yes.
Q.
All right.
And, um, when you read the
negative comments that were there, you took that
3
1
as --
2
3
MS. HOLLINGSWORTH:
Assumes facts
not in evidence.
4
00:00:52
Objection.
THE COURT:
5
MR. PRESTON:
Um -Could I just ask the question
6
and then -- could I complete the question before the
7
objection is made.
8
THE COURT:
9
00:01:00
Okay.
Go ahead and complete the
question.
10
Q.
(By Mr. Preston)
Thank you.
When you read
11
the 2005 investigation, you understood that you were
12
having problems as a manager, did you not?
13
14
00:01:19
A.
improvement.
15
Q.
16
I felt I needed -- that there was areas of
And you were having problems with the
employees that you supervised?
17
A.
No, I don't feel so.
18
Q.
Do you remember giving a deposition in this
A.
Uh-huh (affirmative), yes.
19
00:01:27
20
case?
21
MR. PRESTON:
Your Honor, I would publish the
22
deposition of Karen Bird.
23
THE COURT:
24
00:02:02
25
Q.
Okay.
(By Mr. Preston)
Is this a transcript of
the deposition you gave on January 8, 2014?
4
1
A.
It says so on the front, yes.
2
Q.
All right.
3
And you know you were placed
under oath when you gave that deposition?
4
Yes.
5
Q.
Is that correct?
6
A.
Yes.
7
00:02:14
A.
Q.
And would you agree with me that your memory
8
9
00:02:24
was probably better when this was given than it is
today about the events in question?
10
A.
In 2014 is when I gave this.
So, um, my
11
memory does -- I have a good long term and just that
12
immediate recall is sometimes hard for me.
13
Q.
Okay.
Well, let me direct you to Page 59,
14
15
you to go to Line 11 of Page 59.
16
00:02:49
if you would, of your deposition.
there.
17
A.
Q.
Okay.
Tell me when you're
I'm there.
18
And I would like
Would you follow along and make sure
19
your performance as a manager and your relationship
with the employees that you supervised.
22
your review of this, and I'll represent we were
23
looking at the 2005 investigation, did you believe it
24
00:03:19
20
21
00:03:04
I read this accurately.
Question, I'm asking about
was an indication that you were having problems with
25
the employees you supervised?
Based upon
And what was your
5
1
answer?
2
A.
Here it says yes.
3
Q.
All right.
4
correct?
5
A.
Yes.
6
00:03:29
That was your testimony in 2014,
Q.
All right.
Um, did you think you were
7
negative about the employees at the shelter
8
generally?
9
00:03:43
10
11
12
A.
Did I think I was negative about the
employees?
Q.
Yeah.
Did you have a negative attitude
about the employees at the shelter?
13
A.
No.
14
Q.
Um, let me hand you what has been marked as
15
Defendant's Exhibit 98.
16
from typewritten journal entries that you prepared.
17
00:03:53
Do you recognize it?
18
19
00:04:16
20
A.
This is a two-page excerpt
Yes.
MR. PRESTON:
Your Honor, I would move the
admission of Defendant's Exhibit 98.
21
22
MS. HOLLINGSWORTH:
23
THE COURT:
24
00:04:26
THE COURT:
(Whereupon, Defendant's Exhibit 98
25
Any objection?
No objection.
It is admitted.
was received into evidence.)
6
1
2
please.
3
with you.
4
what a great year it is turning out to be again, in
5
caps, exclamation, exclamation.
6
issues so far this year.
7
transfusion or she will die.
8
today.
9
00:04:45
Q.
(By Mr. Preston)
five years is the wrong kind.
Okay.
Can you bring that up,
I want to read through some of this
It's dated January 23, 2008.
You say,
Let me state the
Suzie needs a platelet
She called sick again
Chris's medication that she has been on for
She calls in sick
Nate's going blind again.
kennels.
13
inexperienced man as the new officer.
14
Denise, an officer, calls in sick all the time.
15
never does her work right, according to others, and
16
is late every day.
17
things that are good.
18
could add more to this but I can't.
19
promises.
20
later, August 15, 2008.
21
-- of the course of the months.
22
exclamation point.
23
00:05:45
constantly.
12
00:05:26
10
11
00:05:03
quitting?
24
00:06:04
25
A.
Chris is late more days than not.
Then you talk about the
And you go down, Kelly hired a 53-year old
Skipping down,
She
And then you list three or four
And then you state, I wish I
I'll try but no
Then the next entry is several months
A lot has happened of course
David quit,
Were you happy about him
I didn't really have any opinion about it.
He quit.
7
1
Q.
Why did you put an exclamation point behind
3
A.
I don't know.
4
Q.
Kelly hired Issai.
2
00:06:13
5
it?
I'm not sure -- how do
you pronounce Issai?
6
A.
Issai.
7
Q.
Thank you, paren Spanish, close paren.
And
8
Tom, and the other guy Steve, well not much good to
9
say about him.
He doesn't know how to age an animal.
10
Everything he brings in is either feral or three
11
years old.
12
00:06:29
handle an officer position.
13
Tom is a child.
Skipping down three lines.
14
00:06:45
He is too immature to
is out again.
15
As always, Suzie
gallbladder removed.
16
This time she had to have her
And then we'll skip down to the last
17
18
something about how stress contributes to them and
20
Kelly made a comment that at some point we need to be
21
responsible for ourselves.
22
saying that it's our own fault for getting the
23
migraines.
24
00:07:17
migraine headache in roll call.
19
00:07:01
paragraph.
On Tuesday morning Chris called in with a
told her you don't work in the office either.
25
said she worked in the code office.
Denice said
I took that as he was
Kathy said that she doesn't get them, I
She
I blew her off
8
1
2
back in, her and Kelly were talking about her
3
migraine and how about bad it was and Kelly told her
4
that he knows that she couldn't do anything about it
5
and that controlling stress isn't as easy to do.
6
Talk about speaking out of your ass, exclamation
7
point.
8
to his side and then his back.
9
00:07:35
at that point.
So the very next day when Chris came
blind but for the moment he has his contacts right
Nate has been on light duty periodically due
He is still going
now.
months because of eye surgery and then because his
12
contacts weren't ready.
13
But when you talk to him it seems pretty gloom and
14
00:08:09
10
11
00:07:53
He was without driving privileges for a few
doom about his health.
15
paraplegic before too long.
16
And then he hurt his back.
He is going to be blind and
I see throughout this you're talking about
17
18
were rather impatient and critical of people's health
19
00:08:24
people's health issues and it appears to me that you
issues.
20
A.
Would you agree with me?
There was a time at the shelter we had a
21
total of 53 days the entire year of being full
22
staffed because of people being out sick or positions
23
not filled and it was stressful.
24
00:08:39
25
Q.
Okay, I understand that but my question is,
were you impatient with people's health issues and
9
1
because it was creating a workload problem for you?
2
A.
I was stressed about it.
3
Q.
Um, you appear critical about it in this,
4
wouldn't you agree with me?
5
A.
6
I said.
7
00:08:51
Q.
8
I appear impatient or stressed about it like
But you didn't think you were being critical
of these folks?
9
(Whereupon, the trial continued but was
10
not transcribed.)
11
(Whereupon, the following is an excerpt
12
of Karen Bird's cross-examination by
13
Mr. Preston.)
14
Q.
(By Mr. Preston) Okay.
We'll talk about
15
that.
16
performance evaluation and from whatever,
17
conversations with Layne Morris, you knew your job
18
00:37:25
You understood, did you not, from the
was in jeopardy at that point in time, did you not?
19
20
at that time.
21
because I had given Ed his eval and Kelly said well
22
00:37:44
A.
let's do yours now.
23
Q.
I didn't think I was -- it was in jeopardy
I felt that I had a bad eval and
All right.
Well, let's look at the
24
00:38:18
Memorandum of Understanding.
Handing you what has
25
been marked as Defendant's Exhibit 73.
10
1
2
MS. HOLLINGSWORTH:
This is already in the
record as Exhibit 28.
3
4
00:38:37
MR. PRESTON:
additional documents on it.
5
it's just the Memorandum of Understanding.
6
7
THE COURT:
Well, your exhibit has
Okay.
MS. HOLLINGSWORTH:
9
THE COURT:
10
No objection.
All right.
We'll go ahead and
admit that.
11
(Whereupon, Defendant's Exhibit 73
12
13
So I take it there is no
objection then?
8
00:38:44
I want mine in because
was received into evidence.)
Q.
(By Mr. Preston)
This document is dated
14
00:38:53
December 21, 2010, and this is the Memorandum of
15
Understanding that Kelly wrote to you, correct?
16
A.
Yes.
17
Q.
All right.
Let's go through this.
"Dear
18
19
20
have seriously affected the morale, efficiency,
professionalism, image, and viability of its
22
existence.
23
personnel investigation was begun.
24
00:39:25
Division was faced with multiple issues that could
21
00:39:08
Karen, over two years ago the Animal Services
conclusion of the investigation, a decision was made
25
to provide training for the entire division and
As a result of this situation, a
And at the
11
1
address the perception of lack of leadership.
A
2
training session was conducted by human resource
3
director Paul Isaac where Paul specifically addressed
4
a team oriented topic.
5
Layne Morris, the director of the department,
6
decided that reorganization was necessary to bring
7
more accountability to management and for management
8
to address those internal behaviors that were
9
00:39:41
affecting negatively upon the organization.
As a
result of the re-organization, I was re-assigned and
tasked with focusing more on the Animal Services
12
Division and relieved of my duties as it related to
13
Code Enforcement.
14
begin solving the administration's concerns and
15
directing the organization in a more positive
16
00:40:18
10
11
00:39:59
direction."
17
The direction given me was to
So he is explaining here, is he not, what
18
19
00:40:32
happened which led two years ago in 2008 to him
coming out to the shelter and focusing on the animal
20
shelter.
Do you recall those events?
21
Paul coming out to the shelter?
22
Q.
Kelly.
23
A.
Oh, Kelly.
24
00:40:43
A.
Q.
Okay.
25
this meeting?
Yes.
Do you recall Paul coming out, having
12
1
A.
No.
2
Q.
You don't recall that?
3
A.
No.
4
Q.
All right.
Going down to the fourth
paragraph.
had discussions where your views were expressed and
7
our differences of opinions were aired.
8
were ultimately made as a result of yours and others
9
00:41:14
5
6
00:40:57
input.
10
11
Within that time period you and I have
Decisions
However, your implementation of those
decisions lacked the appropriate support.
Consequently, the message sent by you to your
12
13
15
supportive.
in writing a daily operation schedule outlining those
17
priorities I expected you and your staff to meet.
18
When working with the volunteer program, your actions
19
and attitude was you didn't have the time to spend
20
training and doing those things that would welcome
21
the volunteers' efforts.
22
involvement in the hiring process was met with
23
resentment and what I believe to be a bias against
24
00:42:08
priority placed on cleaning you were less than
16
00:41:51
came to the cleaning protocol and the level of
14
00:41:32
staff undermined my authority.
Specifically, when it
those individuals that were hired when you were not
25
involved.
Consequently, I was forced with putting
My decision to lessen your
13
1
When our shelter was under fire from animal
2
3
you being a member of management, I was surprised to
4
find that your public feelings on the subject were
5
not in line with what both Taylorsville and West
6
00:42:21
rights groups regarding the carbon monoxide chamber,
Valley leadership had decided in regards to its use.
7
To this day you remain defiant even to the
8
point where you have expressed to other staff members
9
that you would not use the chamber yourself and in
effect poisoned those staff members to decide for
them as required in policy.
12
emphasis should be towards efficiency within the
13
operation with compassion for those individuals
14
tasked with the necessary job of euthanasia.
15
chamber is efficient, feasible, and humane to both
16
operator and animal.
17
00:42:55
10
11
00:42:37
accept that.
18
As a manager of people,
The
For some reason you refuse to
So he is going through specific things here,
19
20
his authority and resisting the direction he wants
21
the shelter to go in.
22
00:43:08
is he not, where he felt you have been undermining
these, correct?
23
24
00:43:31
25
A.
And you were on notice of
This was on my desk, yes.
I didn't have an
opportunity to discuss this with him.
Q.
Are you sure you didn't have an opportunity
14
1
2
3
4
00:43:47
5
to discuss this with him?
A.
I don't remember discussing the Memorandum
of Understanding with him.
Q.
Okay.
If Kelly Davis were to testify
otherwise, would you say he is not telling the truth?
6
A.
His memory could be different than mine.
7
Q.
But whether you had the discussion or not,
8
this had to put you on notice of issues of
9
insubordination regarding cleaning, regarding the
volunteer program, regarding your resistance and
defiance with respect to the euthanasia policy, your
12
poisoning the well to other employees.
13
aware of these things back on December, late
14
00:44:26
10
11
00:44:05
December 2010 and he gave you notice of them in this
15
memo of understanding, did he not?
16
17
18
A.
You were
He gave me this at the end of 2010, the
first of 2011, yes.
Q.
Let's look at the second to the last
19
and its ability to perform successfully as a team,
I'm troubled that one of my managers is having
22
difficulty accepting direction and implementing that
23
direction with the proper spirit that will promote
24
00:45:01
20
21
00:44:43
paragraph.
As I reflect upon the entire operation
team building.
25
necessary between employee and supervisor and
There is a level of trust that is
15
1
2
present with managers and their supervisor.
3
sorry to say that I have lost the trust in your
4
ability to administer the philosophy and vision of
5
this organization.
6
00:45:18
vice-versa.
The same if not greater trust should be
correct?
I am
That is what he wrote then,
7
A.
That is what he wrote.
8
Q.
So when your boss tells you that he has lost
9
10
have to recognize that your job is in jeopardy, don't
11
00:45:32
trust in you and that you're being insubordinate, you
you?
12
A.
He didn't tell me I was being insubordinate.
13
14
00:45:46
He said he lost trust in the ability to administer
the philosophy and vision.
15
Q.
Do you mean to tell me that when he tells
16
you that you're undermining his authority, when you
17
are resisting the directions he is giving you, he
18
didn't tell you that you were insubordinate?
19
00:45:55
A.
No.
20
Q.
Okay.
Let's look at your 2010 Performance
21
Evaluation.
I know it is already in but I want to
22
just have the single evaluation as an exhibit.
23
Defendant's Exhibit 72.
24
00:46:17
THE COURT:
25
MS. HOLLINGSWORTH:
It is
Any objection?
No objection.
16
1
THE COURT:
2
(Whereupon, Defendant's Exhibit 72
3
4
00:46:26
5
We'll admit that.
was received into evidence.)
Q.
(By Mr. Preston)
This is your 2000 --
December 11, 2010 performance review, correct?
6
A.
Yes.
7
Q.
And if you look at the paragraph that begins
8
Karen J, J is your middle initial; is that right?
9
00:46:42
A.
Yes.
10
Q.
Karen J. has been slow to adapt to some
11
12
as director since the re-organization.
14
frequently needs help in balancing competing demands
15
on her time.
16
priorities that are important to her supervisor and
17
focuses more on those job duties that are of a
18
priority to her.
19
criticism as well as she could.
20
encounters difficulties in adjusting her approach or
21
method to best fit different situations. So you
22
00:47:15
has difficulty accepting my role and responsibility
13
00:46:57
changes in her job or the work environment.
Karen
recall receiving that, correct?
She
Karen fails to recognize certain
She tends to not accept feedback or
Sometimes Karen J.
23
Yes.
24
00:47:28
A.
Q.
Go to the top of the next page, second
25
sentence.
Karen has had difficulty either
17
1
2
follow the direction given.
3
demonstrate this are cleaning protocol, euthanasia
4
policy, personnel evaluation, volunteer program.
5
Then he states, I have noticed some improvement in
6
00:47:48
understanding direction given or chooses not to
those areas recently.
7
8
Specific topics that
So you were aware that he was critical of you
for not following his direction.
You see that?
9
00:48:06
A.
I can read what he wrote, yes.
10
Q.
And you didn't think he was telling you that
11
you were being insubordinate?
12
A.
No.
13
Q.
Okay.
Go to the next paragraph, second
14
that her subordinates feel free to discuss work
problems.
18
been she speaks down to them and walks away when
19
employees respond.
20
sometimes loses her objectivity.
21
occasionally allows herself to express emotions in
22
ways which are not helpful.
23
you needed to improve in some of these areas?
24
00:49:22
environment that encourages open communication so
17
00:48:45
15
16
00:48:26
sentence.
you answer?
25
A.
However, she could do more to provide an
Feedback from her fellow employees has
When conflicts arise, she
Karen J.
Did you feel you had -Did
I'm sorry, what?
Did I feel that I was what?
18
1
Q.
Did you feel, based upon what's set forth in
2
3
being put on notice of things that you needed to
4
00:49:39
Performance Evaluation Exhibit 72, that you were
improve on?
5
6
A.
It was in my evaluation.
It does say I need
to improve in these areas, yes.
7
Q.
Okay.
Did you try to improve in them?
8
A.
I believe I always tried to improve.
9
Q.
Okay.
You get this Performance Evaluation,
10
you get the Memo of Understanding.
11
tells you that he was ready to fire you.
12
he wanted to give you one more chance, gets you these
13
documents.
14
00:50:03
Layne Morris
jeopardy, did you not?
Kelly said
You knew at this point your job was in
15
A.
I knew that Kelly wasn't happy with me.
16
00:50:17
Q.
Let's look at Page 145 of your deposition.
17
Actually go to 144, bottom of the page, line 19?
18
144 line 19?
19
Q.
Yes.
20
A.
Okay.
21
00:50:49
A.
Q.
It says Exhibit 6 was marked.
And I
22
23
Did Kelly give this to you at or about the same time
24
00:51:03
represent this is the Memorandum of Understanding.
that he discussed the evaluation with you?
25
yes.
You say
And on Page 145 I go on and I read from this
19
1
2
of the Memorandum of Understanding to you, now you
3
knew at that point that your job was probably in
4
00:51:26
and I said beginning on Line 19, after reading part
jeopardy, did you not?
5
it was.
6
And you answered, I felt that
So Ms. Bird, you have told the jury how much
7
8
didn't you try to improve your relationship with
9
00:51:48
you loved this job.
Kelly Davis?
10
11
12
13
14
00:52:19
15
16
If you loved it so much, why
A.
I did try to improve it and it improved in
Q.
Isn't it true that in 2011 it got to the
2011.
point where you couldn't even stand to look at him?
A.
After the list, yeah.
When he threw the
list back across the table at me, yes.
Q.
Okay.
Jon Andrus said he wadded it up and
17
18
at you.
19
00:52:35
threw it in your face, you just said he threw it back
it across the table to you.
20
21
A.
When you testified earlier, you said he slid
Which was it?
He was here (indicating) and when they gave
it to him he slid it across the table to me.
22
So he didn't throw it at you, did he?
23
A.
He slid it across.
24
00:52:47
Q.
Q.
Did he throw it at you, Ms. Bird?
25
A.
No, he did not.
He slid it.
20
1
Q.
Did he wad it up and throw it in your face?
2
A.
It didn't hit me in the face, no.
3
Q.
Did he wad it up?
4
A.
Not that I remember.
5
6
7
(Whereupon, the trial continued but was
not transcribed.)
(Whereupon, the following excerpt
8
9
03:35:53
occurred at the end of the trial day
after the jury had been excused.)
10
11
12
THE COURT:
And you may step down and you all
may be seated.
All right.
So Ms. Hollingsworth, do you have
13
14
03:36:09
a general estimate on timeframes for the remainder of
your case?
15
MS. HOLLINGSWORTH:
Right.
So for our -- for
16
17
doing their putting on their case at the same time
19
because we're using the same witnesses, but for just
20
what we need if we were allowed to just go through
21
everybody tomorrow I think we would be done tomorrow.
22
But like I said --
23
THE COURT:
24
03:37:43
don't know if Mr. Preston or whoever is planning on
18
03:37:35
our case, depending on how long cross is, um, and I
MS. HOLLINGSWORTH:
25
MR. PRESTON:
By the end of the day tomorrow?
Right.
That is without me asking any
21
1
questions?
2
3
MR. PRESTON:
4
03:37:49
THE COURT:
Right.
MS. HOLLINGSWORTH:
5
MR. PRESTON:
Is that what you're saying?
Right.
So that means that she is not
6
7
Thursday.
8
She has 12 witnesses and she has done five and barely
9
03:38:06
going to finish her case until midday or later
started with the sixth, that leaves basically seven
10
11
I obviously have some cross-examination.
witnesses to go.
I mean she has gone five and a half hours,
12
13
So I mean I think she has to really move her case
14
03:38:28
5 hours 10 minutes.
along at this point if we're going to try to get done
15
in four days.
16
THE COURT:
I have used 2 hours 35 minutes.
Let me just ask you.
So at this
17
18
why okay so you -- you have got -- you have got
19
Mr. Davis on the stand now.
20
witnesses identified as will call.
21
03:38:49
point in your case, sorry, you have got -- that is
anticipate calling all four of them?
22
MS. HOLLINGSWORTH:
You have four other
Do you still
Well, we were just talking
23
24
03:39:02
about one of them that we conceivably may not but we
want to -- we need to talk about that.
25
moment, yes.
At the
22
1
2
3
MR. PRESTON:
There are six others, not four
others.
THE COURT:
Well, there are four other will
4
03:39:11
calls and there are two other may calls.
5
to ask -- I'm asking about the will call first.
6
7
MS. HOLLINGSWORTH:
I was going
Right now we are still
planning on calling all of the witnesses on our list.
8
THE COURT:
So the will and the may?
9
MS. HOLLINGSWORTH:
Right.
The last -- three
10
of them will be very short, Wayne Paul, Tess Hartwell
11
03:39:22
and Jay Breisch.
12
13
So there is --
THE COURT:
Okay.
a half hour each?
14
MS. HARSTAD:
15
THE COURT:
16
MS. HOLLINGSWORTH:
17
THE COURT:
18
03:39:36
So by very short, less than
Yes, for sure.
MS. HOLLINGSWORTH:
So more like 15 minutes each?
Right.
Okay.
So -- and the -- and these
19
20
Kelly Davis, Shirlayne George, Layne Morris and Paul
21
03:39:48
main witnesses that are still coming up, so obviously
Isaac are also defendants' witnesses.
22
THE COURT:
23
MS. HOLLINGSWORTH:
24
03:40:01
25
Right.
But he is not a main -- he
will be short.
THE COURT:
And then your -- and then after
23
1
that you only have one other witness who would not be
2
included on that list; is that correct?
3
MR. PRESTON:
4
THE COURT:
You have two other witnesses,
okay.
as I see it is we have had -- we have had the jury
7
here for four days.
8
haven't talked about it I have submitted the court's
9
jury instructions back to you which do show that any
10
punitive damage award would need to be held -- would
11
need to be -- that there would need to be evidence on
12
03:40:42
5
6
03:40:16
that held after a deliberation from the jury.
13
Yeah, I see.
Two.
Um, okay.
So we -- the problem
We have had delay although we
And I am out of town all of next week so there
14
15
as I understand it, um, Mr. Preston also has
16
obligations.
17
03:41:02
is no possibility for me to run into next week.
well, I'm trying to remember?
18
Do you have obligations on Friday as
MR. PRESTON:
Um, I settled that case.
19
03:41:16
Um,
still probably have to appear in front of Judge
20
I will
Jenkins but hopefully it won't be very long.
21
THE COURT:
Okay.
All right.
So right now
22
23
So we need to do our best to get through as much as
24
03:41:33
our jurors are not planning on being here on Friday.
possible tomorrow because we will need to do --
25
obviously there will be time for closings, time for
24
1
jury instruction.
How much time, if you have an
2
estimate now at this point, about closing argument.
3
MS. HOLLINGSWORTH:
4
THE COURT:
Probably an hour.
Probably an hour.
Okay.
And
5
Mr. Preston, do you have any thoughts on that?
6
03:41:50
realize you haven't --
7
8
MR. PRESTON:
I
I would say 45 minutes to an
hour.
9
THE COURT:
Okay.
All right.
So I guess what
I would ask you to do is if you can tonight to take
-- to go through and see if there is any way you can
12
tighten up your -- your direct exams on any of the
13
folks that you're going to be calling so that we can
14
03:42:26
10
11
03:42:09
move through as quickly as possible tomorrow.
15
right.
16
17
All
Any other concerns about witnesses, order of
witnesses, time, things of that nature?
18
MR. PRESTON:
19
(Whereupon, the trial continued but was
20
No, Your Honor.
not transcribed.)
21
22
23
24
25
25
REPORTER'S CERTIFICATE
1
2
3
I, Laura W. Robinson, Certified Shorthand
4
Reporter, Registered Professional Reporter and Notary
5
Public within and for the County of Salt Lake, State
6
of Utah, do hereby certify:
7
That the foregoing proceedings were taken
8
before me at the time and place set forth herein and
9
were taken down by me in shorthand and thereafter
10
transcribed into typewriting under my direction and
11
supervision;
12
That the foregoing pages contain a true and
13
correct transcription of my said shorthand notes so
14
taken.
15
16
In witness whereof I have subscribed my name
this 12th day of March, 2019.
17
18
________________________________
19
Laura W. Robinson
20
RPR, FCRR, CSR, CP
21
22
23
24
25
26
APPENDIX 4
1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
In re:
KAREN BIRD,
Plaintiff,
vs.
WEST VALLEY CITY, a
political subdivision of
the State of Utah, KELLY
DAVIS, in his official
and individual
capacities,
Defendants.
________________________
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Case No. 2:12-CV-903EJF
BEFORE THE HONORABLE EVELYN J. FURSE
March 14, 2018
Partial Transcript
Excerpts from Trial
Laura W. Robinson, RPR, FCRR, CSR, CP
351 South West Temple
8.430 U.S. Courthouse
Salt Lake City, Utah 84101
(801)328-4800
2
Appearances of Counsel:
For the Plaintiff:
April L. Hollingsworth
Attorney at Law
Hollingsworth Law Office LLC
1115 South 900 East
Salt Lake City, Utah 84105
Kathryn K. Harstad
Attorney at Law
Strindberg & Scholnick LLC
Plaza 721
675 East 2100 South
Suite 350
Salt Lake City, Utah 84106
Xernia L. Fortson
Attorney at Law
2935 Duke Of Windsor
Atlanta, Georgia 84106
For the Defendants:
Stanley J. Preston
Bryan M. Scott
Brandon T. Crowther
Attorneys at Law
Preston & Scott
111 E. Broadway
Suite 1200
Salt Lake City, Utah 84111
Salt Lake City, Utah, March 14, 2018
1
2
3
4
(Whereupon, the trial was held but was not
transcribed.)
(Whereupon, the following is an excerpt of
5
a discussion held out of the presence of the
6
jury between the Court and counsel for both
7
parties.)
8
THE COURT:
9
Okay.
And then timing-wise, I am
becoming concerned because tomorrow we have a six and
a half hour day, if you take out the breaks.
have an hour each for closing arguments, probably an
12
hour of reading in the jury instructions, that takes
13
us down to three and a half hours tomorrow.
14
00:00:27
10
11
00:00:09
approximately four and a half hours left today.
15
MS. HOLLINGSWORTH:
Okay.
We will
We have
We expect to wrap
16
17
thing in the morning.
19
our witnesses, well, two of our witnesses actually.
20
We have agreed with counsel that a couple of exhibits
21
will -- they have agreed that they can be admitted.
22
We were bringing Tess Hartwell just to introduce a
23
couple of exhibits so we're not going to use her or
24
00:01:04
final witness, Jay Breisch, may have to come first
18
00:00:42
up today.
Paul Isaac.
25
The only potential issue would be if our
But we have eliminated one of
So remaining --
THE COURT:
But you're still going to need to
3
1
call Paul?
2
3
is my defendant.
5
with him, she is going to go another hour with him
6
that is two and a half hours.
7
me?
8
I take anywhere near the time she is taking with my
9
00:01:28
problem, Your Honor.
4
00:01:15
MR. PRESTON:
witnesses, this trial is not going to end on
10
Yes, absolutely.
This is the
Kelly Davis is our witness, he
She has taken an hour-and-a-half
He is my witness.
What does that leave
I need to put my case on.
If
Thursday.
11
THE COURT:
Yes.
Um, and yeah, I -- and so my
12
13
parties at this point, dividing the length of time
14
and then it is up to you how you want to use them as
15
far as which witness.
