MURRAY v. WAL-MART STORES INC et al, No. 2:2015cv00484 - Document 52 (D. Me. 2017)
Court Description: AMENDED MEMORANDUM DECISION AND ORDER ON DISCOVERY DISPUTE By MAGISTRATE JUDGE JOHN H. RICH III. (Attachments: # 1 "Exhibit A", # 2 "Exhibit C")(ccs)
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MURRAY v. WAL-MART STORES INC et al Doc. 52 Att. 1 Murray v. Wal-Mart Stores, Inc., et al. Videotaped Deposition of: Alan Heinbaugh 1 UNITED STATES DISTRICT COURT District of Maine DAVID E. MURRAY, EXHIBIT A ] Plaintiff, ] vs. ] WAL-MART STORES, INC., et al., ] Defendants. ] VIDEOTAPED DEPOSITION OF: ALAN HEINBAUGH Taken before Cheryl C. Pieske, Notary Public, in and for the State of Maine, on SEPTEMBER 30, 2016, at the offices of Johnson, Webbert & Young, LLP, 160 Capitol Street, Augusta, Maine, commencing at 9:03 a.m., pursuant to notice given. APPEARANCES: FOR THE PLAINTIFF: DAVID G. WEBBERT, ESQ. MAX I. BROOKS, ESQ. Johnson, Webbert & Young 160 Capital Street Augusta, ME 04332-0079 FOR THE DEFENDANTS: RONALD W. SCHNEIDER, JR., ESQ. Bernstein Shur 100 Middle Street Portland, ME 04104-5029 Also present: 1 of 83 sheets Mr. David Murray Page 1 to 1 of 234 PIESKE REPORTING SERVICE 207-622-1616 Dockets.Justia.com Videotaped Deposition of: Alan Heinbaugh Murray v. Wal-Mart Stores, Inc., et al. 87 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 89 A. Probably two of the three. Q. And how was she bullying them? A. E-mails; getting the previous market manager and me 1 for a while, but mainly the previous market manager, to hold them accountable for different things. She was just short in her words. Q. She was too demanding? A. She was demanding. She was -- she is in a position -- she was in a position of influence, not directive. Q. And do you know where her employment stands with Wal-Mart? A. Well, she left them. She went out on LOA and never came back. Q. Did she ever make any complaints about you? A. No. Q. Do you think your feedback played a role in her employment ending? A. She did make a complaint with me. What that complaint was, I don't know. But when they started asking questions, actually, the store managers, basically, were saying, "Alan is not the problem. It's Ruth that's the problem." And then the questions started going towards her performance, not mine, and then she just comped out, LOA, and never 88 came back. Q. Your understanding is that the investigation started out as a result of a complaint by her against you? A. Correct. Q. Were you told what the complaint was? MR. SCHNEIDER: Objection. A. I don't recall. BY MR. WEBBERT: Q. Was that a redbook investigation? MR. SCHNEIDER: Objection. A. Could have been. BY MR. WEBBERT: Q. Were you interviewed? MR. SCHNEIDER: Objection. A. Yeah, I guess I was questioned by the regional HR. BY MR. WEBBERT: Q. And is that how you learned that Ruth Dodge had made a complaint against you? MR. SCHNEIDER: Objection. A. Uh-hmm. BY MR. WEBBERT: Q. Yes? A. Yes. Q. Did her complaint have anything to do with her gender or sex? 4 PIESKE REPORTING SERVICE 207-622-1616 MR. SCHNEIDER: Objection. 2 A. I don't know. I don't think so. 3 BY MR. WEBBERT: Q. Do you know what the nature of her complaint was? MR. SCHNEIDER: Objection. A. I think that I was just too difficult to work with, but I really don't know specifically what the complaint was. BY MR. WEBBERT: Q. And was that a redbook investigation with Janet Deans? MR. SCHNEIDER: Objection. A. No. BY MR. WEBBERT: Q. What kind of investigation was it? MR. SCHNEIDER: Objection. BY MR. WEBBERT: Q. I thought you said there was a complaint by her and that it was investigated, and you were found innocent. Is that right? MR. SCHNEIDER: Objection. A. Yes. BY MR. WEBBERT: Q. Was it a redbook investigation? MR. SCHNEIDER: Objection. 