Bird v. West Valley City et al, No. 2:2012cv00903 - Document 175 (D. Utah 2019)

Court Description: MEMORANDUM DECISION AND ORDER denying 169 Motion for New Trial. Signed by Magistrate Judge Evelyn J. Furse on 3/28/2019. (las)

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Bird v. West Valley City et al Doc. 175 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 Dockets.Justia.com 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 00:00:02 00:00:19 THE COURT: 00:00:49 00:01:05 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 take a half hour break and you can grab some lunch. I am going to read to you a number of And then following that, we will 10 Then we will come back and we will hear opening 11 statements at that time. 12 00:00:34 All right. So preliminary instruction number one is 13 members of the jury, we are about to begin the trial 14 of this case. 15 case during the process of jury selection. 16 the trial begins, however, there are certain 17 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 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 00:01:20 1 evidence and reach a verdict as a group. 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. You will sometimes hear me refer to counsel. 6 Counsel is another way of saying lawyer or attorney. 7 I will sometimes refer to myself as the court. 9 00:01:54 I will now give you some preliminary instructions to guide your participation in the 10 trial. 11 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 instructions on the required proof and how you should 15 proceed to reach a verdict. 16 00:02:09 00:02:24 Let me briefly explain some 5 8 00:01:37 During the First I will explain the nature of the case At the conclusion of This case is a civil case. A party who 17 brings a lawsuit in a civil case is called a 18 plaintiff. 19 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 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 00:02:41 4 Valley City Animal Shelter until her termination in 5 November 2011. 6 Kelly Davis, the shelter's director of operations, 7 who worked for Layne Morris, the director of West 8 Valley City's Community Preservation Department. 9 00:02:59 00:03:16 00:03:53 She worked directly for defendant On November 29th, 2011, Mr. Morris terminated 10 Ms. Bird. 11 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 and uncooperative. 19 00:03:33 Karen Bird worked as a manager of the West Ms. Bird brought this lawsuit against West West Valley City and Mr. Davis claim Preliminary instruction number two. Your duty 20 is to find from the evidence what the facts are. You 21 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 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 00:04:12 1 trial is intended to indicate nor should be taken by 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 the instructions of the court. 9 00:04:31 00:04:49 00:05:06 00:05:24 Generally speaking -- or preliminary 10 instruction number three. Generally speaking, two 11 types of evidence from which a jury may properly find 12 the truth as to the facts of the case exist. 13 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 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 00:05:39 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 that it was raining. 9 00:05:54 00:06:12 00:06:44 The 10 evidence from which you will find the facts will 11 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 to, and any applicable presumptions outlined by the 15 court. 16 00:06:27 Preliminary instruction number four. Certain things are not evidence and you must 17 not consider them. I will list them for you now. 18 Statements, arguments, and questions by lawyers are 19 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 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 00:07:04 00:07:18 00:07:38 00:07:55 00:08:15 1 counsel has offered improper evidence under the rules 2 of evidence. 3 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 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 you to disregard is not evidence and you must not 12 consider it. 13 outside of this courtroom is not evidence and you 14 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 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 00:08:30 00:08:48 1 a civil case. 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 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 Mr. Davis. 13 00:09:03 The plaintiff has the burden of To put If Ms. Bird fails to meet this A preponderance of the evidence is not alone 14 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 00:00:09 cross-examination by Mr. Preston.) Q. investigation being done among employees at the 8 shelter by Shirlayne George in 2005? 9 A. Yes. 10 Q. And you remember reading that, don't you, 11 and thinking that you had reason to improve. 12 recall that? 14 Objection. Do you Your Honor, relevance. THE COURT: Sustained. Or sorry, overruled. Go ahead. 17 Q. (By Mr. Preston) 18 A. Could you repeat it? 19 Q. Yes, certainly. Did you hear the question? You had an opportunity to 20 review that investigation and when you read it you 21 knew there were -- you needed to improve? 22 23 24 00:00:45 MS. HOLLINGSWORTH: 15 16 00:00:28 (By Mr. Preston) Do you remember an 7 13 00:00:16 Portions 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 00:00:52 00:01:19 THE COURT: 5 MR. PRESTON: Um -Could I just ask the question and then -- could I complete the question before the 7 objection is made. 8 THE COURT: 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 A. 14 improvement. 15 Q. 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 20 case? 21 MR. PRESTON: Your Honor, I would publish the 22 deposition of Karen Bird. 23 THE COURT: 24 00:02:02 Assumes facts 6 16 00:01:27 Objection. not in evidence. 4 9 00:01:00 MS. HOLLINGSWORTH: 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 00:02:14 00:02:24 00:03:04 00:03:19 under oath when you gave that deposition? 4 A. Yes. 5 Q. Is that correct? 6 A. Yes. 7 Q. And would you agree with me that your memory 8 was probably better when this was given than it is 9 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 00:02:49 And you know you were placed Q. Okay. Well, let me direct you to Page 59, 14 if you would, of your deposition. 15 you to go to Line 11 of Page 59. 16 there. 17 A. I'm there. 18 Q. Okay. And I would like Tell me when you're Would you follow along and make sure 19 I read this accurately. Question, I'm asking about 20 your performance as a manager and your relationship 21 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 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 00:03:29 A. Yes. 6 Q. All right. negative about the employees at the shelter 8 generally? 10 12 Did I think I was negative about the employees? Q. Yeah. Did you have a negative attitude about the employees at the shelter? 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 Do you recognize it? 19 00:04:26 A. 13 18 00:04:16 Um, did you think you were 7 11 00:03:53 correct? 5 9 00:03:43 That was your testimony in 2014, 20 A. This is a two-page excerpt Yes. MR. PRESTON: Your Honor, I would move the admission of Defendant's Exhibit 98. 21 THE COURT: 22 MS. HOLLINGSWORTH: 23 THE COURT: 24 (Whereupon, Defendant's Exhibit 98 25 Any objection? No objection. It is admitted. was received into evidence.) 6 00:04:45 00:05:03 00:05:26 00:05:45 1 Q. 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 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 10 constantly. 11 Nate's going blind again. 12 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 quitting? 24 00:06:04 (By Mr. Preston) 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 00:06:29 5 00:07:17 you pronounce Issai? 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 handle an officer position. Tom is a child. He is too immature to Skipping down three lines. 14 is out again. 15 gallbladder removed. 16 00:07:01 I'm not sure -- how do 6 13 00:06:45 it? As always, Suzie This time she had to have her And then we'll skip down to the last 17 paragraph. On Tuesday morning Chris called in with a 18 migraine headache in roll call. 19 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 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 00:07:35 00:07:53 00:08:09 1 at that point. 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 blind but for the moment he has his contacts right Nate has been on light duty periodically due now. 11 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 doom about his health. 15 paraplegic before too long. He was without driving privileges for a few And then he hurt his back. He is going to be blind and I see throughout this you're talking about 17 people's health issues and it appears to me that you 18 were rather impatient and critical of people's health 19 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 He is still going 10 16 00:08:24 So the very next day when Chris came 25 Q. Okay, I understand that but my question is, were you impatient with people's health issues and 9 1 2 A. I was stressed about it. 3 Q. Um, you appear critical about it in this, 4 00:08:51 because it was creating a workload problem for you? wouldn't you agree with me? 5 A. 6 I said. 7 Q. 8 (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 00:37:44 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 was in jeopardy at that point in time, did you not? You understood, did you not, from the 19 A. 20 at that time. 21 because I had given Ed his eval and Kelly said well 22 let's do yours now. 23 00:38:18 But you didn't think you were being critical of these folks? 9 00:37:25 I appear impatient or stressed about it like 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 Memorandum of Understanding. Handing you what has 25 been marked as Defendant's Exhibit 73. 10 1 2 00:38:37 MS. HOLLINGSWORTH: record as Exhibit 28. 3 MR. PRESTON: 4 additional documents on it. 5 it's just the Memorandum of Understanding. 6 7 00:38:44 THE COURT: MS. HOLLINGSWORTH: 9 THE COURT: 10 13 00:39:25 Okay. 8 I want mine in because So I take it there is no No objection. All right. We'll go ahead and admit that. (Whereupon, Defendant's Exhibit 73 12 00:39:08 Well, your exhibit has objection then? 11 00:38:53 This is already in the was received into evidence.) Q. (By Mr. Preston) This document is dated 14 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 Karen, over two years ago the Animal Services 19 Division was faced with multiple issues that could 20 have seriously affected the morale, efficiency, 21 professionalism, image, and viability of its 22 existence. 23 personnel investigation was begun. 24 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 00:39:41 00:39:59 00:40:18 1 address the perception of lack of leadership. 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 affecting negatively upon the organization. 00:40:43 As a 10 result of the re-organization, I was re-assigned and 11 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 direction." 17 00:40:32 A The direction given me was to So he is explaining here, is he not, what 18 happened which led two years ago in 2008 to him 19 coming out to the shelter and focusing on the animal 20 shelter. Do you recall those events? 21 A. Paul coming out to the shelter? 22 Q. Kelly. 23 A. Oh, Kelly. 24 Q. Okay. 25 this meeting? Yes. Do you recall Paul coming out, having 12 00:40:57 00:41:14 1 A. No. 2 Q. You don't recall that? 3 A. No. 4 Q. All right. 5 paragraph. 6 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 input. 10 11 00:41:32 00:41:51 00:42:08 Going down to the fourth 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 staff undermined my authority. Specifically, when it 13 came to the cleaning protocol and the level of 14 priority placed on cleaning you were less than 15 supportive. 16 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 those individuals that were hired when you were not 25 involved. Consequently, I was forced with putting My decision to lessen your 13 1 00:42:21 When our shelter was under fire from animal 2 rights groups regarding the carbon monoxide chamber, 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 Valley leadership had decided in regards to its use. 7 00:42:37 00:42:55 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 10 effect poisoned those staff members to decide for 11 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 accept that. 18 00:43:08 The For some reason you refuse to So he is going through specific things here, 19 is he not, where he felt you have been undermining 20 his authority and resisting the direction he wants 21 the shelter to go in. 22 these, correct? 23 24 00:43:31 As a manager of people, 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 00:44:05 00:44:26 5 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? 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 10 volunteer program, regarding your resistance and 11 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 December 2010 and he gave you notice of them in this 15 memo of understanding, did he not? 17 18 00:45:01 A. 6 16 00:44:43 to discuss this with him? 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 paragraph. As I reflect upon the entire operation 20 and its ability to perform successfully as a team, 21 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 team building. 25 necessary between employee and supervisor and There is a level of trust that is 15 00:45:18 00:45:32 1 vice-versa. 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 correct? 00:45:55 00:46:17 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 trust in you and that you're being insubordinate, you 10 have to recognize that your job is in jeopardy, don't 11 you? 12 00:45:46 The same if not greater trust should be A. He didn't tell me I was being insubordinate. 13 He said he lost trust in the ability to administer 14 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 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 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 00:46:57 00:47:15 00:47:28 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 00:46:42 We'll admit that. Karen J, J is your middle initial; is that right? 9 A. Yes. 10 Q. Karen J. has been slow to adapt to some 11 changes in her job or the work environment. Karen 12 has difficulty accepting my role and responsibility 13 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 recall receiving that, correct? She Karen fails to recognize certain She tends to not accept feedback or Sometimes Karen J. 23 A. Yes. 24 Q. Go to the top of the next page, second 25 sentence. Karen has had difficulty either 17 00:47:48 1 understanding direction given or chooses not to 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 those areas recently. 7 8 00:48:06 00:48:45 00:49:22 So you were aware that he was critical of you for not following his direction. You see that? 9 A. I can read what he wrote, yes. 10 Q. And you didn't think he was telling you that 11 00:48:26 Specific topics that you were being insubordinate? 12 A. No. 13 Q. Okay. Go to the next paragraph, second 14 sentence. 15 environment that encourages open communication so 16 that her subordinates feel free to discuss work 17 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 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 00:49:39 00:50:17 Performance Evaluation Exhibit 72, that you were 3 being put on notice of things that you needed to 4 improve on? 5 00:51:03 A. It was in my evaluation. It does say I need to improve in these areas, yes. 7 Q. Okay. 8 A. I believe I always tried to improve. 9 Q. Okay. Did you try to improve in them? 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 jeopardy, did you not? Layne Morris Kelly said You knew at this point your job was in 15 A. I knew that Kelly wasn't happy with me. 16 Q. Let's look at Page 145 of your deposition. 17 00:50:49 Did you feel, based upon what's set forth in 2 6 00:50:03 Q. Actually go to 144, bottom of the page, line 19? 18 A. 144 line 19? 19 Q. Yes. 20 A. Okay. 21 Q. It says Exhibit 6 was marked. And I 22 represent this is the Memorandum of Understanding. 23 Did Kelly give this to you at or about the same time 24 that he discussed the evaluation with you? 25 yes. You say And on Page 145 I go on and I read from this 19 00:51:26 1 and I said beginning on Line 19, after reading part 2 of the Memorandum of Understanding to you, now you 3 knew at that point that your job was probably in 4 jeopardy, did you not? 5 it was. 6 00:51:48 you loved this job. 8 didn't you try to improve your relationship with 9 Kelly Davis? 10 12 13 14 15 16 00:52:35 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 threw it in your face, you just said he threw it back 18 at you. 19 it across the table to you. 20 21 00:52:47 So Ms. Bird, you have told the jury how much 7 11 00:52:19 And you answered, I felt that 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 Q. So he didn't throw it at you, did he? 23 A. He slid it across. 24 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 03:35:53 03:37:43 (Whereupon, the following excerpt occurred at the end of the trial day 9 after the jury had been excused.) 10 12 03:37:35 not transcribed.) 8 11 03:36:09 (Whereupon, the trial continued but was THE COURT: And you may step down and you all may be seated. All right. So Ms. Hollingsworth, do you have 13 a general estimate on timeframes for the remainder of 14 your case? 15 MS. HOLLINGSWORTH: Right. So for our -- for 16 our case, depending on how long cross is, um, and I 17 don't know if Mr. Preston or whoever is planning on 18 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 MS. HOLLINGSWORTH: 25 MR. PRESTON: By the end of the day tomorrow? Right. That is without me asking any 21 1 03:37:49 03:38:06 2 THE COURT: 3 MR. PRESTON: 4 MS. HOLLINGSWORTH: 5 MR. PRESTON: Right. So that means that she is not 7 Thursday. 