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)

Download PDF
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). 16 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 Hide Details From: Stanley Preston <sjp@prestonandscott.com> Sort List... To: "'utdecf_furse@utd.uscourts.gov'" <utdecf_furse@utd.uscourts.gov>, "Lindsey_Pagel@utd.uscourts.gov" <Lindsey_Pagel@utd.uscourts.gov> Cc: "'HollingsworthLaw (april@aprilhollingsworthlaw.com)'" <april@aprilhollingsworthlaw.com>, Kass Harstad <kass@utahjobjustice.com>, xerniafortson <xerniafortson@gmail.com>, "Bryan M. Scott" <bms@prestonandscott.com>, Brandon Crowther <btc@prestonandscott.com> 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 intended recipient is our client, then this information is also a privileged attorney­client communication. Unauthorized use or disclosure of this information is prohibited. If you have received this communication in error, do not read it. Please delete it from your system without copying it, and notify the sender by e­mail or by calling 801­869­1620, so that our address record can be corrected. Thank you. 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. _____________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) 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 7 who volunteers referred to as Mother Earth. 8 a tragedy for our entire community and I ask now that 9 03:06:45 5 6 03:06:23 truth of what they were doing getting out. you set this right. 10 So they That is And I made one promise to Ms. Fortson that I 11 12 The formatting on our PowerPoint was messed up 13 because we had to switch I-Pads and that put it into 14 a different program. 15 words. 16 page on November, for instance, it was due to 17 computer problems. 18 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. 19 03:07:21 All right. At this time if I could have the 20 Courtroom Deputy swear in the Court Security Officer. 21 THE CLERK: 22 (Whereupon, the Court Security Officer was 23 24 03:08:03 25 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 43 1 deliberations. 2 Would you all rise for the jury, please. 3 (Whereupon, the jury left the courtroom.) 4 (Whereupon, the trial continued but was 5 not transcribed.) 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 44 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 45

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?