16
half hours from tomorrow, the four and a half hours
17
from today, that's -- that's eight hours.
18
00:01:44
thought was to try and do an hour divide between the
given -- and then, um, the time -- let's see so --
19
MR. PRESTON:
But so with the three and a
So -- and
Your Honor, the problem is she
20
has already taken seven hours and I have taken two
21
00:02:09
and a half hours.
22
THE COURT:
23
MR. PRESTON:
24
00:02:16
25
Right.
So now we're going to divide it
evenly.
THE COURT:
No, I did not say evenly.
4
1
2
MR. PRESTON:
That is what I thought
you said.
3
THE COURT:
4
00:02:26
Okay.
evenly.
5
Give me a minute.
I did not say
um --
6
So we have got eight hours to divide up and
MS. HOLLINGSWORTH:
Your Honor, I want to
7
point out that we have the burden of proof and these
8
are effectively our witnesses.
9
same witnesses.
They're using the
So, um, if -- and I have offered
Mr. Preston the opportunity if he wants to put on his
direct at the same -- when he -- when I am done with
12
Mr. Davis, for instance, but he hasn't answered me on
13
that.
14
00:02:58
10
11
00:02:45
not.
15
So I don't know if that's what he intends or
THE COURT:
Okay.
Um, I still think it makes
16
17
the -- there is a significant risk that Mr. Preston
18
ends up with, you know, two hours to put his case on
19
00:03:19
sense to divide up the hours because I think that
which is clearly unfair.
20
So what I would say is that the plaintiff
21
22
hours.
23
how you're using the time.
24
00:03:45
should plan to have their case finished within three
Mr. Preston -- that does not include Mr. Preston's
25
cross-examination or direct examination depending how
Now obviously, three hours of your time, so
That is not if
5
1
he wants to use it so.
2
3
MS. HARSTAD:
4
00:03:56
MS. HOLLINGSWORTH:
clarifying question?
5
to do punitive damages afterwards?
6
THE COURT:
7
MS. HARSTAD:
8
THE COURT:
10
11
MS. HARSTAD:
THE COURT:
13
MS. HARSTAD:
14
THE COURT:
15
18
Right.
Can we put on more testimony at
We would, um, you would -- yes.
So we can recall witnesses for
Correct.
Okay.
I take it there is no objection to
that since that was your idea?
16
17
So I understand that you intend
punitive damage purposes at that stage?
12
00:04:11
Your Honor, can I ask a
that stage?
9
00:04:03
Okay.
MR. PRESTON:
That's absolutely correct, Your
Honor.
THE COURT:
Okay.
So three hours of time left
19
20
five hours of time to put on their case.
21
obviously there is no obligation that you use all
22
three hours.
23
00:04:24
for plaintiffs, and then that would leave defendants
we bring the jury back in?
Anything else we need to cover before
24
00:04:36
And
MR. PRESTON:
No, Your Honor.
25
MS. HOLLINGSWORTH:
No.
6
1
THE COURT:
2
(Whereupon, the trial continued but was
3
Okay.
Thank you.
not transcribed.)
4
(Whereupon, the following is an excerpt
5
of the cross-examination of Kelly Davis
6
by Mr. Preston.)
7
Q.
(By Mr. Preston) Okay.
Um, you were handed
8
Exhibit 71, I think that is in evidence.
9
our copy of it that I can provide to the court.
10
THE COURT:
11
00:46:42
MR. PRESTON:
12
It is.
So here is Exhibit 71 which I
understand is now admitted, Your Honor.
13
14
THE COURT:
Q.
It is.
(By Mr. Preston)
This is the log that you
15
prepared starting in June of 2010.
16
00:46:56
Do we have
the first entry, first paragraph?
17
A.
Would you read
Because of various difficulties in
18
19
have been made operationally, and after sitting down
20
with Layne, Layne Morris, expressing my concerns with
21
Karen where I felt she was actively trying to
22
undermine my authority, I felt it necessary to sit
23
00:47:15
communication with Karen regarding decisions that
Karen down and clarify each of our roles as managers.
24
00:47:35
25
Q.
Then you go on to state that you discussed
with her a series of topics, correct?
7
1
A.
Right.
2
Q.
And the first one has been covered, the fact
3
that Ed Trimble had complained that Karen had told
4
him not to use the chamber?
5
A.
Yes.
6
00:47:47
Q.
So you discussed that with her, she denied
7
that.
That was the end of that, correct?
8
9
THE WITNESS:
Yes.
10
MR. PRESTON:
Your Honor, this is background.
11
00:47:55
MS. HOLLINGSWORTH:
It has been covered.
12
THE COURT:
13
MR. PRESTON:
14
00:48:04
17
If you could keep it short.
Yeah.
When it is substantive, I
make sure I don't lead, Your Honor.
15
16
Okay.
Objection, leading.
THE COURT:
Q.
Okay.
(By Mr. Preston)
What was the next topic
that you discussed with her?
18
Disgruntled staff.
19
00:48:13
A.
Q.
And what was that about?
20
A.
Three particular employees had come in and
21
22
having about Karen's approachability.
23
she was hard -- they had a hard time explaining
24
00:48:35
complained to me about the frustration they were
things to her, that she was curt, that her responses
25
to them were short, and also that in their opinion
They felt that
8
1
that Karen was favoring a particular employee.
2
Who was that employee?
3
A.
Tess.
4
Q.
Hartwell?
5
A.
Hartwell, yes.
6
00:48:51
Q.
Q.
Did you receive complaints like that on
7
8
9
other occasions?
A.
Yes.
Those kinds of complaints employees
would make from time to time about favoritism or they
10
felt like they were being treated unfairly or this
11
00:49:04
person likes me better than that person, so to speak.
12
13
14
Q.
Okay.
The next topic is clinic time change.
What did you discuss with Ms. Bird about that issue?
A.
I had been -- we ran a clinic at the rear of
our shelter every Wednesday, I'm not sure -- or no,
every Monday.
17
licensed veterinarian and two of my staff people, a
18
clerk and -- no, maybe it was just one of my staff
19
00:49:52
15
16
00:49:29
because the veterinarian would bring in his own
20
assistant.
21
And that clinic was run by a vet, a
So, um, I had those individuals, the
22
23
and ask if we could move the clinic date from a
24
00:50:15
veterinarian as well as my staff member come to me
Monday to a Wednesday because Mondays were very
25
difficult for not only the vet but also for the staff
9
1
2
shortened up our front clerk help.
3
that with Karen and asked her -- asked her what she
4
felt about that, how did she feel about the fact that
5
there has been a request to move it to Wednesday.
6
And I had -- I asked her what is your input?
7
only input to me was we have always done it on Monday
8
why can't we keep it on Monday.
9
00:50:35
that we -- that was helping at the clinic.
It
like that that was a good enough reason to change it
So I reviewed
And her
And I didn't feel
10
or not change it.
11
change it to meet the -- the veterinarian's schedule
12
as well as try to lessen the burden on my staff on
13
00:50:54
Mondays.
14
Q.
So I decided to go ahead and
All right.
And your last sentence, would
15
you read the last sentence of that paragraph, or last
16
00:51:11
two sentences?
17
A.
Okay.
Um, I decided to change the --
18
Q.
Beginning with "Karen was visibly"?
19
A.
"Karen was visibly upset that I made that
20
decision.
21
00:51:24
informed her was of disgust and apathy."
22
Q.
Her facial expression to me at the time I
And the next topic you discussed with her
23
24
00:51:37
was her role and your role.
next item there?
25
A.
Yes.
Is that -- is that the
Yes.
10
1
Q.
Okay.
Let me read this and follow along and
2
3
difficulty recognizing each of our roles since she
4
returned to work after her traffic accident.
5
was out for over five months on short-term disability
6
and then light duty.
7
responsible for the day-to-day operations and overall
8
efficiency of the entire division.
9
00:51:52
make sure I have read it correctly.
"Karen has had
made during this time that changed some procedures.
Karen
During her absence, I was
Decisions were
10
When Karen returned, she had some difficulty
11
accepting her limited responsibility.
12
was not supporting my decisions on various situations
13
00:52:08
with personnel or operational issues."
14
I felt Karen
You go on to say, "we discussed specifics about
her focus and job duties."
expectations you had of her that needed to be
17
addressed each day and her responsibility for
18
ensuring that they get done.
19
more accessible and demonstrate a willingness to
20
listen to employee concerns.
21
00:52:42
15
16
00:52:24
You wrote out the
with her?
And you asked her to be
Is that what you did
22
A.
Yes.
23
Q.
And then the last sentence of that entry
24
00:52:52
was, "the message I gave Karen was I encourage
25
communication between myself and her but will not
11
1
tolerate division.
She would do herself a favor if
2
she became more of a team player than just a conduit
3
for dissension."
4
Yes.
5
Q.
And those were concerns you had in 2010?
6
A.
Absolutely, yes.
7
00:53:04
A.
Q.
Okay.
Let's go to the third page, Bird
8
0404.
There is a June 28, 2010 entry.
And you have
9
a person named Torrie, and do you remember the issue
10
with Torrie that you were concerned about, a new
11
00:53:27
volunteer?
12
A.
Yes.
13
Q.
What was that issue?
14
A.
She came into my office, she sought me out,
15
and came into my office to talk to me about her
16
volunteering.
17
for a few days, I think it was two to three days.
18
And I was surprised to hear that she was upset about
19
00:53:36
the way she was being treated.
She had just been volunteering there
20
Q.
And what was her complaint?
21
00:53:59
A.
I wanted her to be candid with me, I wanted
22
23
regarding it because I felt it was important to have
24
00:54:18
her to explain it because I wanted to know specifics
these volunteers in there helping us.
25
she was being treated as though she was not needed
And she said
12
1
2
there, was not wanted.
Q.
All right.
And the second paragraph begins,
3
4
5
volunteers that this may be happening.
documenting situations and will specifically address
7
this concern with Karen.
8
she is not willing to make this program work, then
9
00:54:53
"I have been concerned in the past with other
6
00:54:38
"I have been concerned", if you would follow along,
she is the problem and not the solution."
10
I'm now
She is the manager and if
Did you
have that discussion with Karen?
11
I certainly did on many occasions.
12
Q.
This was an ongoing --
13
A.
More than one occasion.
14
00:55:03
A.
Q.
Was it a one time deal or an ongoing issue?
15
A.
Torrie's complaint was an issue that I had
16
17
was not the first time that I had heard a volunteer
18
or had a volunteer come in and express the fact that
19
they felt like they were not wanted or that there was
20
no time spent with them explaining things.
21
00:55:22
heard in private -- in previous concerns.
was not the first time that it had happened.
22
Q.
All right.
So this
So this
Would you go to the next page,
23
24
00:56:23
this is July 27, 2010, second paragraph, take a
moment and read that if you would.
25
A.
Okay.
13
1
Q.
Do you remember that incident with the pit
3
A.
I do, yes.
4
Q.
And you have testified before about the
2
bull?
5
policy that a paramount issue was safety of the
6
00:56:33
technician, correct?
7
8
9
00:56:50
10
11
A.
Yes, or the employee conducting the
euthanasia.
Q.
Okay.
Was this an example?
I mean what --
how did you deal with this issue here?
A.
Once it was brought to my attention, um,
12
when you say how did I deal with it what do you mean?
13
I am not sure what you mean.
14
Q.
Did you have any discussions with Karen
15
about the fact that the employees needed to have
16
choice?
17
00:57:07
A.
Oh, absolutely.
As a matter of fact, I
18
19
20
Nate's side of the story and so I wanted to hear what
Karen had to say in regards to it.
22
discussed the fact that safety was an issue with
23
regards to the reason why this particular animal, the
24
00:57:39
that because right now at that point I only had
21
00:57:19
wanted to hear what Karen had to say in regards to
decision was made by Nate to do it that way instead
25
of the other.
And so we
14
1
Q.
All right.
2
A.
And I confirmed that.
3
Q.
And you confirmed that with Karen that the
4
employee had that choice?
5
A.
Absolutely, yes.
6
00:57:46
Q.
And then on July 28th, 2010, it says that
7
you were approached by Russ Cramer and Kathy Harris
8
about a volunteer named Michelle.
9
Johnson that we have talked about?
Is that Michelle
10
A.
Yes.
11
00:58:02
Q.
And it says in the third sentence, Kathy
12
13
occasions to do things.
14
Russ informed me about an instance where Michelle was
15
rude to his mother when they were here visiting and
16
Russ's wife overheard Michelle speaking poorly of
17
Russ regarding a euthanasia incident.
18
you referred Russ to Karen and you were interested to
19
00:58:19
says she has been told by Michelle on a couple of
see how Karen would handle that?
Skipping down a sentence,
And you say
20
A.
Yes.
21
Q.
How did Karen handle it, do you recall?
22
A.
I don't recall how she handled it.
23
00:58:35
Q.
All right.
August 25th, 2010, the bottom of
24
00:59:05
the next Page 0406 you were -- you indicate that you
25
had asked Karen to provide a list of activities.
Do
15
1
you see that?
2
A.
Yeah.
My request was basically to provide
3
4
5
I was going to be presenting in the Taylorsville City
Council meeting and I wanted to be able to show them
7
or tell them what we were doing as a shelter in
8
efforts of adoptions, going out there and doing the
9
00:59:49
involved in as a shelter, outside activities, because
6
00:59:26
me with a list of those activities that we are
activities that we were doing to make adoptions more
10
11
12
13
involved.
Q.
And when you went back to Karen and asked
her if it was done, what did she say?
A.
Well, when I first asked her if she had got
14
15
didn't -- had some reason -- she said -- well let me
16
01:00:02
it done she hadn't.
She said she hadn't had time or
read it.
17
Q.
Okay.
18
A.
She did not have it done yet and she had
19
to it.
important because I needed it at the Taylorsville
22
meeting and it's not only that I needed it that
23
night, Taylorsville needed the information prior to
24
01:00:35
20
21
01:00:17
other things that she was doing and would try to get
the meeting so that they could put it on the agenda.
25
And so that's when I informed her I said I need that
And that's when I informed her that it was
16
1
quickly, that needs to be a number one priority.
2
Q.
All right.
So throughout this -- we're not
3
4
01:00:51
going to take the time to read all of these or go
through them all, but were there a number of concerns
5
you had about Karen's performance as documented here?
6
A.
Yes.
Yes.
7
Q.
And, for example, if you go to 0409, the
8
9
01:01:13
last own entry on October 4, 2010, it looks like
you're talking about the volunteer issue again with
10
Karen?
11
A.
Yeah.
I, like I said, I just had come back
12
13
volunteers complaining to me about how they were
14
being treated which was surprising to me because
15
those three volunteers were pretty satisfied when I
16
left.
17
couple of occasions that they loved it and we like
18
01:01:31
from vacation.
what we're doing.
19
I was approached by three different
I mean they felt they had even told me on a
And so I asked them tell me what's going on,
be specific, let me know what's going on.
want to just approach Karen on a nonspecific issue
22
just that you were rude.
23
And one of them said that Karen would not speak to
24
01:02:11
20
21
01:01:49
I don't
her, didn't show her any respect.
25
yells and is accusatory to her, she is rude and her
I want to know what it is.
She said that she
17
1
2
take the time to either explain or discuss what she
3
wants done.
4
to her, her perception was that Karen had no patience
5
with those who were either volunteers or not
6
01:02:37
instructions -- with her instructions and did not
full-time employees.
7
Q.
And her perception of Karen's response
If you had to summarize the issues where you
8
9
01:03:01
felt you were having or Karen was resisting what you
wanted done, what are the ones that come to mind to
10
11
you?
A.
Um, well obviously the volunteer program.
12
13
needed to make sure that was successful.
15
cleaning procedures, those procedures that we --
16
since we're in new shelter I had put down certain
17
parameters, certain priorities, and we needed to meet
18
those priorities such as having a certain portion of
19
the shelter where the public enters, that portion of
20
the shelter needed to be clean and ready for the
21
01:03:39
felt was something that we needed to, we as managers,
14
01:03:19
That was a very valuable and important program that I
public when we opened the doors at 10:00.
22
Q.
Okay.
Um, the
Let me -- let me stop you here
23
24
01:03:53
because I want to delve into each of these and I see
we're past the noon hour, Your Honor.
25
break now?
Do you want to
18
1
2
THE COURT:
If you're good, we can -- the food
is here, right?
3
Yes.
4
01:03:59
THE CLERK:
THE COURT:
We can break now if this is a good
5
time.
6
7
MR. PRESTON:
Why don't we do that now and
then we'll pick this up.
8
Okay, we'll do that.
9
01:04:06
THE COURT:
THE CLERK:
All rise for the jury.
10
THE COURT:
I would just remind you all not to
11
discuss the case during your lunch break and we'll
12
see you back here in a half hour.
13
(Whereupon, the jury left the courtroom.)
14
(Whereupon, the following is a portion of
15
Cross-Examination of Kelly Davis by
16
01:04:16
Mr. Preston.)
17
18
THE COURT:
you are under oath and Mr. Preston you may continue.
19
01:44:56
20
And Mr. Davis I will remind you
MR. PRESTON:
Q.
Thank you, Your Honor.
(By Mr. Preston)
Kelly, when we broke you
21
22
about Ms. Bird's attitude and your instructions.
23
first was the cleaning.
24
01:45:18
had mentioned two areas where you were concerned
little bit.
25
shelters cleaned by 10:00 a.m. Why was that important
The
I wanted to explore that a
You said you wanted the office or the
19
1
to you?
2
A.
Well, I wanted the first -- the part of the
3
4
5
wanted to be in a good situation with the public so
that the animals were presented in a nice fashion
7
instead of a dirty messy shelter.
8
shelter clean so that when the public had access to
9
01:45:53
10:00 a.m. and it was important to me because we
6
01:45:31
shelter that was open to the public and cleaned by
it they would see the environment and it was a
10
11
I wanted that
receptive environment for the public.
Q.
All right.
And what was Ms. Bird's response
12
13
15
basically because we had moved into the shelter in
2007, and we were working through the process of
17
making sure that we have that public area clean by a
18
certain time.
19
out how that was going to be done with the staff that
20
we had.
21
it just wasn't happening.
22
Karen about we need to get it done by 10, what can we
23
-- what are you going to do to try to make that
24
01:46:48
that we discussed for a number of days and months
16
01:46:29
was not just a one time issue.
14
01:46:10
when you discussed this issue with her.
Well, this
happen.
25
more staff, we don't have the time to be able to do
This was an issue
And so we had to progressively figure
So overtime, um, we weren't getting it done
So I was conversing with
I was getting responses like, well we need
20
1
2
you were going to say something.
3
in and viewing videotapes because we have video
4
throughout the shelter, and I was even watching
5
videotapes because my shelter techs started at
6
5:00 in the morning.
7
wanted our shelter techs coming in at five was so
8
01:47:06
that.
I was even coming in and, excuse me I thought
they had that head start in the public areas.
9
I was even coming
And that was a reason why we
Well, I was seeing video of my shelter tech
never even entering the public area for cleaning, the
cat area, until 7:00 in the morning.
12
two hours that this tech was somewhere in the
13
building.
14
emphasize with your techs that that is where they
15
need to start and do their work is in the public
16
areas of the shelter so that we're completely done by
17
01:47:40
10
11
01:47:22
10:00.
18
So there was
And that was addressed with Karen.
Karen,
We not only had the cats, we had the community
19
the regular dog kennels.
done in that five hours before the public entered.
22
And those conversations overtime just seemed to not
23
happen.
24
01:48:13
20
21
01:47:53
cat rooms.
Q.
25
We had the adoption dog areas and we had
So there was a lot to be
I mean it just wasn't getting done.
I think you may have misspoke.
You said we
moved into the new shelter in 2007?
21
1
A.
In the new shelter?
2
Q.
That is what you said.
3
4
Did you mean 2009
moving into the new shelter?
A.
It could be.
I thought it was September of
5
2007 could it have been -- it was 2009, you're right.
6
Because I moved out to the old shelter in 2007.
7
You're right.
8
01:48:28
Q.
9
01:48:43
10
11
Okay.
So did this problem persist
throughout the period of time that Ms. Bird was the
shelter manager?
A.
It continued.
I mean it wasn't an every day
12
13
days we weren't, but there was more often than not
14
that particular issue was not being -- was not being
15
addressed in the spirit that I felt it should be, in
16
01:48:58
thing there were some days we were successful other
the importance that I -- that I tried to place on it.
17
Q.
Okay.
The second category you mentioned was
18
19
01:49:19
the volunteers and I think you said training them.
What was Ms. Bird's response when you talked to her
20
about training the volunteers properly?
21
A.
And again those are not like one time
22
23
to me was well, I don't have the time, um, I am doing
24
01:49:34
instances, this is over time.
Um, Karen's response
other things and my employees don't have the time to
25
do it, my staff or her staff doesn't have the time to
22
1
2
mean we're not going to increase our staff so we have
4
got to find ways to make sure that we utilize our
5
volunteers in -- to the best way possible.
6
they need that training which they do, they need to
7
be oriented to the job, then we need to take that
8
time to do it.
9
01:50:13
convince her that that is not going to happen.
3
01:49:53
do it.
somebody within her staff did it, it needed to -- it
10
And I tried to
I
And if
Whether Karen did it or whether
needed to be done.
11
12
Um, we need more people.
Q.
Did you have budgetary limitations on how
much staff you could hire?
13
A.
Oh absolutely.
I had no control over the
14
01:50:26
hiring aspect of it.
15
without that position being authorized by the City.
16
Q.
Okay.
I couldn't just fill a position
Let me direct your attention to
17
18
going to direct your attention to a portion of that
20
on the second page that was not read to you or
21
pointed out to you regarding the euthanasia process
22
and the chamber.
23
sentence that begins, "to this day."
24
01:51:15
you.
19
01:50:55
Exhibit 73 which Ms. Hollingsworth discussed with
that?
25
This is the Memorandum of Understanding.
A.
I am
If you go down six lines there is a
Do you see
Yes.
23
1
Q.
Okay.
This is Bird 0401.
"To this day you
2
3
expressed to other staff members that you would not
4
use the chamber yourself and in effect poisoned those
5
staff members to decide for them as required in
6
01:51:30
remain defiant even to the point where you have
policy."
7
A.
Um, what -- why was that a concern for you?
Well, it was disrupting the organization.
8
Obviously the employees themselves that felt like
9
they were being intimidated were now unable basically
to have their option.
retaliated against or would -- there would be
12
pressure placed on them if Karen, the supervisor,
13
would give them -- give them bad looks and, you know,
14
01:52:14
10
11
01:51:52
treat her -- treat them improperly because of their
15
use.
16
17
18
They felt like they would be
So it caused problem in that area.
Q.
Did you receive complaints from any officers
that were under Nate Beckstead about this issue?
A.
Yeah.
All of the officers realized that
19
20
complaints from officers that were saying well, you
21
know, she is looking at me this way or she will be
22
pissed off or whatever it may be and -- if I use it.
23
01:52:29
that was a tool for them.
So, yes, I had those kinds of complaints.
24
01:52:47
25
Q.
And so yeah, I had
You heard Ms. Bird testify yesterday about
using I think she called it a squeeze gate if you're
24
1
using injection with a ferocious animal.
2
squeeze gate in the new animal shelter?
3
A.
No.
4
Q.
All right.
Was a
That was in the old shelter.
So if you had a ferocious
5
animal, what was the choice that the employees could
6
01:53:03
use to euthanize that animal?
7
A.
Well, because of the policy, the only
8
options that they had was either injection or carbon
9
monoxide unless it was a vicious animal.
So they had
10
that third choice to make a decision as to which one
11
they were to use.
12
then they could choose on how they wanted to
13
01:53:24
euthanize that animal.
14
01:53:40
15
16
Q.
And so if it was a vicious animal,
If they wanted to inject it, what would it
require?
A.
It would require more help obviously or it
17
would require a potential injury, place them in a
18
potential hazardous environment.
19
01:54:01
20
21
Q.
Okay.
Did you have concerns about animals
being carried out into the front of the shelter?
A.
Well, my concern of that was one, it was a
22
23
wondering around in the front of the shelter in the
24
01:54:22
directive from City that we wouldn't have animals
public area where the lobby is.
25
we did, there was the fact that when we adopted an
But -- but so -- but
25
1
2
process was completed, the paperwork was done and the
3
payment was made, then the animal was brought out to
4
01:54:42
animal, that animal was brought, after the adoption
that owner at that time which was in the lobby.
5
then they would walk out the front door.
6
And
That was an appropriate time for an animal to
7
8
to have animals out from the kennel just in the lobby
9
01:54:59
be in the lobby.
area either wandering around or being with -- up
10
But it wasn't an appropriate time
there with the clerks.
11
Q.
Was that a topic of discussion with Karen?
12
A.
Yes.
That was not only a topic with me, but
13
14
01:55:13
she was very well aware of that requirement that the
City had made when we were building the shelter.
15
16
Q.
Did you receive employee complaints about
Karen and how she was treating them?
17
A.
Treating them individually or personally.
18
Q.
Yes?
19
A.
Yes.
I would get complaints from various
20
employees that they felt like she was rude to them or
21
she, you know, would walk away from them and didn't
22
listen to them, you know, felt like they were
23
01:55:26
worthless.
24
01:55:44
25
Q.
Those kinds of things.
Do you remember any of the employees who
complained?
26
1
A.
He -- well I know Sandra Bayne complained
2
3
complained about it.
4
01:56:07
about it.
right now.
5
Q.
Wes complained about it.
All right.
Um, Ed Trimble
Um, that's what comes to mind
We won't have you go through all
6
your notes.
But did there come a time when
7
Mr. Morris approached you about initiating
8
disciplinary action against Karen because of
9
insubordination issues?
10
A.
Layne come to me about that?
11
Q.
Yeah?
12
01:56:26
A.
No.
He has never -- he never confronted me
13
14
01:56:37
about input in regards to insubordination or
anything.
15
Q.
Okay.
Didn't he at the end of 2010 didn't
16
you and didn't he talk to you about getting --
17
releasing her at that point in time?
18
A.
Well, yeah.
Back then when he said well he
19
01:56:55
wanted to fire her for insubordination, he mentioned
20
it back then in 2010.
21
22
Q.
I wasn't talking about 2011 I wanted to
direct your attention to the incident in 2010?
23
Okay, I'm sorry.
24
01:57:08
A.
Q.
I wasn't very clear with that.
25
Sorry.
So
what did you tell him when he approached you about
27
1
2
that?
A.
Well, at that time I -- I told him I wanted
3
4
was something that I didn't expect him to say.
5
said well let me think about it.
6
I did.
7
it was, a day or two or whatever it may have been,
8
but then I came back with the -- with the suggestion
9
01:57:27
to think about it.
I wanted to -- because frankly it
and the recommendation that let me take time to sit
So I
And so I, you know,
I thought about it but I don't know how long
everything up to this point, get her so that she is
understanding where we are right now this time in our
13
lives in the shelter, and how we got there, and then
14
I want to be able to provide her with an evaluation
15
so that she is aware of it, and then observe her for
16
the next year and see how things progress because I
17
don't want -- I wanted her to -- I wanted her to
18
change and I wanted her to know exactly what the
19
01:58:32
down with her, draft a memorandum that explains
12
01:58:12
10
11
01:57:45
issues were so that that opportunity would present
20
itself with her.
21
22
Q.
Okay.
If you would turn to Page 0412 of
your log Exhibit 71 which should be still up there?
23
Okay.
24
01:58:52
A.
Q.
There is an entry December 7, 2010?
25
A.
Okay.
28
1
2
Q.
Does this describe what in more detail what
you have just told us about?
3
2007.
4
01:59:31
A.
Q.
Maybe I -- I think I directed you to the
5
right page.
But down to 2013, it's on that page.
6
A.
That's not what we were just discussing.
7
Q.
Right.
8
You say after much thought and
consideration I spoke with Layne and --
9
01:59:45
A.
Right.
10
Q.
-- and Layne agreed with this suggestion; is
11
that right?
12
A.
Yeah.
Yeah.
That is when I had discussed
13
14
02:00:00
with him after thinking this over that this is the
direction that I would like to go first and he
15
accepted that.
16
Q.
Okay.
And then Exhibit 72 is that the
17
performance evaluation you gave her and discussed
18
with her?
19
02:00:17
A.
Yeah.
20
Q.
And you have the Memorandum of
21
Understanding.
22
That is -- yes, that's the one.