8 She has 12 witnesses and she has done five and barely 9 started with the sixth, that leaves basically seven 10 I obviously have some cross-examination. witnesses to go. I mean she has gone five and a half hours, 12 5 hours 10 minutes. 13 So I mean I think she has to really move her case 14 along at this point if we're going to try to get done 15 in four days. THE COURT: I have used 2 hours 35 minutes. Let me just ask you. So at this 17 point in your case, sorry, you have got -- that is 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 anticipate calling all four of them? 22 03:39:02 Is that what you're saying? going to finish her case until midday or later 16 03:38:49 Right. 6 11 03:38:28 questions? MS. HOLLINGSWORTH: You have four other Do you still Well, we were just talking 23 about one of them that we conceivably may not but we 24 want to -- we need to talk about that. 25 moment, yes. At the 22 1 2 3 03:39:11 Well, there are four other will to ask -- I'm asking about the will call first. MS. HOLLINGSWORTH: I was going Right now we are still planning on calling all of the witnesses on our list. 8 THE COURT: 9 MS. HOLLINGSWORTH: So the will and the may? Right. The last -- three 10 of them will be very short, Wayne Paul, Tess Hartwell 11 and Jay Breisch. 13 So there is -- THE COURT: Okay. So by very short, less than a half hour each? 14 MS. HARSTAD: 15 THE COURT: 16 MS. HOLLINGSWORTH: 17 THE COURT: 18 MS. HOLLINGSWORTH: Yes, for sure. So more like 15 minutes each? Right. Okay. So -- and the -- and these 19 main witnesses that are still coming up, so obviously 20 Kelly Davis, Shirlayne George, Layne Morris and Paul 21 Isaac are also defendants' witnesses. 22 THE COURT: 23 MS. HOLLINGSWORTH: 24 03:40:01 THE COURT: 5 12 03:39:48 others. calls and there are two other may calls. 7 03:39:36 There are six others, not four 4 6 03:39:22 MR. PRESTON: 25 Right. But he is not a main -- he will be short. THE COURT: And then your -- and then after 23 03:40:16 03:40:42 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: 03:41:02 okay. 6 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 that held after a deliberation from the jury. So we -- the problem We have had delay although we And I am out of town all of next week so there is no possibility for me to run into next week. 15 as I understand it, um, Mr. Preston also has 16 obligations. 17 well, I'm trying to remember? Um, Do you have obligations on Friday as MR. PRESTON: Um, I settled that case. 19 still probably have to appear in front of Judge 20 Jenkins but hopefully it won't be very long. 21 03:41:33 Um, okay. 14 18 03:41:16 You have two other witnesses, 5 13 Yeah, I see. Two. THE COURT: Okay. All right. I will So right now 22 our jurors are not planning on being here on Friday. 23 So we need to do our best to get through as much as 24 possible tomorrow because we will need to do -- 25 obviously there will be time for closings, time for 24 03:41:50 1 jury instruction. 2 estimate now at this point, about closing argument. 3 MS. HOLLINGSWORTH: 4 THE COURT: Probably an hour. Okay. And Mr. Preston, do you have any thoughts on that? 6 realize you haven't -- 8 MR. PRESTON: I I would say 45 minutes to an hour. 9 03:42:26 Probably an hour. 5 7 03:42:09 How much time, if you have an THE COURT: Okay. All right. So I guess what 10 I would ask you to do is if you can tonight to take 11 -- 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 move through as quickly as possible tomorrow. 15 right. 16 17 Any other concerns about witnesses, order of witnesses, time, things of that nature? 18 MR. PRESTON: 19 (Whereupon, the trial continued but was 20 All 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 00:00:27 00:00:42 00:01:04 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 00:00:09 (Whereupon, the trial was held but was not Okay. And then timing-wise, I am becoming concerned because tomorrow we have a six and 10 a half hour day, if you take out the breaks. 11 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 approximately four and a half hours left today. 15 MS. HOLLINGSWORTH: Okay. We will We have We expect to wrap 16 up today. 17 final witness, Jay Breisch, may have to come first 18 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 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 00:01:15 00:01:28 call Paul? 2 MR. PRESTON: 3 problem, Your Honor. 4 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 witnesses, this trial is not going to end on 10 What does that leave I need to put my case on. If THE COURT: Yes. Um, and yeah, I -- and so my 12 thought was to try and do an hour divide between the 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 given -- and then, um, the time -- let's see so -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 and a half hours. 22 THE COURT: 23 MR. PRESTON: 24 00:02:16 She has taken an hour-and-a-half Thursday. 19 00:02:09 This is the Kelly Davis is our witness, he He is my witness. 11 00:01:44 Yes, absolutely. 25 Right. So now we're going to divide it evenly. THE COURT: No, I did not say evenly. 4 1 2 MR. PRESTON: THE COURT: 4 evenly. 5 um -- 6 00:02:45 00:02:58 00:03:19 00:03:45 That is what I thought you said. 3 00:02:26 Okay. Give me a minute. I did not say 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 10 Mr. Preston the opportunity if he wants to put on his 11 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 not. 15 So I don't know if that's what he intends or THE COURT: Okay. Um, I still think it makes 16 sense to divide up the hours because I think that 17 the -- there is a significant risk that Mr. Preston 18 ends up with, you know, two hours to put his case on 19 which is clearly unfair. 20 So what I would say is that the plaintiff 21 should plan to have their case finished within three 22 hours. 23 how you're using the time. 24 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 00:03:56 he wants to use it so. 2 MS. HOLLINGSWORTH: 3 MS. HARSTAD: 4 clarifying question? 5 to do punitive damages afterwards? 6 THE COURT: 7 MS. HARSTAD: 8 00:04:11 THE COURT: 10 11 MS. HARSTAD: THE COURT: 13 MS. HARSTAD: 14 THE COURT: 18 00:04:24 00:04:36 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 15 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 for plaintiffs, and then that would leave defendants 20 five hours of time to put on their case. 21 obviously there is no obligation that you use all 22 three hours. 23 we bring the jury back in? And Anything else we need to cover before 24 MR. PRESTON: No, Your Honor. 25 MS. HOLLINGSWORTH: No. 6 1 THE COURT: 2 (Whereupon, the trial continued but was 3 (Whereupon, the following is an excerpt 5 of the cross-examination of Kelly Davis 6 by Mr. Preston.) 7 Q. 9 our copy of it that I can provide to the court. 10 THE COURT: 11 MR. PRESTON: 14 Do we have It is. So here is Exhibit 71 which I understand is now admitted, Your Honor. THE COURT: Q. It is. (By Mr. Preston) This is the log that you 15 prepared starting in June of 2010. 16 the first entry, first paragraph? 17 A. Would you read Because of various difficulties in 18 communication with Karen regarding decisions that 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 Karen down and clarify each of our roles as managers. 24 00:47:35 Um, you were handed Exhibit 71, I think that is in evidence. 13 00:47:15 (By Mr. Preston) Okay. 8 12 00:46:56 Thank you. not transcribed.) 4 00:46:42 Okay. 25 Q. Then you go on to state that you discussed with her a series of topics, correct? 7 00:47:47 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 Q. So you discussed that with her, she denied 7 00:47:55 MS. HOLLINGSWORTH: 9 THE WITNESS: Yes. 10 MR. PRESTON: Your Honor, this is background. 11 It has been covered. 12 THE COURT: 13 MR. PRESTON: 17 00:48:35 Okay. Objection, leading. If you could keep it short. Yeah. When it is substantive, I make sure I don't lead, Your Honor. 15 16 00:48:13 That was the end of that, correct? 8 14 00:48:04 that. THE COURT: Q. Okay. (By Mr. Preston) What was the next topic that you discussed with her? 18 A. Disgruntled staff. 19 Q. And what was that about? 20 A. Three particular employees had come in and 21 complained to me about the frustration they were 22 having about Karen's approachability. 23 she was hard -- they had a hard time explaining 24 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 00:48:51 2 Q. Who was that employee? 3 A. Tess. 4 Q. Hartwell? 5 A. Hartwell, yes. 6 Q. Did you receive complaints like that on 7 8 9 00:49:04 Yes. Those kinds of complaints employees would make from time to time about favoritism or they 11 person likes me better than that person, so to speak. 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 15 our shelter every Wednesday, I'm not sure -- or no, 16 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 because the veterinarian would bring in his own 20 assistant. 21 00:50:15 A. felt like they were being treated unfairly or this 13 00:49:52 other occasions? 10 12 00:49:29 that Karen was favoring a particular employee. And that clinic was run by a vet, a So, um, I had those individuals, the 22 veterinarian as well as my staff member come to me 23 and ask if we could move the clinic date from a 24 Monday to a Wednesday because Mondays were very 25 difficult for not only the vet but also for the staff 9 00:50:35 00:50:54 1 that we -- that was helping at the clinic. 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 like that that was a good enough reason to change it 00:51:24 And her And I didn't feel 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 Mondays. 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 two sentences? 17 A. Okay. 18 Q. Beginning with "Karen was visibly"? 19 A. "Karen was visibly upset that I made that Um, I decided to change the -- 20 decision. 21 informed her was of disgust and apathy." 22 00:51:37 So I reviewed 10 14 00:51:11 It Q. Her facial expression to me at the time I And the next topic you discussed with her 23 was her role and your role. 24 next item there? 25 A. Yes. Is that -- is that the Yes. 10 1 00:51:52 00:52:08 00:52:42 00:52:52 Okay. Let me read this and follow along and 2 make sure I have read it correctly. 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 made during this time that changed some procedures. "Karen has had 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 with personnel or operational issues." 14 00:52:24 Q. I felt Karen You go on to say, "we discussed specifics about 15 her focus and job duties." You wrote out the 16 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 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 was, "the message I gave Karen was I encourage 25 communication between myself and her but will not 11 00:53:04 00:53:27 00:53:36 00:53:59 00:54:18 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 A. Yes. 5 Q. And those were concerns you had in 2010? 6 A. Absolutely, yes. 7 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 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 the way she was being treated. She had just been volunteering there 20 Q. And what was her complaint? 21 A. I wanted her to be candid with me, I wanted 22 her to explain it because I wanted to know specifics 23 regarding it because I felt it was important to have 24 these volunteers in there helping us. 25 she was being treated as though she was not needed And she said 12 1 2 00:54:38 00:54:53 00:55:03 00:55:22 Q. All right. And the second paragraph begins, 3 "I have been concerned", if you would follow along, 4 "I have been concerned in the past with other 5 volunteers that this may be happening. 6 documenting situations and will specifically address 7 this concern with Karen. 8 she is not willing to make this program work, then 9 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 A. I certainly did on many occasions. 12 Q. This was an ongoing -- 13 A. More than one occasion. 14 Q. Was it a one time deal or an ongoing issue? 15 A. Torrie's complaint was an issue that I had 16 heard in private -- in previous concerns. 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 was not the first time that it had happened. 22 00:56:23 there, was not wanted. Q. All right. So this So this Would you go to the next page, 23 this is July 27, 2010, second paragraph, take a 24 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 00:56:33 5 policy that a paramount issue was safety of the 6 technician, correct? 7 8 9 00:56:50 10 11 00:57:19 00:57:39 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 00:57:07 bull? Q. Did you have any discussions with Karen 15 about the fact that the employees needed to have 16 choice? 17 A. Oh, absolutely. As a matter of fact, I 18 wanted to hear what Karen had to say in regards to 19 that because right now at that point I only had 20 Nate's side of the story and so I wanted to hear what 21 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 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 00:57:46 00:58:02 00:58:19 00:58:35 00:59:05 employee had that choice? 5 A. Absolutely, yes. 6 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 Q. And it says in the third sentence, Kathy 12 says she has been told by Michelle on a couple of 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 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 Q. All right. August 25th, 2010, the bottom of 24 the next Page 0406 you were -- you indicate that you 25 had asked Karen to provide a list of activities. Do 15 00:59:26 00:59:49 1 you see that? 2 A. me with a list of those activities that we are 4 involved in as a shelter, outside activities, because 5 I was going to be presenting in the Taylorsville City 6 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 activities that we were doing to make adoptions more 10 12 13 01:00:17 01:00:35 My request was basically to provide 3 11 01:00:02 Yeah. 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 it done she hadn't. She said she hadn't had time or 15 didn't -- had some reason -- she said -- well let me 16 read it. 17 Q. Okay. 18 A. She did not have it done yet and she had 19 other things that she was doing and would try to get 20 to it. 21 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 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 01:00:51 01:01:13 Q. going to take the time to read all of these or go 4 through them all, but were there a number of concerns 5 you had about Karen's performance as documented here? 6 A. Yes. 7 Q. And, for example, if you go to 0409, the 01:02:11 Yes. 8 last own entry on October 4, 2010, it looks like 9 you're talking about the volunteer issue again with 10 Karen? A. Yeah. I, like I said, I just had come back 12 from vacation. 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 what we're doing. 19 01:01:49 So throughout this -- we're not 3 11 01:01:31 All right. 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, 20 be specific, let me know what's going on. I don't 21 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 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 01:02:37 1 instructions -- with her instructions and did not 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 full-time employees. 7 01:03:01 01:03:39 felt you were having or Karen was resisting what you 9 wanted done, what are the ones that come to mind to 10 you? A. Um, well obviously the volunteer program. 12 That was a very valuable and important program that I 13 felt was something that we needed to, we as managers, 14 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 public when we opened the doors at 10:00. 22 01:03:53 If you had to summarize the issues where you 8 11 01:03:19 Q. And her perception of Karen's response Q. Okay. Um, the Let me -- let me stop you here 23 because I want to delve into each of these and I see 24 we're past the noon hour, Your Honor. 25 break now? Do you want to 18 1 2 01:03:59 THE COURT: is here, right? 3 THE CLERK: Yes. 4 THE COURT: We can break now if this is a good 5 time. 6 7 01:04:06 01:04:16 MR. PRESTON: 8 THE COURT: Okay, we'll do that. 9 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 Mr. Preston.) 18 THE COURT: 20 And Mr. Davis I will remind you you are under oath and Mr. Preston you may continue. 19 01:45:18 Why don't we do that now and then we'll pick this up. 17 01:44:56 If you're good, we can -- the food MR. PRESTON: Q. Thank you, Your Honor. (By Mr. Preston) Kelly, when we broke you 21 had mentioned two areas where you were concerned 22 about Ms. Bird's attitude and your instructions. 23 first was the cleaning. 24 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 01:45:31 01:45:53 1 to you? 2 A. 3 shelter that was open to the public and cleaned by 4 10:00 a.m. and it was important to me because we 5 wanted to be in a good situation with the public so 6 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 it they would see the environment and it was a 10 11 01:46:10 01:46:29 01:46:48 Well, I wanted the first -- the part of the I wanted that receptive environment for the public. Q. All right. And what was Ms. Bird's response 12 when you discussed this issue with her. Well, this 13 was not just a one time issue. 14 that we discussed for a number of days and months 15 basically because we had moved into the shelter in 16 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 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 01:47:06 1 that. I was even coming in and, excuse me I thought 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 they had that head start in the public areas. 9 01:47:22 01:47:40 01:48:13 And that was a reason why we Well, I was seeing video of my shelter tech 10 never even entering the public area for cleaning, the 11 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 10:00. 