90 A. Probably. Possibly. I don't know. BY MR. WEBBERT: Q. What are the different kinds of investigations that Wal-Mart does when there's a complaint of employment discrimination? A. Redbook. Sometimes, depending what it is, it's conversational for fact-finding. Like that. Q. Any other kinds? A. Not that I'm aware of. Q. So is the redbook the formal investigation? A. Formal? Q. Yes? A. Yes. Q. And if there's a concern about a financial impropriety at a store, does that result in a different kind of investigation? A. That may be an asset protection investigation. Q. Do you recall an issue with markdown issues at the Waterville store? MR. SCHNEIDER: Objection. A. Yes. BY MR. WEBBERT: Q. Did you report concerns about that? MR. SCHNEIDER: Objection. A. What I had said during that investigation was that 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 87 to 90 of 234 24 of 83 sheets Murray v. Wal-Mart Stores, Inc., et al. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Videotaped Deposition of: Alan Heinbaugh 91 there was markdowns that weren't taken that I felt should have been taken. BY MR. WEBBERT: Q. Can you explain that a little more? A. If you have inventory that's unsellable, you are to mark it down to zero right then. You're not supposed to carry that inventory on your books into the next month, the next quarter, the next year. Q. And is this when you took over the Waterville store from David Murray? A. Yup. Yes. Q. And fairly soon after you took over, you reported this to Wal-Mart? A. That came up in their investigation about markdowns. Q. Did you initiate that investigation? A. I don't know that I -MR. SCHNEIDER: Objection. A. -- initiated it. BY MR. WEBBERT: Q. Is it possible that you initiated it? MR. SCHNEIDER: Objection. A. I don't know. BY MR. WEBBERT: Q. Did you raise a concern about David Murray's markdowns fairly soon after you took over the 1 2 3 4 5 Q. 6 7 8 9 10 A. 11 12 13 Q. 14 15 A. 16 17 18 19 Q. A. Q. 20 21 22 23 24 25 A. Q. A. Q. 93 that simple. If a TV is broken, it's cracked, if an electronic radio doesn't work, if something is out of date, something is damaged that no one would buy it, that's unsaleable. Okay. Let's talk about that because I have purchased things that are damaged at discount. So I'm not sure I understand your assumption that any kind of damaged product would be unsaleable. Can you explain that further? Sure. If a TV screen is cracked, if a radio doesn't turn on or it crackles, or if something is out of date, you can't purchase it. Sometimes customers are willing to buy something out of date, aren't they? Not in Wal-Mart. We don't sell anything that's out of date, knowingly sell anything out of date. You know, like cars. New models come out and you -We don't sell cars. Right. But customers will buy things that are out of date if they get a big enough discount sometimes, right? Cars never are out of date. The year is out of date. Is last year's date. Right. That's out of date, right? 92 Waterville store? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 94 1 A. I had a discussion about markdowns and deleted and 2 clearance inventory in excess. Deleted and clearance and? Markdowns, unsalables, nonsalable merchandise. Did you report that to Paul Busby or somebody else? Paul Busby. How soon after you took over the Waterville store did you report that? A. Months, within months. Q. And you took over in about March of 2014? A. February of -- I believe it was February. Q. And this was improprieties that you thought occurred while David Murray was the market manager? MR. SCHNEIDER: Objection. A. I expressed concerns about the amounts of that inventory. BY MR. WEBBERT: Q. And is there any discretion in the markdowns? A. Yes, there is. Q. So part of the discretion is deciding whether it's completely nonsalable? A. I would disagree with that. I mean -Q. It's a question. A. You can either sell it or you can't. It's really A. No. It's just a different date. Q. Making a judgment call about whether something is 3 Q. A. Q. A. Q. 25 of 83 sheets 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 out of date is discretionary, isn't it? A. No. Q. So is the latest version of Word out of date as soon as there's a new version? A. I don't know if it's out of date. It's not new. Q. Right. A. It's not the newest version. Q. It's