Did you discuss that with her as
well?
23
Yes, I did.
24
02:00:29
A.
Q.
Now, there was some questioning about having
25
documentation.
Why did you require your supervisors
29
1
and/or yourself to have documentation if you're
2
grading someone below a "meets expectations"?
3
A.
Well, it is a way to help them as a manager
4
5
evaluation.
6
those situations that you're evaluating them on.
7
in some instances you had documentation that covered
8
the evaluation.
9
02:00:50
and supervisor to be able to document it on an
did, you -- you transposed those concerns on the
In other words, it helps remind them of
Other instances you did.
10
evaluation.
11
02:01:11
And
If you
And if you didn't, then you didn't have
any concerns in the evaluation.
12
Q.
All right.
13
A.
So it was more of an administrative tool for
14
02:01:27
the supervisor to assist them in filling out the
15
evaluations since we only do one a year.
16
Q.
All right.
So you said this is an
17
administrative aid to the supervisor, it is meant to
18
be shown to the employee necessarily?
19
A.
No, it is -- it is for the supervisors.
20
is a tool for the supervisor to help them put an
21
02:01:42
It
evaluation together.
22
Q.
Okay.
And you mentioned you did have back
23
24
02:01:56
up documentation because of the log you prepared; is
that correct?
25
A.
Yeah, my documentation for this was the log,
30
1
2
3
4
yes.
Q.
But in addition to the log, you also gave
Ms. Bird a Memorandum of Understanding?
A.
Yeah, in addition.
5
MS. HOLLINGSWORTH:
6
02:02:06
THE COURT:
7
8
9
Q.
Objection, leading.
Sustained.
(By Mr. Preston)
Did you give her a
Memorandum of Understanding?
A.
Yes, I did.
I provided her with that
10
Memorandum of Understanding which began before the
11
evaluation period too.
12
02:02:13
where we were basically.
13
It was to bring her up to
(Whereupon, the trial continued but was
14
not transcribed.)
15
(Whereupon, the following is excerpts of
16
the Direct Examination by Mr. Preston
17
of Shirlayne George.)
18
19
05:06:29
20
MR. PRESTON:
Q.
All right.
(By Mr. Preston)
Do you recognize
Defendant's Exhibit 70?
21
A.
Yes, I do.
22
Q.
What is it?
23
A.
It's my notes to the investigation on the
24
05:06:37
25
animal shelter.
Q.
All right.
And when was that done?
31
1
A.
Um, in 2005.
2
Q.
All right.
3
4
And do you remember what
prompted you to go out there?
A.
I was having lots of -- several complaints
5
from employees and so I went out to the shelter to
6
05:06:51
take a look for myself to see what was going on.
7
Q.
Okay.
And how would you characterize this?
8
Was this your first real investigation out at the
9
animal shelter?
10
A.
It was.
11
05:07:06
Q.
Did that provide any sort of background for
12
13
you and if so, what was it?
A.
Well, it was a starting focal point, um, for
14
15
shelter.
16
continued to get complaints over the next several
17
05:07:21
issues that went -- continued to go on in the
years.
18
Q.
It was a good basis for me since I
Did this investigation in any way provide
19
05:07:43
you with a background or context to understand things
20
that were going on?
21
A.
It did.
Because the things that I got in
22
that initial investigation seemed to continue
23
throughout the years.
24
05:07:55
25
Q.
Okay.
And did you provide this to anyone
when it was done?
32
1
A.
I did.
2
gone to Paul.
3
Q.
At this point I think it would have
And if you will look at the last page, the
4
05:08:10
last paragraph, do you address something to Paul
5
there?
6
7
8
9
05:08:21
10
11
A.
Yes.
MS. HARSTAD:
Your Honor, I am -- this has all
been very leading so I'm going to object to leading.
THE COURT:
Okay.
If you could modify your
questions going forward.
MR. PRESTON:
Your Honor, it would be nice if
12
13
object to it then so I can determine whether I think
14
05:08:33
she thinks I ask a leading question if she would
it is leading.
15
all of those questions are leading.
It's not appropriate for her to say
16
THE COURT:
17
MR. PRESTON:
18
THE COURT:
19
MR. PRESTON:
Well, okay.
I am --
And so I will be careful -Thank you.
-- going on.
Your Honor, we
20
would move the admission of Defendant's Exhibit 70
21
based on the testimony of Ms. George to -- not for
22
the truth thereof but what her perceptions were going
23
05:08:42
forward based on what -- based on her investigation.
24
05:08:58
25
MS. HARSTAD:
And I object to the admission.
I would like a sidebar.
33
1
THE COURT:
Okay.
We can have a sidebar.
2
(Whereupon, a sidebar conference was held.)
3
MS. HARSTAD:
Your Honor, the 2009
4
those notes that I admitted says who says what.
don't know out of the 2005 investigation, we don't
7
know who was interviewed, how many employees were
8
there.
9
05:09:36
5
6
05:09:22
investigation has the -- has who said what.
who was interviewed or who said what at all.
10
The 2011
We
There is nothing -- there is nothing saying
And so I think it absolutely is hearsay.
It
11
doesn't follow the exception because we don't know
12
who said anything and I don't -- it lacks indicia of
13
any reliability whatsoever.
14
MR. PRESTON:
Well, it is clearly a business
does investigations.
to the hearsay any way.
18
point.
19
things.
20
something with Tess Hartwell, there is reason for
21
that.
22
information.
23
institutional knowledge that the City has as to
24
05:10:17
record.
17
05:10:02
15
16
05:09:49
problems that Ms. Bird had out at the City.
25
This is what she does.
She goes out and
So I think it is an exception
But this is her starting
This is the context she used and reviewed
So when she is criticized for not doing
She goes back and she has all this other
This is passed up the line.
This is
We are testifying why we terminated her.
This
34
1
2
dating back to 2005, the entire employment history.
3
Whether it is true or not it is what the City had and
4
05:10:31
is part of what people rely upon.
It is information
what they relied on.
5
MS. HARSTAD:
And I mean, so did the -- the
6
thing is that I can't cross-examine anything in here
7
because it is not associated with anybody.
8
9
05:10:42
MR. PRESTON:
You could ask her if she
recalls.
10
THE COURT:
That's right.
So okay, um, I need
11
12
generally but not particularly for this document just
15
yet.
16
the document, um, I will allow that in but not for
17
the truth of the matter and we will -- I will
18
instruct the jury on -- that the interim doesn't come
19
in for the truth of the matter and because we have
20
had this instruction on a couple of things I think it
21
is something that we should probably include in
22
instructions to the jury for when they go into
23
deliberation about what that means when something is
24
05:11:32
document which I don't think -- you have laid it
14
05:11:19
the business record exception foundation for this
13
05:11:00
you if -- to get this exhibit in I need you to lay
not for the truth of the matter.
25
So if you can do that, then the hearsay within
MR. PRESTON:
Okay.
35
1
THE COURT:
2
(Whereupon, the sidebar conference concluded.)
3
Q.
Thank you.
(By Mr. Preston)
Ms. George, in your
4
5
investigations as part of your duties and
6
05:11:55
position as the Human Resource Manager, do you do
responsibilities?
7
A.
Yes, I do.
8
Q.
And do you take notes of those
9
investigations?
10
A.
Yes.
11
Q.
What do you do with those notes?
12
type them up?
13
05:12:02
A.
14
05:12:16
15
Do you
I type them up and give them to the
supervisor or to the Human Resource Director or both.
Q.
And this is what you -- and this is -- would
16
you call this a primary duty you have as a human
17
resource manager?
18
Yes.
19
05:12:26
A.
Q.
And are these notes stored within the
20
business records of West Valley City?
21
If it is a formal investigation, yes.
22
Q.
And this was a formal investigation --
23
A.
Yes, it was.
24
05:12:35
A.
Q.
-- in 2005?
25
And so did the City maintain
this record in this particular investigation in its
36
1
records of work done by Human Resources?
2
Yes.
3
Q.
In the normal course of its business?
4
05:12:47
A.
A.
Yes.
5
6
MR. PRESTON:
Honor, at this time as a business record.
7
8
MS. HARSTAD:
THE COURT:
10
MS. HARSTAD:
11
THE COURT:
I'll allow that.
Can I just do it from here?
You can.
VOIR DIRE EXAMINATION
12
13
I do have one voir dire
question, Your Honor.
9
05:12:55
I would move the admission, Your
BY MS. HARSTAD:
14
Q.
So Ms. George it says on here it is
15
August 1st to August 4th of 2005.
16
long thereafter you did that investigation?
17
05:13:02
thereafter you actually typed up these notes?
18
A.
How long
It would have been right away.
19
05:13:15
Do you know how
MS. HARSTAD:
20
THE COURT:
Okay.
No further questions.
Okay, thank you.
There has been a
21
previous objection to this exhibit.
22
and I will admit the exhibit over the objection.
23
(Whereupon, Defendant's Exhibit 70
24
05:13:26
25
That is noted
was received into evidence.)
//
37
CONTINUED DIRECT EXAMINATION
1
2
3
BY MR. PRESTON:
Q.
Okay.
I want to ask you about some of the
4
5
the last page.
6
05:13:33
notes that you took here.
Paul in the last paragraph.
First let me direct you to
What did you write in your note to
Could you read that?
7
A.
Paul, Tess --
8
Q.
Yes, go ahead.
9
A.
"Paul, Tess is ruthless.
She is protecting
include some of the things she said about others
because it was obvious she was trying to discredit
13
those that don't seem to be on Karen's perceived
14
favorite list.
15
has her favorites, but I do agree that most of the
16
problems out there are just because they are under a
17
lot of pressure and working in conditions that most
18
would not put up with.
19
call me.
20
my messages."
21
05:14:14
Karen as if she were her young.
12
05:14:01
10
11
05:13:46
I did not even
Q.
There is no doubt in my mind that she
If you have any questions,
And if I don't answer I will be accessing
And you can use this document to refresh
22
23
complaints about Tess being treated differently
24
05:14:28
your recollection, but did you get a number of
because she was one of Karen's favorites?
25
A.
Yes, I did.
38
1
2
Q.
And did you receive complaints about Karen's
ability as a manager?
3
THE COURT:
I just want to make clear, I
4
5
document I have admitted as a business record there
6
are statements inside of it that are made by people
7
who are not in the courtroom and so I am allowing the
8
document to be considered but it's not for the truth
9
05:14:41
should instruct for the jury, that I -- that the
of the matter asserted it is to show the state -- the
10
perception of Ms. George and where she then
11
05:15:01
proceeded.
12
13
And Ms. Harstad did you --
MS. HARSTAD:
as leading.
14
05:15:13
I want to object to the question
THE COURT:
15
Okay.
MR. PRESTON:
If you --
I will ask it this way.
16
withdraw it and ask it another way.
17
move this along.
18
Q.
I was trying to
(By Mr. Preston) Did you form concerns about
19
05:15:25
I will
Karen Bird's management style based on this
20
investigation?
21
A.
Yes, I did.
22
Q.
What were those concerns?
23
A.
Concerns that she had anger issues, concerns
24
05:15:40
that she treated the employees, some of them,
25
unfairly.
But because it was my first investigation
39
1
2
whether it needed to go further than it did.
3
was up to her supervisor.
4
05:15:59
I didn't feel -- well it wasn't for me to determine
me to have concerns.
5
Q.
All right.
That
But it did -- it did cause
And following this
6
investigation, did you continue to get complaints
7
about Karen Bird in her management style?
8
A.
Yes, I did.
9
Q.
I want to talk just briefly about
10
Plaintiff's Exhibit 4 which was the 2009
11
investigation and that will be in the binder there if
12
05:16:16
you want to look at that for a moment.
13
A.
Okay.
14
Q.
So I want you to tell me, you have touched
15
upon this, but I want you to tell me what -- tell me
16
about your meeting with Mr. Davis.
17
became emotional.
18
05:16:39
reported this to him?
19
A.
You said he
What took place there when you
I was very straightforward with Kelly.
Um,
and told him the things that I felt that he needed to
work on.
22
change that I felt like as a human resource manager
23
that he could be terminated if not severely
24
05:17:16
20
21
05:16:57
disciplined and that he had to make changes or there
25
was going to be some severe consequences.
I told him that if his actions didn't
And we
40
1
2
very humble about it and said that he wanted to
4
change and I did see a change in Kelly.
5
perfect supervisor?
6
of supervisors and there is no such thing as a
7
perfect supervisor but he tried.
8
and I never got -- I never saw an effort for her to
9
05:17:52
were saying that he was doing, um, and he was very --
3
05:17:33
talked about some of the things that his employees
make those kinds of changes.
10
11
Q.
No, but I have worked with lots
I counselled Karen
Did you spend quite a bit of time counseling
with Karen in her relationship with Kelly?
12
13
Was he a
A.
Not -- I tried to but I never felt like she
was receptive to it.
14
Q.
Okay.
Did you think that you had held Kelly
15
responsible for his conduct with the meeting you held
16
05:18:12
with him?
17
18
A.
I felt like -- I felt like there were
changes.
19
Q.
Well, so you talked about his problem you
20
say that you thought he improved.
21
05:18:28
What do you base
that on?
22
A.
I got fewer complaints.
23
Q.
And you talk about doing an investigation in
A.
Yes.
24
05:18:38
25
2011?
41
1
Q.
All right.
I want to go through that in
2
3
Plaintiff's Exhibit 34.
4
foundation.
5
is in the binder there.
6
October 24.
7
05:19:01
detail with you.
contact Karen and if so what did you say?
8
9
A.
So let's look at that exhibit,
I want to lay the
You look -- you have seen Exhibit 34 it
This is the e-mail on
And once you received this, did you
I asked her if she wanted me to do a formal
investigation.
I told her what it would entail, that
10
I would have to talk to all of the employees and she
11
05:19:20
said yes.
12
Q.
Okay.
Then if you look at Plaintiff's
13
Exhibit 35, is that the formal complaint that you
14
received?
15
A.
Yes.
16
05:19:30
Q.
And did you in connection with that you have
17
18
mentioned a CD.
A.
Okay.
What was the CD she gave you?
There were two CDs.
There was the
19
20
the cat, and then there was the one that she did in
21
Kelly's office.
22
05:19:46
one that she did in my office where we talked about
she did in my office where we talked about the cat.
23
Q.
So I think this one was the one that
Well, look at Defendant's Exhibit 78.
24
05:20:07
I'll -- I think I will hand it up here.
Do you
25
remember you talked about an e-mail you sent and you
42
1
2
3
4
said it was dealing with the CD?
A.
Okay.
That was the one in my office with
the cat.
Q.
Well, didn't she tell you and give you a CD
of a meeting she had with Kelly where she told you it
was -- it showed how belittling and bullying he was
7
of her?
8
A.
Yes.
9
05:20:32
5
6
05:20:19
Q.
Okay.
10
And you told her you would listen to
it; is that right?
11
Q.
All right.
13
your e-mail.
14
has already been admitted.
15
you that I would get right back with you, but I have
16
had a hard time making connections with the right
17
people and it has taken me a while for me to listen
18
to the CD you provided.
19
information you have left with me and I have now
20
listened to the CD.
21
going to do?
22
05:21:02
Okay, yeah.
12
05:20:50
A.
question?
23
24
05:21:13
25
A.
I'm a little foggy here.
So lets's see what you said in
This is Defendant's Exhibit 78 and it
Sorry.
I know I promised
I have looked at the
What did she tell you the CD was
I'll stop there and ask you that
That it was going to show that Kelly was
belittling her.
Q.
Was it a long audio recording?
43
1
Yes.
2
Q.
And did you listen to the whole thing?
3
A.
Yes, I did.
4
05:21:22
A.
Q.
And what opinion did you form after you
5
listened to it?
6
A.
7
belittle her.
8
Q.
9
That Kelly was trying to counsel her not
That he was trying to help her.
Did it cause you concern that you're
listening to this CD, Karen is telling you it's an
10
example of how much she is being bullied and
11
belittled and you don't see that?
12
05:21:40
do you draw from that?
13
A.
What conclusions
I was very concerned about that because at
14
help Karen because -- because it seemed like she
didn't -- she didn't want to accept any help.
17
seemed like she had reached a point where there was
18
nothing else that we could do to help her.
19
I even -- even in the e-mail where I had said to her
20
let me help you with your communication, that led to
21
nowhere.
22
head against a wall.
23
05:22:25
15
16
05:21:55
that point I had a hard time wondering how I could
to help her any more.
24
05:22:41
25
It
Um,
And so it was just like I was hitting my
THE COURT:
I just didn't know what to do
Mr. Preston, I appreciate you are
trying to speed us along, but if you could ask
44
1
open-ended questions that would be helpful.
2
MR. PRESTON:
3
Q.
All right.
(By Mr. Preston) So did you -- you mentioned
4
November 3, 2011.
I want to play another portion of that that is our
7
Exhibit 93 which is already in the record.
8
have a transcript that will be on the screen there
9
05:23:19
5
6
05:23:03
that you had a meeting with her I think it's on
you could -- actually I'll just given you a copy
10
So let me hand you this before they start
playing this.
13
15
Tell me if you remember this.
(Whereupon, the video was played
14
05:26:09
And I
here.
11
12
You were played a portion of that.
for the jury.)
Q.
(By Mr. Preston)
I'll take that back.
Do
16
you recall that conversation with her now that you
17
have heard it?
18
Yes, I do.
19
05:26:26
A.
Q.
What was the concerns, if any, that you had
20
21
having heard her say that?
A.
As a Human Resource Manager it broke my
22
23
help her.
24
05:26:42
heart because I didn't know what else I could do to
change and I didn't feel like she was.
25
what else to do for her.
I felt like Kelly was making efforts to
I didn't know
45
1
Q.
Did she ever offer any resolution to you?
2
A.
No.
3
Q.
As a Human Resource Manager, is it healthy
4
5
department -- a director of a division and the
6
05:26:57
to have this sort of relationship between a
manager under you, is that healthy or unhealthy?
7
8
9
05:27:09
10
THE COURT:
open-ended question, please.
Q.
(By Mr. Preston)
Is this the sort of
relationship that you would like?
11
THE COURT:
12
Q.
Mr. Preston, open-ended questions,
please.
13
14
05:27:20
If you could rephrase in an
15
(By Mr. Preston)
What sort of relationship
would you like a supervisor to have?
A.
They have got to be able to communicate
16
17
that reflects on their staff.
18
that can't have an effective relationship with their
19
05:27:41
together.
staff if they can't communicate together and work
20
together.
21
22
23
Q.
They have got to -- so that is something
Um, supervisors like
It just doesn't work.
So how do you deal with it if there is that
situation?
A.
You try and work with them.
You try and get
24
05:27:58
them help.
Um, we hold classes, we brought in -- we
25
brought in the Employee Assistance Program and had
46
1
them hold classes for the entire staff for the entire
2
division.
3
communication.
I believe that they did a class on
4
05:28:14
Q.
This was in the past?
5
A.
In the past, uh-huh.
6
7
So there are things
that we could do to try and help.
Q.
Right.
You have been shown the handwritten
8
exhibits or notes you took of the 2014 or November
9
14, 2011 investigation.
I am going to hand you now
10
what has been marked as Defendant's Exhibit 76 and
11
05:28:48
ask you if you recognize those?
12
Yes, I do.
13
Q.
What are they?
14
05:29:08
A.
A.
Those are my notes that I typed up after my
15
investigation of the shelter staff.
16
Q.
Okay.
So --
17
A.
Supervisory staff, excuse me.
18
Q.
Is this the investigation that you wanted to
19
20
supervisors?
21
A.
Yes, it is.
22
Q.
Why did you want to do that?
23
05:29:20
look at the entire shelter and all of the
A.
Because of what was going on because I had
24
05:29:33
been getting complaints from so many of the employees
25
that I wanted to just get an overall picture so that
47
1
I could have a good idea of what was going on out
2
there so that I could be fair.
3
4
05:29:51
Q.
your duties as the Human Resource Manager?
5
6
A.
I did immediately following the
investigation.
7
8
And did you type these notes up as part of
Q.
And do you remember who you gave the
investigation to?
9
05:29:58
A.
Layne Morris.
10
Q.
Layne Morris.
Had you had any discussion
11
with him about conducting this investigation or
12
informed him about it?
13
14
A.
Yes.
I told him I was going to do the
investigation.
15
Q.
What was his response to you?
16
05:30:08
A.
He was grateful.
I mean he knew there were
17
18
that it would be a good idea to get to the bottom of
19
05:30:18
issues out there and he felt the same way that I did,
it.
20
21
22
23
24
05:30:34
25
Q.
Did you approach this with a preconceived
idea as to what you would find?
A.
No.
No.
I tried to be very open-minded.
Um, as a Human Resource Manager you have to do that.
Q.
Were you surprised at what you discovered
when you did the investigation?
48
1
A.
Not really.
2
Q.
What were the conclusions that you formed at
3
4
the end of the investigation?
A.
That the issues with Karen were severe to
the point that I didn't know if they could be fixed.
Um, that there were still issues with both Kelly and
7
Nathan, the other two supervisors, but that they were
8
not as severe as the ones that we were having, I
9
05:31:11
5
6
05:30:52
felt, with Karen.
10
Q.
Did what you found out there in this
11
investigation did that cause you to form any
12
perception about how Kelly Davis was doing?
13
I felt like he was doing better.
14
05:31:29
A.
Q.
Why did you reach that conclusion?
15
A.
Because there were fewer complaints in this
16
17
18
investigation about him.
Q.
Who received the most complaints in this
investigation?
19
05:31:41
A.
Karen Bird.
20
Q.
Was it a large disparity or a small
21
disparity?
22
A.
It was large.
23
Q.
Let's go through the investigation.
24
05:31:51
25
MR. PRESTON:
Your Honor, I would move the
admission of Defendant's Exhibit 76.
49
1
MS. HARSTAD:
2
THE COURT:
3
(Whereupon, Defendant's Exhibit 76
4
05:31:57
5
No objection.
We'll admit that.
was received into evidence.)
Q.
(By Mr. Preston)
All right.
You say that
6
7
to the fact that they were all about the same.
8
you see that?
9
05:32:16
in this third sentence, I summarized the comments due
A.
Yes.
10
Q.
And let's go to the second point here where
11
it says, was extremely harsh, really mean to Ed
12
Trimble, Steve Hulse.
Do
13
A.
What is that referencing?
They were both issues I believe that
14
15
about things that happened in roll call where Karen
16
05:32:34
happened in roll call.
had yelled at them in roll call.
17
Q.
Okay.
They were both complaining
You state in the next line, roll call
18
19
05:32:52
is very uncomfortable due to the tension between
Kelly and Karen.
20
Do you see that?
They tend to antagonize each other.
21
A.
Yes.
22
Q.
And then you state she, who is the she you
23
are referring to?
24
05:32:59
A.
Karen.
25
Q.
Wants to save animals by doing what is best
50
1
for them, does not follow protocol.
2
Was that a
complaint that you had received?
3
A.
Yes, it was.
4
Q.
Skipping down, Karen's tone of voice is
5
usually very abrasive.
6
anything because if she does not like it everybody
7
05:33:13
I'm always afraid when I do
knows about it?
8
A.
Yes.
9
Q.
The next one, Karen hates the gas chamber.
Whenever I have to put an animal down I go to Kelly
to get the key because I do not like the way she
12
makes me feel bad for using it.
13
you of that?
14
A.
Several employees.
15
Q.
Several employees?
16
A.
Yes.
17
05:33:36
10
11
05:33:25
Q.
And another one, we all walk on egg shells
Did employees inform
18
19
20
telling her employees not to work with the officers,
yet she expected the officers to help her out when
22
she needs it.
23
A.
Yes.
24
05:34:02
of her reaction.
21
05:33:50
when talking about our using the gas chamber because
Q.
Does she supervise the officers?
25
A.
No, she did not.
The next comment, she was heard
Do you remember that comment?
51
1
2
Q.
Those are the Animal Control Officers in
uniform that go out into the City?
3
Yes.
4
05:34:12
A.
Q.
Does that give you any concerns that these
5
Yes.
sort of comments are being made by a supervisor?
6
A.
Definitely.
7
Q.
Why?
8
A.
Well, because it's insubordinate.
9
05:34:32
10
11
And when
they hear -- when employees hear a supervisor talking
like that, um, then it just causes contention.
Q.
Okay.
The next one, she belittles staff in
12
roll call calling them by name and pointing out their
13
mistakes.
14
05:34:53
15
16
A.
Is that another comment made?
Yeah.
That would be in regards -- along
with the Ed Trimble and Steve Hulse issue.
Q.
All right.
One employee mentioned Karen and
17
18
while waiting for him to show up for roll call.
19
05:35:10
Tess talking bad about Kelly in front of the staff
was inappropriate and uncomfortable.
20
21
Do you have concerns about a manager of the
shelter engaging in that conduct?
22
A.
23
and conduct.
24
05:35:23
It
Q.
25
Yeah.
There again, yeah, insubordination
Next point, when Kelly's office was changed
to the shelter, Karen's personality changed, paren
52
1
more argumentative, close paren?
2
3
A.
Yeah.
I think things got worse when they
had offices in the same building.
4
Q.
Then states, Karen claims that Kelly yells
5
at her using a very loud tone of voice.
6
employee claims that they have witnessed that kind of
7
05:35:38
Only one
behavior.
Do you know who that was?
8
I don't remember.
9
05:35:50
A.
Q.
You don't recall if it was Tess?
10
A.
I would have to go back to my handwritten
11
notes.
12
Q.
All right.
Let's go to the next page.
13
14
employees that have not had the euthanasia training
15
doing euthanasia on a weekly basis.
16
brought up the liability issue to the shelter and the
17
City.
18
05:36:06
Third paragraph, third point down.
to have untrained employees doing euthanasia?
19
This person
Do you know if that was a violation of policy
A.
I -- I can't say for sure that it was but
20
I'm pretty positive that it was.
21
05:36:24
Karen has two
concern.
22
Q.
It was a great
Skip down to the paragraph that begins,
23
24
05:36:38
Karen is letting the rescue groups take animals that
could be adopted through the city.
25
money away from the city shelter.
This action takes
Next one, Karen is
53
1
hard to work with because you never know from
2
day-to-day what her mood will be.
3
4
05:36:53
A.
That was also an issue that came up in the
2005 investigation.
5
Q.
Next, the volunteers are under-supervised --
6
are under-supervised and asked to do things that they
7
have not been trained to do or sensitive things that
8
should be done by an employee.
9
you heard?
Is that a complaint
10
A.
Yes.
11
05:37:06
Q.
Skipping down, Karen has been known to load
12
13
are scheduled to put the animals down.
14
extends the time pit bulls are kept.
15
knowledge of some being kept for longer than six
16
months.
17
05:37:24
up the euthanasia schedule on the days the officers
A.
18
20
Q.
23
Is that a complaint you heard?
Yeah.
Employees felt like she liked the pit
Another paragraph we were told by Jake
Arslanian, who is Jake Arslanian?
21
22
Actual
bulls the best so she wouldn't put them down.
19
05:37:37
Next, she
A.
He was the facilities manager for the entire
Q.
Okay.
City.
That animals were not allowed in the
24
05:37:48
lobby of the shelter.
Kelly has tried to reinforce
25
this but Karen and Tess take them in, quote, just to
54
1
2
piss Kelly off, close quote.
A.
Several employees told me that same thing.
3
4
05:38:02
I called Jake myself and asked him if that was
actually a policy that he had made for that building
5
and he told me yes, it was.
6
Q.
Skip down.
Karen has belittled me in front
7
of others for the tiniest of mistakes.
At one point
8
she said to me, quote, you ought to think about if
9
you should stay or not, close quote.
This was all
10
over an issue of her techs not updating the I.D.
11
cards on the kennels and a kitten was put down that
12
should not have been.
13
05:38:22
that was not my fault.
14
I got yelled at over something
Skipping down, everyone always leaves roll call
15
in a bad mood because of the interaction between
16
Kelly and Karen.
17
call by Karen because I scan all animals for chips
18
05:38:39
and she thought it was unnecessary.
19
Next one, I was belittled in roll
Next, there is definitely a division between
the officers and the techs.
because of the bad attitudes of Kelly and Karen.
22
Next, I think that the communication problem between
23
Kelly and Karen stems from the fact that she gives
24
05:39:10
20
21
05:38:54
I feel that it is all
him no input, does not support him, and does not make
25
an attempt to communicate.