18 01:47:53 I was even coming So there was And that was addressed with Karen. Karen, We not only had the cats, we had the community 19 cat rooms. 20 the regular dog kennels. 21 done in that five hours before the public entered. 22 And those conversations overtime just seemed to not 23 happen. 24 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 01:48:28 I thought it was September of Because I moved out to the old shelter in 2007. 7 You're right. 8 Q. 10 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 thing there were some days we were successful other 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 the importance that I -- that I tried to place on it. Q. Okay. The second category you mentioned was 18 the volunteers and I think you said training them. 19 What was Ms. Bird's response when you talked to her 20 about training the volunteers properly? 21 01:49:34 It could be. 6 17 01:49:19 A. 2007 could it have been -- it was 2009, you're right. 11 01:48:58 moving into the new shelter? 5 9 01:48:43 Did you mean 2009 A. And again those are not like one time 22 instances, this is over time. Um, Karen's response 23 to me was well, I don't have the time, um, I am doing 24 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 01:49:53 01:50:13 1 do it. 2 convince her that that is not going to happen. 3 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 somebody within her staff did it, it needed to -- it 10 Q. A. 01:51:15 And if Whether Karen did it or whether Did you have budgetary limitations on how Oh absolutely. I had no control over the 14 hiring aspect of it. 15 without that position being authorized by the City. 16 01:50:55 I much staff you could hire? 13 01:50:26 And I tried to needed to be done. 11 12 Um, we need more people. Q. Okay. I couldn't just fill a position Let me direct your attention to 17 Exhibit 73 which Ms. Hollingsworth discussed with 18 you. 19 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 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 01:51:30 Q. 01:52:14 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 policy." 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 10 to have their option. 11 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 treat her -- treat them improperly because of their 15 use. 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 that was a tool for them. 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 So, yes, I had those kinds of complaints. 24 01:52:47 "To this day you remain defiant even to the point where you have 16 01:52:29 This is Bird 0401. 2 7 01:51:52 Okay. 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 01:53:03 1 using injection with a ferocious animal. 2 squeeze gate in the new animal shelter? 3 A. No. 4 Q. All right. 6 use to euthanize that animal? Well, because of the policy, the only 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 euthanize that animal. 15 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 20 21 01:54:22 A. 8 16 01:54:01 So if you had a ferocious animal, what was the choice that the employees could 14 01:53:40 That was in the old shelter. 5 7 01:53:24 Was a 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 directive from City that we wouldn't have animals 23 wondering around in the front of the shelter in the 24 public area where the lobby is. 25 we did, there was the fact that when we adopted an But -- but so -- but 25 01:54:42 1 animal, that animal was brought, after the adoption 2 process was completed, the paperwork was done and the 3 payment was made, then the animal was brought out to 4 that owner at that time which was in the lobby. 5 then they would walk out the front door. 6 01:54:59 01:55:13 be in the lobby. 8 to have animals out from the kennel just in the lobby 9 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 she was very well aware of that requirement that the 14 City had made when we were building the shelter. 15 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 worthless. 24 01:55:44 That was an appropriate time for an animal to 7 16 01:55:26 And 25 Q. Those kinds of things. Do you remember any of the employees who complained? 26 1 01:56:07 01:56:26 01:56:37 about it. 3 complained about it. 4 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. 7 Mr. Morris approached you about initiating 8 disciplinary action against Karen because of 9 insubordination issues? But did there come a time when 10 A. Layne come to me about that? 11 Q. Yeah? 12 A. No. He has never -- he never confronted me 13 about input in regards to insubordination or 14 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? A. Well, yeah. Back then when he said well he 19 wanted to fire her for insubordination, he mentioned 20 it back then in 2010. 21 22 01:57:08 He -- well I know Sandra Bayne complained 2 18 01:56:55 A. Q. I wasn't talking about 2011 I wanted to direct your attention to the incident in 2010? 23 A. Okay, I'm sorry. 24 Q. I wasn't very clear with that. 25 Sorry. So what did you tell him when he approached you about 27 1 2 01:57:27 01:57:45 01:58:12 01:58:32 A. Well, at that time I -- I told him I wanted 3 to think about it. 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 and the recommendation that let me take time to sit I wanted to -- because frankly it So I And so I, you know, I thought about it but I don't know how long 10 down with her, draft a memorandum that explains 11 everything up to this point, get her so that she is 12 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 issues were so that that opportunity would present 20 itself with her. 21 22 01:58:52 that? Q. Okay. If you would turn to Page 0412 of your log Exhibit 71 which should be still up there? 23 A. Okay. 24 Q. There is an entry December 7, 2010? 25 A. Okay. 28 1 2 01:59:31 you have just told us about? A. 2007. 4 Q. Maybe I -- I think I directed you to the 5 right page. A. That's not what we were just discussing. 7 Q. Right. 9 A. Right. 10 Q. -- and Layne agreed with this suggestion; is that right? A. Yeah. Yeah. That is when I had discussed 13 with him after thinking this over that this is the 14 direction that I would like to go first and he 15 accepted that. 16 02:00:29 You say after much thought and consideration I spoke with Layne and -- 12 02:00:17 But down to 2013, it's on that page. 6 11 02:00:00 Does this describe what in more detail what 3 8 01:59:45 Q. Q. Okay. And then Exhibit 72 is that the 17 performance evaluation you gave her and discussed 18 with her? 19 A. Yeah. 20 Q. And you have the Memorandum of 21 Understanding. 22 well? That is -- yes, that's the one. Did you discuss that with her as 23 A. Yes, I did. 24 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 02:00:50 02:01:11 02:01:27 and supervisor to be able to document it on an 5 evaluation. 6 those situations that you're evaluating them on. 7 in some instances you had documentation that covered 8 the evaluation. 9 did, you -- you transposed those concerns on the In other words, it helps remind them of Other instances you did. 10 evaluation. 11 any concerns in the evaluation. And If you And if you didn't, then you didn't have 12 Q. All right. 13 A. So it was more of an administrative tool for 14 the supervisor to assist them in filling out the 15 evaluations since we only do one a year. 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 evaluation together. 22 02:01:56 Well, it is a way to help them as a manager 4 16 02:01:42 A. Q. Okay. It And you mentioned you did have back 23 up documentation because of the log you prepared; is 24 that correct? 25 A. Yeah, my documentation for this was the log, 30 1 2 3 4 02:02:06 Q. Ms. Bird a Memorandum of Understanding? A. 6 THE COURT: 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 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 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 Yeah, in addition. MS. HOLLINGSWORTH: 8 05:06:29 But in addition to the log, you also gave 5 7 02:02:13 yes. 25 animal shelter. Q. All right. And when was that done? 31 1 A. Um, in 2005. 2 Q. All right. 3 4 05:06:51 take a look for myself to see what was going on. 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 Q. Did that provide any sort of background for you and if so, what was it? A. Well, it was a starting focal point, um, for 14 issues that went -- continued to go on in the 15 shelter. 16 continued to get complaints over the next several 17 years. 18 Q. It was a good basis for me since I Did this investigation in any way provide 19 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 I was having lots of -- several complaints 6 13 05:07:43 A. from employees and so I went out to the shelter to 12 05:07:21 prompted you to go out there? 5 7 05:07:06 And do you remember what 25 Q. Okay. And did you provide this to anyone when it was done? 32 05:08:10 1 A. 2 gone to Paul. 3 Q. 5 there? 8 9 10 11 05:08:42 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 she thinks I ask a leading question if she would 13 object to it then so I can determine whether I think 14 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 forward based on what -- based on her investigation. 24 05:08:58 And if you will look at the last page, the last paragraph, do you address something to Paul 7 05:08:33 At this point I think it would have 4 6 05:08:21 I did. 25 MS. HARSTAD: And I object to the admission. I would like a sidebar. 33 05:09:22 05:09:36 05:09:49 05:10:02 05:10:17 1 THE COURT: Okay. We can have a sidebar. 2 (Whereupon, a sidebar conference was held.) 3 MS. HARSTAD: Your Honor, the 2009 4 investigation has the -- has who said what. 5 those notes that I admitted says who says what. 6 don't know out of the 2005 investigation, we don't 7 know who was interviewed, how many employees were 8 there. 9 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 15 record. 16 does investigations. 17 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 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 05:10:31 1 is part of what people rely upon. 2 dating back to 2005, the entire employment history. 3 Whether it is true or not it is what the City had and 4 what they relied on. 5 MS. HARSTAD: thing is that I can't cross-examine anything in here 7 because it is not associated with anybody. 9 05:11:00 05:11:19 05:11:32 And I mean, so did the -- the 6 8 05:10:42 It is information MR. PRESTON: You could ask her if she recalls. 10 THE COURT: That's right. So okay, um, I need 11 you if -- to get this exhibit in I need you to lay 12 the business record exception foundation for this 13 document which I don't think -- you have laid it 14 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 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 05:11:55 05:12:26 05:12:35 Ms. George, in your position as the Human Resource Manager, do you do 5 investigations as part of your duties and 6 responsibilities? 7 A. Yes, I do. 8 Q. And do you take notes of those investigations? 10 A. Yes. 11 Q. What do you do with those notes? 12 type them up? 13 A. 14 05:12:16 (By Mr. Preston) 4 9 05:12:02 Q. Thank you. 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 A. Yes. 19 Q. And are these notes stored within the 20 business records of West Valley City? 21 A. If it is a formal investigation, yes. 22 Q. And this was a formal investigation -- 23 A. Yes, it was. 24 Q. -- in 2005? 25 And so did the City maintain this record in this particular investigation in its 36 1 05:12:47 records of work done by Human Resources? 2 A. Yes. 3 Q. In the normal course of its business? 4 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: Q. So Ms. George it says on here it is August 1st to August 4th of 2005. 16 long thereafter you did that investigation? 17 thereafter you actually typed up these notes? A. Do you know how How long It would have been right away. 19 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 25 That is noted (Whereupon, Defendant's Exhibit 70 24 05:13:26 You can. 15 18 05:13:15 Can I just do it from here? BY MS. HARSTAD: 14 05:13:02 I'll allow that. VOIR DIRE EXAMINATION 12 13 I do have one voir dire question, Your Honor. 9 05:12:55 I would move the admission, Your was received into evidence.) // 37 CONTINUED DIRECT EXAMINATION 1 2 3 05:13:33 05:13:46 05:14:01 05:14:14 05:14:28 BY MR. PRESTON: Q. Okay. I want to ask you about some of the 4 notes that you took here. 5 the last page. 6 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 10 Karen as if she were her young. I did not even 11 include some of the things she said about others 12 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 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 your recollection, but did you get a number of 23 complaints about Tess being treated differently 24 because she was one of Karen's favorites? 25 A. Yes, I did. 38 1 2 Q. ability as a manager? 3 05:14:41 05:15:01 THE COURT: should instruct for the jury, that I -- that the 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 of the matter asserted it is to show the state -- the 10 perception of Ms. George and where she then 11 proceeded. 13 05:15:40 And Ms. Harstad did you -- MS. HARSTAD: I want to object to the question as leading. 14 THE COURT: 15 MR. PRESTON: Okay. If you -- I will ask it this way. 16 withdraw it and ask it another way. 17 move this along. 18 05:15:25 I just want to make clear, I 4 12 05:15:13 And did you receive complaints about Karen's Q. I will I was trying to (By Mr. Preston) Did you form concerns about 19 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 that she treated the employees, some of them, 25 unfairly. But because it was my first investigation 39 05:15:59 05:16:16 05:16:39 1 I didn't feel -- well it wasn't for me to determine 2 whether it needed to go further than it did. 3 was up to her supervisor. 4 me to have concerns. 5 05:17:16 All right. 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 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 reported this to him? 19 05:16:57 Q. That A. You said he What took place there when you I was very straightforward with Kelly. Um, 20 and told him the things that I felt that he needed to 21 work on. 22 change that I felt like as a human resource manager 23 that he could be terminated if not severely 24 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 05:17:33 05:17:52 1 talked about some of the things that his employees 2 were saying that he was doing, um, and he was very -- 3 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 make those kinds of changes. 10 11 Q. A. Q. Not -- I tried to but I never felt like she Okay. Did you think that you had held Kelly responsible for his conduct with the meeting you held 16 with him? 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 that on? What do you base 22 A. I got fewer complaints. 23 Q. And you talk about doing an investigation in A. Yes. 24 05:18:38 Did you spend quite a bit of time counseling 15 17 05:18:28 I counselled Karen was receptive to it. 14 05:18:12 No, but I have worked with lots with Karen in her relationship with Kelly? 12 13 Was he a 25 2011? 41 1 05:19:01 3 Plaintiff's Exhibit 34. 4 foundation. 5 is in the binder there. 6 October 24. 7 contact Karen and if so what did you say? 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 I would have to talk to all of the employees and she 11 said yes. 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 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 one that she did in my office where we talked about 20 the cat, and then there was the one that she did in 21 Kelly's office. 22 she did in my office where we talked about the cat. 23 05:20:07 A. So let's look at that exhibit, 10 12 05:19:46 I want to go through that in detail with you. 9 05:19:30 All right. 2 8 05:19:20 Q. Q. So I think this one was the one that Well, look at Defendant's Exhibit 78. 24 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 05:20:19 05:20:32 05:20:50 05:21:02 A. Okay. That was the one in my office with the cat. Q. Well, didn't she tell you and give you a CD 5 of a meeting she had with Kelly where she told you it 6 was -- it showed how belittling and bullying he was 7 of her? 8 A. Yes. 9 Q. Okay. 10 And you told her you would listen to it; is that right? 11 A. Okay, yeah. 12 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 question? 23 24 05:21:13 said it was dealing with the CD? 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 05:21:22 1 A. Yes. 2 Q. And did you listen to the whole thing? 3 A. Yes, I did. 4 Q. And what opinion did you form after you 5 6 A. 7 belittle her. 8 Q. 9 05:21:40 05:22:25 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 example of how much she is being bullied and 11 belittled and you don't see that? 12 do you draw from that? A. What conclusions I was very concerned about that because at 14 that point I had a hard time wondering how I could 15 help Karen because -- because it seemed like she 16 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 to help her any more. 24 05:22:41 That Kelly was trying to counsel her not 10 13 05:21:55 listened to it? 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 05:23:03 05:23:19 Q. that you had a meeting with her I think it's on 5 November 3, 2011. 6 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 you could -- actually I'll just given you a copy 10 12 playing this. Tell me if you remember this. (Whereupon, the video was played 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 A. Yes, I do. 19 Q. What was the concerns, if any, that you had 20 21 05:26:42 And I So let me hand you this before they start 14 15 You were played a portion of that. here. 13 05:26:26 (By Mr. Preston) So did you -- you mentioned 4 11 05:26:09 All right. having heard her say that? A. As a Human Resource Manager it broke my 22 heart because I didn't know what else I could do to 23 help her. 24 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 05:26:57 1 Q. Did she ever offer any resolution to you? 2 A. No. 3 Q. As a Human Resource Manager, is it healthy 4 to have this sort of relationship between a 5 department -- a director of a division and the 6 manager under you, is that healthy or unhealthy? 