a gray area, right? A. If a bottle of aspirin is out of date, it's out of date. Q. Is everything that cut and dry about whether it's out of date? A. Not everything, no. Q. So what did you report about your estimate of the items that should have been marked down that weren't? MR. SCHNEIDER: David, can I just -- are you asking him what he reported to Paul Busby? MR. WEBBERT: No. MR. SCHNEIDER: Okay. A. So what did I report? BY MR. WEBBERT: Q. Yup. Page 91 to 94 of 234 PIESKE REPORTING SERVICE 207-622-1616 Videotaped Deposition of: Alan Heinbaugh Murray v. Wal-Mart Stores, Inc., et al. 95 MR. SCHNEIDER: Well -MR. WEBBERT: You can say "objection" every 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 time. 1 Q. Was he primarily responsible for the markdown 2 decisions that you were questioning? A. He's the manager of the store, so, yes. Q. And now he's currently serving as a store manager? A. He is. Q. Which store? A. He just went to Auburn, Maine. Q. And that has larger sales than Waterville? A. Yup. It does. Q. Is that the store in Maine with the most sales? A. I believe it still carries that title. Q. Is it fair to say that you wouldn't send him to the store with the most sales if you didn't think he was one of the better store managers? A. Well, I didn't send him there. Q. I'm sorry. Wal-Mart wouldn't have him as the store manager for Auburn unless they thought he was one of the better store managers in Maine, right? A. Correct. At the time he was in Waterville, he was not one of the better store managers. Q. And you reported your concerns to Paul Busby you said, right? A. Uh-hmm. Q. Did you have any further involvement in that issue? MR. SCHNEIDER: Objection. 98 A. There was an investigation. BY MR. WEBBERT: Q. Were you interviewed in the investigation? A. Yup. Q. Do you remember about when that interview was? A. Middle of that year. Q. So middle of 2014? A. Probably. Q. Were you ever told -A. Well, first quarter, second quarter. Q. Were you ever told what the conclusions of the investigation were? MR. SCHNEIDER: Objection. A. No. BY MR. WEBBERT: Q. Do you have any sense of what the result of the investigation was? MR. SCHNEIDER: Objection. A. No. BY MR. WEBBERT: Q. So if they had found improper markdowns, what would the next procedure normally be? A. Accountability. Q. What -A. Yeah, accountability. 3 MR. SCHNEIDER: No, no, no, because I need to know whether I -- who -- reporting to who. MR. WEBBERT: You can object. MR. SCHNEIDER: No. I need -- I may have to do more than just object. MR. WEBBERT: Could you read the -- can we have the question read back? MR. SCHNEIDER: Yeah. MR. WEBBERT: It might help. MR. SCHNEIDER: I'm just trying to tailor it so that I understand what you're asking. (Question read as follows by reporter: So what did you report about the estimate of the items that should have been marked down that weren't?) A. I don't recall an estimate, dollar value. BY MR. WEBBERT: Q. You testified I thought that the size of the markdowns was one of your major concerns, right? A. Not -- not the amount that was taken, the amount that should have been accounted for. Q. Right. That's the number I'm asking about. A. I don't recall having a number. 96 Q. Right, but a range. Was it under $5? A. I don't recall how much it was. $5 is not much, so... Q. It was more than that, right? A. Sure. Q. So for it to be of worthy of your attention, it had to be above $5, right? A. It was thousands of dollars. Q. Above 10,000? A. I don't recall. Q. Is it likely it was above 10,000 in your view? A. Likely. Q. Is it likely it was above 50,000? A. I don't recall. I would say well over ten, but I don't know how much. Q. And who was responsible for doing the marking down at the Waterville store? A. The store manager followed up by market manager. Q. And the store manager was whom? A. McCafferty. Q. Did he get in trouble for the markdown? MR. SCHNEIDER: Objection. A. There were discussions with me about what his obligation was on dealing with markdowns. BY MR. WEBBERT: PIESKE REPORTING SERVICE 