55
1
The last one on the bottom of that page,
2
3
you see that?
4
05:39:24
Karen comes into roll call in a defensive mood.
A.
Yes.
5
Q.
Let's go to the next page.
Do
Kelly asked
6
Karen to give him a memo stating what supplies she
7
needed for the shelter.
8
and was upset because he would not accept it because
9
it was not in memo format.
She gave him a typed list
She argued with him in
10
front of the staff.
11
05:39:42
would discuss it after roll call.
12
He finally told her that they
Next, Karen has been heard many times saying
13
14
15
hard to talk to because she is always so defensive.
She is never happy and it shows on her face.
17
brings the whole staff down.
18
these up from the notes and the comments that were
19
made to you.
20
A.
Yes, I did.
21
05:40:14
she is aggressive and demeaning to her staff.
16
05:39:58
nothing in the chamber.
She does not like it.
Next,
Q.
If we go to the next page, these are the
She is
This
Did you accurately type
22
comments that you took regarding Kelly and Nate.
23
Are
there less comments for them?
24
05:40:29
A.
Yes, there are.
25
Q.
Looking down on the fourth one that says,
56
1
Kelly's temper has subsided immensely in the last two
2
years.
Is that your perception?
3
Yes, it is.
4
05:40:56
A.
Q.
Yes.
5
A.
Um, that was a -- that was not my
6
perception.
7
Can I -- can I clarify that?
employee.
8
9
Q.
That was a comment that was made by an
Right.
But did you have a perception that
he had changed?
10
A.
Yes, I did.
11
05:41:08
Q.
That's what I was asking.
12
Thank you for
clarifying that.
13
Okay.
14
05:41:23
A.
Q.
Did Layne consult you regarding what
15
discipline he would impose?
16
A.
No, he did not.
17
Q.
Who had the responsibility to make that
18
decision under the way the City is organized?
19
05:41:34
A.
Layne did.
20
Q.
Did you see through this history you've had
21
with the animal shelter that there was any similarity
22
between Kelly and Karen's management styles?
23
I thought it was very similar.
24
05:41:57
A.
Q.
In what way?
25
A.
They both had -- I called it gruff
57
1
2
communication skills, so similar -- similar those
3
were kind of the big ones that kind of jumped out at
4
05:42:22
personalities.
me.
5
6
7
Q.
Um, they didn't have real good
What was any difference if there was any
between Karen and Kelly?
A.
Well, like I said before, when I -- when I
8
9
05:42:46
tried to help them, Kelly at one point welcomed that,
whereas I never felt like Karen did.
10
11
12
Q.
How would you evaluate their efforts to
change their management styles?
A.
Kelly welcomed the help.
When I suggested
13
14
really welcomed that.
15
down and talk about things that he could do to
16
change, he really welcomed that.
17
05:43:05
that we bring in the Employee Assistance Program he
receptive to getting help.
When I suggested that we sit
So he was just more
18
Q.
How was Karen in that regard?
19
A.
I never -- I never -- she never took the
opportunity to let me help her.
but there was never -- when I tried to help her she
22
was always very defensive, always jumps to place
23
blame instead of okay, what can I do to make things
24
05:43:51
20
21
05:43:22
We talked a lot, um,
better.
25
Q.
So I had a hard time trying to help her.
Did you ever get any reports about Kelly
58
1
2
being insubordinate?
A.
3
4
No, not that I recall.
MR. PRESTON:
Your Honor, if I might have a
moment, I think I'm about done.
5
THE COURT:
6
(Brief pause in proceedings.)
7
05:44:03
MR. PRESTON:
8
Sure.
Those are all of the questions I
have, Your Honor.
9
THE COURT:
10
All right.
Cross?
(Whereupon, the trial continued but was
11
not transcribed.)
12
(Whereupon, the follow excerpt contains
13
discussion between the court and counsel
14
at the end of the day.)
15
THE COURT:
16
07:22:45
MR. PRESTON:
You said Exhibit 4.
I'm sorry, instruction four.
17
18
something that is clearly we shouldn't even waste our
20
time on.
21
the Supreme Court, they're instructing in their case
22
law what it means to be in the absence of a belief
23
particularly where there is mixed motives.
24
07:23:16
spent 35 minutes on ratification which I think is
19
07:22:57
Sorry.
And you know it's frustrating to me we have
they're very clear on the fact that there could be
25
some retaliatory animus.
And this is critical to our case.
We have
And
And the jury is not going
59
1
to be -- that is not going to be put to the jury and
2
that is the law.
3
THE COURT:
I beg to differ.
I think it is
4
5
a -- that this is a substantial motive.
6
separate instruction which say if they prove that
7
they had a basis to fire her in the absence of that
8
motive, then they're not liable.
9
07:23:29
very clear that we say even if you find that there is
argue that.
10
MR. PRESTON:
11
07:23:44
THE COURT:
We have a
I will let you
I want to argue that.
So let's come back then tomorrow
12
morning.
13
you enough time to put that on the record.
14
07:23:58
15
If we had from 7:30 to 8:30, does that give
MR. CROWTHER:
until 7:30 so we wouldn't be up here --
16
THE COURT:
17
MR. CROWTHER:
18
19
THE COURT:
20
have known.
So shortly after that.
I was just making the court
I appreciate that.
I would not
So if we -- if you could all -- so shall
we say 7:45?
22
MR. PRESTON:
23
THE COURT:
24
07:24:18
At 7:30.
aware.
21
07:24:08
The doors downstairs don't open
25
Yes.
Does that give you enough time and
with an opportunity -MR. PRESTON:
Everything yes.
Sure.
And I
60
1
2
Judge, you know I'm very frustrated with how this
3
trial has gone and I'm sorry if it is showing.
4
got two hours today, they got four.
5
25 minutes left total examination from them.
6
going to use that 25 minutes and then they're going
7
07:24:33
get to put my key witness on, my whole case rests on.
to expect that they can cross-examine my witnesses.
8
9
They're
hours in front of this jury questioning than I have
10
had.
It is simply not fair.
on the record at some point.
12
THE COURT:
13
MR. PRESTON:
14
07:25:01
They have
I mean right now they have used twice as many
11
07:24:50
But I
15
And that has got to be
I do understand that.
They have the choice on what
they want to emphasize.
THE COURT:
Okay.
I -- I have thoughts about
16
how to address that in order to -- in order to be
17
fair to your -- to you and your client.
18
MR. PRESTON:
I mean I rushed through
19
20
exhibit with her and she has gone back to St. George
21
07:25:18
Shirlayne George tonight and I forgot to get in a key
because I was rushing to get it in and I forgot.
22
23
24
07:25:31
25
THE COURT:
Well, that -- I'm not -- I'm going
to take responsibility for that.
MR. PRESTON:
But that's what happens when I
feel I have to rush through something.
61
1
THE COURT:
And I understand that.
But our
2
court reporter has an appointment that she has to get
3
to.
4
07:25:41
5
6
MR. PRESTON:
then.
So we need to get out of there
We don't want to keep Laura waiting.
THE COURT:
Right.
So 7:45 tomorrow morning.
7
We will address this jury instruction issue.
And I
8
will tell you both, I would tell plaintiffs you need
9
to be prepared to finish your case in the time that
10
you have left and we will talk about timing before we
11
start the day and what we might need to do to address
12
07:25:56
this issue.
13
14
07:26:12
15
MS. HOLLINGSWORTH:
Okay.
Okay, yup.
is the court's calculation of our time?
THE COURT:
How much time?
16
I don't have -- I don't have it up.
17
Right it is the --
38 minutes left for the plaintiffs.
18
19
07:26:49
So what
20
MS. HOLLINGSWORTH:
So we have
So did you -- did the
court count my redirect against our time?
THE COURT:
We did because the time has been
21
counted for defendants when they have been crossing
22
as well.
23
24
07:27:02
MS. HOLLINGSWORTH:
MR. PRESTON:
25
Okay.
By my record, it is 9 hours and
32 minutes for them and 4 hours and 30 minutes for
62
1
me.
2
3
MS. HOLLINGSWORTH:
5
Your Honor, but we have
and they have like two witnesses left so --
4
07:27:18
So that is five more hours they have had.
MR. PRESTON:
Well, I have four witnesses
maybe five.
6
THE COURT:
Right.
And I mean there is
7
8
about this now.
9
07:27:29
obviously there is no way that I can -- we can't talk
out.
10
11
12
We have to get the court reporter
We'll talk about it tomorrow.
Thank you.
We'll be in recess.
(Whereupon, the hearing concluded
at 6:28 p.m.)
13
14
15
16
17
18
19
20
21
22
23
24
25
63
REPORTER'S CERTIFICATE
1
2
3
I, Laura W. Robinson, Certified Shorthand
4
Reporter, Registered Professional Reporter and Notary
5
Public within and for the County of Salt Lake, State
6
of Utah, do hereby certify:
7
That the foregoing proceedings were taken
8
before me at the time and place set forth herein and
9
were taken down by me in shorthand and thereafter
10
transcribed into typewriting under my direction and
11
supervision;
12
That the foregoing pages contain a true and
13
correct transcription of my said shorthand notes so
14
taken.
15
16
In witness whereof I have subscribed my name
this 13th day of March, 2019.
17
18
________________________________
19
Laura W. Robinson
20
RPR, FCRR, CSR, CP
21
22
23
24
25
64
APPENDIX 5
1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
In re:
KAREN BIRD,
Plaintiff,
vs.
WEST VALLEY CITY, a
political subdivision of
the State of Utah, KELLY
DAVIS, in his official
and individual
capacities,
Defendants.
________________________
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Case No. 2:12-CV-903EJF
BEFORE THE HONORABLE EVELYN J. FURSE
March 15, 2018
Partial Transcript
Excerpts from Trial
Laura W. Robinson, RPR, FCRR, CSR, CP
351 South West Temple
8.430 U.S. Courthouse
Salt Lake City, Utah 84101
(801)328-4800
2
Appearances of Counsel:
For the Plaintiff:
April L. Hollingsworth
Attorney at Law
Hollingsworth Law Office LLC
1115 South 900 East
Salt Lake City, Utah 84105
Kathryn K. Harstad
Attorney at Law
Strindberg & Scholnick LLC
Plaza 721
675 East 2100 South
Suite 350
Salt Lake City, Utah 84106
Xernia L. Fortson
Attorney at Law
2935 Duke Of Windsor
Atlanta, Georgia 84106
For the Defendants:
Stanley J. Preston
Bryan M. Scott
Brandon T. Crowther
Attorneys at Law
Preston & Scott
111 E. Broadway
Suite 1200
Salt Lake City, Utah 84111
1
Salt Lake City, Utah March 15, 2018
2
(Whereupon, the trial was held but was
3
4
5
6
not transcribed.)
(Whereupon, the following is an excerpt
with counsel regarding a timing issue.)
MS. HOLLINGSWORTH:
And Your Honor, we have
7
been talking about this and we haven't really
8
discussed it, um, and we haven't addressed this with
9
opposing counsel, but I would like to just throw it
10
out there would it be possible to ask the jury if
11
they would be okay coming for closing arguments in
12
00:00:09
the morning?
13
14
MS. HOLLINGSWORTH:
15
MS. FORTSON:
16
00:00:21
THE COURT:
Yes, it would be okay to ask that.
THE COURT:
Okay.
Take the victory dance.
Yes, it would be okay to ask that.
17
18
do -- do we need to ask Mr. Preston to come back or
19
00:00:34
Um, would -- I did want to talk about timing, um,
are we okay --
20
MR. CROWTHER:
I mean I talked to Mr. Preston
21
22
jury to feel like this is our fault.
23
that is going to be dragging it into the next day,
24
00:00:46
about this.
Our big concern is we do not want the
but that's because of how long the plaintiffs have
25
taken on their case.
It is our case
And if the jury feels like
3
1
we're the ones keeping them in overtime, I'm not sure
2
they will react favorably.
3
THE COURT:
4
00:00:58
Do you have a proposal as to how
you would like me to prevent that?
5
MR. CROWTHER:
We might have to wait for
6
Mr. Preston on that one.
7
I'm not sure I can express his proposal.
8
9
THE COURT:
fix it.
Okay.
I can express his concern,
Not sure if you can tell me how to
All right.
Well, so this -- I'll
tell you as I was thinking about it last night, even
just looking at -- so with the times that we gave
12
yesterday for each side, um, plaintiff had 38 minutes
13
remaining, defendant has three hours and 4 minutes
14
00:01:35
10
11
00:01:09
remaining -- and actually here is Mr. Preston now so
15
I'll restate.
16
17
if they would be -- if they would be able to come
19
back tomorrow morning for closing -- for closing
20
arguments and I said yes and that's -- that is in my
21
contemplation.
22
obviously about that not reflecting on you folks.
23
I'm open to your suggestions about how to prevent
24
00:02:14
um, Ms. Hollingsworth asked if we could ask the jury
18
00:01:52
We just started talking about timing.
And,
that, if there is a way in which I present it in
25
order to prevent that or something I would like to
And then I did hear the concerns
4
1
hear about that.
2
MR. PRESTON:
3
THE COURT:
So what if they can't?
Um, well, I guess -- I think they
4
5
think they recognize that you haven't had a chance to
6
put on your case yet and it is Thursday morning.
7
00:02:29
anticipate that that might be where this is going.
I do think that --
8
9
00:02:47
10
MR. PRESTON:
I
And
What about today as far as time
restrictions?
THE COURT:
Right.
So that is what I was
11
12
remaining, defendant with 184 minutes remaining which
14
would be about three hours and four minutes.
15
-- and as noted, well, I guess it wasn't quite noted,
16
it was started to be but my -- while I can put
17
constraints on plaintiff's ability or timeframes I
18
certainly think I would be crossing over in to due
19
00:03:30
now where we are is plaintiff with 38 minutes
13
00:03:09
going to get to.
process if I didn't give plaintiff the opportunity to
20
cross-examine a witness.
21
That's just where I was.
So right
What I
So I don't think I can do that and with
22
23
witnesses I think that is unlikely.
24
00:03:48
38 minutes remaining and you yet to call your
my theory is that plaintiffs will have 38 minutes to
25
finish their case today.
So my theory --
You can begin your case and
5
1
2
by the end of today so that tomorrow morning we can
3
come in and do jury instructions and closing
4
arguments and send the jury to deliberate.
5
as far as restrictions on cross-examination, that
6
plaintiff's cross-examination of any witnesses be
7
limited to no more than half the time spent on
8
00:04:04
what I would like is to have the witnesses finished
direct.
9
MR. PRESTON:
And then
You know I think with the
10
restrictions you have talked about, I'm -- I think we
11
00:04:27
could still get it done today.
12
13
14
THE COURT:
With instructions and closing
argument?
MR. PRESTON:
Um, yeah.
I mean we're ready to
15
do it all.
16
I think you can ask them, but I think we ought to try
17
00:04:38
to do it.
18
I mean I think we ought to try and do it.
THE COURT:
I'm happy to try and do it.
19
00:04:49
know what you're putting on better than I do.
20
You
that is why I don't know where you're --
21
MR. PRESTON:
Right.
So
But you know make a
22
decision they have 38 minutes until they rest right
23
so that is direct and redirect.
24
00:05:08
MR. CROWTHER:
The court said 32, I think.
25
MS. HOLLINGSWORTH:
Your Honor, if -- if
6
1
2
have got five witnesses to put on and it is going to
3
take so long which frankly I knew all along they're
4
using the same witnesses so that's just not correct.
5
We have the burden of proof.
6
six years for this trial and we should be entitled to
7
put on our entire case.
8
today, they're saying that they don't have that much
9
00:05:23
counsel is telling us after saying all this time they
left, can I please have more than 38 minutes for the
My client has waited
And if they can do this
remaining two witnesses?
Layne Morris who was the decision maker, and one
12
final volunteer who will be short.
13
know I was telling my volunteer last night, okay, I
14
have got maybe eight minutes.
15
impossible to really adequately address those final
16
00:05:57
10
11
00:05:40
witnesses and I am just asking for another half hour.
17
18
19
THE COURT:
Okay.
We're only going to put on
But I would, you
It is kind of
So you would like to
have -MR. PRESTON:
There is no we'll finish.
It is
going to be tight now as it is.
to do it if you give her more time.
22
made decisions all the way along how much time she
23
spends and that -- and just -- and I think I see this
24
00:06:32
20
21
00:06:13
But there is no way
all the time.
25
plaintiff's have to do the judge will give me more
I mean she has
It's well, I don't care what the
7
1
time and that's what they do and they just monopolize
2
the time.
3
THE COURT:
Well, so I would like to -- I
4
5
parties who tell the court how long is needed for
6
trial.
7
talked about this when we came here on the pretrial
8
that it was -- that that was going to be tight but
9
00:06:46
would like to put on the record that we -- it is the
that the parties thought we could do it if we did
The court was told it would be four days.
We
full days.
schedule to an 8:30 to 4:00.
12
is a break that gets added when you increase it to
13
that so that increased by an hour and 45 minutes the
14
00:07:21
10
11
00:07:04
time every day.
15
So we extended from doing an 8:30 to 2:00
That increased by there
Last night we stayed an extra hour.
We got
16
17
as quickly as I think you can.
18
all of the time that you told me would be needed for
19
the entire case.
20
case.
21
00:07:43
the jury -- we got the jury selected and seated about
the representations of counsel.
So you have have had
That's a problem.
I don't know what that is.
I mean it's your
I can only go on
22
23
is right it does -- there is this idea that the last
24
00:07:58
When we asked the jury to stay late, counsel
person has made them stay.
25
potential that you may want to call a rebuttal
There is also the
8
1
2
We start -- we talked about on Wednesday morning when
3
we came or sorry it was Thursday -- or Tuesday night
4
00:08:21
witness.
we talked about we have got to tighten this up, we
5
have to get this to them.
6
Then that's more time.
These concern me.
So we have -- we have that issue.
Um, then we
7
came in yesterday morning and by the time we got to I
8
think it was our 11:00 break, we were still not
9
through a significant amount.
And so we then put
time limits in place.
that you have your case to put on, but it has been
12
your case.
13
everything that you wanted to do.
14
00:09:13
10
11
00:08:48
warnings about time, um, and I do think there is
15
concern about it going over.
16
You have had the opportunity to do
MS. HOLLINGSWORTH:
17
take the blame.
18
We have given
Your Honor, I am happy to
that's fine.
19
00:09:27
And I understand your thoughts
20
You can tell the jury it's my fault,
THE COURT:
Okay.
So how would you propose I
do that?
21
MS. HOLLINGSWORTH:
That plaintiff
22
underestimated how long it would take to put on her
23
case.
24
00:09:44
25
Plaintiff's attorney.
THE COURT:
Okay.
You can put it on me.
Mr. Preston, what are your
thoughts about my asking the jury if that -- about
9
1
2
would take on her case.
4
finish witnesses today, but we will need to go into
5
tomorrow morning to do closing arguments and jury
6
instructions are you available if we do it in that
7
fashion and then plaintiff only would get an
8
additional half hour so it would be she would have
9
00:10:30
plaintiff's attorney has underestimated the time it
3
00:10:11
their ability to go into Friday morning and saying
one hour and 8 minutes to rest her case.
10
MR. PRESTON:
We anticipate being able to
Well, I am -- it is not my first
11
12
agree to that.
14
an extra half hour.
15
took two-thirds of the time yesterday.
16
and on.
17
back to St. George, I had to put her on, I rushed
18
through it, made the jury stay.
19
fair to me.
20
38 minutes to make sure we get done.
21
00:11:05
-- I understand the position the court is in so I'll
13
00:10:48
choice to go on tomorrow, but I think that the court
should see how it goes.
22
I really don't think they should get
They chose yesterday and they
It went on
And as I said, I had a witness who had to go
I mean it's just not
And so I think she should do it in the
THE COURT:
Okay.
So I think you
So you're -- so I think,
23
24
00:11:37
um, I'm inclined to allow the extra half hour so then
as far as talking to the jury about tomorrow, is it
25
your preference to instruct them about the need for
10
1
tomorrow why that has happened only once it becomes
2
obvious that that is what we need to do?
3
you do it, if I'm going to give the extra half, do
4
that this morning?
5
MR. PRESTON:
6
THE COURT:
7
MR. PRESTON:
8
THE COURT:
9
00:11:55
MS. HOLLINGSWORTH:
Or would
Do it this morning.
Okay.
That's fine.
Okay.
Your Honor, just one more
10
thing.
11
fully willing to take that, but I would also ask for
12
a curative instruction that it is not to be construed
13
against Ms. Bird herself.
14
00:12:19
In addition to blaming it on me, and I am
THE COURT:
I mean there is no world in which
15
they are allowed to consider, you know, the
16
statements of counsel or the acts of counsel against
17
00:12:37
the client and we have that instruction.
18
MS. HOLLINGSWORTH:
19
THE COURT:
Okay.
Okay.
All right.
We haven't had
a chance to talk about verdict form yet and we do
need to do that.
22
I might be asking you all if you can bring your lunch
23
in the courtroom to talk about verdict form if it
24
00:13:23
20
21
00:12:59
looks like we're getting close.
25
ahead and bring the jury in.
Um, let's see how the morning goes.
All right.
Let's go
11
1
THE CLERK:
2
(Whereupon, the jury returned to
3
All rise for the jury.
the courtroom.)
4
THE COURT:
Good morning.
Before we get
started with testimony this morning, I would like to
ask you folks about your schedules.
7
was the scheduled last day for the trial, the fourth
8
day.
9
length of time it would take to put on her case and
10
so we are not sure we're going to be able to finish
11
up today.
12
00:16:54
5
6
00:16:30
that we're going to be able to do that.
13
We are on what
Um, plaintiff's counsel has underestimated the
We are going to try, but we're not sure
There is a chance if we can't get finished
14
that we would need to come back tomorrow morning and
in the morning we would finish with testimony today
17
and then in the morning have the instructions read to
18
you, hear closing arguments, and then you would
19
deliberate at the close of that.
20
hardship for any of you?
21
00:17:28
15
16
00:17:10
with everything to get the deliberation to you today
JUROR #6:
Does that pose a
Okay.
As long as I get notice.
I gave my
22
work until today so as long as I know for tomorrow
23
I'm fine.
24
00:17:42
THE COURT:
Yes, we can do that.
25
JUROR #12:
Same here.
12
1
JUROR #11:
Yes.
2
THE COURT:
We can -- we will do that for
3
4
or not.
5
you very much for your willingness and ability to be
6
flexible.
7
that we will get started.
8
00:17:52
everyone so that you all have it whether you need it
could call your --
9
We will make sure that you have that.
We appreciate that.
All right.
And with
Ms. Hollingsworth, if you
(Whereupon, the trial continued but was
10
not transcribed.)
11
(Whereupon, the following is an excerpt
12
of Layne Morris's examination
13
by Mr. Preston.)
14
01:33:08
Thank
15
16
Q.
(By Mr. Preston) And Kelly's responsibility
with his skill set?
A.
That was Kelly's skill set.
And in addition
17
18
level of professionalism gained through experience so
20
that he was able to explain to people no, you know,
21
you can't do this, or you can't do that and hold
22
people accountable in ways that he was used to doing
23
that could get those people to be able to perform as
24
01:33:45
experience at the police department, he also had a
19
01:33:26
to running a division which he had an extensive
a team and do so professionally where it would cut
25
down on some of the little complaints that had gone
13
1
2
3
to HR during that time.
Q.
I forgot to ask you one question about your
military experience.
What rank did you obtain?
4
I retired as a sergeant first class.
5
Q.
So you were a noncommissioned officer?
6
01:34:00
A.
A.
That's the only way to go.
7
MR. PRESTON:
Your Honor, would this be a
8
9
01:34:10
convenient time to stop, to break for our morning
break?
10
11
THE COURT:
Do we have our stuff here?
We
actually don't have our treats for the jury here yet.
12
MR. PRESTON:
I thought after an
13
hour-and-a-half we were -- a recommendation but that
14
is fine, I am happy to go forward.
15
(Whereupon, the trial continued but
16
was not transcribed.)
17
(Whereupon, the following excerpt is
18
19
01:36:22
a portion of Layne Morris's trial
testimony.)
20
Q.
(By Mr. Preston) Okay.
So do you remember a
21
22
-- when the division was moving into this new
23
shelter, did that create any challenges for the
24
01:36:36
time when -- let me ask this question.
division?
25
A.
Yes.
When the new
It was -- there was a lot of growth in
14
1
2
prior to splitting had a total of like eight people
4
and, um, and the Animal Services Division alone went
5
from that up to double that.
6
have got, I don't know, 18 people in the Animal
7
Services Division so we were hiring officers, hiring
8
shelter personnel to run the -- run the shelter
9
01:37:13
was the Code Enforcement Animal Services Division
3
01:36:56
the division.
itself so there was all kinds of change that of
10
11
We were hiring people.
The end result
I think right now we
necessity had to occur.
Q.
Do you recall that Karen Bird was off work
12
for several months with an auto accident, do you
13
recall that event?
14
01:37:29
15
16
17
18
A.
Yes.
It was an -- it was a tragic, a tragic
accident and we all felt badly for Karen.
Q.
When she came back, did you notice any
tension between her and Kelly?
A.
Yes.
I think that tension had started
19
20
exacerbated by -- after her accident or increased or
21
01:37:48
before, prior to her accident, but it was certainly
the level was accelerated after the accident.
22
23
24
01:38:07
25
Q.
Okay.
And tell me about what you perceived
that tension to be?
A.
Well, my perception was based on just visits
from Karen and visits from Kelly.
And so, you know,
15
1
2
and just generally complain that she didn't like
4
working for Kelly, he didn't listen to her, he
5
treated her ideas as if they were not good ideas and
6
didn't -- didn't follow any of his suggestions -- or
7
her suggestions, and she was just generally unhappy
8
with his leadership of the shelter and any of the
9
01:38:41
don't know, starting out maybe once every six months
3
01:38:22
after the accident, Karen would come over about, I
changes that he continued to make there.
10
So those -- those visits with Karen were, you
11
12
ended up holding the hearing, we were down to, you
13
know, every week or biweekly visits from Karen to
14
01:39:04
know, started out at six months and by the time I
complain about Kelly and the things that had gone on.
15
16
17
Q.
So what did you do to try to remedy this
tension?
A.
Well, you know, these two had history
18
19
20
And so as I said, um, I looked at Karen as a high
performer and part of the management team.
22
when, you know, when Karen would come over and just
23
make these complaints about Kelly, um, I would
24
01:39:36
together successfully as a team for like eight years.
21
01:39:15
before -- before I got there.
They had worked
explain to Karen because most of the things she would
25
complain about are things that Kelly and I had
And so
16
1
2
me, um, what Karen thought about it and sometimes we
4
agreed, sometimes we didn't.
5
were based on my interactions directly with Karen.
6
And would then go to Kelly and say hey Kelly, you
7
know, just FYI Karen came over to me see me and we
8
talked about these couple of issues, she gave me some
9
01:40:10
and I had made a decision on that and he would tell
3
01:39:54
discussed as him being my direct report.
information I didn't know, what do you think about
10
And so he
And so my observations
this and then we would make a decision.
11
And that -- frankly as that relationship
12
13
Kelly, Kelly, whether or not Karen is right or wrong
15
about any particular issue, she doesn't feel like you
16
listen to her and give her any acknowledgment to
17
knowing what she is talking about and she doesn't
18
feel like she is part of your management team.
19
it is part of your job to make her feel as if she is
20
part of your management team.
21
that.
And to Kelly's credit he did try and work on
22
01:40:51
office became more frequent, at one point I said to
14
01:40:33
started to deteriorate, and Karen's visits to my
that.
Um, I observed that firsthand.
23
And
So you need to work on
So during this time, I would meet with Kelly
24
01:41:09
individually, I would meet with Karen individually, I
25
would meet with them both together.
At one point I
17
1
2
listen to Karen.
tells you to do and he is the boss, he needs to take
input from you and you need to give him input.
8
despite -- regardless of the fact whether he never
9
accepts anything you have to say, it is still your
10
responsibility to provide him that input so he can
11
make a good decision.
12
can't come up with a decision yourself and you want
13
to come run it by me, I'm happy to sit down and be
14
the tiebreaker or whatever it takes.
15
was that this manager and subordinate relationship
16
was deteriorating for whatever reason, and the only
17
one who appeared to be trying to salvage it or make
18
it work was Kelly.