7 8 9 05:27:09 10 THE COURT: open-ended question, please. Q. 05:27:20 05:27:41 please. 13 Q. Is this the sort of Mr. Preston, open-ended questions, (By Mr. Preston) What sort of relationship would you like a supervisor to have? A. They have got to be able to communicate 16 together. 17 that reflects on their staff. 18 that can't have an effective relationship with their 19 staff if they can't communicate together and work 20 together. 21 22 23 05:27:58 THE COURT: 12 15 (By Mr. Preston) relationship that you would like? 11 14 If you could rephrase in an 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 them help. Um, we hold classes, we brought in -- we 25 brought in the Employee Assistance Program and had 46 05:28:14 1 them hold classes for the entire staff for the entire 2 division. 3 communication. 4 Q. This was in the past? 5 A. In the past, uh-huh. 6 7 05:28:48 05:29:08 05:29:20 05:29:33 I believe that they did a class on 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 ask you if you recognize those? 12 A. Yes, I do. 13 Q. What are they? 14 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 look at the entire shelter and all of the 20 supervisors? 21 A. Yes, it is. 22 Q. Why did you want to do that? 23 A. Because of what was going on because I had 24 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. 05:29:58 Q. 9 A. Layne Morris. 10 Q. Layne Morris. with him about conducting this investigation or 12 informed him about it? A. Yes. I told him I was going to do the investigation. 15 Q. What was his response to you? 16 A. He was grateful. I mean he knew there were 17 issues out there and he felt the same way that I did, 18 that it would be a good idea to get to the bottom of 19 it. 20 21 22 23 24 05:30:34 Had you had any discussion 11 14 05:30:18 And do you remember who you gave the investigation to? 13 05:30:08 I did immediately following the investigation. 7 8 And did you type these notes up as part of 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 05:30:52 05:31:11 05:31:29 That the issues with Karen were severe to the point that I didn't know if they could be fixed. 6 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 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 A. I felt like he was doing better. 14 Q. Why did you reach that conclusion? 15 A. Because there were fewer complaints in this 17 18 investigation about him. Q. Who received the most complaints in this investigation? 19 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 A. 5 16 05:31:41 the end of the investigation? 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 05:32:16 5 Q. (By Mr. Preston) All right. You say that 7 to the fact that they were all about the same. 8 you see that? 9 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. A. Do What is that referencing? They were both issues I believe that 14 happened in roll call. 15 about things that happened in roll call where Karen 16 had yelled at them in roll call. Q. Okay. They were both complaining You state in the next line, roll call 18 is very uncomfortable due to the tension between 19 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 05:32:59 was received into evidence.) in this third sentence, I summarized the comments due 17 05:32:52 We'll admit that. 6 13 05:32:34 No objection. are referring to? 24 A. Karen. 25 Q. Wants to save animals by doing what is best 50 05:33:13 05:33:25 05:33:36 05:33:50 05:34:02 1 for them, does not follow protocol. 2 complaint that you had received? Was that a 3 A. Yes, it was. 4 Q. Skipping down, Karen's tone of voice is 5 usually very abrasive. I'm always afraid when I do 6 anything because if she does not like it everybody 7 knows about it? 8 A. Yes. 9 Q. The next one, Karen hates the gas chamber. 10 Whenever I have to put an animal down I go to Kelly 11 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 Q. And another one, we all walk on egg shells Did employees inform 18 when talking about our using the gas chamber because 19 of her reaction. 20 telling her employees not to work with the officers, 21 yet she expected the officers to help her out when 22 she needs it. 23 A. Yes. 24 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 05:34:12 Yes. 4 Q. Does that give you any concerns that these 5 sort of comments are being made by a supervisor? A. Definitely. 7 Q. Why? 8 A. Well, because it's insubordinate. 10 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. 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 Tess talking bad about Kelly in front of the staff 18 while waiting for him to show up for roll call. 19 was inappropriate and uncomfortable. 20 21 05:35:23 Yes. 6 14 05:35:10 uniform that go out into the City? A. 11 05:34:53 Those are the Animal Control Officers in 3 9 05:34:32 Q. Do you have concerns about a manager of the shelter engaging in that conduct? 22 A. 23 and conduct. 24 Q. 25 It 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. 05:35:50 Q. at her using a very loud tone of voice. 6 employee claims that they have witnessed that kind of 7 behavior. Do you know who that was? A. I don't remember. 9 Q. You don't recall if it was Tess? 10 A. I would have to go back to my handwritten notes. Q. All right. Let's go to the next page. 13 Third paragraph, third point down. 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 to have untrained employees doing euthanasia? 19 Karen has two 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 concern. 22 05:36:38 Only one 8 12 05:36:24 Then states, Karen claims that Kelly yells 5 11 05:36:06 I think things got worse when they had offices in the same building. 4 05:35:38 Yeah. Q. It was a great Skip down to the paragraph that begins, 23 Karen is letting the rescue groups take animals that 24 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 05:37:06 05:37:24 A. 2005 investigation. 5 Q. 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 Q. Skipping down, Karen has been known to load 12 up the euthanasia schedule on the days the officers 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 A. 20 Q. 23 Actual 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 Next, she bulls the best so she wouldn't put them down. 19 05:37:48 Next, the volunteers are under-supervised -- 6 18 05:37:37 That was also an issue that came up in the A. He was the facilities manager for the entire Q. Okay. City. That animals were not allowed in the 24 lobby of the shelter. Kelly has tried to reinforce 25 this but Karen and Tess take them in, quote, just to 54 1 2 05:38:02 4 actually a policy that he had made for that building 5 and he told me yes, it was. 05:39:10 Q. Skip down. Karen has belittled me in front 7 of others for the tiniest of mistakes. 8 she said to me, quote, you ought to think about if 9 you should stay or not, close quote. At one point 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 that was not my fault. 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 and she thought it was unnecessary. 19 05:38:54 Several employees told me that same thing. I called Jake myself and asked him if that was 14 05:38:39 A. 3 6 05:38:22 piss Kelly off, close quote. Next one, I was belittled in roll Next, there is definitely a division between 20 the officers and the techs. I feel that it is all 21 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 him no input, does not support him, and does not make 25 an attempt to communicate. 55 1 05:39:24 05:39:42 The last one on the bottom of that page, 2 Karen comes into roll call in a defensive mood. 3 you see that? 4 A. Yes. 5 Q. Let's go to the next page. 05:40:14 05:40:29 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 would discuss it after roll call. 12 05:39:58 Do He finally told her that they Next, Karen has been heard many times saying 13 nothing in the chamber. She does not like it. Next, 14 she is aggressive and demeaning to her staff. 15 hard to talk to because she is always so defensive. 16 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 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 there less comments for them? Are 24 A. Yes, there are. 25 Q. Looking down on the fourth one that says, 56 05:40:56 1 Kelly's temper has subsided immensely in the last two 2 years. 3 A. Yes, it is. 4 Q. Yes. 5 A. Um, that was a -- that was not my 6 perception. 7 employee. 8 9 05:41:08 05:41:57 That was a comment that was made by an Right. But did you have a perception that he had changed? A. Yes, I did. 11 Q. That's what I was asking. Thank you for clarifying that. 13 A. Okay. 14 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 05:41:34 Q. Can I -- can I clarify that? 10 12 05:41:23 Is that your perception? decision under the way the City is organized? 19 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 A. I thought it was very similar. 24 Q. In what way? 25 A. They both had -- I called it gruff 57 05:42:22 1 personalities. 2 communication skills, so similar -- similar those 3 were kind of the big ones that kind of jumped out at 4 me. 5 6 7 05:42:46 05:43:51 between Karen and Kelly? A. Well, like I said before, when I -- when I tried to help them, Kelly at one point welcomed that, 9 whereas I never felt like Karen did. 10 12 05:43:22 What was any difference if there was any 8 11 05:43:05 Q. Um, they didn't have real good Q. How would you evaluate their efforts to change their management styles? A. Kelly welcomed the help. When I suggested 13 that we bring in the Employee Assistance Program he 14 really welcomed that. 15 down and talk about things that he could do to 16 change, he really welcomed that. 17 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 20 opportunity to let me help her. We talked a lot, um, 21 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 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 05:44:03 No, not that I recall. MR. PRESTON: moment, I think I'm about done. 5 THE COURT: 6 (Brief pause in proceedings.) 7 MR. PRESTON: 8 THE COURT: 10 All right. Cross? not transcribed.) 12 07:23:16 Those are all of the questions I (Whereupon, the trial continued but was 11 07:22:57 Sure. have, Your Honor. 9 07:22:45 Your Honor, if I might have a (Whereupon, the follow excerpt contains 13 discussion between the court and counsel 14 at the end of the day.) 15 THE COURT: 16 MR. PRESTON: You said Exhibit 4. I'm sorry, instruction four. 17 Sorry. And you know it's frustrating to me we have 18 spent 35 minutes on ratification which I think is 19 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 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 07:23:29 07:23:44 THE COURT: very clear that we say even if you find that there is 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 argue that. 10 MR. PRESTON: 11 THE COURT: I will let you I want to argue that. So let's come back then tomorrow morning. 13 you enough time to put that on the record. 15 If we had from 7:30 to 8:30, does that give MR. CROWTHER: THE COURT: 17 MR. CROWTHER: THE COURT: have known. 21 we say 7:45? 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 22 MR. PRESTON: 23 THE COURT: 25 At 7:30. aware. 20 24 The doors downstairs don't open until 7:30 so we wouldn't be up here -- 16 19 07:24:18 We have a 12 18 07:24:08 I think it is 4 14 07:23:58 I beg to differ. Yes. Does that give you enough time and with an opportunity -MR. PRESTON: Everything yes. Sure. And I 60 07:24:33 1 get to put my key witness on, my whole case rests on. 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 to expect that they can cross-examine my witnesses. 8 9 07:24:50 07:25:01 11 on the record at some point. THE COURT: 13 MR. PRESTON: 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. MR. PRESTON: I mean I rushed through 19 Shirlayne George tonight and I forgot to get in a key 20 exhibit with her and she has gone back to St. George 21 because I was rushing to get it in and I forgot. 22 23 24 07:25:31 It is simply not fair. 12 18 07:25:18 They're hours in front of this jury questioning than I have had. 15 They have I mean right now they have used twice as many 10 14 But I 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: court reporter has an appointment that she has to get 3 to. 5 6 07:25:56 We don't want to keep Laura waiting. THE COURT: Right. So 7:45 tomorrow morning. 8 will tell you both, I would tell plaintiffs you need 9 to be prepared to finish your case in the time that And I 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 this issue. 15 MS. HOLLINGSWORTH: Okay. Okay, yup. THE COURT: How much time? I don't have -- I don't have it up. 17 38 minutes left for the plaintiffs. 19 20 So what is the court's calculation of our time? 16 18 07:27:02 then. So we need to get out of there We will address this jury instruction issue. 14 07:26:49 MR. PRESTON: 7 13 07:26:12 But our 2 4 07:25:41 And I understand that. MS. HOLLINGSWORTH: Right it is the -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 MS. HOLLINGSWORTH: 24 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 MR. PRESTON: Well, I have four witnesses maybe five. 6 07:27:29 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. THE COURT: Right. And I mean there is 7 obviously there is no way that I can -- we can't talk 8 about this now. 9 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 00:00:09 00:00:21 00:00:34 00:00:46 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 the morning? 13 THE COURT: Yes, it would be okay to ask that. 14 MS. HOLLINGSWORTH: 15 MS. FORTSON: 16 THE COURT: Okay. Take the victory dance. Yes, it would be okay to ask that. 17 Um, would -- I did want to talk about timing, um, 18 do -- do we need to ask Mr. Preston to come back or 19 are we okay -- 20 MR. CROWTHER: I mean I talked to Mr. Preston 21 about this. Our big concern is we do not want the 22 jury to feel like this is our fault. 23 that is going to be dragging it into the next day, 24 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 you would like me to prevent that? 5 MR. CROWTHER: Mr. Preston on that one. 7 I'm not sure I can express his proposal. 9 00:01:35 00:01:52 00:02:14 We might have to wait for 6 8 00:01:09 Do you have a proposal as to how 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 10 tell you as I was thinking about it last night, even 11 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 remaining -- and actually here is Mr. Preston now so 15 I'll restate. 16 We just started talking about timing. And, 17 um, Ms. Hollingsworth asked if we could ask the jury 18 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 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 00:02:29 2 MR. PRESTON: 3 THE COURT: 00:03:30 5 think they recognize that you haven't had a chance to 6 put on your case yet and it is Thursday morning. 7 I do think that -- 10 MR. PRESTON: I And What about today as far as time restrictions? THE COURT: Right. So that is what I was 11 going to get to. 12 now where we are is plaintiff with 38 minutes 13 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 process if I didn't give plaintiff the opportunity to 20 cross-examine a witness. 21 00:03:48 Um, well, I guess -- I think they anticipate that that might be where this is going. 9 00:03:09 So what if they can't? 4 8 00:02:47 hear about that. That's just where I was. So right What I So I don't think I can do that and with 22 38 minutes remaining and you yet to call your 23 witnesses I think that is unlikely. 24 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 00:04:04 1 what I would like is to have the witnesses finished 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 direct. 9 00:04:27 restrictions you have talked about, I'm -- I think we 11 could still get it done today. 13 14 With instructions and closing argument? MR. PRESTON: Um, yeah. I mean we're ready to do it all. 16 I think you can ask them, but I think we ought to try 17 to do it. I mean I think we ought to try and do it. THE COURT: I'm happy to try and do it. 19 know what you're putting on better than I do. 20 that is why I don't know where you're -- 21 00:05:08 THE COURT: 15 18 00:04:49 You know I think with the 10 12 00:04:38 MR. PRESTON: And then MR. PRESTON: Right. You So But you know make a 22 decision they have 38 minutes until they rest right 23 so that is direct and redirect. 24 MR. CROWTHER: The court said 32, I think. 25 MS. HOLLINGSWORTH: Your Honor, if -- if 6 00:05:23 00:05:40 00:05:57 1 counsel is telling us after saying all this time they 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 left, can I please have more than 38 minutes for the remaining two witnesses? 11 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 witnesses and I am just asking for another half hour. 18 19 00:06:32 And if they can do this 10 17 00:06:13 My client has waited 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 20 going to be tight now as it is. But there is no way 21 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 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 00:06:46 00:07:04 00:07:21 00:07:43 00:07:58 THE COURT: Well, so I would like to -- I 4 would like to put on the record that we -- it is the 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 that the parties thought we could do it if we did The court was told it would be four days. We 10 full days. 11 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 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 the jury -- we got the jury selected and seated about 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 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 When we asked the jury to stay late, counsel 23 is right it does -- there is this idea that the last 24 person has made them stay. 25 potential that you may want to call a rebuttal There is also the 8 00:08:21 1 witness. 