97 207-622-1616 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 95 to 98 of 234 26 of 83 sheets Murray v. Wal-Mart Stores, Inc., et al. Videotaped Deposition of: Alan Heinbaugh 99 1 2 3 Q. What kind of accountability? A. I don't know. Q. Well, you're a market manager responsible for 4 5 6 7 A. Q. 8 9 10 11 12 A. Q. A. Q. 13 14 15 16 17 18 19 20 21 A. Q. A. Q. A. Q. 22 23 24 A. 25 1 2 3 4 5 6 7 Q. A. Q. A. Q. A. Q. 8 9 10 A. Q. 11 12 13 A. 14 15 16 17 18 19 20 21 Q. A. Q. 22 23 24 25 A. Q. A. 1 2 3 markdowns indirectly through your store managers, right? Uh-hmm. What do you understand to be the accountability if you were to intentionally not mark items down? It could be getting written up. Any criminal liability? I don't think so. And what do you think -- given the scale of the issue that you saw in Waterville, what do you think, if it was intentionally done, what would be the appropriate consequences? Accountability. A coaching? Yup. Termination? It depends. Maybe. Maybe not. And given what you know, do you think the store manager was primarily responsible for the markdown issues that you saw? The store manager was insistent that it was following the market direction. 100 What does that mean, the market direction? Murray's direction. The market manager? Uh-hmm. Did you believe him? I didn't have a reason not to. Did the store manager think that it was legitimate the way he had handled the markdowns? Yup, he did. And can you give any examples of things that weren't marked down that you thought obviously should have been? TVs, electronics, out of dates. Well, I picked up -- I picked up two stores. I couldn't tell you specifically how much Waterville had, but Skowhegan had over 80 pallets of clearance deleted packed up, wrapped up in their steel and plus what was on the floor, which is a lot. So besides Waterville, what was the other store? Skowhegan. Okay. And you're saying you observed in Skowhegan a problem with markdowns, too? Not -- yeah. Not taking markdowns, yes. And the evidence was? You said there was? Over 80 pallets plus what was on the floor. 27 of 83 sheets 101 4 Q. A. Q. A. 5 6 7 8 9 10 11 12 13 14 Q. 15 16 17 18 19 20 21 22 A. Q. A. Q. A. Q. A. 23 24 25 Q. 1 2 3 4 5 A. Q. A. Q. 6 7 8 9 10 A. Q. A. Q. 11 12 13 A. Q. 14 15 A. 16 17 18 19 20 21 Q. 22 23 24 25 A. Q. A. Page 99 to 102 of 234 80 pallets of? Clearance deleted. What is clearance deleted? Things that are out of season. Like right now, summer is out of season. We're going into winter. It should be clearanced and sold, or if you have Easter or Valentine's or 4th of July, it's out of season now. That would be both clearance and deleted because it goes deleted, and then it's clearanced. Deleted means it's nonreorderable at the time. And the same with side counter stock, things become deleted, taken out of a modular, and then they go clearance after they're deleted. Did you report concerns about the lack of markdowns in Skowhegan? Oh, yeah. Was that investigated, too? I don't know. Were you interviewed about it? I don't remember Skowhegan. And what were the 80 pallets? It's stuff that should have been gone: Out of season stuff, old merchandise, things that didn't have a home. So they should have been sold before they got 102 wrapped up? Typically. Do they have any value when the season comes back? Yup. Sometimes it does, yup. Is it possible you get more money if you wait until the next season when it's appropriate? If it's still a viable product, yup. Is that a legitimate strategy? Sure, it's legitimate. Was clearance/deleted ownership an overall issue in 2013 in the region you worked in? Yup. Tell me about that. What was the discussion about it being an issue generally? That corporately we were holding onto too much clearance/deleted. We had exit strategies to get through that. You know, value price to put it on end caps, put it in a clearance/deleted aisle. There was a PowerPoint that came out on how to display it, take progressive markdowns. So this was recognized as an across-the-board problem? Uh-hmm. Had you gotten ahead of that in all of your stores? I had. I had the lowest clearance/deleted in the PIESKE REPORTING SERVICE 207-622-1616 Videotaped Deposition of: Alan Heinbaugh Murray v. Wal-Mart Stores, Inc., et al. 103 division. 