19
complaints that I don't -- I don't, you know, I don't
20
like Kelly, Kelly doesn't like me, and he wants to
21
fire me.
22
Kelly this has gone far enough, we need to have -- we
23
need to have -- I need to do a disciplinary hearing
24
01:42:45
5
7
01:42:30
have to get this job done and Kelly you need to
6
01:42:05
both, guys this is -- this -- I need you both -- we
4
01:41:48
situation continued to deteriorate and I told them
3
01:41:30
met together with both of them.
And as this
with Karen but I want you to be on board with that,
25
he said okay, I'll go home and think about it.
Karen, you need to do what Kelly
And
And I'm very happy if you guys
But my problem
And all I got from Karen was the
And at one point after I had told Kelly,
And
18
1
2
and said I just I don't want to -- I don't want to go
3
that far yet.
4
01:43:03
it was over the weekend and he came back on Monday
Karen was in my office complaining about Kelly's
5
behavior again.
6
And it wasn't I think the next day
And I finally bluntly said to Karen, Karen you
7
need to understand here I just told Kelly that we've
8
got to fire you last week and he came back and said I
9
don't want to do that.
So I understand you think
over the last week because if it was up to me, if I
had to work with you on a daily basis under the
14
conditions that you're both describing to me, um,
15
when I have you both in my office and you can't even
16
speak to Kelly, you can't even look at Kelly Davis,
17
the loathing is so strong coming from you, that it
18
is -- it is clear that this relationship is
19
completely broken and we can't run a division where
20
frankly people are being forced to choose.
21
support the big boss Kelly Davis or do I support the
22
littler boss Karen.
23
they all felt like they had to make that decision and
24
01:44:16
but Kelly has just been your biggest benefactor here
13
01:43:59
Kelly doesn't like you and he wants to be all that,
12
01:43:36
10
11
01:43:20
people were treading between those two land mines of
25
how do I keep Karen happy but not let Kelly know that
Do I
And people were at a point where
19
1
2
an untenable -- it was literally and I should have
3
frankly I should have taken action about a year and a
4
half earlier, um, but it was Kelly's division.
5
trying to -- you know his management style is his
6
management style.
7
division work with this conflict where people are in
8
open conflict, well I'll let that go for a little
9
01:44:34
I'm not doing what Kelly said to do.
And so it was
while.
I was
If he wants to try and make a
But at some point, you know, it is my
department and I'm going to make sure that division
runs like it's supposed to.
12
that point by 2011 where when Kelly declined to fire
13
Karen that it was very quickly after that where I --
14
I made the decision myself and, you know, frankly I
15
didn't at that point I didn't care what Kelly wanted
16
01:45:14
10
11
01:44:54
to do.
17
18
Q.
And we quickly got to
I had to make a decision.
So you're talking about the ultimate
termination in November of 2011 at this point?
19
01:45:25
A.
Right.
20
Q.
So to be clear, you're describing a process
21
that just did it continue to deteriorate and get
22
worse and worse?
23
A.
It did.
It got -- we would try, we would
24
01:45:42
meet together and we would talk about an issue.
And,
25
you know, 2000 -- whatever 2009, 2010 they could at
20
1
2
perspectives.
3
couldn't even stand to be in the same room as Kelly
4
and he is her boss.
5
mean I guess I'm a military guy and chain of command
6
is important, but I don't -- I don't think that is
7
asking too much in any organization to say, you know,
8
when your boss finally tells you you're going to do
9
01:46:04
least be in the same room and discuss their different
this, then you need to jump on board and make it
Um, but by 2011, like I said, she
And frankly, I was, you know, I
10
happen.
11
Q.
Why is chain of command important to you?
12
01:46:21
A.
Well, you know, I don't necessarily think it
13
is any more important to me than it is to anybody
14
else.
15
Q.
Okay.
16
01:46:32
A.
But certainly I see the evidence on a daily
17
18
continuity from where the rubber meets the road, that
20
shelter technician, those animal services officers
21
all the way up to me, that we're all on the same
22
page.
23
organization where people understand their role and
24
01:47:06
been a part of, that we have got to have that
19
01:46:49
basis in any -- in all of the organizations I have
they're happy to operate with that role and be
25
successful.
That's how you get an efficient and well run
And until Kelly physically moved out to
21
1
2
the shelter, um, I thought that was Karen.
Q.
Okay.
The event where you suggested that
3
4
disciplinary action towards Karen and you described
5
how you went to Kelly and he wanted to think about
6
01:47:32
you thought it was time -- first time to do some
it, do you remember the day of that?
7
A.
I don't, sorry.
8
Q.
I think the record reflects it was the end
9
of December of 2009?
10
A.
Um --
11
01:47:44
Q.
I'm sorry, 2010.
I apologize.
Are you --
12
did Kelly say that he -- that he wanted to give her
13
another chance?
14
A.
He did.
He did.
He said let me -- I want
to try a couple of things, um, and I think that was
the -- where he -- where he -- wanted to try and get
17
on the same page with Karen and I think he asked her
18
to write down, you know, take some time and write
19
01:48:23
15
16
01:48:07
down what you think your job description is.
20
I mean he tried -- he tried to do a couple of
21
22
they could have something to discuss, to resolve this
23
whatever this was between them so that they could --
24
01:48:46
things to engage Karen in a constructive way that
they could be successful like they had been for about
25
eight years or something.
22
1
Q.
All right.
Do you recall him doing a
2
3
evaluation to assist her in knowing what she needed
4
01:49:01
memorandum of understanding and a performance
to do?
5
6
7
A.
Did you ever see those documents?
I -- I saw -- I saw them.
I'm pretty vague
on it.
Q.
Sure.
When you sat down, we actually have a
8
recording by the way of a meeting where you
9
informed --
10
A.
I had no idea about all these recordings.
11
01:49:17
Q.
Karen never told you she was recording all
12
these conversations?
13
A.
No.
Never.
14
Q.
When you had this discussion I believe it
was January 12 or 13 of 2011, so it was right after
that performance review, how did she respond when
17
you're putting her on notice that, you know, there
18
are problems, you were considering disciplinary
19
01:49:50
15
16
01:49:30
action, Kelly essentially saved her job, what was her
20
response to that?
21
A.
You know, I am -- I was always from day --
22
23
something along the lines of hey, I know he's my boss
24
01:50:09
from 2009 I was always looking for Karen for
and I need to -- I need to do what he says and I need
25
to work with him and I can do better at this.
And I
23
1
2
problem and it is -- you know I felt like she was
3
telling me it is your job to provide me with a
4
supervisor that's acceptable to me.
5
wish we all had that.
6
01:50:26
just never got anything other than Kelly Davis is the
I just want to say that.
7
And, you know, I
But my current boss is great,
But -- but, you know, it -- it's not -- it's
8
not -- it's not always possible.
So I told both of
9
them look frankly I don't really care if you guys
professional about this.
you need to do what Kelly says.
14
you need to make Karen feel like she is part of the
15
team.
16
conversations with him, would make an effort to reach
17
out to Karen to find -- try and find ways to
18
compromise with her that would make her feel as
19
though the things that she wanted to do mattered and
20
try and do them.
21
wanted to do were just not possible for a variety of
22
reasons and to try and explain that to her.
23
always got that from Kelly that he was trying.
24
01:51:36
but you have to get along and we need to be
13
01:51:18
don't like it each other, you're not best buddies,
12
01:50:57
10
11
01:50:42
never, right up until the end, even when I gave Karen
25
that disciplinary notice, and she said you know I
And Karen, you need to -And Kelly, you know,
And I always felt Kelly, any time I had those
Many of the things that Karen
So I
And I
24
1
2
recorded either, but I said, you know, that this
3
is -- this is broken and I am going to -- I'm going
4
to do -- I'm going to act.
5
don't, you know, feel like he ever listens to me and
6
he is trying to make me feel like he is the boss and
7
I said well, he is the boss.
8
know, but well there is no -- there is no but there.
9
01:51:55
just listened to this I didn't realize it was being
He is the boss and you might not like it.
And she said well I just
And she said well, I
Typically
and go get a job where they do like the boss.
Karen's attitude seemed to be, this is just my
13
perspective, that she felt like because she loved
14
animals the most, that anything she wanted to do was
15
right and anything else that somebody else wanted to
16
do was secondary to that, and we all needed to just
17
get on board.
18
like that, I want people I'm always looking for
19
01:52:47
when people have had enough of their boss, they quit
12
01:52:32
10
11
01:52:14
people like that, but they need to be able to
20
understand the parameters that we're operating under.
21
Q.
But
And like I said, um, we need people
So if you recall in towards the end just
22
23
her, getting a CD from Shirlayne George?
24
01:53:05
prior to the decision being made by you to terminate
ring a bell with you?
25
A.
Does that
Yes.
25
1
Q.
Tell me about that?
2
A.
Well I -- when I -- when I decided that I
3
4
pre-disciplinary hearing I called HR, that is the --
5
that is the policy, you know.
6
those things.
7
do a disciplinary hearing for Karen Bird and
8
Shirlayne George said to me, you know she made a
9
01:53:18
was going to -- I was going to conduct the -- do a
complaint, formal complaint here a couple of days ago
You need to coordinate
So I called HR and said hey, I need to
surreptitiously made of Kelly Davis that she says is
evidence of Kelly's misbehavior and harsh and rude
14
treatment of her.
15
great, I would love if it is possible for me to hear
16
that.
17
you do in these investigations, but I would love to
18
hear that if that's possible.
19
sure, I'll make you a copy of it.
20
use that because that was going to help me in my
21
hearing with Karen.
22
Um, I had never heard Kelly speak in that manner to
23
Karen and so if there was, you know, regardless of
24
01:54:29
that.
13
01:54:10
about Kelly Davis.
12
01:53:54
10
11
01:53:34
And I said no, I didn't know
how she obtained it, if there was that hard evidence
25
that Kelly was behaving that way, then that would
She said yes, she has a recording she has
And so at that point I said well,
You know, you HR you got to do whatever it is
And Shirlayne said
And so I wanted to
I wanted to hear her side of it.
26
1
certainly be a factor in my decision on what to do.
2
So I got that CD and listened to the whole
3
4
wanted to go pat Kelly on the back and say, wow, you
5
are a man of patience and I'm very impressed
6
especially since you didn't know you were even being
7
taped.
8
only of Kelly Davis's patience and attempt to work
9
01:54:49
thing.
And frankly by the time I was done with it, I
with Karen, but the fact that Karen viewed that as
But to me it was -- it was hard evidence not
10
evidence of what a terrible person Kelly was, was
11
indicative to me of how far off base Karen was and
12
her perspective of how the world ought to work was
13
01:55:15
just really out of whack.
14
Q.
Let me show you what has been marked and
15
entered as Exhibit 78.
16
This is an e-mail that Ms. George wrote to Karen Bird
17
on November 9th, 2011.
18
that, it's a short e-mail and it's already an
19
01:55:37
Are my exhibits over here?
exhibit.
Take a moment and just read
20
A.
Okay.
21
Q.
Did you -- do you see that Ms. George says
22
01:56:58
here that --
23
MS. HOLLINGSWORTH:
Your Honor, I just object
24
01:57:07
to this questioning because he hasn't established
25
this witness has any personal knowledge of the
27
1
e-mail.
2
3
MR. PRESTON:
I won't comment.
4
01:57:20
5
THE COURT:
Okay.
Um, let's go ahead and I'll
wait for -- at this point I don't see a problem.
6
7
Well, we have already seen it.
MR. PRESTON:
Q.
All right.
(By Mr. Preston)
What I'm asking you this
8
for, Mr. Morris, is I wanted to -- did you talk to
9
Shirlayne and get her opinion about that as well?
About the --
Q.
The CD?
A.
No.
13
Q.
Okay.
14
e-mail.
15
that I've determined you have not been placed in a
16
hostile work environment.
17
Skipping down, I listened to the recording.
I felt
18
as though he was really trying to help you.
Did you
19
01:58:10
A.
12
01:57:46
10
11
01:57:34
share a similar or a different view of that CD than
20
Ms. George expresses in this e-mail?
21
A.
Were you aware that she sent this
What I want to know is she states in here
No, I didn't.
Are there problems?
Yes.
I mean I probably didn't put
22
23
meeting and yeah, frankly as a manager by the time it
24
01:58:31
it in that nicely.
It was a long -- it was a long
was over I was frustrated.
25
have -- I guess I don't have the patience that Kelly
You know, I -- I didn't
28
1
does under -- under those circumstances because I
2
wouldn't have handled it quite that gently.
3
Q.
Were you aware of an investigation in 2009
4
5
against him?
6
A.
I believe so.
7
01:58:48
into Kelly Davis and anger management issues raised
Q.
Ms. George testified that you were given a
8
copy of that investigation.
9
Do you recall receiving
it?
10
A.
Yes.
11
01:58:58
Q.
What was -- had you ever seen Mr. Davis act
12
in an angry or yelling or unprofessional manner?
13
No.
14
01:59:14
A.
Q.
Did you trust that investigation?
15
A.
At that point I didn't.
I didn't.
I
16
17
that division was pretty strongly split and so there
19
was lots of I guess drama going on.
20
I remember right the -- the -- I think Shirlayne had
21
-- the conclusion she came to -- had come to was that
22
Kelly had an issue with his temper and he lost it and
23
he had lost it on occasion and spoken loudly or more
24
02:00:05
dramatic I guess.
18
01:59:41
remember seeing that investigation and it was fairly
loudly than he should have.
25
with a grain of salt I guess is the best way to say
And, um, at that point I felt like
So, you know, if
And so I -- I took that
29
1
2
know, he is not a wilting personality, you know, he
3
is a strong personality and so he had to get his
4
point across.
5
to get elevated.
6
And so I would not characterize that as a man who is
7
on the verge of losing his temper or behaving
8
inappropriately, but yeah sometimes we all need to
9
02:00:28
it.
I mean Kelly is an ex-police officer so, you
get a hold of ourselves and say all right maybe I was
I'm sure he speaks -- his voice tends
I have the same problem myself.
10
a little too strong with -- or spoke a little bit I
11
02:00:46
didn't need to get to -- reach that decibel level.
12
Q.
Okay.
You said that there was a split in
13
14
02:01:00
the division in your perception.
by that?
15
A.
What did you mean
Well, like I -- well the employees were
16
17
telling me one thing in our staff meeting, our daily
19
staff meeting, here is what is going on, you know, I
20
want this guy assigned to do that.
21
there is -- because there are, you know, animals have
22
got to get fed and so it is one of the only divisions
23
where you show up and you might be the office clerk
24
02:01:32
make happy today?
18
02:01:17
really essentially forced to decide who am I going to
but since somebody was sick that day you end up
25
having to clean kennels.
Kelly or Karen.
Because Kelly is
Animal services
Or if you are an Animal
30
1
2
road, maybe you have got to come in and cover for a
3
clerk.
4
there to kind of get organized for the day.
5
when you have got Kelly making decisions based on who
6
is there and what we're going to do today and who
7
needs to do what and how they need to do it, and when
8
that meeting is over and employees go their own way
9
02:01:47
Services Officer and you're used to being out on the
and now it is just them and Karen and Karen is
So there is a daily briefing that goes on
And so
do this instead.
all right well, you know, I got Karen right here
13
telling me one thing, and I know that's different
14
than what Kelly wants me to do, but, you know, I
15
don't want -- I don't want to get in trouble with
16
either one of them so how do I -- how do I -- I've
17
got to pick a side.
18
interaction with Karen picked Karen.
19
02:02:33
telling them well no, we need to do -- I want you to
12
02:02:19
10
11
02:02:03
that had more interaction with Kelly I think picked
20
Kelly.
Now an employee is forced to chose
And the people that had more
And the people
21
Q.
Is that healthy for the division?
22
A.
No, obviously you can't run a -- you can't
23
24
02:02:47
run a division based on two people where one refuses
to recognize the legitimacy of the other one as the
25
-- as the boss.
And so it was literally tearing that
31
1
division apart.
2
HR, you know, their opinion of what's going on, um,
3
you get a wide swing in what people think.
4
And so, um, when people are asked by
Some people think Karen is the most terrible
5
person on earth, and some people think Kelly.
6
think it was much closer to the middle.
7
that investigation with a little bit of a grain of
8
02:03:08
salt.
9
02:03:21
10
MR. PRESTON:
And I
So I took
Your Honor, would now be a
convenient time?
11
THE COURT:
It would be.
12
THE CLERK:
If the jury could rise.
13
Or sorry,
if we could all rise for the jury.
14
02:03:30
(Whereupon, the jury left the courtroom.)
15
THE COURT:
16
The jury can rise, too.
We'll
have a 15-minute break.
17
MR. PRESTON:
18
THE COURT:
19
(Recess.)
20
(Whereupon, the trial continued but
21
Thank you, Your Honor.
Thank you.
was not transcribed.)
22
(Whereupon, the following excerpt is
23
24
03:02:19
a portion of Examination of Layne Morris
by Mr. Preston.)
25
Q.
(By Mr. Preston) You will see the last
32
1
2
Valley sure likes to murder."
3
comments that you would get when these statements
4
would go out?
5
A.
Exactly.
6
03:02:34
statement on this says someone writes back, "West
Q.
Anybody ever suggest that you use the
7
Are those the sorts of
chamber on yourself?
8
A.
Probably.
9
Q.
So in this meeting, what did you observe
10
about the way Kelly and Karen interacted on
11
03:02:54
October 31, the meeting that you had?
12
A.
That was when I -- that was when I realized
13
14
15
opinion in hindsight but I had been operating on the
-- on the premise that these two had gotten along
17
famously for, you know, eight years, and that
18
whatever was -- whatever was occurring now they would
19
03:03:27
mean I really had been operating too long in my
16
03:03:10
that this was a completely broken relationship.
get over it and get back to operating efficiently
20
like they had been.
21
I
So this was the meeting when I realized,
22
23
six months from someone who could at least comment
24
03:03:49
looking back that Karen had gone just over the last
and in a civilized way comment or address Kelly or
25
talk to him in my presence.
She, in that meeting,
33
1
2
she refused to look, even glance his direction.
3
would look at me and talk at me and talked over him.
4
But I mean the -- like I said it before, the loathing
5
was so strong that it was obvious to me that this is
6
not going to get better, this is one of those ugly
7
divorces, and Kelly is trying and Karen is not
8
trying.
9
03:04:09
she literally she couldn't even look him in the eye,
Q.
And I really didn't think I had much choice.
Okay.
So the next day did you talk to Karen
10
about that after your meeting with Karen and
11
03:04:29
She
Michelle.
Do you remember that?
12
A.
I believe so.
13
Q.
Okay.
This would be a November 1 meeting.
14
03:04:42
Let me hand you what has been marked as Exhibit 92.
15
It is a brief clip.
There is a transcript here.
16
A.
It's another recording.
17
Q.
Yes, it's another recording that was made
18
19
03:04:58
and.
transcript right here (indicating) and we'll ask
20
Mr. Crowther if you will play that for us and you can
21
follow along.
22
23
24
25
This is just a clip from it but you will see a
(Whereupon, the video was played
for the jury.)
(Whereupon, the trial continued but
was not transcribed.)
34
1
(Whereupon, the following is an excerpt
2
of examination of Layne Morris by
3
Mr. Preston.)
4
Q.
(By Mr. Preston)
Thank you.
Mr. Morris
5
when we broke, when I last had you on the stand, we
6
were just talking about the November 1 meeting and
7
there had been the clip played about you telling
8
Karen that you didn't know how this was going to work
9
04:17:46
out, that they were -- that their planets were
10
different, were in separate orbits.
11
04:18:07
Do you recall
that testimony?
12
I do.
13
Q.
Now, did you meet with her again on
14
November 9th?
15
A.
16
meeting or --
17
04:18:18
A.
Q.
Would that have been my pre-disciplinary
No, it was before that.
Do you remember
18
having a meeting with her talking about whether or
19
not her relationship was broken with Kelly?
A.
Right.
Q.
Okay.
22
conversation.
23
meeting with her on that occasion, November 9th, if
24
04:18:52
20
21
04:18:35
you recall?
25
don't.
We have, again, a recording of this
What do you recall -- why were you
We can pull the recording out if you
35
1
A.
I'm sorry I don't remember.
So this would
2
have been after we had had the conversation where I
3
had remarked to her that it appeared to me to be
4
irretrievably broken?
5
Q.
No, this would be that conversation.
6
A.
Okay.
7
Q.
Tell me about that conversation?
8
04:19:06
A.
I think it was -- this was my informing
9
04:19:26
10
11
Karen that I was going to take disciplinary action.
Is that what we're talking about?
Q.
Yes.
Yeah, November 9th.
So from
12
13
you observed how they were, you talked to her about
14
04:19:42
November 1, okay you had the meeting on October 31,
that the next day after the meeting with Michelle.
15
What was your thought process leading up to
16
November 9th when you informed her about a
17
disciplinary process?
18
A.
That was really I think it solidified it in
19
20
said, she couldn't even interact with Mr. Davis in
21
04:19:59
my mind was based on that prior meeting where, as I
any -- in any way.
22
Q.
Okay.
And you mentioned that there was
23
24
04:20:12
something about the relationship being broken.
you have that discussion with Karen?
25
A.
Did
Yeah, I believe she has got a recording of
36
1
2
irretrievably -- it's broken.
4
Kelly can't do it.
5
-- not going to work any longer.
6
right, she agreed and said yeah, you're right, it is
7
broken.
8
Q.
9
broken?
10
A.
No.
11
04:20:40
just from our meeting the other day that this is
3
04:20:30
that.
I think I told her, Karen, it appears to me
Q.
Let me hand you what's been marked as
You can't do it.
This relationship is not going to
And if I remember
Did she -- she didn't deny that it was
12
13
November 9th.
14
all that long and the document is already in so you
15
can follow along in the transcript and Brandon if you
16
04:21:08
Exhibit 94.
would please play that.
17
04:21:38
20
21
22
It's a short clip.
The meeting isn't
(Whereupon, the Audio Clip 94 was played
18
19
This is an audio clip of a meeting on
for the jury.)
Q.
(By Mr. Preston)
Did she ever explain what
those perspectives were, that you recall?
A.
Not in this meeting but I knew what her --
what her perspective was.
23
And how did you know that?
24
04:21:54
Q.
A.
Because we had been talking about it for at
25
least a year at varying -- varying frequencies and
37
1
intensities.
2
Q.
And what did you understand her perspective
A.
Well, her perspective was that Kelly was a
3
was?
4
5
bad manager and she didn't like to work with him and
6
he didn't do things the way she wanted them done or
7
thought was her -- it was her right to do them how
8
she wanted to do them.
9
04:22:06
litany of issues where she just didn't -- she just
I mean there was a whole
10
chaffed at his leadership in general, the way he
11
directed and the way he approached her and the things
12
that he wanted her to do or not to do.
13
04:22:25
didn't like it and thought it needed to change.
14
15
change?
16
04:22:45
Q.
A.
17
19
Did she ever suggest to you how it should
Um, no.
No, not that I -- that I recollect.
It was more just that Kelly is wrong.
18
04:23:04
And she just
Q.
Did she ever recognize that she might be at
fault here somehow?
20
A.
No, which was one of the troubling things to
21
22
level allegations that your supervisor should be
23
fired or terminated or you can't work with him and
24
04:23:25
me.
I mean if you are going to -- if you're going to
you need somebody you can work with, um, there ought
25
to be some of that that you could sit down and talk
38
1
2
a willingness to say look I recognize that I'm --
3
that I'm the subordinate here and, um, his decisions,
4
even though I might not agree with them, I'll
5
implement what he wants me to do but I don't like it.
6
And I sure appreciate a second set of eyes on it.
7
04:23:46
about and we can kind of reason these things out and
And we didn't get that very often.
8
9
Q.
Did you, sitting here today, I know it has
been a long time ago you have a lot of
10
responsibilities, but can you think of some of the
11
instances where you felt she was being resistant to
12
04:24:01
him or not doing the things that he wanted done?
13
A.
Sure.
Things like personnel schedules, um,
14
like do we spend some money on buying toys for the
dogs to play with in the kennels or do we spend it on
18
blankets for the dogs in the kennels or better food.
19
Do we buy wet food versus dry food?
20
what I would say is purely an opinion based --
21
opinion based decisions where there is -- there is
22
not necessarily a right or a wrong answer, it is all
23
of us got together and here's what after taking input
24
04:24:57
afford to purchase for the animals.
17
04:24:38
15
16
04:24:19
care of the animals, feeding schedules, what you can
from everybody we decided that we needed to do.
25
Q.
Okay.
Simple things
I mean just a
So once you had made the -- informed
39
1
2
out that Ms. George was, in fact you may have
3
mentioned this earlier in your testimony, that she
4
04:25:14
her of a disciplinary process, did you come to find
was conducting an investigation at the shelter?
5
A.
Right.
Right.
I, um, prior to having that
6
7
them know what I was -- what my intentions were, what
8
I was doing.
9
Shirlayne said oh, you know that Karen made a formal
10
complaint, I think is how she put it, about Kelly, I
11
think it was about Kelly not just that shelter, about
12
Kelly specifically here, you know, a couple of days
13
04:25:33
I needed to check in with HR and legal just to let
ago or something.
14
04:25:46
15
16
Q.
And when I called Shirlayne to tell her
And did she -- what did she tell you she was
doing in response to that?
A.
She said I'm going to do -- I told Karen
17
18
going to really talk to everybody at the animal
20
shelter and get their opinion of it.
21
that point is when she told me that as part of
22
Karen's complaint, Karen had submitted this long --
23
this recording that she had secretly taped of a
24
04:26:15
be Kelly, it would be -- I was going to -- I was
19
04:25:57
that I would do an investigation and it wouldn't just
conversation between her and Kelly that she said was
25
demonstrable of Kelly's abuse towards her.
And I think at
40
1
2
Q.
Okay.
And did she conduct that
investigation?
3
She did.
4
Q.
And did she provide you with a copy of that?
5
A.
She did.
6
04:26:28
A.
Q.
Let me hand you what has been marked as
7
exhibit -- Exhibit 76.
8
9
It's already in evidence.
Do you recognize that as the investigation
that Ms. George did?
10
A.
It looks like it.
11
04:26:45
Q.
Okay.
So when you read through this, you
12
13
give you just a few minutes to glance through it.
14
04:27:13
might take a moment just to look at it and let me
And if there is anything that comes to mind that was
15
significant to you, would you please let us know.
16
A.
Well, and I think I mentioned before, that
17
18
that everybody out there in the -- at the shelter was
20
taking a side, you know.
21
no neutral -- no neutrality there.
22
that was a -- I have seen other -- other
23
investigations before and typically you have a whole
24
04:28:04
they're either, um, it's evident going through this
19
04:27:41
the -- the things being referred to are -- are --
bunch of people that are pretty neutral, don't care
25
one way or another, and some people are then pretty
There was no -- there was
Um, and to me
41
1
vociferous about it and others are one way and the
2
others are the other way.
3
striking that it was so clearly divided.
4
04:28:20
5
Q.
So this was kind of
Do you remember recalling against whom most
of the complaints were levelled?
6
A.
Um, most of them were about Karen.
7
Q.
And did -- so when you saw that, what did --
8
what did you take away from it?
What were the
9
conclusions you drew or how did it affect this
10
process that you're going through as trying to decide
11
04:28:39
what discipline, if any, you will institute?
12
A.
Well, I mean from my own experience with --
13
14
decision-making or the decider that I needed to take
15
disciplinary action against Karen.
16
04:28:57
with Karen and Kelly, that was for me the
me.
17
That was based on
In this investigation many of these items I
18
19
20
the place was tearing itself apart because I got that
on a near weekly basis from both Karen and Kelly.
22
when I saw this and how human resources their
23
investigations kind of identified Karen as a huge
24
04:29:40
not in any kind of specificity.
21
04:29:15
kind of heard about from other employees, but, um,
part of the problem, that simply gave me a reason to
25
say well I better include this as part of my
I mean I knew that
So
42
1
disciplinary action with Karen.
2
some of these items that I thought were legitimate
3
and worth talking about with Karen.
4
Q.
So I included that,
And you have already been shown your -- your
5
pre-disciplinary letter where you identified five
6
04:29:58
potential policy violations.
Do you recall that?
7
A.
I do.
8
Q.