2 We start -- we talked about on Wednesday morning when 3 we came or sorry it was Thursday -- or Tuesday night 4 we talked about we have got to tighten this up, we 5 have to get this to them. 6 00:08:48 00:09:13 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 10 time limits in place. 11 that you have your case to put on, but it has been 12 your case. 13 everything that you wanted to do. 14 warnings about time, um, and I do think there is 15 concern about it going over. You have had the opportunity to do 17 take the blame. 18 that's fine. 20 And I understand your thoughts MS. HOLLINGSWORTH: 19 We have given Your Honor, I am happy to 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 These concern me. So we have -- we have that issue. 16 00:09:27 Then that's more time. 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 00:10:11 00:10:30 00:10:48 00:11:05 1 their ability to go into Friday morning and saying 2 plaintiff's attorney has underestimated the time it 3 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 one hour and 8 minutes to rest her case. 10 Well, I am -- it is not my first 11 choice to go on tomorrow, but I think that the court 12 -- I understand the position the court is in so I'll 13 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 should see how it goes. 22 00:11:37 MR. PRESTON: We anticipate being able to 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 um, I'm inclined to allow the extra half hour so then 24 as far as talking to the jury about tomorrow, is it 25 your preference to instruct them about the need for 10 00:11:55 00:12:19 00:12:37 00:12:59 00:13:23 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 MS. HOLLINGSWORTH: Or would Do it this morning. Okay. That's fine. Okay. Your Honor, just one more 10 thing. In addition to blaming it on me, and I am 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 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 the client and we have that instruction. 18 MS. HOLLINGSWORTH: 19 THE COURT: Okay. Okay. All right. We haven't had 20 a chance to talk about verdict form yet and we do 21 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 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 the courtroom.) 4 00:16:30 00:16:54 00:17:28 00:17:42 THE COURT: Good morning. Before we get 5 started with testimony this morning, I would like to 6 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 that we're going to be able to do that. 13 00:17:10 All rise for the jury. 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 with everything to get the deliberation to you today 15 that we would need to come back tomorrow morning and 16 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 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 THE COURT: Yes, we can do that. 25 JUROR #12: Same here. 12 00:17:52 1 JUROR #11: Yes. 2 THE COURT: We can -- we will do that for 3 everyone so that you all have it whether you need it 4 or not. 5 you very much for your willingness and ability to be 6 flexible. 7 that we will get started. 8 could call your -- 9 (Whereupon, the following is an excerpt of Layne Morris's examination 13 by Mr. Preston.) 15 16 And with Ms. Hollingsworth, if you 12 14 01:33:45 All right. not transcribed.) 11 01:33:26 We appreciate that. Thank (Whereupon, the trial continued but was 10 01:33:08 We will make sure that you have that. Q. (By Mr. Preston) And Kelly's responsibility with his skill set? A. That was Kelly's skill set. And in addition 17 to running a division which he had an extensive 18 experience at the police department, he also had a 19 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 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 01:34:00 to HR during that time. Q. military experience. A. I retired as a sergeant first class. 5 Q. So you were a noncommissioned officer? 6 A. That's the only way to go. MR. PRESTON: convenient time to stop, to break for our morning 9 break? 10 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 01:36:36 Your Honor, would this be a 8 11 01:36:22 What rank did you obtain? 4 7 01:34:10 I forgot to ask you one question about your (Whereupon, the following excerpt is 18 a portion of Layne Morris's trial 19 testimony.) 20 Q. (By Mr. Preston) Okay. So do you remember a 21 time when -- let me ask this question. 22 -- when the division was moving into this new 23 shelter, did that create any challenges for the 24 division? 25 A. Yes. When the new It was -- there was a lot of growth in 14 01:36:56 01:37:13 1 the division. 2 was the Code Enforcement Animal Services Division 3 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 itself so there was all kinds of change that of 10 11 necessity had to occur. Q. Do you recall that Karen Bird was off work 13 recall that event? 15 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 before, prior to her accident, but it was certainly 20 exacerbated by -- after her accident or increased or 21 the level was accelerated after the accident. 22 23 24 01:38:07 I think right now we for several months with an auto accident, do you 16 01:37:48 The end result 12 14 01:37:29 We were hiring people. 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 01:38:22 01:38:41 01:39:04 1 after the accident, Karen would come over about, I 2 don't know, starting out maybe once every six months 3 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 changes that he continued to make there. 10 11 know, started out at six months and by the time I 12 ended up holding the hearing, we were down to, you 13 know, every week or biweekly visits from Karen to 14 complain about Kelly and the things that had gone on. 15 16 17 01:39:15 01:39:36 So those -- those visits with Karen were, you Q. So what did you do to try to remedy this tension? A. Well, you know, these two had history 18 before -- before I got there. They had worked 19 together successfully as a team for like eight years. 20 And so as I said, um, I looked at Karen as a high 21 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 explain to Karen because most of the things she would 25 complain about are things that Kelly and I had And so 16 01:39:54 01:40:10 1 discussed as him being my direct report. 2 and I had made a decision on that and he would tell 3 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 information I didn't know, what do you think about 10 01:40:51 And that -- frankly as that relationship 12 started to deteriorate, and Karen's visits to my 13 office became more frequent, at one point I said to 14 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 that. Um, I observed that firsthand. 23 01:41:09 And so my observations this and then we would make a decision. 11 01:40:33 And so he And So you need to work on So during this time, I would meet with Kelly 24 individually, I would meet with Karen individually, I 25 would meet with them both together. At one point I 17 01:41:30 01:41:48 01:42:05 01:42:30 01:42:45 1 met together with both of them. And as this 2 situation continued to deteriorate and I told them 3 both, guys this is -- this -- I need you both -- we 4 have to get this job done and Kelly you need to 5 listen to Karen. 6 tells you to do and he is the boss, he needs to take 7 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 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 01:43:03 1 it was over the weekend and he came back on Monday 2 and said I just I don't want to -- I don't want to go 3 that far yet. 4 Karen was in my office complaining about Kelly's 5 behavior again. 6 01:43:20 01:43:36 01:43:59 01:44:16 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 10 Kelly doesn't like you and he wants to be all that, 11 but Kelly has just been your biggest benefactor here 12 over the last week because if it was up to me, if I 13 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 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 01:44:34 01:44:54 01:45:14 1 I'm not doing what Kelly said to do. 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 while. 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 11 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 to do. 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 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 01:45:42 I was 10 17 01:45:25 And so it was A. It did. It got -- we would try, we would 24 meet together and we would talk about an issue. And, 25 you know, 2000 -- whatever 2009, 2010 they could at 20 01:46:04 01:46:21 01:46:32 01:46:49 01:47:06 1 least be in the same room and discuss their different 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 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 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 A. But certainly I see the evidence on a daily 17 basis in any -- in all of the organizations I have 18 been a part of, that we have got to have that 19 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 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 01:47:32 01:48:23 01:48:46 Okay. The event where you suggested that you thought it was time -- first time to do some 4 disciplinary action towards Karen and you described 5 how you went to Kelly and he wanted to think about 6 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 of December of 2009? 10 A. Um -- 11 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 01:48:07 Q. 3 9 01:47:44 the shelter, um, I thought that was Karen. A. He did. He did. He said let me -- I want 15 to try a couple of things, um, and I think that was 16 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 down what you think your job description is. 20 I mean he tried -- he tried to do a couple of 21 things to engage Karen in a constructive way that 22 they could have something to discuss, to resolve this 23 whatever this was between them so that they could -- 24 they could be successful like they had been for about 25 eight years or something. 22 1 01:49:01 3 evaluation to assist her in knowing what she needed 4 to do? 5 I -- I saw -- I saw them. I'm pretty vague on it. Q. Sure. When you sat down, we actually have a recording by the way of a meeting where you 9 informed -- 10 A. I had no idea about all these recordings. 11 Q. Karen never told you she was recording all these conversations? 13 A. No. 14 Q. When you had this discussion I believe it Never. 15 was January 12 or 13 of 2011, so it was right after 16 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 action, Kelly essentially saved her job, what was her 20 response to that? 21 01:50:09 A. Did you ever see those documents? 8 12 01:49:50 Do you recall him doing a memorandum of understanding and a performance 7 01:49:30 All right. 2 6 01:49:17 Q. A. You know, I am -- I was always from day -- 22 from 2009 I was always looking for Karen for 23 something along the lines of hey, I know he's my boss 24 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 01:50:26 1 just never got anything other than Kelly Davis is the 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 I just want to say that. 7 01:50:42 01:50:57 01:51:18 01:51:36 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 10 don't like it each other, you're not best buddies, 11 but you have to get along and we need to be 12 professional about this. 13 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 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 01:51:55 01:52:14 01:52:32 01:52:47 1 just listened to this I didn't realize it was being 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 He is the boss and you might not like it. And she said well, I Typically 10 when people have had enough of their boss, they quit 11 and go get a job where they do like the boss. 12 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 people like that, but they need to be able to 20 understand the parameters that we're operating under. 21 01:53:05 And she said well I just Q. But And like I said, um, we need people So if you recall in towards the end just 22 prior to the decision being made by you to terminate 23 her, getting a CD from Shirlayne George? 24 ring a bell with you? 25 A. Does that Yes. 25 01:53:18 01:53:34 01:53:54 01:54:10 01:54:29 1 Q. Tell me about that? 2 A. Well I -- when I -- when I decided that I 3 was going to -- I was going to conduct the -- do a 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 complaint, formal complaint here a couple of days ago You need to coordinate So I called HR and said hey, I need to 10 about Kelly Davis. And I said no, I didn't know 11 that. 12 surreptitiously made of Kelly Davis that she says is 13 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 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 01:54:49 01:55:15 3 thing. 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 with Karen, but the fact that Karen viewed that as 01:56:58 But to me it was -- it was hard evidence not 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 just really out of whack. 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 exhibit. Are my exhibits over here? Take a moment and just read 20 A. Okay. 21 Q. Did you -- do you see that Ms. George says 22 here that -- 23 01:57:07 And frankly by the time I was done with it, I 10 14 01:55:37 So I got that CD and listened to the whole MS. HOLLINGSWORTH: Your Honor, I just object 24 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: 01:57:34 01:57:46 01:58:10 Um, let's go ahead and I'll 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? 10 A. About the -- 11 Q. The CD? 12 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 share a similar or a different view of that CD than 20 Ms. George expresses in this e-mail? 21 01:58:31 Okay. wait for -- at this point I don't see a problem. 6 7 Well, we have already seen it. 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 it in that nicely. It was a long -- it was a long 23 meeting and yeah, frankly as a manager by the time it 24 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 01:58:48 01:58:58 01:59:41 02:00:05 Were you aware of an investigation in 2009 4 into Kelly Davis and anger management issues raised 5 against him? 6 A. I believe so. 7 Q. Ms. George testified that you were given a 8 copy of that investigation. 9 it? Do you recall receiving 10 A. Yes. 11 Q. What was -- had you ever seen Mr. Davis act 12 01:59:14 Q. in an angry or yelling or unprofessional manner? 13 A. No. 14 Q. Did you trust that investigation? 15 A. At that point I didn't. I didn't. I 16 remember seeing that investigation and it was fairly 17 dramatic I guess. 18 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 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 02:00:28 02:00:46 1 it. 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 get a hold of ourselves and say all right maybe I was 02:01:17 02:01:32 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 didn't need to get to -- reach that decibel level. 12 02:01:00 I mean Kelly is an ex-police officer so, you Q. Okay. You said that there was a split in 13 the division in your perception. 14 by that? 15 A. What did you mean Well, like I -- well the employees were 16 really essentially forced to decide who am I going to 17 make happy today? 18 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 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 02:01:47 02:02:03 02:02:19 02:02:33 02:02:47 1 Services Officer and you're used to being out on the 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 and now it is just them and Karen and Karen is So there is a daily briefing that goes on And so 10 telling them well no, we need to do -- I want you to 11 do this instead. 12 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 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 run a division based on two people where one refuses 24 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 02:03:08 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 salt. 9 02:03:21 10 MR. PRESTON: Your Honor, would now be a convenient time? THE COURT: It would be. 12 THE CLERK: If the jury could rise. Or sorry, if we could all rise for the jury. 14 (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 03:02:19 And I So I took 11 13 02:03:30 And so, um, when people are asked by (Whereupon, the following excerpt is 23 a portion of Examination of Layne Morris 24 by Mr. Preston.) 25 Q. (By Mr. Preston) You will see the last 32 03:02:34 1 statement on this says someone writes back, "West 2 Valley sure likes to murder." 3 comments that you would get when these statements 4 would go out? 5 A. Exactly. 6 Q. Anybody ever suggest that you use the 7 03:02:54 03:03:27 A. Probably. 9 Q. So in this meeting, what did you observe 10 about the way Kelly and Karen interacted on 11 October 31, the meeting that you had? A. That was when I -- that was when I realized 13 that this was a completely broken relationship. 14 mean I really had been operating too long in my 15 opinion in hindsight but I had been operating on the 16 -- 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 get over it and get back to operating efficiently 20 like they had been. 21 03:03:49 chamber on yourself? 8 12 03:03:10 Are those the sorts of I So this was the meeting when I realized, 22 looking back that Karen had gone just over the last 23 six months from someone who could at least comment 24 and in a civilized way comment or address Kelly or 25 talk to him in my presence. She, in that meeting, 33 03:04:09 03:04:29 03:04:42 03:04:58 1 she literally she couldn't even look him in the eye, 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 Q. She 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 Michelle. Do you remember that? 12 A. I believe so. 13 Q. Okay. This would be a November 1 meeting. 