1 2 3 4 5 6 A. Q. 7 8 A. 9 10 11 12 13 Q. A. Q. A. 14 15 16 Q. 17 18 19 20 A. Q. 21 22 23 24 25 1 A. Q. A. 2 3 4 5 Q. 6 7 8 A. Q. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 Q. So you were more successful than all the other A. Q. A. Q. A. Q. A. Q. A. 2 market managers in getting ahead of this issue; is that right? I was. But you understood that this issue was not limited to David Murray's market, right? No. There was a lot of clearance/deleted that wasn't dealt with the way we were showed to. The new standards? Standards, yup. And they had changed in 2013; is that right? I don't know that they had changed. They had -- it was just another way of getting through that merchandise. Fair to say that there was a push throughout the entire region to change how deleted ownership was handled? Fair. And you're saying in 2013 it was recognized that many stores were holding onto too much merchandise that had become less saleable and, perhaps, even not saleable at all; is that right? Correct. And was the region still working on that in 2014? 104 I don't know when Julie had sent out the PowerPoint. '12, '13, '14, I don't know. It had been sent out a couple different times a couple of different ways, so... So your recollection is the first one wasn't enough. They had to follow up on it and keep working on it? Yup. Sure. So it took over a year to get on top of that problem? Yup. Do you remember a Brad Rosenberry? I do. Was he an employee that worked with you? Yup. He was a store manager in Brewer. Did you have issues with his performance? I did. Did he lose his job? He resigned. He quit. I had coached him, put him on a PIP. He had quit. He came back two weeks later. Paul reinstated him. I gave him a week back in the store. I came back in, talked to him, put him back on his performance improvement plan; and I think he quit like within three days of that again. MR. SCHNEIDER: I'm going to object. David, one thing I realized yesterday that we did not do, PIESKE REPORTING SERVICE 207-622-1616 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 105 we did not designate the deposition as confidential. MR. WEBBERT: I think the confidentiality issue gives you some time to do that. MR. SCHNEIDER: Right. So we have to do -- I just thought we should be put that on the record for today, too, right now, because I just thought about it. You're, obviously, talking about other third parties, so... MR. WEBBERT: Right. We have a confidential order that allows -MR. SCHNEIDER: No. I understand. MR. WEBBERT: -- 15 days after the transcript is issued. So I agree. MR. SCHNEIDER: Okay. BY MR. WEBBERT: Q. Approximately when did Brad Rosenberry quit? A. 2009 maybe. Q. Did he make any complaints about you? MR. SCHNEIDER: Objection. A. I don't think he liked me. But did he make a formal complaint? I don't recall a formal complaint. BY MR. WEBBERT: Q. Did he make an informal complaint about you to anyone else? MR. SCHNEIDER: Objection. 106 1 A. To Ruth. 2 BY MR. WEBBERT: Q. Do you recall the nature of his complaint? A. No. Q. Did she talk to you about it? A. What's that? Q. Did Ruth talk to you about his complaint? A. No. Q. How did you find out about it? A. I guess it was Busby. It was a long time ago. Q. Did any Wal-Mart employees ever file legal claims against Wal-Mart based on adverse actions that you contributed to? MR. SCHNEIDER: Objection. A. Not to my knowledge. BY MR. WEBBERT: Q. So did Brad Rosenberry file any complaints about the end of his employment? MR. SCHNEIDER: Objection. A. Not to my knowledge. BY MR. WEBBERT: Q. Have you received training from Wal-Mart on the laws prohibiting sexual harassment? A. Yeah. Q. Tell me about that training. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 103 to 106 of 234 28 of 83 sheets
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