And so following up with this then did you
9
04:30:18
10
have a pre-disciplinary meeting with Ms. Bird?
A.
I did.
From the investigation and my
11
12
with the notice of the pre-disciplinary hearing.
13
There was -- there was things in the HR investigation
14
that I frankly just dismissed either because I
15
thought it was hopelessly biased one way or another
16
and I didn't consider it.
17
04:30:39
personal experience with Ms. Bird is how I came up
but legit, I guess.
18
19
04:30:59
20
Q.
I forget what the word is
So how long was this pre-disciplinary
meeting with Karen Bird, do you remember?
A.
Um, I bet it was -- I bet it was an hour.
21
I'm sure there is a recording of it out there
22
somewhere.
23
Q.
There is.
I think it goes like an hour and
24
04:31:11
40 minutes, something like that.
25
Does that sound
about right?
43
1
A.
Sure.
2
Q.
And what was the purpose of this meeting?
3
A.
The purpose of this meeting is for Karen to
4
5
me mitigating factors that will help me make a
6
decision on what to do in her case.
7
options, it doesn't have be to termination, it could
8
be any -- a whole bunch of different types of
9
04:31:26
explain her side of the story, so to speak, to give
discipline.
I had a lot of
And so it was my chance to get her side
of it regarding all of these allegations I listed in
there.
12
Shirlayne's investigation just point by point and I
13
wanted to get her comment on everything that was
14
listed there just to help me out to where she was
15
coming from.
16
04:32:03
10
11
04:31:45
Q.
And if I remember right, we went through
Had you formed a decision, made a decision
17
as to whether termination would be prior to this
18
pre-disciplinary hearing?
19
04:32:16
A.
No.
20
Q.
And I think your letter says -- your notice
21
22
But from the termination letter it says that the
23
meeting actually took place on November 22.
24
04:32:34
says that you were going to hold it on November 21.
was about six days after you had delivered this
25
pre-disciplinary notice to her that you met with her.
So it
44
1
So what was your take away from that meeting with
2
Karen, after you heard what she had to say about it?
3
A.
I didn't -- I didn't feel that there was
4
5
Services with Kelly and she never took any kind of
6
ownership of any of the problems in Animal Services
7
or her role in them.
8
that there was any issue with her at all.
9
04:32:59
again any way that she could co-exist in Animal
Kelly, it was all Kelly's fault.
It was just a complete denial
It was all
And if -- if it
wasn't for Kelly everything would be great.
we could just go, you know, back to that situation
12
where it was just her it would be wonderful.
13
know, it has been a few years I haven't -- I haven't
14
listened to that recording so I -- I'm kind of going
15
from my memory, but I did not hear any mitigating
16
factors that I thought gave me any room to say let's
17
04:33:39
10
11
04:33:22
And if
continue this situation with Karen as an employee.
Um, you
18
Did she offer to change in the meeting?
19
04:34:03
Q.
A.
Not that I remember.
20
Q.
Did she -- well, in this courtroom she has
21
testified under oath that she did not do anything
22
wrong in her employment.
Would you agree with that?
23
I would not agree with that.
24
04:34:20
A.
Q.
Why wouldn't you agree with that?
25
A.
Because of my personal experience with
45
1
2
asked me well give me an example of her
3
insubordination.
4
insubordination for a couple of years frankly, and it
5
was really simply a matter of how much do you want to
6
tolerate.
7
04:34:40
Karen.
insubordination went beyond what mine was.
8
9
You know I think I have said people have
In my opinion she was in a state of
And Kelly's tolerance for that
So yeah, that was my -- that was my -- that
was my problem in a nutshell.
It was -- this is a
situation where one employee is just continually
insubordinate in her attitude, in her words, in her
12
actions, everything that I observed.
13
she has a lot of great qualities, loves those animals
14
and we need that, you know, that doesn't -- that
15
doesn't give you the right to just ignore your boss
16
04:35:20
10
11
04:35:02
or deliberately try and undermine him.
17
18
Q.
Okay.
And even though
So who made the decision to terminate
Karen Bird?
19
I did.
20
Q.
Did you consult with Kelly Davis about it?
21
04:35:36
A.
A.
I didn't.
I mean at that point I was
22
23
because this should have happened probably a year
24
04:35:53
frankly probably I was irritated with Kelly, um,
earlier in my opinion.
25
working with Kelly to try and get him to the point
And so, you know, I had been
46
1
2
disciplining Karen.
3
discipline Karen, but I wanted his acknowledgment and
4
support that it needed to be done.
5
finally just got to the point with that earlier
6
meeting we just talked about where I no longer cared
7
what Kelly thought about the situation and I was
8
04:36:10
where he could -- where he could be on board with me
going to -- I was going to fix my department.
9
Q.
I don't need his permission to
And until it
So you believe that Karen Bird was given
10
opportunities to correct her behaviors and her
11
deficiencies?
12
04:36:27
A.
13
14
04:36:41
15
16
Karen Bird was given too many opportunities
frankly.
Q.
So did Kelly Davis participate in any way
personally in this decision to terminate?
A.
No.
I am not -- I am not even sure how
17
18
some of my options with Human Resources and legal and
19
04:37:07
Kelly found out about it.
I mean I -- I discussed
probably the City manager, but Kelly wasn't involved
20
in those discussions at all.
21
Q.
Did he recommend that you terminate her?
22
A.
I don't think Kelly ever recommended.
One
23
24
04:37:28
time he -- he was vocal about he wanted to work with
her some more.
25
saying to me, other than that one time where I said I
Um, I don't ever remember Kelly
47
1
2
well let me think about it.
3
Friday.
4
to -- I -- let me try a couple of things.
5
don't ever remember Kelly saying to me I think we
6
need to discipline her, I think you need to
7
04:37:44
think we need to discipline her he said all right
discipline her.
8
9
Q.
And that was on a
And Monday he came back and said no, I want
Okay.
But I
So sitting here today in front of the
jury, please articulate for the jury what was the
10
motivation, your reason, for terminating her at this
11
04:38:02
point?
12
A.
It was almost solely I think in my -- in the
13
14
included that things that I would consider, the only
15
thing I found was her insubordination.
16
04:38:18
big long list that Shirlayne had and the list that I
of that, probably being -- not being nice to people.
17
And as part
But the only thing that I had personal
18
19
20
there.
was a non -- it was broken and neither one of them
22
had a solution as to -- as to how to fix it, and so,
23
um, I had to fix it.
24
04:38:59
mattered to me is do I have a functioning team over
21
04:38:38
experience with and frankly the only thing that
to fix it.
25
long before I actually did something as far as the
And by Kelly and Karen's admittance that it
And I was happy -- I was happy
I knew that something needed to be done
48
1
2
just -- that just complete refusal to acknowledge
4
that there was any problem on her part and that she
5
had a, from her perspective, she had a manager that
6
she didn't like and she seemed to think that we owed
7
her a manager that she liked.
8
perfect situation out there that she was going to
9
04:39:35
terminated was because of that insubordination, that
3
04:39:15
discipline.
continue to agitate for until she got.
10
11
But the only reason Karen Bird was
And there was some
And, you
know, you just can't do that.
Q.
What role did your personal observations of
12
the interactions of them together play in your
13
reaching this decision?
14
A.
Well, like I said it was a -- it was a
where it starts out back in 2009 where Karen had
expressed this fear that she was going to be fired
18
because I didn't need her or want her there.
19
Kelly didn't need her or want her there.
20
point, you know, we could all three sit down as the
21
management team of Animal Services and make decisions
22
and accomplish things.
23
situation all the way to the point where to get them
24
04:40:22
gradual thing over -- we're talking about over a year
17
04:40:06
15
16
04:39:48
in the same room together was difficult.
25
they were in the same room together, Karen was unable
Or
At that
So we went from that
And when
49
1
2
with me in trying to probably because she was
3
recording our conversations is why she was reluctant
4
to say anything, but it was difficult to get her to
5
make a statement, to give us her opinion, to tell us
6
04:40:40
to function with Kelly in any way at all and barely
what she -- what she thought should happen.
7
And so it was -- it was tough to have any kind
8
of a communication with somebody who has that kind of
9
I guess underlying motive going on and they're second
10
guessing everything they want to say or should or
11
shouldn't say.
12
even figure out what Karen wanted other than she
13
04:41:02
wanted something to change and it just wasn't her.
14
04:41:25
15
Q.
And so it made it very difficult to
Let me hand you two letters.
Plaintiff's Exhibit 16.
16
Start with
It's already in the record.
This is a letter you wrote to Karen Bird dated
17
18
termination.
19
04:41:49
November 30th, 2011, informing her of the
A.
I do.
20
Q.
Here is where you say, "thank you for
Do you recall this letter?
21
22
November 22, 2011."
23
paragraph, "after careful consideration of our
24
04:42:02
attending the disciplinary hearing last Tuesday,
discussion and your input, it is my decision to
25
terminate your employment for cause with West Valley
And then in the second
50
1
City effective November 29, 2011."
2
You don't specify
what the cause was there, do you?
3
A.
No.
4
Q.
So let me hand you what was -- what is
5
marked as Plaintiff's Exhibit 19.
6
04:42:21
And is this a
subsequent letter you wrote to Karen?
7
A.
Yes.
8
Q.
It is dated December 12, 2011 and you state
9
in the second paragraph here, "as per the voicemail I
10
left you on November 29th, 2011," and you informed
11
her of the decision.
12
04:42:52
her personally what the decision was?
13
A.
Yeah.
Did you try to call her to tell
I think at first I tried to meet with
14
never want to terminate somebody over the phone but
we couldn't get a hold of her if I remember right.
17
And so I couldn't have a meeting.
18
left her several voicemails and didn't hear back from
19
her.
20
choice but to do it by voicemail because she wasn't
21
04:43:26
15
16
04:43:09
her and couldn't -- couldn't -- I mean you know you
answering the phone.
22
So, um, I think I
And so finally I didn't feel like I had any
Q.
Okay.
And here you do say -- state, "due to
23
24
04:43:42
insubordination and failure to be courteous or
cooperative with the public or fellow employees."
25
And you state that "the termination is effective
51
1
November 29, 2011."
Were those the sustained grounds
2
in the five listed in your pre-disciplinary letter
3
that you sustained?
4
04:43:55
MS. HOLLINGSWORTH:
5
THE COURT:
6
Q.
Objection, leading.
Sustained.
(By Mr. Preston)
Mr. Morris, what were the
7
8
have got to at least do this when this is
9
04:44:14
two grounds you used.
substantive, Your Honor.
10
11
I mean you know we can -- we
I am trying to move this
along.
A.
To terminate due to insubordination and
12
13
second one because, just moving this along here, I
15
wrote the second one because I wrote the first one
16
and I think somebody in legal or HR reviewed it and
17
said no, you've got to put -- you've have to put the
18
specific things you found there and so I re-wrote the
19
letter.
20
Q.
Okay.
21
A.
In the pre-disciplinary letter.
22
Q.
And how many did you sustain?
23
04:44:36
public or a fellow employees.
14
04:44:26
failure to be courteous or cooperative with the
A.
Um, really one.
I think I wrote the
So you listed five policy violations?
I think it reads as two,
24
04:44:52
insubordination and failure to be courteous or
25
cooperative with the public or fellow employees.
But
52
1
yeah, those -- the insubordination which in my mind
2
included that failure to be courteous because she was
3
not courteous with Kelly.
4
Do you feel the termination was justified?
5
A.
Entirely and overdue.
6
04:45:15
Q.
Q.
Are you being honest with the court and the
7
jury telling them this was the reason?
8
A.
I am.
9
Q.
Now, in this case, Ms. Bird is claiming that
10
the decision to terminate her was based on a desire
11
to retaliate against her because you believed she was
12
passing on information about the shelter to the
13
04:45:35
press.
14
A.
What is your response to that?
Um, I guess I would say two things.
15
didn't believe that.
16
04:45:53
I
didn't even believe it, number one.
17
I certainly didn't know it, I
And number two, you know, frankly we got
18
19
more help.
20
point were going to get any better in that immediate
21
situation, to terminate somebody based on that would
22
04:46:09
enough bad press all on our own we didn't need any
be would be silly.
It wasn't a matter of if things at that
23
Is that something that you would do?
24
04:46:30
Q.
A.
No.
25
We needed to take our licks on the
failed euthanasia of Andrea the Cat and I was happy
53
1
2
negative publicity surrounding that event.
4
that -- when that -- when that publicity changed to
5
out of control wild and crazy things like we reviewed
6
earlier, that's when I knew I had to -- I had to fix
7
that.
8
to be fixed.
9
04:47:10
I didn't blame any of our people for any of the
3
04:46:55
to stand up and say yeah, we screwed that up, um, and
was necessary to fix it.
Um, when
That was a problem that needed to be -- needed
10
And so I took the action that I thought
And frankly, it did.
After I had had the
11
12
across the bow that this had to stop, I don't
13
recollect that being a further issue where we had
14
04:47:28
meeting with Karen and Michelle kind of put that shot
people making these wild accusations.
15
Q.
So was your decision based in any way on
16
retaliation because of anything Karen Bird was
17
stating?
18
19
04:47:38
MS. HOLLINGSWORTH:
THE COURT:
20
Q.
Objection.
Sustained.
(By Mr. Preston) Was -- Well, I stated
21
the statement here that you -- the allegation is that
22
she was the victim of free speech retaliation.
23
is your response to that?
24
04:48:03
25
A.
What
My response to that is that there was no
retaliation, there was nothing to retaliate against.
54
1
2
clearance at the shelter.
3
So, um, when bad things happen and we have made a
4
mistake we need to own up to that and say yup, here
5
is where we went wrong and we need to fix that.
6
nobody leaked anything.
7
No, it is not -- there is nothing leaked.
8
have some communication that was hurting us,
9
04:48:23
There is no secrets, you know.
Nobody has a security
absolutely.
We don't have secrets.
But
It's just a terrible word.
Um, did we
And we need to get that communication
animal shelter we need to focus on the positives
we're doing there.
13
there I know Kelly and I don't blame him because
14
Kelly was getting drug through the mud in the press
15
as if he was the embodiment of all evil at the
16
shelter and loved to kill every -- I mean that is not
17
good for the City to -- to have that reputation that
18
they have an employee who is out there, you know,
19
killing everything that he possibly can any time they
20
have.
21
efforts in doing that was not to find somebody who
22
was doing it deliberately, I was thoroughly
23
04:49:14
where it's helping us, where it's positive.
12
04:48:59
10
11
04:48:44
unconvinced that someone was doing it deliberately.
24
04:49:31
25
The
And so my only -- my concern
So I needed to stop that.
But my -- my
Now some of those that were crazy enough makes
you start to wonder especially when given the --
55
1
2
find, you know, somebody who had done something wrong
3
and punish them.
4
-- in the recorded meeting, is that I'm just
5
interested in how we can fix this as a team to get
6
ourselves on a better standing with the public.
7
so to say that I fired Karen based on that is -- is
8
04:49:49
given the circumstances, but that was not my focus to
deeply troubling to me.
9
My focus and I think it is in the
And
When you joined the Army did you make an
11
A.
I did.
12
Q.
What was that oath?
13
04:50:10
Q.
A.
To obey -- uphold the Constitution against
10
14
oath?
all enemies foreign and domestic.
15
Q.
Do you believe in the Constitution?
16
A.
I do.
17
04:50:25
Q.
Would you knowingly violate anyone's rights
18
under the Constitution?
19
04:50:34
20
21
22
MS. HOLLINGSWORTH:
Q.
(By Mr. Preston)
Objection, leading.
Would you violate rights
under the Constitution?
A.
I would not.
And that was a consideration.
23
24
04:50:48
I am not an attorney.
I know that there are limits
on people's right to free speech and I think I say
25
that over and over again that I -- I'm not trying to
56
1
2
to uphold the truth in this matter.
4
that's important to have people feel that they can --
5
that they can speak the truth.
6
to be able to find a way to do that that is
7
beneficial to both parties, the City, the Division
8
and the person.
9
04:51:26
should say but it needs to be the truth and we need
3
04:51:09
dictate to people how they should feel and what they
an employee, um, I think that responsibility is the
10
11
And that's --
But, um, but we ought
And whether they are a volunteer or
same.
Q.
Did you blame Karen Bird for these false
12
statements that were being -- that you were
13
receiving?
14
A.
I did not.
And if I had to take a stab at
volunteer.
trying to fix the problem.
18
problem not go backwards, we're trying to go forward.
19
We just all had been through a traumatic event, and,
20
you know, we got to get -- let's get past this and
21
get back on track and move forward not spend the
22
next, you know, how ever many days, months, and weeks
23
trying to count up scores and find people to punish
24
04:52:16
it I would have thought it was Michelle, the
17
04:51:56
15
16
04:51:38
or to blame.
25
It was my Division and it was screwed up on my watch
But again, it wasn't really my focus of
I was trying to fix the
I was happy to take the blame for that.
57
1
2
3
and I accept that.
Q.
These negative calls, were they disruptive
to the Animal Services Division?
4
04:52:31
MS. HOLLINGSWORTH:
5
THE COURT:
6
7
8
Q.
Objection, leading.
Sustained.
(By Mr. Preston)
When you received all
these calls, how did that impact the division?
A.
It stresses everyone out.
I mean all these
9
How many kittens did you strangle today?
mean these people work at the shelter because they
14
love animals and they want to -- they want to help
15
them and assist them.
16
them to be painted with that brush that they don't
17
care, that they're callus murderers or that anybody
18
that works there is.
19
moral, it's horrible for those interpersonal
20
relationships especially if people think that these
21
are coming from inside the shelter.
22
even further afraid to even interact with each other
23
because they don't know, you know, who the problem is
24
04:53:38
family, their friends.
13
04:53:22
night and hear from their family, their extended
12
04:53:02
10
11
04:52:47
employees, I mean they have got to go home every
or who is saying what.
25
a terrible situation and that was what needed to get
Oh, you work at the shelter?
No one -- I
And it's -- it's so unfair to
And so, yeah, it's horrible for
Now everyone is
It's a -- it's just -- it was
58
1
2
who told, you know, four and five phone calls down
3
the line how it got translated out.
4
come up with a way to be able to communicate amongst
5
ourselves and especially with all of the various
6
partners we have out there in the community in ways
7
that portray us in a positive light and make people
8
want to help us and want to work with us.
9
04:53:55
fixed, not -- not finding out who said what, where or
agency doesn't want to come and help you out if they
We just had to
A rescue
10
think you're killing all of the animals for no
11
04:54:12
reason.
12
(Whereupon, the trial continued but was
13
not transcribed.)
14
(Whereupon, the following excerpt is
15
a sidebar conference between counsel
16
and the court.)
17
18
MR. PRESTON:
with the court?
19
04:58:49
THE COURT:
20
MR. PRESTON:
21
Could I have a quick sidebar
Sure.
So are the time limits are in
place now.
22
THE COURT:
Um, so yes.
Yes.
I would be
23
24
04:59:03
happy to hear from both of you on this particular
one.
25
chief.
The witness is you calling in your case in
The time limit is going to be the time that
59
1
2
this one -- since Ms. Hollingsworth called this
3
witness, um, I would be interested in hearing both
4
04:59:29
you use.
your thoughts on how long for cross.
5
estimate on how long you think you need?
6
7
8
9
04:59:49
10
11
Since this was Ms. Hollingsworth -- since
MS. HOLLINGSWORTH:
Do you have an
Um, and my guess is half
an hour but I never am quite right on that.
MR. PRESTON:
Well, I understood she had --
you gave her an extra half an hour but all of that is
gone though.
THE COURT:
Right.
I did give her the extra
12
13
talked about this issue of the -- of the
14
cross-examination.
15
to cross a witness I think we run into a problem.
16
do you have a recommendation on a timeframe and I
17
will say, um, I would ask you to keep careful track
18
05:00:04
half hour and that is gone.
that you are crossing.
If I -- if I don't allow counsel
19
05:00:22
And so, um, but we
MS. HOLLINGSWORTH:
20
MR. PRESTON:
Okay.
Only new evidence.
I'll go with whatever the judge
21
decides.
22
out a little early today, I guess that's my only
23
point since we're bringing them back.
24
05:00:46
So
It would be nice if we could let the jury
witnesses to call.
25
THE COURT:
Okay.
We have three
I am going to -- I am going
60
1
to go with -- limit the cross to half an hour.
2
3
THE COURT:
4
MR. PRESTON:
5
(Whereupon, the sidebar conference concluded.)
6
05:01:04
MR. PRESTON:
(Whereupon, the trial continued but was
7
Thank you, Your Honor.
Three --
Three more to go?
We have three witnesses.
not transcribed.)
8
(Whereupon, the following is an excerpt
9
regarding timing held during examination
10
of Layne Morris and where plaintiff
11
and defendant rest their cases and
12
argument on motion.)
13
14
Q.
(By Ms. Hollingsworth) I'm asking what the
reasons were that you were going to do a Loudermill?
15
A.
Because I was going to discipline her.
16
Q.
Why were you going to discipline her?
17
05:36:21
A.
Because it needed to be done.
She needed
18
19
20
discipline.
where she was unable, unwilling, or whatever to even
22
function as a -- as a -- as an involved human being
23
let alone the shelter manager in our -- in our
24
05:37:00
made a decision that this was a situation that needed
21
05:36:39
discipline.
I'm not sure how to answer that.
I had
discussion and come to any kind of meaningful
25
resolution where I felt she was an activity
I just had been to a meeting with her
61
1
2
here participant.
3
where I told her in that follow-up meeting it is --
4
05:37:17
participate instead of a reluctant I don't want to be
it is pretty clear this isn't working and it is not
5
going to work.
6
7
Q.
05:37:24
MR. PRESTON:
object.
10
11
15
MS. HOLLINGSWORTH:
Okay.
Um, can I have one
more question?
THE COURT:
One more question with no follow
up.
16
17
I think we're close to -- I think
we're at the point to finish on this witness.
14
05:37:36
Your Honor, I am going to
This is a -- we're past -THE COURT:
12
13
And would you turn quickly to Exhibit 69,
Your Honor.
8
9
And yeah, and that is the point
MS. HOLLINGSWORTH:
Q.
Okay.
(By Ms. Hollingsworth)
Um, you talked with
18
Mr. Preston about all of the false allegations that
19
were out there?
20
A.
Yes.
21
05:37:45
Q.
So if there were false allegations out
22
23
City just issue a press release to straighten out the
24
05:37:56
there, why -- why didn't you just -- why didn't the
facts?
25
A.
I think we did multiple.
We -- it was not
62
1
2
mean the City, like I said, this was kind of front
3
and center for the whole city.
4
people working on that around the clock.
5
they would go onto the website, and, you know, we're
6
looking for all of the terrible comments people would
7
leave and react to those.
8
trying to fix this problem.
9
05:38:15
just -- this wasn't just Layne against the world.
problem with my people.
So yeah, we had our
You know,
So I was not alone in
I was trying to fix this
But there certainly were
10
other people engaged in trying to turn this ship
11
05:38:33
around, so to speak.
12
MS. HOLLINGSWORTH:
13
THE COURT:
14
05:38:45
THE COURT:
I just have a couple of
Wonderful.
We'll go ahead with
that then.
MR. PRESTON:
Thank you, Your Honor.
REDIRECT EXAMINATION
20
22
Mr. Preston, how much
questions.
19
21
Thank you.
MR. PRESTON:
17
18
Okay.
time do you anticipate needing for redirect?
15
16
05:38:50
I
BY MR. PRESTON:
Q.
Mr. Morris, you were directed to your
23
24
05:39:10
testimony at the Employee Appeals Board Hearing and a
snippet was read.
25
response.
I wanted to get a more complete
Do you still have that Employee Appeals
63
1
Board Hearing in front of you?
2
Yeah.
3
Q.
We'll be back at pages 319, 320?
4
05:39:26
A.
And I messed up the pages though.
A.
Okay.
5
Q.
And there was questioning about in the
6
middle starting on Line 12 about whether Karen was
7
disseminating negative information about the City.
8
Did you think Karen was.
9
Line 24, you state, "so it could very well be an
And skipping down to
Kelly.
deal with people."
13
Line 12.
14
believe that that information was coming from Karen?
15
Answer, I thought it was a possibility it was coming
16
from Karen or Kelly or a number of employees.
17
Question, okay, is that one of the basis for her
18
termination?"
19
A.
No.
20
Q.
Do you stand by that today?
21
05:40:16
inadvertent comment that anyone makes.
12
05:40:03
10
11
05:39:47
A.
I do.
22
23
24
05:40:25
25
It could be
It could be -- it could be me in the way I
And then the question is asked on
"Okay, let me ask you again, did you
What was your answer?
MR. PRESTON:
Thank you, Your Honor.
That's
all I have.
THE COURT:
All right.
Um, Ms. Hollingsworth,
do you rest?
64
1
MS. HOLLINGSWORTH:
2
THE COURT:
3
Okay.
Yes.
In that case if we could
stand for the jury we'll take a break now.
4
05:41:02
(Whereupon, the jury left the courtroom.)
5
THE COURT:
You may be seated and you may be
6
excused, Mr. Morris.
7
THE WITNESS:
8
THE COURT:
9
05:41:14
10
Thank you.
Thanks.
Mr. Preston, did you want to make
a motion.
MR. PRESTON:
I did, Your Honor.
Defendants
11
12
move for judgment as a matter of law on this entire
13
case for a variety of reasons which I can articulate
14
05:41:31
at this point, now that the plaintiff has rested,
now or later at the court's convenience.
15
THE COURT:
I think it would be helpful if I
16
could have a brief summary now and hear a more
17
complete argument later but just so that I can have
18
that in mind.
19
05:41:50
MR. PRESTON:
Thank you, Your Honor.
20
First, Your Honor, under the first element of
21
22
the Cat statement the testimony is undisputed that --
23
I don't know how much detail you want I can get going
24
05:42:10
the Garcetti-Pickering, with respect to the Andrea
and I will talk too much, I'm sorry, but Andrea the
25
Cat we think fails under the first element because it
65
1
2
admitted that and so did Mr. Morris and it's on the
3
recordings.
4
gets out and he was fine with that.
5
that was part of her duty to talk to vets, talk to
6
rescue groups.
7
duties.
8
performance of her duties at the direction and with
9
05:42:29
is done with authorization.
the authorization of the department head.
He knew it was going to get out.
It
So -- she --
She admitted it was part of her
And so this is done in the official
10
not protected speech.
11
05:42:45
And both Ms. Bird
So it is
be taken from the jury.
12
And the Andrea the Cat should
With respect to the what I have always
13
14
15
terms of leaks to the press.
we got leaks to the press.
17
the only evidence of it in the record is the
18
October 26th really should be 27th entry of Mr. Davis
19
05:43:23
the complaint, the complaint was framed entirely in
16
05:43:01
considered based on the summary judgment motion and
about the false information.
20
lots of oral testimony building upon that.
21
The jury instructions
And the example given and
Now, there has been
That testimony about mass execution and about
22
23
information.
24
05:43:43
failing to starve all those things is false
the right to try to prevent false information as it
25
is disruptive to the City and its operations from
It was disruptive.
The employer has
66
1
2
when you -- when you weigh the protected speech, the
3
assumed or believed speech, false statements are not
4
entitled to any protection under the First Amendment.
5
The City certainly has the right to -- in the
6
balancing the court has to do we think it fails the
7
third test.
8
other argument.
9
05:44:09
being spread.
And so that is the third element.
And
this morning they have now put forward an amorphous
And I submit that is really the only
And I understand while I was out
use of the gas chamber and her speech to the people
she worked with and issues about the AVMA and the
13
rescues.
14
the case what she is saying about the gas chamber.
15
If she is talking about statements in public
16
hearings, well nobody believes she was doing that.
17
There is no evidence she was doing that and which
18
ones are we talking about.
19
05:45:08
statement about, what was it, some statements of the
12
05:44:52
10
11
05:44:25
is going to be an issue that goes forward.
20
Well, what's -- this has never been part of
I'm very troubled if that
So I submit, Your Honor, that as to the -- I
21
22
believed that she was the source of this which was
23
the first prong that they would have to establish
24
05:45:30
think no reasonable jury can conclude that Mr. Morris
under the fourth factor.
25
conclude that it was a substantial or motivating
No reasonable jury can
67
1
2
could conclude that the City would not have fired her
3
in the absence of any such belief that she was the
4
05:45:49
factor.
one passing this information on.