14 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 and. 19 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 2 of examination of Layne Morris by 3 Mr. Preston.) 4 04:17:46 04:18:07 04:18:18 04:18:35 04:18:52 (Whereupon, the following is an excerpt 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 out, that they were -- that their planets were 10 different, were in separate orbits. 11 that testimony? Do you recall 12 A. I do. 13 Q. Now, did you meet with her again on 14 November 9th? 15 A. 16 meeting or -- 17 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? 20 A. Right. 21 Q. Okay. 22 conversation. 23 meeting with her on that occasion, November 9th, if 24 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 04:19:06 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 A. I think it was -- this was my informing 10 Is that what we're talking about? Q. Yes. Yeah, November 9th. So from November 1, okay you had the meeting on October 31, 13 you observed how they were, you talked to her about 14 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? A. That was really I think it solidified it in 19 my mind was based on that prior meeting where, as I 20 said, she couldn't even interact with Mr. Davis in 21 any -- in any way. 22 04:20:12 Karen that I was going to take disciplinary action. 12 18 04:19:59 So this would have been after we had had the conversation where I 11 04:19:42 I'm sorry I don't remember. 2 9 04:19:26 A. Q. Okay. And you mentioned that there was 23 something about the relationship being broken. 24 you have that discussion with Karen? 25 A. Did Yeah, I believe she has got a recording of 36 04:20:30 04:20:40 04:21:08 1 that. I think I told her, Karen, it appears to me 2 just from our meeting the other day that this is 3 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 Q. Let me hand you what's been marked as And if I remember Did she -- she didn't deny that it was Exhibit 94. 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 would please play that. 19 20 21 22 This is an audio clip of a meeting on It's a short clip. The meeting isn't (Whereupon, the Audio Clip 94 was played 18 04:21:54 This relationship is not going to 12 17 04:21:38 You can't do it. 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 Q. And how did you know that? 24 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 04:22:06 04:22:25 04:22:45 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 litany of issues where she just didn't -- she just 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 didn't like it and thought it needed to change. 14 Q. 15 change? 16 A. 17 19 04:23:25 And she just 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 I mean there was a whole 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 me. I mean if you are going to -- if you're going to 22 level allegations that your supervisor should be 23 fired or terminated or you can't work with him and 24 you need somebody you can work with, um, there ought 25 to be some of that that you could sit down and talk 38 04:23:46 1 about and we can kind of reason these things out and 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 And we didn't get that very often. 8 9 04:24:01 04:24:38 04:24:57 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 him or not doing the things that he wanted done? 13 04:24:19 Q. A. Sure. Things like personnel schedules, um, 14 care of the animals, feeding schedules, what you can 15 afford to purchase for the animals. 16 like do we spend some money on buying toys for the 17 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 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 04:25:14 04:25:33 1 her of a disciplinary process, did you come to find 2 out that Ms. George was, in fact you may have 3 mentioned this earlier in your testimony, that she 4 was conducting an investigation at the shelter? 5 04:26:15 Right. I, um, prior to having that I needed to check in with HR and legal just to let 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 ago or something. 15 16 04:25:57 Right. 6 14 04:25:46 A. 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 that I would do an investigation and it wouldn't just 18 be Kelly, it would be -- I was going to -- I was 19 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 conversation between her and Kelly that she said was 25 demonstrable of Kelly's abuse towards her. And I think at 40 1 2 04:26:28 Q. investigation? A. She did. 4 Q. And did she provide you with a copy of that? 5 A. She did. 6 Q. Let me hand you what has been marked as exhibit -- Exhibit 76. 8 9 04:27:13 04:28:04 It's already in evidence. Do you recognize that as the investigation that Ms. George did? 10 A. It looks like it. 11 Q. Okay. So when you read through this, you 12 might take a moment just to look at it and let me 13 give you just a few minutes to glance through it. 14 And if there is anything that comes to mind that was 15 significant to you, would you please let us know. 16 04:27:41 And did she conduct that 3 7 04:26:45 Okay. A. Well, and I think I mentioned before, that 17 the -- the things being referred to are -- are -- 18 they're either, um, it's evident going through this 19 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 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 04:28:39 5 Q. 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? 9 conclusions you drew or how did it affect this 04:29:40 What were the 10 process that you're going through as trying to decide 11 what discipline, if any, you will institute? A. Well, I mean from my own experience with -- 13 with Karen and Kelly, that was for me the 14 decision-making or the decider that I needed to take 15 disciplinary action against Karen. 16 me. 17 04:29:15 Do you remember recalling against whom most of the complaints were levelled? 12 04:28:57 So this was kind of That was based on In this investigation many of these items I 18 kind of heard about from other employees, but, um, 19 not in any kind of specificity. 20 the place was tearing itself apart because I got that 21 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 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 04:29:58 04:30:39 pre-disciplinary letter where you identified five 6 potential policy violations. A. I do. 8 Q. And so following up with this then did you 10 have a pre-disciplinary meeting with Ms. Bird? A. I did. From the investigation and my 11 personal experience with Ms. Bird is how I came up 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 but legit, I guess. 19 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 04:31:11 Do you recall that? 7 18 04:30:59 And you have already been shown your -- your 5 9 04:30:18 Q. So I included that, Q. There is. I think it goes like an hour and 24 40 minutes, something like that. 25 about right? Does that sound 43 04:31:26 04:31:45 04:32:03 04:32:16 04:32:34 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 explain her side of the story, so to speak, to give 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 discipline. I had a lot of And so it was my chance to get her side 10 of it regarding all of these allegations I listed in 11 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 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 A. No. 20 Q. And I think your letter says -- your notice 21 says that you were going to hold it on November 21. 22 But from the termination letter it says that the 23 meeting actually took place on November 22. 24 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 04:32:59 04:33:22 04:33:39 04:34:03 04:34:20 A. I didn't -- I didn't feel that there was 4 again any way that she could co-exist in Animal 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 Kelly, it was all Kelly's fault. It was just a complete denial It was all And if -- if it 10 wasn't for Kelly everything would be great. And if 11 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 continue this situation with Karen as an employee. Um, you 18 Q. Did she offer to change in the meeting? 19 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 A. I would not agree with that. 24 Q. Why wouldn't you agree with that? 25 A. Because of my personal experience with 45 04:34:40 1 Karen. 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 insubordination went beyond what mine was. 8 9 04:35:02 04:35:20 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 11 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 or deliberately try and undermine him. 18 04:35:53 In my opinion she was in a state of 10 17 04:35:36 You know I think I have said people have Q. Okay. And even though So who made the decision to terminate Karen Bird? 19 A. I did. 20 Q. Did you consult with Kelly Davis about it? 21 A. I didn't. I mean at that point I was 22 frankly probably I was irritated with Kelly, um, 23 because this should have happened probably a year 24 earlier in my opinion. 25 working with Kelly to try and get him to the point And so, you know, I had been 46 04:36:10 1 where he could -- where he could be on board with me 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 going to -- I was going to fix my department. 9 04:36:27 11 deficiencies? 12 A. 15 16 04:37:28 So you believe that Karen Bird was given opportunities to correct her behaviors and her 14 04:37:07 And until it 10 13 04:36:41 Q. I don't need his permission to 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 Kelly found out about it. I mean I -- I discussed 18 some of my options with Human Resources and legal and 19 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 time he -- he was vocal about he wanted to work with 24 her some more. 25 saying to me, other than that one time where I said I Um, I don't ever remember Kelly 47 04:37:44 1 think we need to discipline her he said all right 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 discipline her. 8 9 04:38:02 04:38:59 Okay. But I So sitting here today in front of the jury, please articulate for the jury what was the motivation, your reason, for terminating her at this 11 point? A. It was almost solely I think in my -- in the 13 big long list that Shirlayne had and the list that I 14 included that things that I would consider, the only 15 thing I found was her insubordination. 16 of that, probably being -- not being nice to people. 17 04:38:38 And Monday he came back and said no, I want 10 12 04:38:18 Q. And that was on a And as part But the only thing that I had personal 18 experience with and frankly the only thing that 19 mattered to me is do I have a functioning team over 20 there. 21 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 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 04:39:15 04:39:35 1 discipline. 2 terminated was because of that insubordination, that 3 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 continue to agitate for until she got. 10 11 04:40:06 04:40:22 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 04:39:48 But the only reason Karen Bird was A. Well, like I said it was a -- it was a 15 gradual thing over -- we're talking about over a year 16 where it starts out back in 2009 where Karen had 17 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 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 04:40:40 1 to function with Kelly in any way at all and barely 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 what she -- what she thought should happen. 7 04:41:02 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 wanted something to change and it just wasn't her. 14 04:41:25 And so it was -- it was tough to have any kind 15 Q. 04:42:02 Let me hand you two letters. Plaintiff's Exhibit 16. 16 04:41:49 And so it made it very difficult to Start with It's already in the record. This is a letter you wrote to Karen Bird dated 17 November 30th, 2011, informing her of the 18 termination. 19 A. I do. 20 Q. Here is where you say, "thank you for Do you recall this letter? 21 attending the disciplinary hearing last Tuesday, 22 November 22, 2011." 23 paragraph, "after careful consideration of our 24 discussion and your input, it is my decision to 25 terminate your employment for cause with West Valley And then in the second 50 04:42:21 1 City effective November 29, 2011." 2 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 subsequent letter you wrote to Karen? A. Yes. 8 Q. It is dated December 12, 2011 and you state 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 her personally what the decision was? 13 04:43:09 04:43:26 A. Yeah. Did you try to call her to tell I think at first I tried to meet with 14 her and couldn't -- couldn't -- I mean you know you 15 never want to terminate somebody over the phone but 16 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 answering the phone. 22 04:43:42 And is this a 7 9 04:42:52 You don't specify 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 insubordination and failure to be courteous or 24 cooperative with the public or fellow employees." 25 And you state that "the termination is effective 51 04:43:55 1 November 29, 2011." 2 in the five listed in your pre-disciplinary letter 3 that you sustained? 4 MS. HOLLINGSWORTH: 5 THE COURT: 6 04:44:14 04:44:36 04:44:52 Q. Objection, leading. Sustained. (By Mr. Preston) Mr. Morris, what were the 7 two grounds you used. 8 have got to at least do this when this is 9 substantive, Your Honor. 10 11 04:44:26 Were those the sustained grounds I mean you know we can -- we I am trying to move this along. A. To terminate due to insubordination and 12 failure to be courteous or cooperative with the 13 public or a fellow employees. 14 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 A. Um, really one. I think I wrote the So you listed five policy violations? I think it reads as two, 24 insubordination and failure to be courteous or 25 cooperative with the public or fellow employees. But 52 04:45:15 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 Q. Do you feel the termination was justified? 5 A. Entirely and overdue. 6 Q. Are you being honest with the court and the 7 04:45:35 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 press. 14 04:45:53 jury telling them this was the reason? A. 04:46:30 Um, I guess I would say two things. 15 didn't believe that. 16 didn't even believe it, number one. 17 04:46:09 What is your response to that? I I certainly didn't know it, I And number two, you know, frankly we got 18 enough bad press all on our own we didn't need any 19 more help. 20 point were going to get any better in that immediate 21 situation, to terminate somebody based on that would 22 be would be silly. It wasn't a matter of if things at that 23 Q. Is that something that you would do? 24 A. No. 25 We needed to take our licks on the failed euthanasia of Andrea the Cat and I was happy 53 04:46:55 04:47:10 04:47:28 04:47:38 1 to stand up and say yeah, we screwed that up, um, and 2 I didn't blame any of our people for any of the 3 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 was necessary to fix it. 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 meeting with Karen and Michelle kind of put that shot 12 across the bow that this had to stop, I don't 13 recollect that being a further issue where we had 14 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 MS. HOLLINGSWORTH: 19 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 Um, when 25 A. What My response to that is that there was no retaliation, there was nothing to retaliate against. 54 04:48:23 04:48:44 04:48:59 04:49:14 1 There is no secrets, you know. 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 absolutely. We don't have secrets. But It's just a terrible word. Um, did we And we need to get that communication 10 where it's helping us, where it's positive. 11 animal shelter we need to focus on the positives 12 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 unconvinced that someone was doing it deliberately. 24 04:49:31 Nobody has a security 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 04:49:49 1 given the circumstances, but that was not my focus to 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 deeply troubling to me. 9 04:50:10 When you joined the Army did you make an 11 A. I did. 12 Q. What was that oath? 13 A. To obey -- uphold the Constitution against 10 oath? all enemies foreign and domestic. 15 Q. Do you believe in the Constitution? 16 A. I do. 17 Q. Would you knowingly violate anyone's rights 18 under the Constitution? 19 04:50:34 20 21 22 04:50:48 And Q. 14 04:50:25 My focus and I think it is in the 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 I am not an attorney. I know that there are limits 24 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 04:51:09 04:51:26 1 dictate to people how they should feel and what they 2 should say but it needs to be the truth and we need 3 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 an employee, um, I think that responsibility is the 10 11 04:51:56 04:52:16 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 04:51:38 And that's -- A. I did not. And if I had to take a stab at 15 it I would have thought it was Michelle, the 16 volunteer. 17 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 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 04:52:31 04:53:38 to the Animal Services Division? 5 THE COURT: 8 04:53:22 These negative calls, were they disruptive MS. HOLLINGSWORTH: 7 04:53:02 Q. 4 6 04:52:47 and I accept that. 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 employees, I mean they have got to go home every 10 night and hear from their family, their extended 11 family, their friends. 12 How many kittens did you strangle today? 13 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 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 04:53:55 04:54:12 1 fixed, not -- not finding out who said what, where or 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 agency doesn't want to come and help you out if they think you're killing all of the animals for no 11 reason. (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: Could I have a quick sidebar with the court? 19 THE COURT: 20 MR. PRESTON: 21 Sure. So are the time limits are in place now. 22 04:59:03 A rescue 10 12 04:58:49 We just had to THE COURT: Um, so yes. Yes. I would be 23 happy to hear from both of you on this particular 24 one. 25 chief. The witness is you calling in your case in The time limit is going to be the time that 59 04:59:29 1 you use. 2 this one -- since Ms. Hollingsworth called this 3 witness, um, I would be interested in hearing both 4 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 05:00:04 05:00:22 05:00:46 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 half hour and that is gone. And so, um, but we 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 that you are crossing. If I -- if I don't allow counsel 19 MS. HOLLINGSWORTH: 20 MR. PRESTON: Okay. So Only new evidence. I'll go with whatever the judge 21 decides. It would be nice if we could let the jury 22 out a little early today, I guess that's my only 23 point since we're bringing them back. 24 witnesses to call. 25 THE COURT: Okay. We have three I am going to -- I am going 60 1 05:01:04 to go with -- limit the cross to half an hour. 2 MR. PRESTON: 3 THE COURT: 4 MR. PRESTON: 5 (Whereupon, the sidebar conference concluded.) 6 (Whereupon, the trial continued but was 7 05:37:00 We have three witnesses. regarding timing held during examination 10 of Layne Morris and where plaintiff 11 and defendant rest their cases and 12 argument on motion.) 14 05:36:39 Three more to go? (Whereupon, the following is an excerpt 9 13 Three -- not transcribed.) 8 05:36:21 Thank you, Your Honor. 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 A. Because it needed to be done. She needed 18 discipline. I'm not sure how to answer that. I had 19 made a decision that this was a situation that needed 20 discipline. 21 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 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 05:37:17 1 participate instead of a reluctant I don't want to be 2 here participant. 3 where I told her in that follow-up meeting it is -- 4 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: 05:37:45 05:37:56 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 Q. So if there were false allegations out 22 there, why -- why didn't you just -- why didn't the 23 City just issue a press release to straighten out the 24 facts? 25 A. I think we did multiple. We -- it was not 62 05:38:15 05:38:33 1 just -- this wasn't just Layne against the world. 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 problem with my people. 05:38:45 So I was not alone in I was trying to fix this But there certainly were 11 around, so to speak. 12 MS. HOLLINGSWORTH: 13 THE COURT: 15 18 Mr. Preston, how much I just have a couple of questions. THE COURT: Wonderful. We'll go ahead with that then. MR. PRESTON: Thank you, Your Honor. REDIRECT EXAMINATION 20 22 Thank you. MR. PRESTON: 19 21 Okay. time do you anticipate needing for redirect? 17 05:39:10 You know, other people engaged in trying to turn this ship 16 05:38:50 So yeah, we had our 10 14 I BY MR. PRESTON: Q. Mr. Morris, you were directed to your 23 testimony at the Employee Appeals Board Hearing and a 24 snippet was read. 25 response. I wanted to get a more complete Do you still have that Employee Appeals 63 1 05:39:26 05:39:47 05:40:03 05:40:16 2 A. Yeah. 3 Q. We'll be back at pages 319, 320? 4 A. Okay. 5 Q. And there was questioning about in the And I messed up the pages though. 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 10 inadvertent comment that anyone makes. 11 Kelly. 12 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 A. I do. 22 23 24 05:40:25 Board Hearing in front of you? 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 05:41:02 05:41:31 05:41:50 05:42:10 In that case if we could stand for the jury we'll take a break now. 4 (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 Okay. Yes. 10 Thank you. Thanks. Mr. Preston, did you want to make a motion. MR. PRESTON: I did, Your Honor. Defendants 11 at this point, now that the plaintiff has rested, 12 move for judgment as a matter of law on this entire 13 case for a variety of reasons which I can articulate 14 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 MR. PRESTON: Thank you, Your Honor. 20 First, Your Honor, under the first element of 21 the Garcetti-Pickering, with respect to the Andrea 22 the Cat statement the testimony is undisputed that -- 23 I don't know how much detail you want I can get going 24 and I will talk too much, I'm sorry, but Andrea the 25 Cat we think fails under the first element because it 65 05:42:29 05:42:45 1 is done with authorization. 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 the authorization of the department head. 05:43:01 05:43:23 It So -- she -- She admitted it was part of her And so this is done in the official not protected speech. 11 be taken from the jury. So it is And the Andrea the Cat should With respect to the what I have always 13 considered based on the summary judgment motion and 14 the complaint, the complaint was framed entirely in 15 terms of leaks to the press. 16 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 about the false information. 20 lots of oral testimony building upon that. 21 05:43:43 He knew it was going to get out. 10 12 And both Ms. Bird The jury instructions And the example given and Now, there has been That testimony about mass execution and about 22 failing to starve all those things is false 23 information. 24 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 05:44:09 05:44:25 05:44:52 05:45:08 05:45:30 1 being spread. And so that is the third element. And 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 this morning they have now put forward an amorphous And I submit that is really the only And I understand while I was out 10 statement about, what was it, some statements of the 11 use of the gas chamber and her speech to the people 12 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 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 think no reasonable jury can conclude that Mr. Morris 22 believed that she was the source of this which was 23 the first prong that they would have to establish 24 under the fourth factor. 25 conclude that it was a substantial or motivating No reasonable jury can 67 05:45:49 05:46:07 05:46:25 05:46:44 1 factor. 2 could conclude that the City would not have fired her 3 in the absence of any such belief that she was the 4 one passing this information on. 5 And regardless, this is a case of overwhelming 6 evidence of a valid reason to terminate. 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 It's built 10 sees this relationship is completely gone and he 11 feels now finally he has to step in and stop it. 12 If you have a supervisor, a manager, who 13 refuses to engage with, work with her supervisor, who 14 loathes him and can't even look him in the eye, which 15 she herself admits repeatedly she could not, that's a 16 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 also so I don't mess it up. 22 05:47:04 But even if they did, no reasonable jury 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 basis that she actually spoke against the gas 24 chamber, that is an actual speech by plaintiff and 25 yesterday they represented to us and the court 68 05:47:16 1 they're only pursuing a belief of I guess statements 2 that she didn't make. 3 change of theory of claim and we would be dealing 4 with something entirely new. 5 MR. PRESTON: So that, I'm sure, is a lot more than you wanted. 7 apologize. 9 05:47:47 THE COURT: 05:48:22 That is helpful. I If I could just ask Ms. Pagel did they have their snacks? 10 THE CLERK: Yes. 11 THE COURT: All right. So I -- I obviously 12 will want to hear from defendant and I would like to 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 we take a 10 minute break ourselves and come back. 18 05:48:11 That is not really fair to us. 6 8 05:47:33 So that would be a complete We'll go ahead with your case. MR. PRESTON: And Why don't Your Honor, could I just say I 19 apologize for speaking over the court and when I was 20 saying I hope the court didn't think I was 21 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 sorry. 25 THE COURT: Thank you. I was trying to So I am very I appreciate that. 69 06:05:36 06:05:47 06:06:00 1 (Recess.) 2 MR. PRESTON: 3 anticipated this at all but we feel very good how 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 any more witnesses. 06:06:25 I've talked to my client at length and I 10 THE COURT: 11 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 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 06:06:11 Your Honor, I had not THE COURT: I would like to -- I mean we have 20 I think between the jury and the parties we have all 21 invested substantial time. 22 the jury instructions are good. 23 best to let them go for the day, let us make sure we 24 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 06:06:39 5 MR. PRESTON: 6 THE COURT: 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 day. 14 06:09:08 What time will we be coming Do you want us here 8:00? THE COURT: 13 06:07:17 back? 4 7 06:06:47 MR. PRESTON: So in that case, let's get the jury back in MS. HOLLINGSWORTH: Your Honor, can I tell the jury that I judged it right after all? 15 THE COURT: I do not think so. 16 that would be a good idea. 17 MS. FORTSON: 18 THE COURT: I understand. 19 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 00:02:17 00:02:33 00:02:49 00:03:07 (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 THE COURT: All rise for the jury. All right. Welcome back. We have 12 given you all a copy of the jury instructions and I'm 13 going to be reading those into the record, reading 14 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 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 on two of the exhibits that you're going to -- you're 22 going to get all of the exhibits that have been 23 introduced with you back in the jury room. 24 those during the trial I had ruled that you should 25 only -- that you should not consider them for the On two of 3 00:03:21 00:03:41 00:03:59 00:04:17 00:04:33 1 truth of the matter. We have discussed that further 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 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 10 argument, my duty is to give you the instructions of 11 the court concerning the law applicable to this case. 12 Your duty as jurors is to follow the law as stated in 13 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 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 00:04:53 00:05:10 00:05:28 1 instructions as an indication that I have any opinion 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 given in these instructions. 00:06:04 Justice through trial You must perform this 10 duty without bias or prejudice as to any party. 11 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 regardless of the circumstances. 18 00:05:45 That Our Both the parties and the public Instruction number two. The evidence in this 19 case consists of the sworn testimony of the 20 witnesses, all exhibits received in evidence, all 21 facts that may have been admitted or stipulated, and 22 the applicable presumptions that will be stated in 23 these instructions. 24 counsel are not in -- are not evidence in this case. 25 When, however, the attorneys on both sides stipulate Statements and arguments of 5 00:06:18 00:06:39 1 or agree as to the existence of a fact, the jury 2 must, unless otherwise instructed, accept that 3 stipulation and regard that fact as conclusively 4 proved. 5 During the course of trial, counsel has the 6 duty to make objections when needed. 7 consider or be influenced by the fact that counsel 8 objected to something. 9 any evidence to which counsel objected and the court sustained the objection and any evidence that the 11 court ordered stricken. Do not try to do any research or make any 13 investigation about the case on your own. 14 not try to get information from any source other than 15 what you saw and heard in the courtroom. 16 00:07:13 00:07:34 You must entirely disregard 10 12 00:06:54 You should not You must It's natural to want to investigate a case 17 but you may not use any printed or electronic sources 18 to get information about this case or the issues 19 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 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 00:07:52 00:08:07 00:08:28 1 talking to possible witnesses or creating your own 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 inferences from the facts that you find have been On the contrary, you may draw reasonable proved such as seem justified in light of your 11 experience. 12 is a deduction or -- sorry, let me try that again. 13 An inference is a deduction or conclusion that reason 14 and commonsense would lead you to draw from the facts 15 that are established by the evidence in the case. 18 Any influence is -- sorry, any inference (Whereupon, the trial continued but was not 17 transcribed.) (Whereupon, the following is West Valley's 19 02:04:20 You 10 16 02:04:06 You must entirely closing argument and rebuttal closing.) 20 THE COURT: 21 MR. PRESTON: And Mr. Preston, you may proceed. Thank you, Your Honor. May it 22 please the court and Ms. Hollingsworth and counsel. 23 On behalf of my clients, I want to thank you for the 24 close attention you have paid throughout this 25 process. This is a very important case to both sides 7 02:04:39 02:04:51 02:05:20 1 and so we appreciate it, you taking the time to be 2 here. 3 I have a few moments where I can tell you how 4 I think the pieces of the mosaic fit together and I'm 5 going to start again with three key points. 6 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 verdict form. 10 02:06:03 First, Layne Morris's decision to terminate 11 Karen Bird was not based on free speech retaliation. 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 personally participate in the termination decision. 18 02:05:40 They're Second, Mr. Morris had legitimate And third, Kelly Davis did not participate -- So, um, let's talk about the free speech 19 retaliatory firing. Ms. Bird claims she was fired 20 based on a belief, not that she actually did it, but 21 a belief that she leaked two pieces of information to 22 the press. 23 second, is the allegation that Kelly Davis ordered a 24 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 02:06:23 1 issue here. 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 11. 8 02:06:39 02:06:57 02:07:37 These are the two statements and In this case, Ms. Bird alleges West Valley 9 City deprived her of her rights under the First 10 Amendment to the Constitution when it allegedly 11 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 give you. 19 02:07:10 It's not -- it has nothing to do with That is what your That's what she has to prove that I want to deal with the second alleged free 20 speech statement, the mass execution first. The 21 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 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 02:07:52 02:08:16 02:08:35 02:08:52 02:09:11 So let's look at some of the evidence on that. 3 You recall the phone call from the reporter came in 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 they had a number of animals, he goes through what And what took place in that And he states that 10 his normal questioning is. He said it was the second 11 highest animals since moving into the new facility. 12 Said we need to get it down to a reasonable number. 13 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 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 02:09:33 1 The final euthanasia list generated by Karen, and 2 approved by Karen, was a total of eight cats and one 3 dog. 4 reasons, the remainder were either feral or sick. 5 The one dog on the list was for time/space. 6 02:09:49 02:10:12 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 02:11:05 This isn't a daily number but an 10 euthanized. 11 reference to a mass execution. 12 nine animals out of 156. 13 list. 14 removed from the list. 15 approved. 16 02:10:34 Two of the cats on the list were for time/space 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 time, refers to a mass execution of animals. Now, 18 Ms. Bird has taped hours and hours and hours and 19 hours of conversations. 20 call meeting? 21 said "I order a mass execution"? 22 exist. 23 that day. 24 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 02:11:20 02:11:47 1 wasn't just killing them right and left as some 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 section of that Exhibit 52. We do have that That's Exhibit 52 at the five minute And could we have -- 11 clip for us. (Whereupon, Exhibit 52 was played for the jury.) 14 02:13:29 She made switch this to Brandon and let him play that little 13 02:13:14 And you will recall I submit that 10 12 02:12:51 The other evidence they MR. PRESTON: It's not something that I'm 15 saying, these are not facts coming from me. Go back 16 to my slide. 17 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 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 02:13:42 02:13:59 1 do you know Brandon Crowther? 