5
But even if they did, no reasonable jury
And regardless, this is a case of overwhelming
6
evidence of a valid reason to terminate.
It's built
7
up on a head for many months, it comes to a head at
8
around the same time as all of these events, but
9
that's when Mr. Morris is meeting with Ms. Bird, he
10
sees this relationship is completely gone and he
11
feels now finally he has to step in and stop it.
12
05:46:07
If you have a supervisor, a manager, who
13
14
15
she herself admits repeatedly she could not, that's a
legitimate reason to get rid of her when you have had
17
an ongoing dialogue with her and she has done nothing
18
to change it.
19
legitimate reason to do this.
20
decision must be upheld.
21
05:46:44
loathes him and can't even look him in the eye, which
16
05:46:25
refuses to engage with, work with her supervisor, who
also so I don't mess it up.
22
So I don't think -- I think there is a
MR. CROWTHER:
And on that basis, the
If you just articulate that
No problem.
So for their third
23
24
05:47:04
basis that she actually spoke against the gas
chamber, that is an actual speech by plaintiff and
25
yesterday they represented to us and the court
68
1
2
that she didn't make.
3
change of theory of claim and we would be dealing
4
05:47:16
they're only pursuing a belief of I guess statements
with something entirely new.
5
MR. PRESTON:
So that would be a complete
That is not really fair to us.
6
So that, I'm sure, is a lot more than you wanted.
7
apologize.
8
9
THE COURT:
That is helpful.
If I could just
ask Ms. Pagel did they have their snacks?
10
THE CLERK:
Yes.
11
05:47:33
I
THE COURT:
All right.
So I -- I obviously
12
13
hear more, but I think in the interest of finishing,
14
we'll go -- I'll take -- we'll take -- hear argument
15
on this later.
16
how long -- how long have we had them out?
17
05:47:47
will want to hear from defendant and I would like to
we take a 10 minute break ourselves and come back.
18
We'll go ahead with your case.
MR. PRESTON:
And
Why don't
Your Honor, could I just say I
19
saying I hope the court didn't think I was
instructing the court to be quiet.
22
tell my client to because he was speaking over you
23
and then I end up speaking over you.
24
05:48:22
20
21
05:48:11
apologize for speaking over the court and when I was
sorry.
25
THE COURT:
Thank you.
I was trying to
So I am very
I appreciate that.
69
1
(Recess.)
2
MR. PRESTON:
Your Honor, I had not
3
4
this ended.
5
don't think -- I think to take another couple of
6
hours to put these last three witnesses on will be,
7
if anything, cumulative.
8
going to rest when the jury comes in without calling
9
06:05:36
anticipated this at all but we feel very good how
any more witnesses.
I've talked to my client at length and I
10
THE COURT:
11
06:05:47
MR. PRESTON:
So we're willing -- we are
All right.
So that might give us some time
12
to do the jury instructions without staying up until
13
midnight again tonight.
14
06:06:00
THE COURT:
15
MR. PRESTON:
I think it might.
But having an opportunity, I
16
mean if you want to do that, hold them and do it, I
17
mean if you want to do closings I'll do closings
18
right now, too, whatever you prefer to do.
19
THE COURT:
I would like to -- I mean we have
I think between the jury and the parties we have all
invested substantial time.
22
the jury instructions are good.
23
best to let them go for the day, let us make sure we
24
06:06:25
20
21
06:06:11
get a good set, and get all of the objections
25
whatever they are on the record, and, um, then have a
I would like to make sure
And so I think it is
70
1
nice clean morning with --
2
3
MR. PRESTON:
back?
Do you want us here 8:00?
4
THE COURT:
5
MR. PRESTON:
6
06:06:39
THE COURT:
7
What time will we be coming
8:30.
In the morning?
Yeah.
Unless there are other
recommendations.
8
MR. PRESTON:
9
THE COURT:
Whatever you want.
Let's do 8:30 tomorrow morning.
10
Okay.
11
and we'll let them know that they can leave for the
12
06:06:47
day.
13
14
So in that case, let's get the jury back in
MS. HOLLINGSWORTH:
jury that I judged it right after all?
15
THE COURT:
16
06:07:17
Your Honor, can I tell the
I do not think so.
that would be a good idea.
17
MS. FORTSON:
18
THE COURT:
I understand.
19
06:09:08
THE CLERK:
All rise for the jury.
20
(Whereupon, the jury returned to
21
22
23
She had to ask.
I do not think
She had to ask.
the courtroom.)
(Whereupon, the trial continued but
was not transcribed.)
24
25
71
REPORTER'S CERTIFICATE
1
2
3
I, Laura W. Robinson, Certified Shorthand
4
Reporter, Registered Professional Reporter and Notary
5
Public within and for the County of Salt Lake, State
6
of Utah, do hereby certify:
7
That the foregoing proceedings were taken
8
before me at the time and place set forth herein and
9
were taken down by me in shorthand and thereafter
10
transcribed into typewriting under my direction and
11
supervision;
12
That the foregoing pages contain a true and
13
correct transcription of my said shorthand notes so
14
taken.
15
16
In witness whereof I have subscribed my name
this _________ day of _______________, 2019.
17
18
19
________________________________
20
Laura W. Robinson
21
RPR, FCRR, CSR, CP
22
23
24
25
72
APPENDIX 6
1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
In re:
KAREN BIRD,
Plaintiff,
vs.
WEST VALLEY CITY, a
political subdivision of
the State of Utah, KELLY
DAVIS, in his official
and individual
capacities,
Defendants.
________________________
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Case No. 2:12-CV-903EJF
BEFORE THE HONORABLE EVELYN J. FURSE
March 16, 2018
Partial Transcript
Excerpts from Trial
Laura W. Robinson, RPR, FCRR, CSR, CP
351 South West Temple
8.430 U.S. Courthouse
Salt Lake City, Utah 84101
(801)328-4800
2
Appearances of Counsel:
For the Plaintiff:
April L. Hollingsworth
Attorney at Law
Hollingsworth Law Office LLC
1115 South 900 East
Salt Lake City, Utah 84105
Kathryn K. Harstad
Attorney at Law
Strindberg & Scholnick LLC
Plaza 721
675 East 2100 South
Suite 350
Salt Lake City, Utah 84106
Xernia L. Fortson
Attorney at Law
2935 Duke Of Windsor
Atlanta, Georgia 84106
For the Defendants:
Stanley J. Preston
Bryan M. Scott
Brandon T. Crowther
Attorneys at Law
Preston & Scott
111 E. Broadway
Suite 1200
Salt Lake City, Utah 84111
1
Salt Lake City, Utah, March 16, 2018
2
* * * * *
3
4
5
(Whereupon, the trial was held but not
transcribed.)
(Whereupon, the following is a trial
6
excerpt dealing with final jury
7
instructions.)
8
THE CLERK:
9
(Whereupon, the jury returned to the
10
courtroom.)
11
00:02:17
THE COURT:
All rise for the jury.
All right.
Welcome back.
We have
12
13
those to you and into the record shortly.
15
welcome to follow along.
16
along, it's up to you.
17
you should listen to me no matter what, but you don't
18
have to follow along on the written instructions.
19
00:02:49
going to be reading those into the record, reading
14
00:02:33
given you all a copy of the jury instructions and I'm
And it's just if that's easier for you.
20
You're
You don't have to follow
It is just there for your --
And then one other housekeeping matter.
I had
21
22
going to get all of the exhibits that have been
23
introduced with you back in the jury room.
24
00:03:07
on two of the exhibits that you're going to -- you're
those during the trial I had ruled that you should
25
only -- that you should not consider them for the
On two of
3
1
2
and I have now ruled that you can consider all of the
3
exhibits for the truth of the matter.
4
need to worry about which those were but those were
5
Exhibits 4 and 70 you can consider them just as any
6
00:03:21
truth of the matter.
We have discussed that further
other exhibits.
So you don't
7
All right.
So with that, I will read you the
8
jury instructions.
9
you have heard the evidence and are about to hear the
Instruction number one, now that
Your duty as jurors is to follow the law as stated in
the instructions of the court and to apply the rules
14
of law to the facts as you find them from the
15
evidence in this case.
16
instruction alone as stating the law but must
17
consider all -- consider the instructions as a whole.
18
Neither are you to concern yourself with the wisdom
19
of any rule of law stated by the court regardless of
20
any opinion you may have as to what the law is or
21
ought to be.
22
judges of the facts to base a verdict upon any thing
23
but the law as I instruct you and the evidence in
24
00:04:33
the court concerning the law applicable to this case.
13
00:04:17
argument, my duty is to give you the instructions of
12
00:03:59
10
11
00:03:41
this case.
25
You are not to single out one
You would violate your sworn duty as
You should not take anything I say in these
4
1
2
about the facts of the case or what that opinion is.
3
My function is not to determine the facts.
4
function is yours as jurors.
5
by jury depends on the willingness of each individual
6
juror to seek the truth as to the facts from the same
7
evidence presented to all of the jurors and to arrive
8
at a verdict by applying the same rules of law as
9
00:04:53
instructions as an indication that I have any opinion
given in these instructions.
That
Justice through trial
You must perform this
duty without bias or prejudice as to any party.
system of law does not permit jurors to allow
12
sympathy, prejudice, or public opinion to influence
13
their verdict.
14
expect that you will carefully and impartially
15
consider all of the evidence in the case, follow the
16
law as stated by the court, and reach a just verdict
17
00:05:28
10
11
00:05:10
regardless of the circumstances.
18
Our
Both the parties and the public
Instruction number two.
The evidence in this
19
witnesses, all exhibits received in evidence, all
facts that may have been admitted or stipulated, and
22
the applicable presumptions that will be stated in
23
these instructions.
24
00:06:04
20
21
00:05:45
case consists of the sworn testimony of the
counsel are not in -- are not evidence in this case.
25
When, however, the attorneys on both sides stipulate
Statements and arguments of
5
1
2
must, unless otherwise instructed, accept that
3
stipulation and regard that fact as conclusively
4
00:06:18
or agree as to the existence of a fact, the jury
proved.
5
During the course of trial, counsel has the
6
duty to make objections when needed.
You should not
7
consider or be influenced by the fact that counsel
8
objected to something.
9
any evidence to which counsel objected and the court
You must entirely disregard
10
sustained the objection and any evidence that the
11
00:06:39
court ordered stricken.
12
Do not try to do any research or make any
13
14
00:06:54
investigation about the case on your own.
not try to get information from any source other than
15
what you saw and heard in the courtroom.
16
You must
It's natural to want to investigate a case
17
18
involved.
20
books or dictionaries, newspapers, magazines,
21
television, radio, computers, Blackberries, I-Phones,
22
smart phones, PDAs or any social media or electronic
23
device.
24
00:07:34
to get information about this case or the issues
19
00:07:13
but you may not use any printed or electronic sources
This includes visiting any of the places involved in
25
this case, using internet maps or Google Earth,
This includes the internet, reference
You may not do any personal investigation.
6
1
2
experiments or re-enactments.
3
disregard anything you may have seen or heard outside
4
of this courtroom because it is not evidence.
5
may consider only the evidence in this case.
6
However, in your consideration of the evidence you
7
are not limited to the bald statements of the
8
witnesses.
9
00:07:52
talking to possible witnesses or creating your own
inferences from the facts that you find have been
You must entirely
You
On the contrary, you may draw reasonable
proved such as seem justified in light of your
experience.
12
is a deduction or -- sorry, let me try that again.
13
An inference is a deduction or conclusion that reason
14
00:08:28
10
11
00:08:07
and commonsense would lead you to draw from the facts
15
that are established by the evidence in the case.
16
(Whereupon, the trial continued but was not
17
18
Any influence is -- sorry, any inference
transcribed.)
(Whereupon, the following is West Valley's
19
closing argument and rebuttal closing.)
20
THE COURT:
21
02:04:06
MR. PRESTON:
And Mr. Preston, you may proceed.
Thank you, Your Honor.
May it
22
23
On behalf of my clients, I want to thank you for the
24
02:04:20
please the court and Ms. Hollingsworth and counsel.
close attention you have paid throughout this
25
process.
This is a very important case to both sides
7
1
and so we appreciate it, you taking the time to be
2
here.
3
4
5
going to start again with three key points.
the same three key points that I talked about in my
7
opening, I have kind of reversed the order because
8
that's how you'll deal with them on the special
9
02:04:51
I think the pieces of the mosaic fit together and I'm
6
02:04:39
I have a few moments where I can tell you how
verdict form.
10
They're
First, Layne Morris's decision to terminate
11
12
And I'll explain in detail why I believe the facts
13
show that.
14
appropriate reasons to terminate Ms. Bird,
15
insubordination being the primary concern in his
16
mind.
17
02:05:20
Karen Bird was not based on free speech retaliation.
personally participate in the termination decision.
18
Second, Mr. Morris had legitimate
And third, Kelly Davis did not participate --
So, um, let's talk about the free speech
19
based on a belief, not that she actually did it, but
a belief that she leaked two pieces of information to
22
the press.
23
second, is the allegation that Kelly Davis ordered a
24
02:06:03
20
21
02:05:40
retaliatory firing.
Ms. Bird claims she was fired
mass execution at the shelter in late October
25
of 2011.
First is the Andrea the cat incident; and
Those are the two free speech issues at
8
1
2
the AVMA guidelines and regulations on the carbon
3
monoxide chamber, it has nothing to do with her
4
statements at work to people about the gas chamber,
5
as they frame it.
6
you saw that in the court's jury instruction number
7
02:06:23
issue here.
11.
8
It's not -- it has nothing to do with
These are the two statements and
In this case, Ms. Bird alleges West Valley
9
Amendment to the Constitution when it allegedly
terminated her employment because it believed she
12
leaked information to the press about one, Andrea the
13
cat, and two, a mass execution at the animal shelter
14
allegedly ordered by Mr. Davis.
15
focus needs to be.
16
that was the reason that the city fired her in
17
accordance with the instructions that the court will
18
02:06:57
10
11
02:06:39
City deprived her of her rights under the First
give you.
19
That is what your
That's what she has to prove that
I want to deal with the second alleged free
speech statement, the mass execution first.
first question you will be asked in the special
22
verdict form that you have to answer questions on is
23
did Mr. Davis order a mass execution in October 2011.
24
02:07:37
20
21
02:07:10
The
So is that a -- is this statement that was allegedly
25
passed onto the press a true statement or a false
9
1
statement that Mr. Davis ordered this.
2
So let's look at some of the evidence on that.
3
4
the morning of October 27th, the day before there was
5
this roll call meeting.
6
roll call meeting, if you look at Exhibit 71, page
7
419, that is the key date in the log, and Mr. Davis
8
explains what happened that day.
9
02:07:52
You recall the phone call from the reporter came in
they had a number of animals, he goes through what
And what took place in that
And he states that
Said we need to get it down to a reasonable number.
He doesn't say we need to do that by a mass
14
execution.
15
due out list.
16
committee goes over the animals, tries to determine
17
how long they have been there, what are the chances
18
of adoption, how is the animal doing, and they
19
discuss that.
20
talks about a number of dogs that are on that.
21
she gives explanations which he finds reasonable and
22
accepts.
23
there are chances to move them.
24
02:09:11
highest animals since moving into the new facility.
13
02:08:52
his normal questioning is.
12
02:08:35
10
11
02:08:16
He said it was the second
moved to the euthanasia list.
25
list.
He asks -- talks to Ms. Bird about the
So that's where they each week this
And she goes through eventually and
And
Two border collies, some labs, and thinks
Great.
They're not
He asks her for the
Karen Bird puts together the euthanasia list.
10
1
2
approved by Karen, was a total of eight cats and one
3
dog.
4
02:09:33
The final euthanasia list generated by Karen, and
reasons, the remainder were either feral or sick.
5
The one dog on the list was for time/space.
6
Two of the cats on the list were for time/space
This is the normal process they go through.
7
Layne Morris, you heard him testify, that this would
8
be an accumulation.
9
accumulation of a week or two animals that are being
This isn't a daily number but an
euthanized.
reference to a mass execution.
12
nine animals out of 156.
13
list.
14
02:10:12
10
11
02:09:49
removed from the list.
15
approved.
16
So what do you find absent in there?
No
We're talking about
Karen puts together the
The animals she doesn't want on the list are
And that's the list that is
So Karen Bird claims he says that all the
17
18
hours of conversations.
20
call meeting?
21
said "I order a mass execution"?
22
exist.
23
that day.
24
02:11:05
Ms. Bird has taped hours and hours and hours and
19
02:10:34
time, refers to a mass execution of animals.
Now,
save these animals, you could see that from how he
25
dealt with this, he was trying to save animals.
What about this key roll
Where is that tape where he allegedly
That tape doesn't
Ms. Bird says oh, the recording didn't work
How convenient.
You know Kelly wants to
He
11
1
2
people have alleged here.
3
have for this is what Michelle Johnson said, the
4
volunteer.
5
Ms. Johnson is not a credible witness.
6
false statements to Mr. Morris.
7
recording.
8
forty-two second to the six minute twenty-seven
9
02:11:20
wasn't just killing them right and left as some
section of that Exhibit 52.
The other evidence they
And you will recall I submit that
She made
We do have that
That's Exhibit 52 at the five minute
And could we have --
10
switch this to Brandon and let him play that little
11
02:11:47
clip for us.
12
13
(Whereupon, Exhibit 52 was played for the
jury.)
14
MR. PRESTON:
It's not something that I'm
to my slide.
spreading this information.
18
Defendant's Exhibit 100 which was a post she did on
19
October 26.
20
to read, but "the big man says bring down the numbers
21
now.
22
was saying.
23
you remember I also said that, you know, this is
24
02:13:29
saying, these are not facts coming from me.
17
02:13:14
15
16
02:12:51
Go back
available for the public?
25
private.
So she told Layne Morris she was not
And then we showed you
And this blows up, it is a little tough
He wants them dead today."
That was what she
So she is not a credible witness.
Do
She says oh, no, it is
Only my friends can see it.
I said well,
12
1
2
friend of mine, he works in a rescue shelter.
3
said, well, let me induce you to Brandon Crowther,
4
he's my partner in this firm.
5
answer and then when I said that oh, I must have put
6
it on public then.
7
not a credible witness on this point.
8
she say she heard it?
9
02:13:42
do you know Brandon Crowther?
Oh, yeah, he is a
and I just overheard Mr. Davis say loudly I want a
I mean she had an
You know, I just submit she is
And how does
I was walking down the hall
10
mass execution that day.
11
02:13:59
And I
to decide who was telling the truth in this.
12
Again, I'll leave it to you
And finally, Mr. Morris and Mr. Davis both
13
14
only nine animals accumulated over an extensive
period of time, a week maybe two weeks, that were -that were put down that day.
18
statement.
19
that you need to think about with respect to the mass
20
execution is did Layne Morris believe Karen leaked
21
this statement to the press?
22
have proven to you by a preponderance of the evidence
23
that Layne Morris believed that she leaked -- that
24
02:15:16
15
17
02:14:56
that.
16
02:14:29
assert it is a false statement.
He never ordered
Karen Bird leaked that information to the press.
25
when you look at what Mr. Morris said, he said I
And there was no mass execution.
So is it false?
There were
So that is not a true
Yes.
The next question
That's what you have to
And
13
1
2
things, that wasn't my concern.
3
what he wanted to stop, was false information going
4
out.
5
any opinion on that.
6
point.
7
could have happened, he doesn't think it is malicious
8
it could be innocent, it could come from anybody.
9
02:15:38
wasn't spending time investigating who said these
you remember he mentioned the telephone game.
His concern was,
He didn't say it was Karen.
He never formed
He was very adamant about that
What he said, remember he said what he thinks
Do
inflammatory statement.
stop this is he is talking to Karen in that meeting
14
and to Kelly in October 31 how do we -- how do we
15
deal with this, how do we make sure as an
16
organization the right message is being communicated
17
to our shelter, to our volunteers, so that we don't
18
have this problem.
19
it could have been any employee, he said it could
20
have been me.
21
of proportion.
22
Morris believed it and he told you he did not believe
23
that she was doing that.
24
02:16:46
the time you get a few down the row it becomes a very
13
02:16:27
Somebody says something that gets passed on and by
12
02:16:13
10
11
02:15:55
That wasn't what he was looking at.
25
That is -- so his way to
He said it could have been Kelly,
I say something and it gets blown out
There is no evidence that Layne
That wasn't his concern.
Then the question you have to ask is if so, if
14
1
2
or motivating factor for the decision to terminate.
3
And Mr. Morris adamantly denies that that had
4
anything to do with his decision, he is the final
5
decision maker, he is the one who made the decision
6
alone as to what would happen here.
7
reasons to terminate her, legitimate reasons, valid
8
02:17:09
this was a belief that he had, was it a substantial
reasons, and we'll talk about that in a moment.
9
And he had other
And let's look at the Andrea the cat
information that got out.
Karen leaked this statement to the press?
12
nothing to leak.
13
made a mistake with Andrea.
14
responsibility.
15
mistake and we pay the price for it.
16
authorizes Karen to go out to the vets and to the
17
rescues and to get that story out there because that
18
02:17:50
10
11
02:17:27
Does Mr. Morris believe
might save that cat.
There was
You remember he said the shelter
He took that as his
He said, we made a mistake, I made a
He specifically
19
Brandon if you could show us Exhibit 90, just the
transcript, we won't play everything.
22
to -- let's go to the bottom of the third page.
23
Ms. Bird talks about getting it to a rescue.
24
02:18:44
20
21
02:18:09
And if we could switch it to Brandon, and
over to the next page, they're going to get the story
25
out.
This is Ms. Bird talking.
And let's go
Going
And then of course
15
1
2
to find it a home because that's how rescues get
3
adoptions and get publicity to come in to find the
4
homes.
5
they're going to publicize it because that gets
6
donations for them.
7
that.
8
I just don't want it to be like I'm causing problems.
9
02:19:00
the rescue they would probably get a story out to try
Mr. Morris yeah no, I have got no problem with that
You get it to the vet and the rescues,
And Mr. Morris, I'm okay with
We can survive that.
Ms. Bird, skipping down,
cat.
tells her get it -- get the story out, talk to the
13
vets and the rescues knowing she tells him this will
14
become public.
15
I'm fine with that.
16
leaking anything to the press and that's what you're
17
asked to determine.
18
belief a substantial or motivating factor in the
19
decision to terminate.
20
substantial factor, a factor that motivates him to
21
want to terminate her?
22
it.
23
02:20:04
Karen.
12
02:19:43
10
11
02:19:23
specifically testified on the stand that he was not.
24
02:20:27
25
I think that's a well deserved thing for this
So what was there to leak?
He authorized her,
Rescues will get it out.
And he says
So he didn't believe she was
So then the question is was that
In his mind, is that a
He is the one who authorizes
He is not firing her for that and he
So if though you were to find that, then we
have a defense, the employer has a defense.
That's
16
1
2
defense in this case that the City would have
4
terminated Ms. Bird even in the absence of the speech
5
at issue.
6
by a preponderance of the evidence that the City
7
would have made the same decision and terminated
8
Ms. Bird's employment, even in the absence of the
9
02:20:59
instruction states, "West Valley City asserts as a
3
02:20:45
set forth in jury instruction number 14.
speech issue, you must return a verdict for the City
10
And that
If you find that West Valley City proved
and Mr. Davis."
11
So that gets to the issue of why Layne Morris
12
13
15
He said it was based primarily on my personal
observations.
17
October and late October and early November, he sees
18
that this relationship has gotten to the point where
19
she can't even work with Mr. Davis.
20
stand to be in the room with him.
21
When Mr. Davis asked her a question, she looks over
22
to Mr. Morris and responds and has a difficult time
23
engaging with him.
24
02:22:03
concerned about her insubordination for a long time.
16
02:21:42
in detail why he terminated her.
14
02:21:25
terminated Ms. Bird's employment.
And he explains it
broken.
25
times Shirlayne George in her meeting with Karen Bird
He had been
When he is in these meetings in
She can hardly
She loathes him.
He says this relationship is
Isn't it interesting you heard a couple of
17
1
2
5
that has -- it has nothing to do with a perception
that she's leaking information to the press about
7
Andrea the cat or a mass execution, they are like oil
8
and water.
9
planets and they won't get in the same orbit.
10
even confirms to him on November 9th that the
11
relationship is broken.
12
broken.
13
believe it is broken for different reasons.
14
broken relationship.
15
animal shelter and Mr. Morris steps in to do
16
something about it.
17
She tells Ms. George the same thing that's
18
Defendants' Exhibit 93 and as I said, she admits the
19
02:23:32
a personality conflict here, for whatever reason,
6
02:23:09
times?
4
02:22:48
Layne Morris observed this, and what does she say six
3
02:22:27
on November 3, three days after this meeting, where
relationship is broken.
20
I can't even stand to look at him.
There is
Layne Morris said they're like two
She
He says this relationship is
She does not deny it, she says yes but we
It is a
It is causing division in the
She could not work with Davis.
You can also look at Exhibit 70.
And if we
21
22
bring up Exhibit 70 and go to the third page.
23
this is the 2005 investigation that Shirlayne George
24
02:23:56
could switch to Brandon, and Brandon if you could
did.
25
you can now accept this document for the truth of the
Now,
As the court instructed at the outset today,
18
1
2
half, you heard a lot of some testimony and
3
allegations about Tess Hartwell and how supportive
4
she was of Karen.
5
in her favoritism of Tess.
6
have seen her reaction when people complain about
7
her.
8
an opinion or complain about something or make
9
02:24:20
matter stated therein.
If you go down to the second
suggestions because if Karen does not like it, we all
These are complaints about Karen
Karen favors Tess.
I
Another statement, we are all afraid to express
pay.
peace.
12
favoritism.
13
questions and reprimands in front of others.
14
reported something that one of her favorites had done
15
and Karen then had this person follow me around and
16
critique my work.
17
02:24:56
10
11
02:24:36
weeks.
18
We just quit bringing up issues to keep the
Third from the bottom, Karen shows blatant
She is degrading in her talk, she
I
She then rode my butt for two
Go to the next page, Brandon, if you will.
19
clinch her fists when she gets mad to the point that
her face gets all red like a 10 year old.
22
the bottom, third from the bottom.
23
scared of her.
24
02:25:30
20
21
02:25:13
Second point.
run and hide.
25
I have seen Karen stomp her feet and
Go down to
Every one is
When she is in a bad mood you want to
If you go to the last page, last paragraph,
19
1
2
Paul Isaac, Tess is ruthless.
3
Karen as if she were her young.
4
include some of the things that she said about others
5
because it was obvious she was trying to discredit
6
those that don't seem to be on Karen's perceived
7
02:25:49
first couple of lines there, Shirlayne reports to
favorite list.
8
9
She is protecting
I did not even
So they want to use Tess in absentia and
Ms. Hollingsworth in her closing planted the seed in
said he promoted her.
plaintiffs subpoenaed her and they chose not to call
14
her.
15
evidence in the record that she was afraid of her job
16
and that's why she didn't sit on the stand.
17
subpoenaed, they chose not to call her.
18
this does is it shows longstanding problems with
19
Ms. Bird and her employment.
20
backed up by the 2011 investigation and that's
21
Defendants' Exhibit 75 and 76.
22
notes Shirlayne George did.
23
notes.
24
02:27:16
she is afraid to lose her job.
13
02:26:50
your mind that she didn't want to come here because
12
02:26:28
10
11
02:26:05
against Karen.
25
You heard Mr. Davis
She still works there.
The
So I reject her suggestion to you there is no
She was
But what
This is, of course,
75 is the handwritten
76 is the typewritten
And they contain a lot of, again, complaints
That's the bulk of the complaints.
Let's talk for a moment about some of the
20
1
2
repeatedly throughout the trial that she had never
3
had any notice that she had problems as an employee.
4
No one put her on notice.
5
Exhibit 71, Davis's log.
6
talking to her about issues.
7
performance evaluation.
8
terminated, puts her on notice of things that need
9
02:27:38
defenses Ms. Bird has offered.
They have said
improvement.
Look at Defendants'
Lots of times he documents
Look at the 2010
A year before she is
Look at the Memorandum of Understanding
his authority.
Mr. Morris, excuse me, talking to her in January of
14
2011 saying, you know, Kelly really saved your job.
15
I was ready to initiate discipline and he said I want
16
to give her another chance, I want to give her an
17
opportunity.
18
length about these issues.
19
after that event she knew her job was in jeopardy.
20
So to say that she didn't think she had any notice
21
about her problems is inaccurate.
22
the opening when Ms. Hollingsworth said if you don't
23
remember anything else remember that she never
24
02:29:01
notice of problems that he thinks she is undermining
13
02:28:42
that Mr. Davis wrote at the same time.
12
02:28:22
10
11
02:28:00
Puts her on
received any discipline under the personnel file
25
policy.
Then you have Mr. Davis or
Mr. Morris said he talked to her at
She herself admitted that
And remember in
Well, let's look at that policy for a
21
1
2
bring that up, please, to the page.
3
think I have it here, just a second.
4
02:29:25
moment.
it up here, sorry, so we can switch it back to me.
5
Thanks, Lindsey.
6
This is Exhibit 2, and Brandon if you could
Actually, I
I'll just bring
This is the page on the personnel policy that
7
was shown to you as Plaintiff's Exhibit 2.
This is
8
the section I want you to look at.
9
conduct constitute grounds for disciplinary action
"Employees whose
it doesn't say you have to go through these
progressively.
13
can go straight to four depending on the
14
circumstances.
15
warning.
16
What does that consist of?
17
written warning.
18
that is documented by the department.
19
02:30:17
are subject to one or more of the following."
12
02:29:57
10
11
02:29:41
are documented and kept by the department.
20
Now,
She received numerous warnings and
You can do one and jump to four.
But look at number one.
You
Informal
That is a form of disciplinary action.
An oral or informal
So an oral warning is discipline
These things
21
22
to say that she has no notice, I mean you have heard
23
these gentlemen testify they worked and worked with
24
02:30:37
discussions that go on for a long period of time.
So
her.
25
frequently about these issues, what she needed to do,
You heard Shirlayne testify she counseled her
22
1
2
says I talked to them separately, I had them both in
3
my office.
4
02:30:52
what she could do, what Kelly needed to do.
increased and increased over time.
5
I had no idea there were problems.
6
Layne
I talked to them continually and it
And yet she says
Now what I warned you at the outset that they
7
would try to shift the focus to Kelly Davis.
8
Kelly Davis had problems too, he didn't get
9
terminated.
Well
It is an apples to oranges comparison
management and Shirlayne George sat down with him and
told him -- warned him if it continued his job was in
14
jeopardy.
15
advice, and he said I'm going to work on it.
16
did work on it as shown by the 2011 investigation,
17
two years later, there were not these complaints.
18
Shirlayne George said he was trying to do better.
19
Layne Morris said he improved.
20
chance and he improved.
21
counsel.
22
a little while, but she didn't fundamentally change
23
even though she had notice of these insubordination
24
02:32:14
created significant concerns about his anger
13
02:31:50
for several reasons.
12
02:31:31
10
11
02:31:09
Yes, the 2009 investigation
issues.
25
up by this CD that Ms. Bird gave to Shirlayne George
He said he was humble, he received her
And he
He was given another
He was receptive to her
The difference is Karen, she may change for
That is the key difference and it's backed
23
1
2
is a tape I have of a meeting on October 12th, 2011 a
3
few weeks earlier.
4
mean and belittling and bullying Mr. Davis is for me.
5
Shirlayne listens to an hour of this.
6
he is just trying to help you.
7
things you need to do.
8
that's why she can't stand him.
9
02:32:40
in November, early November of 2003.
just tunes out.
Listen to it.
She said here
It shows just how
She says Karen
He is pointing out
She has this perception
Anything he says she
You can't have a manager doing that
interesting.
introduce it into this court?
14
was anything on that recording that showed Kelly
15
Davis was bullying, intimidating, harassing, abusing
16
Karen Bird you would have heard it.
17
for you?
18
think of this.
19
and hours and hours of recordings.
20
meetings, one after the other.
21
fraction of the hours and hours of recordings she
22
made.
23
single snippet of a single recording where Kelly
24
02:34:14
Layne Morris said it continued too long.
13
02:33:50
to her supervisor.
12
02:33:23
10
11
02:32:58
It just cannot continue.
Davis was belittling or bullying?
25
about it daily.
They have that recording.
As
But this is
Did they
You can bet if there
Did they play it
Did they play a moment of it?
No.
Now
Karen Bird recorded hours and hours
Roll call
You have got a tiny
Have they played from this huge library a
She is complaining
You haven't heard a single recording
24
1
2
Shirlayne George and Layne Morris.
3
oh, she has a recording of what he has done.
4
I want to hear it.
I want to see if there is
5
something to this.
I haven't seen him be that way,
6
but if there is something there and you can bet she
7
is recording it secretly, probably hoping she can get
8
something over the months, he said let me hear it.
9
02:34:34
that shows that.
This was a critical moment for
There is nothing there.
Layne Morris says
Great,
That shows he is trying to
perception is such that it doesn't correspond to
reality.
14
fundamental problem with her case.
15
throughout months that Kelly is rude to her and
16
belittles her.
17
job.
18
work with her.
19
George, Layne Morris listened to that, yeah he is
20
trying to work with you, he is trying to help her.
21
Even then he is trying to help her.
22
to do with free speech.
23
loggerheads and one of them is trying to communicate,
24
02:36:12
a grain of salt, maybe more than a grain.
13
02:35:51
help her.
12
02:35:27
10
11
02:34:55
You have to take what Karen Bird says with
is willing to change, and the other one even in this
25
courtroom says I did nothing wrong.
Her
I don't know why but this is, I think, a
She wants him gone.
She is claiming
Kelly saves her
I want to give her another chance, continues to
On October 12th, 2011, Shirlayne
That has nothing
This is two people at
I was never
25
1
2
again, that has nothing to do with free speech.
3
the focus is oh, it is Kelly Davis, he is just mean,
4
aggressive, angry guy.
5
claim Ms. Bird was a model employee.
6
Ms. Hollingsworth in her opening said she is the type
7
of employee we should all aspire to be.
8
ask yourself if you would want her as a co-worker or
9
02:36:44
insubordinate.
That is not an accurate picture.
your supervisor or your subordinate.
Where is the recording?
But
But
They
You might
She undermines
She admits she is doing it at least at the end for
litigation purposes.
14
Ms. Bird.
15
She claims she does nothing wrong.
16
is never subordinate.
17
problems.
18
spent all this time counseling with her.
19
Shirlayne George.
20
butting my head against the wall trying to work with
21
her.
22
to solve this this way.
23
this, according to Ms. Bird, was to get rid of Kelly
24
02:38:14
without telling anybody, even her own co-workers.
13
02:37:56
Kelly Davis, she secretly records conversations
12
02:37:36
10
11
02:37:11
Davis and get me a supervisor I liked or make me the
25
supervisor.
That tells you a lot about
She refuses to work with her supervisor.
Claims that she
She never recognizes her
Now this is very important.
Layne Morris
So did
Shirlayne George said it was like
I would say well try this, do this.
No.
Let's try
The only way to solve
That's what's going on here.
Layne
26
1
2
November 9, November 22nd in the pre-disciplinary
3
hearing.
4
told there is all these problems?
5
once recognized she was the problem or said she loved
6
this job like she says and I'm sure she did, she
7
loves the animals, nobody is questioning that.
8
why didn't she then say when she knew her job is in
9
02:38:30
Morris has these meetings with her November 1,
jeopardy 11 months before give me another chance.
I asked him, how did she respond to being
He said she never
But
going to turn over a new leaf.
He doesn't make a decision until he has met with her,
14
until he has got the investigation, until he has
15
listened to the take and until he has heard her
16
story.
17
doesn't mean that you have determined as Ms.
18
Hollingsworth said that you're going to discipline
19
someone.
20
Isaac is not the guy who makes the decision.
21
Morris is.
22
something wrong.
23
process because that means I will get material and I
24
02:39:41
really sorry for everything that has happened.
13
02:39:23
Why didn't she say to Mr. Morris, you know, I'm
12
02:39:09
10
11
02:38:52
can evaluate it.
25
this is not working.
I'm
I'm going to change.
When you start a disciplinary process that
I don't care what Paul Isaac said.
Paul
Layne
And Layne Morris said I feel there is
I'm going to start a disciplinary
Based on my personal observation,
I got to do something.
So get
27
1
2
investigation, Ms. George, I want to see it.
3
have a CD?
4
Ms. Bird has to say.
5
of that information, does he at the end of November
6
does he make the decision one to discipline and two
7
to terminate.
8
point in that process Ms. Bird had the opportunity of
9
02:39:58
me the information.
Great, you're doing an
saying give me another chance, I'm going to do X, Y
Let me listen to it.
Oh, you
I want to hear what
And only then, when he has all
That is due process.
you have the opportunity and sometimes there are
consequences to your actions.
14
her.
15
attributes.
16
Mr. Morris to say she was a star employee.
17
Mr. Morris said that absolutely, I thought she was a
18
star.
19
comes to Layne in -- when the new building they move
20
into it, she says is my job in jeopardy?
21
not, Karen, we need you.
22
shelter.
23
November 9th meeting, actually it's the November 1st
24
02:41:17
her.
13
02:40:58
and Z.
12
02:40:38
10
11
02:40:16
She never does it.
Throughout any
We all feel badly for
meeting, hey, I need both of you folks there.
25
I resolve this?
But ladies and gentlemen, you get the chance,
She was a star employee.
Nobody wants to fire
She had great
Ms. Hollingsworth said well, I even got
He was a big supporter.
She comes -- Karen
Of course
We need you at this
Even at the end he is telling them in that
How do
That's what Shirlayne George asked
28
1
2
can we make this work?
3
his face.
4
How do we resolve it?
5
there is.
6
this, I'll do this, this, and this.
7
to solve -- to salvage this.
8
Him or me, that's what she put Layne Morris into a
9
02:41:35
on November 3rd?
How can I resolve this Karen?
How
position of.
I can't even stand to look at
I can't even stand to look at his face.
I don't know what resolution
Why not say ask him to do this, this, and
Give me a chance
She does none of that.
I can't work with him, I refuse to work
with him, I can't stand him.
to do?
12
claim rests on the fact that it took place while
13
these other events are going on and so that was the
14
reason she was terminated.
15
said I will do better.
16
02:42:22
10
11
02:41:58
gone.
17
What are you supposed
You can't let this continue.
And their whole
Free speech.
She never
The drama ceased when she was
So let me show you an exhibit that we
18
19
20
This is Susie Ternoois, a letter she wrote to
Shirlayne George when Shirlayne George was doing this
22
later investigation December for the Workforce
23
Services.
24
02:42:58
bring that one up and we'll switch the panel to him.
21
02:42:39
stipulated to.
Exhibit 40.
Brandon, if you could
investigation are you talking about?
25
the second one.
Do you remember she said which
So this is like
This is a pretty interesting letter
29
1
2
bottom it says, I have to add that since Karen has
3
been gone, rest staff has all changed.
4
more as a team.
5
between the officers and the shelter sides is getting
6
02:43:26
about her concerns about Karen Bird.
At the very
better.
It is working
And that tension that had been there
7
Kelly Davis testified we have to get the
8
cleaning done, we have to do this by 10 a.m. But
9
Ms. Bird says it can't be done, I need more staff.
Do you remember when they played her -- or they
showed him his testimony at the EAB hearing?
12
all those excuses that it can't be done, I can't do
13
it were gone the.
14
done because the rest of the people fell in line and
15
did what Kelly wanted.
16
the tensions that were building up.
17
02:44:06
10
11
02:43:50
to my screen, please.
18
He said
The problem ceased once Karen was
She resisted that.
These are
If I can go back
The third point I wanted to make is Kelly
19
Davis hired her, he promoted her, he allowed her to
be insubordinate for years.
22
gave her a second chance.
23
deed goes unpunished now he has been a defendant for
24
02:44:47
20
21
02:44:32
Davis did not participate in the decision.
six years.
25
Kelly
He saved her job and
The old saying no good
They are seeking punitive damages for
30
1
That's what
2
Ms. Hollingsworth has asked you to do.
He wasn't
3
even involved in the decision because Layne Morris
4
said I've got to step in and fix this.
5
contacted Kelly, got input from him.
6
Kelly never recommended I terminate her.
7
to say that Kelly was upset, he wanted to stop these
8
leaks.
9
02:45:09
malicious conduct against Kelly Davis.
plastered through out the community as being somebody
He never even
He testified
They want
Well, who wouldn't when your name is being
who is killing animals right and left with no regard
for them.
12
Layne does.
13
who follows it through and he doesn't make the
14
02:45:47
10
11
02:45:25
decision until November 22nd.
15
But Kelly doesn't make the decision.
And he's the one who initiates it and
Jon Andus.
I think the first and the last
16
17
saw how combative and defensive he was on the stand.
19
I think you saw how he embellishes the truth.
20
Perfect example, we're in this meeting and Kelly
21
wants a list of items to be purchased and Karen
22
writes it and slides it to him.
23
Andus, Kelly Davis wadded that up and threw it at her
24
02:46:32
bookends.
18
02:46:10
witnesses you heard in this case are appropriate
face.
25
slid it back across the table.
Jon Andus was a volunteer.
He was -- you
And according to Jon
And you saw what Ms. Bird said happened.
He
Jon Andus is not a
31
1
2
going after somebody.
3
oh, I have nothing against Kelly Davis.
4
02:46:57
credible witness.
protests too much as Shakespeare would say.
5
He has some agenda here, he is
But several times he told us
Me thinks he
What was Kelly Davis's explanation of this?
6
told the employees I needed it in a memo which lists
7
the items to be purchased, I needed it prioritized,
8
and I needed the amounts so I could determine when
9
I
the request comes to me whether I would have the
They make it sound like he is just some bully.
was doing what he should be doing.
14
gets perceived as something that it was not.
15
Andus said that in his EAB hearing he says, do you
16
know why she was terminated?
17
says, Kelly told me she was the mole and that's why
18
she is being terminated.
19
Kelly knows nothing about it.
20
that a police officer of 20 plus years service who
21
has been a manager for years, who has been an officer
22
rising to the rank of lieutenant, would go to a
23
volunteer and talk about the personnel managers --
24
02:48:16
manager who is trying to live within his budget does.
13
02:47:58
funds to purchase.
12
02:47:38
10
11
02:47:14
That is what a responsible
problems of one of his subordinates.
25
that.
He
But again, this
Oh yes, I do.
Jon
And he
That is November 10th.
Is it credible to you
You don't do
You don't spread information like that.
Kelly
32
1
2
So not only did he say that, but then later in this
4
day now none of this is in the Post-It Note that he
5
posted that he testified that he tried to put
6
everything in so he wouldn't forget it, but later in
7
the day he hears Kelly Davis say I'm going to do
8
everything I can to get rid of her.
9
02:48:53
statement.
3
02:48:36
Davis absolutely denies it.
later suddenly he comes up with another
10
He did not make that
But on the stand, Mr. Andus doubles down.
So six years
embellishment.
11
Not even Ms. Bird believes she was fired for
12
13
15
did he want to get rid of you.
reasons.
17
secretary was forced to resign after I accused her of
18
theft.
19
was disagreeing with him.
20
rid of me because I do not want to use the CO
21
chamber.
22
was because after my car -- while I was off work
23
after my car accident, some of Hitler
24
02:49:56
want to get rid of you?
16
02:49:37
review her deposition, I said why did Kelly Davis
14
02:49:20
her free speech issues.
Remember, when I had her
responsibilities he had to take over and do.
25
this deposition is taken in 2014, she has heard John
He is the guy you sued, why
He gave several
He wanted to get rid of me because his
Mr. Davis wanted to get rid of me because I
Mr. Davis wanted to get
Another reason he wanted to get rid of me
Now
33
1
2
fired me because he believed I was leaking
3
information to the press.
4
02:50:20
Andus and all this stuff, not once did she say he
substantial or motivating factor for her termination.
5
How can you find that if she doesn't think it?
6
Not even she thinks it's a
Brandon can you bring up the special verdict
7
form, please.
I want to show you the verdict form
8
you're going to have to fill out and talk to you for
9
just a moment about that.
So as I indicated, the
10
first question you will be asked to respond to is did
11
Kelly Davis order a mass execution at the West Valley
12
City Animal Shelter in October 2011.
13
02:50:44
allegation is false and the answer should be no.
14
I submit that
Second, do you find that Karen Bird has proven
City's belief that she leaked information to the
press regarding Andrea the cat and/or a mass
18
execution at the animal shelter allegedly ordered by
19
Kelly Davis was a substantial or motivating factor in
20
the decision to terminate her employment?
21
that for the reasons I told you that the answer
22
should be no.
23
remaining questions.
24
02:51:42
by a preponderance of the evidence that West Valley
17
02:51:22
15
16
02:51:05
form and turn it in.
25
I submit
If the answer is no, do not answer any
Have the foreperson sign this
If you do find it was a substantial or
34
1
2
one was it or was it both of them.
3
be asked the question on question four, this is on
4
the second page, do you find that West Valley City
5
has proven by a preponderance of the evidence that it
6
would have terminated Karen Bird's employment in the
7
absence of any belief that she leaked information to
8
the press regarding these two incidents?
9
02:51:59
motivating factor, you will be asked to decide which
they had grounds to terminate her.
And then you will
Absolutely
Had nothing to do
with this.
remaining questions and have the foreperson sign the
12
verdict form and return it.
13
farthest you need to go in this special verdict form
14
02:52:38
10
11
02:52:16
is the fourth question.
15
done after dealing with the second question.
16
If that answer is yes, do not answer any
I submit that the
And I submit it should be
Credibility of witnesses.
For you to find
17
18
speech retaliation motive, you have to find that
20
Kelly Davis was lying, that Shirlayne George was
21
lying, and that most importantly that Layne Morris is
22
lying to you.
23
lie.
24
02:53:36
who was Layne Morris terminated her because of a free
19
02:53:13
that the City acting through the final decision-maker
servant.
25
of West Valley City his entire life.
Layne Morris is not a man who would
Look at his character.
He has been a public
He has served this country and the citizens
You don't
35
1
2
unless you are a leader and a man of integrity.
3
There is a movie out called 12 Strong.
4
02:54:02
become a First Class Sergeant in the Green Berets
one group of the first special forces responders that
5
was sent to Afghanistan right after 9-11.
6
7
MS. HOLLINGSWORTH:
It's about
Your Honor, I'm going to
object to improper vouching about the --
8
THE COURT:
You may proceed.
9
MR. PRESTON:
Thank you, Your Honor.
Kelly
out there as a special forces man to go to
Afghanistan.
14
much hair, and he is not as handsome as Chris
15
Hemsworth who stars in that movie, but Layne Morris
16
is the real deal.
17
when I asked him about his oath to defend the
18
Constitution?
19
live and fight against a country, a leadership, a
20
government, that doesn't have these constitutional
21
rights.
22
line doing that.
23
he would violate Karen Bird's Constitutional rights
24
02:55:25
one of the first responders in the Green Berets to go
13
02:55:04
Davis -- I'm sorry, I got off here.
12
02:54:40
10
11
02:54:18
Layne Morris was
and he would lie in a United States Courtroom about
25
it.
Now, he is not as tall, doesn't have as
Did you see how emotional he got
He knows by firsthand what it is to
The Taliban.
And he put his life on the
But now you're asked to find that
That is not what this case -- that is not why
36
1
she was terminated.
2
clip which shows why she was terminated.
3
4
02:55:57
I'm going to play you a brief
(Whereupon, an audio clip was played for the
jury.)
5
MR. PRESTON:
He is just -- Kelly Davis is
6
just trying to show me he is the boss.
7
says Karen, he didn't say it rudely, he said Karen,
8
he is the boss.
9
terminated.
10
boss.
11
02:56:15
I know that.
That's why she was
She refused to accept Kelly Davis as her
attention.
12
13
Thank you very much for your time and
THE COURT:
Ms. Hollingsworth?
Do you need to
switch the computers Ms. Hollingsworth or --
14
MS. HOLLINGSWORTH:
15
MR. PRESTON:
16
02:56:31
Layne Morris
MS. HOLLINGSWORTH:
No.
Let me unplug my stuff.
Ladies and gentlemen,
17
18
October 12, 2011.
20
recording on October 12th, Ms. George determined that
21
Mr. Davis was simply trying to help Ms. Bird.
22
want to ask you what happened then after
23
October 12th?
24
02:57:32
Ms. Bird had presented to Ms. George that was from
19
02:57:10
Mr. Preston talked to you about a recording that
Ms. George saying -- as of November 1st saying
25
Kelly's bullying of Ms. Bird has gotten so much worse
And on October -- from that
So I
And we have Tess Hartwell's e-mail to
37
1
2
articles came out in the newspaper about Andrea the
3
Cat and then a reporter called Mr. Davis about a mass
4
execution.
5
authorized the leaks to the press for -- about Andrea
6
the Cat that simply is not correct.
7
was, you can go to the vet and you can talk to the
8
vet and I'll accept the consequences.
9
02:57:57
in the last two weeks.
And what happened was the
specifically said in this November 1st meeting, I
And to the point that Mr. Morris had
What he said
But he
don't have the recording up but I have the transcript
from the meeting and you heard this clip where he
12
said, and he was talking to Michelle in that
13
November 1st meeting, he said, I explained to Karen
14
that it's her job to make it stop.
15
telling that story like she did to Channel 4 the
16
other day.
17
defending us and giving out the good information like
18
02:58:35
10
11
02:58:21
a loyal employee.
19
She needs to be
She needs to be telling our story and
So Mr. Morris was okay when he thought the
Andrea the Cat story through the vet might be about a
miracle cat, but the debate became about the gas
22
chamber and its effectiveness and its use by the
23
shelter.
24
02:59:13
20
21
02:58:51
out of the shelter about a mass execution.
25
the debate was not positive as Mr. Morris had hoped
And then there was subsequent information
And so
38
1
and he clearly thought that Ms. Bird had gone beyond
2
what he had authorized to talk to the media herself.
3
Mr. Preston said there's -- there's not --
4
5
-- in late October.
6
that although we don't and wish we had the recording
7
of the October 24th meeting.
8
the recording and it disproved the allegations then
9
02:59:41
there wasn't any statements about a mass execution on
defense would have brought it up.
We have many sources to support
Obviously, if we had
Ms. Bird testified
But what we have from that meeting was Mr. Davis's
notes which reflect that he said the numbers in the
13
shelter were high and that he needed to get them
14
down.
15
Facebook post saying the big man says we got to get
16
the numbers down, he wants them all dead.
17
Jon Andus who testified that he was in that meeting
18
and he heard the mass execution statement made in
19
03:00:45
that recording was lost or inadvertently deleted.
12
03:00:27
10
11
03:00:03
that meeting.
20
times before.
21
We have Michelle Johnson's simultaneous
We have
Not only that, he had heard it several
So we have several sources that confirm what
22
23
a reporter called Mr. Davis on an anonymous tip and
24
03:01:03
was said in that meeting not to mention the fact that
Mr. Davis's notes reflect that he didn't say that's
25
not true, he said I'm concerned about how this
39
1
2
information to support that that's what was said.
3
And as counsel pointed out, on your verdict form the
4
very first question you're asked is, "did Kelly Davis
5
order a mass execution in October of 2011?"
6
while that statement doesn't go to the liability that
7
you are to determine, it's something that figures
8
03:01:20
information is getting out.
into what the court has to decide later.
9
So there is all kinds of
And
Counsel talked about that Mr. Morris wouldn't
Mr. Morris's motivations.
about the negative information that was in the press.
14
And we have Mr. Morris's boss on November 10th
15
saying, you're going to be placed on leave and we'll
16
figure out -- we'll send you a letter about why but
17
it -- let's just say it's because of your opposition
18
to the gas chamber.
19
And he says even if I were to think that people
20
crossing the road outside our building might get
21
killed, I can't say anything about that because it
22
would be against policy.
23
really skewed view of what the First Amendment
24
03:02:47
recordings that show both Mr. Davis's and
13
03:02:31
lie about these motivations.
12
03:02:12
10
11
03:01:53
What we have is
protects but it's clear from all of the evidence that
25
that was their motivation.
That they were concerned
That's a violation of policy.
So these officials have a
40
1
Mr. Morris, when I asked him why he would
2
3
5
it's the process that the defendant uses to terminate
employees or discipline employees when they're going
7
about it for legitimate reasons.
8
in place because that's what makes sense.
9
you -- when you have an employee with problems, then
10
you document those problems so that they have notice
11
of what the problem is and so that they can improve.
12
That never happened in this case and that's because
13
the -- the problems that were attributed to Ms. Bird
14
were made up after the fact to legitimize an
15
illegitimate termination that they knew they needed
16
to cover up because it was based on a violation of
17
03:03:51
out of jail free card, our disciplinary process?
6
03:03:32
disciplined, he said what do you think that's a get
4
03:03:12
recommend terminating an employee who had never been
the First Amendment.
18
No,
They have a process
And when
The defendant wants you to believe that a
19
discipline for giving away a bag of dog food with
maggots in it, or maybe for cleaning protocols that
22
weren't figured out but that Mr. Morris testified
23
were actually figured out long before this, or maybe
24
03:04:25
20
21
03:04:05
tenured employee was terminated without any
for her discipline of Ed Trimble who we know was gone
25
for many months before the events that are at issue
41
1
in this case.
That is simply not credible.
2
3
testified as to what was going on in the shelter.
4
have Jon Andus to start with who might, I grant you,
5
be a bit unhinged, but he had no reason to lie about
6
what was going on at the shelter.
7
Johnson to testify about the reasons she put out the
8
Facebook post when she did.
9
03:04:45
Instead we have a number of witnesses who
whether or not Mr. Davis had said do you want them
10
all dead?
11
03:05:04
We
We had Michelle
And when challenged on
heard.
12
She said yes, that is exactly what I
We had Ms. Bird's testimony which wasn't
13
14
defense could not put on a single witness to validate
15
the concerns that they had about them, about
16
Ms. Bird, except for Mr. Davis and Mr. Morris whose
17
03:05:19
impeached on any point.
only information was through Mr. Davis.
18
We have the fact that the
We had finally Mr. Breisch, the volunteer, who
19
recording of Mr. Davis telling him he was not welcome
as a volunteer in the shelter any more because he had
22
exercised his First Amendment Rights.
23
Mr. Davis attributed it to negative attention that a
24
03:06:05
20
21
03:05:45
had no dog in this fight but happened to have made a
Facebook page was getting, Mr. Breisch told you he
25
had just as we established 10 days earlier with his
And although
42
1
girlfriend testified at City Council about the
2
problems that the gas chamber was having.
3
So these are officials who did not want the
4
fired everybody including volunteers but including a
long-term exceptional employee of the animal shelter
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who volunteers referred to as Mother Earth.
8
a tragedy for our entire community and I ask now that
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03:06:45
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03:06:23
truth of what they were doing getting out.
you set this right.
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So they
That is
And I made one promise to Ms. Fortson that I
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12
The formatting on our PowerPoint was messed up
13
because we had to switch I-Pads and that put it into
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a different program.
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words.
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page on November, for instance, it was due to
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computer problems.
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03:07:02
would tell you something so I'm going to do that.
THE COURT:
So we do know how to hyphenate
So if there was an R at the bottom of the
So thank you.
All right.
Thank you very much.
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03:07:21
All right.
At this time if I could have the
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Courtroom Deputy swear in the Court Security Officer.
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THE CLERK:
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(Whereupon, the Court Security Officer was
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03:08:03
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Please raise your right hand.
given an oath.)
THE COURT:
Thank you.
All right.
And I will
instruct you to go into the jury room and begin your
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1
deliberations.
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Would you all rise for the jury,
please.
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(Whereupon, the jury left the courtroom.)
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(Whereupon, the trial continued but was
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not transcribed.)
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REPORTER'S CERTIFICATE
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2
3
I, Laura W. Robinson, Certified Shorthand
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Reporter, Registered Professional Reporter and Notary
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Public within and for the County of Salt Lake, State
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of Utah, do hereby certify:
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That the foregoing proceedings were taken
8
before me at the time and place set forth herein and
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were taken down by me in shorthand and thereafter
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transcribed into typewriting under my direction and
11
supervision;
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That the foregoing pages contain a true and
13
correct transcription of my said shorthand notes so
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taken.
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In witness whereof I have subscribed my name
this 13th day of March, 2019.
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________________________________
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Laura W. Robinson
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RPR, FCRR, CSR, CP
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