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 and I just overheard Mr. Davis say loudly I want a 02:14:56 02:15:16 And I 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 to decide who was telling the truth in this. 12 02:14:29 Oh, yeah, he is a Again, I'll leave it to you And finally, Mr. Morris and Mr. Davis both 13 assert it is a false statement. He never ordered 14 that. 15 only nine animals accumulated over an extensive 16 period of time, a week maybe two weeks, that were -- 17 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 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 02:15:38 02:15:55 02:16:13 02:16:27 02:16:46 1 wasn't spending time investigating who said these 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 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 10 Somebody says something that gets passed on and by 11 the time you get a few down the row it becomes a very 12 inflammatory statement. 13 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 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 02:17:09 1 this was a belief that he had, was it a substantial 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 reasons, and we'll talk about that in a moment. 9 02:17:27 02:17:50 02:18:09 02:18:44 And he had other And let's look at the Andrea the cat 10 information that got out. Does Mr. Morris believe 11 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 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 And if we could switch it to Brandon, and 20 Brandon if you could show us Exhibit 90, just the 21 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 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 02:19:00 02:19:23 02:19:43 02:20:04 1 the rescue they would probably get a story out to try 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 Mr. Morris yeah no, I have got no problem with that And Mr. Morris, I'm okay with We can survive that. Ms. Bird, skipping down, 10 Karen. 11 cat. 12 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 specifically testified on the stand that he was not. 24 02:20:27 You get it to the vet and the rescues, 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 02:20:45 02:20:59 1 set forth in jury instruction number 14. 2 instruction states, "West Valley City asserts as a 3 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 speech issue, you must return a verdict for the City 10 02:21:42 02:22:03 If you find that West Valley City proved and Mr. Davis." 11 02:21:25 And that So that gets to the issue of why Layne Morris 12 terminated Ms. Bird's employment. And he explains it 13 in detail why he terminated her. 14 concerned about her insubordination for a long time. 15 He said it was based primarily on my personal 16 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 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 02:22:27 02:22:48 02:23:09 02:23:32 02:23:56 1 on November 3, three days after this meeting, where 2 Layne Morris observed this, and what does she say six 3 times? 4 a personality conflict here, for whatever reason, 5 that has -- it has nothing to do with a perception 6 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 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 could switch to Brandon, and Brandon if you could 22 bring up Exhibit 70 and go to the third page. 23 this is the 2005 investigation that Shirlayne George 24 did. 25 you can now accept this document for the truth of the Now, As the court instructed at the outset today, 18 02:24:20 02:24:36 02:24:56 1 matter stated therein. 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 suggestions because if Karen does not like it, we all 02:25:30 These are complaints about Karen Karen favors Tess. I Another statement, we are all afraid to express 10 pay. 11 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 weeks. 18 02:25:13 If you go down to the second 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 Second point. 20 clinch her fists when she gets mad to the point that 21 her face gets all red like a 10 year old. 22 the bottom, third from the bottom. 23 scared of her. 24 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 02:25:49 1 first couple of lines there, Shirlayne reports to 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 favorite list. 8 9 02:26:05 02:26:28 02:26:50 02:27:16 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 10 your mind that she didn't want to come here because 11 she is afraid to lose her job. 12 said he promoted her. 13 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 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 02:27:38 02:28:00 02:28:22 02:28:42 02:29:01 1 defenses Ms. Bird has offered. They have said 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 improvement. Look at Defendants' Lots of times he documents Look at the 2010 A year before she is Look at the Memorandum of Understanding 10 that Mr. Davis wrote at the same time. Puts her on 11 notice of problems that he thinks she is undermining 12 his authority. 13 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 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 02:29:25 1 moment. 2 bring that up, please, to the page. 3 think I have it here, just a second. 4 it up here, sorry, so we can switch it back to me. 5 Thanks, Lindsey. 6 02:29:41 02:29:57 02:30:17 02:30:37 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 10 are subject to one or more of the following." 11 it doesn't say you have to go through these 12 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 are documented and kept by the department. 20 She received numerous warnings and Now, 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 discussions that go on for a long period of time. So 22 to say that she has no notice, I mean you have heard 23 these gentlemen testify they worked and worked with 24 her. 25 frequently about these issues, what she needed to do, You heard Shirlayne testify she counseled her 22 02:30:52 1 what she could do, what Kelly needed to do. 2 says I talked to them separately, I had them both in 3 my office. 4 increased and increased over time. 5 I had no idea there were problems. 6 02:31:09 02:31:31 02:31:50 02:32:14 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 10 for several reasons. Yes, the 2009 investigation 11 created significant concerns about his anger 12 management and Shirlayne George sat down with him and 13 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 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 02:32:40 02:32:58 02:33:23 02:33:50 02:34:14 1 in November, early November of 2003. 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 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 10 to her supervisor. It just cannot continue. 11 Layne Morris said it continued too long. 12 interesting. 13 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 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 02:34:34 02:34:55 02:35:27 02:35:51 02:36:12 1 that shows that. This was a critical moment for 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 There is nothing there. Layne Morris says Great, That shows he is trying to 10 help her. You have to take what Karen Bird says with 11 a grain of salt, maybe more than a grain. 12 perception is such that it doesn't correspond to 13 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 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 02:36:44 02:37:11 02:37:36 02:37:56 02:38:14 1 insubordinate. That is not an accurate picture. 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 your supervisor or your subordinate. Where is the recording? But But They You might She undermines 10 Kelly Davis, she secretly records conversations 11 without telling anybody, even her own co-workers. 12 She admits she is doing it at least at the end for 13 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 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 02:38:30 02:38:52 02:39:09 02:39:23 02:39:41 1 Morris has these meetings with her November 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 jeopardy 11 months before give me another chance. I asked him, how did she respond to being He said she never But 10 Why didn't she say to Mr. Morris, you know, I'm 11 really sorry for everything that has happened. 12 going to turn over a new leaf. 13 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 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 02:39:58 02:40:16 02:40:38 02:40:58 02:41:17 1 me the information. Great, you're doing an 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 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. She never does it. Throughout any 10 and Z. We all feel badly for 11 her. 12 you have the opportunity and sometimes there are 13 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 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 02:41:35 02:41:58 02:42:22 1 on November 3rd? 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 position of. 02:42:58 How 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 10 with him, I can't stand him. 11 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 gone. 17 02:42:39 How can I resolve this Karen? 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 stipulated to. Exhibit 40. Brandon, if you could 19 bring that one up and we'll switch the panel to him. 20 This is Susie Ternoois, a letter she wrote to 21 Shirlayne George when Shirlayne George was doing this 22 later investigation December for the Workforce 23 Services. 24 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 02:43:26 02:43:50 02:44:06 1 about her concerns about Karen Bird. 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 better. 02:44:47 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. 10 Do you remember when they played her -- or they 11 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 to my screen, please. 18 02:44:32 At the very 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 did not participate in the decision. 20 Davis hired her, he promoted her, he allowed her to 21 be insubordinate for years. 22 gave her a second chance. 23 deed goes unpunished now he has been a defendant for 24 six years. 25 Kelly He saved her job and The old saying no good They are seeking punitive damages for 30 02:45:09 02:45:25 02:45:47 02:46:10 02:46:32 1 malicious conduct against Kelly Davis. 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 plastered through out the community as being somebody He never even He testified They want Well, who wouldn't when your name is being 10 who is killing animals right and left with no regard 11 for them. 12 Layne does. 13 who follows it through and he doesn't make the 14 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 witnesses you heard in this case are appropriate 17 bookends. 18 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 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 02:46:57 02:47:14 02:47:38 02:47:58 02:48:16 1 credible witness. 2 going after somebody. 3 oh, I have nothing against Kelly Davis. 4 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 the request comes to me whether I would have the I 10 funds to purchase. That is what a responsible 11 manager who is trying to live within his budget does. 12 They make it sound like he is just some bully. 13 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 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 02:48:36 02:48:53 1 Davis absolutely denies it. 2 statement. 3 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 later suddenly he comes up with another 10 02:49:37 02:49:56 But on the stand, Mr. Andus doubles down. So six years embellishment. 11 02:49:20 He did not make that Not even Ms. Bird believes she was fired for 12 her free speech issues. Remember, when I had her 13 review her deposition, I said why did Kelly Davis 14 want to get rid of you? 15 did he want to get rid of you. 16 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 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 02:50:20 1 Andus and all this stuff, not once did she say he 2 fired me because he believed I was leaking 3 information to the press. 4 substantial or motivating factor for her termination. 5 How can you find that if she doesn't think it? 6 02:50:44 02:51:22 02:51:42 Brandon can you bring up the special verdict 7 form, please. 8 you're going to have to fill out and talk to you for 9 just a moment about that. I want to show you the verdict form 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 allegation is false and the answer should be no. 14 02:51:05 Not even she thinks it's a I submit that Second, do you find that Karen Bird has proven 15 by a preponderance of the evidence that West Valley 16 City's belief that she leaked information to the 17 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 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 02:51:59 02:52:16 02:52:38 1 motivating factor, you will be asked to decide which 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 they had grounds to terminate her. 02:53:36 Absolutely Had nothing to do 10 with this. 11 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 is the fourth question. 15 done after dealing with the second question. 16 02:53:13 And then you will 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 that the City acting through the final decision-maker 18 who was Layne Morris terminated her because of a free 19 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 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 02:54:02 1 become a First Class Sergeant in the Green Berets 2 unless you are a leader and a man of integrity. 3 There is a movie out called 12 Strong. 4 one group of the first special forces responders that 5 was sent to Afghanistan right after 9-11. 6 7 02:54:18 02:54:40 02:55:04 02:55:25 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 10 Davis -- I'm sorry, I got off here. Layne Morris was 11 one of the first responders in the Green Berets to go 12 out there as a special forces man to go to 13 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 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 02:56:15 02:57:32 jury.) 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 attention. 13 02:57:10 (Whereupon, an audio clip was played for the 5 12 02:56:31 I'm going to play you a brief I know that. Layne Morris That's why she was She refused to accept Kelly Davis as her 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 MS. HOLLINGSWORTH: No. Let me unplug my stuff. Ladies and gentlemen, 17 Mr. Preston talked to you about a recording that 18 Ms. Bird had presented to Ms. George that was from 19 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 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 02:57:57 02:58:21 02:58:35 1 in the last two weeks. 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 specifically said in this November 1st meeting, I 02:59:13 And to the point that Mr. Morris had What he said But he 10 don't have the recording up but I have the transcript 11 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 a loyal employee. 19 02:58:51 And what happened was the She needs to be She needs to be telling our story and So Mr. Morris was okay when he thought the 20 Andrea the Cat story through the vet might be about a 21 miracle cat, but the debate became about the gas 22 chamber and its effectiveness and its use by the 23 shelter. 24 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 02:59:41 03:00:03 03:00:27 03:00:45 4 there wasn't any statements about a mass execution on 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 defense would have brought it up. We have many sources to support Obviously, if we had Ms. Bird testified 10 that recording was lost or inadvertently deleted. 11 But what we have from that meeting was Mr. Davis's 12 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 that meeting. 20 times before. 21 03:01:03 Mr. Preston said there's -- there's not -- 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 was said in that meeting not to mention the fact that 23 a reporter called Mr. Davis on an anonymous tip and 24 Mr. Davis's notes reflect that he didn't say that's 25 not true, he said I'm concerned about how this 39 03:01:20 1 information is getting out. 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 into what the court has to decide later. 9 03:01:53 03:02:12 03:02:31 03:02:47 So there is all kinds of And Counsel talked about that Mr. Morris wouldn't 10 lie about these motivations. What we have is 11 recordings that show both Mr. Davis's and 12 Mr. Morris's motivations. 13 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 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 03:03:12 03:03:32 03:03:51 2 recommend terminating an employee who had never been 3 disciplined, he said what do you think that's a get 4 out of jail free card, our disciplinary process? 5 it's the process that the defendant uses to terminate 6 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 the First Amendment. 18 03:04:05 03:04:25 Mr. Morris, when I asked him why he would No, They have a process And when The defendant wants you to believe that a 19 tenured employee was terminated without any 20 discipline for giving away a bag of dog food with 21 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 for her discipline of Ed Trimble who we know was gone 25 for many months before the events that are at issue 41 1 03:04:45 03:05:04 Instead we have a number of witnesses who 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 whether or not Mr. Davis had said do you want them 10 all dead? 11 heard. 03:06:05 We We had Michelle And when challenged on She said yes, that is exactly what I We had Ms. Bird's testimony which wasn't 13 impeached on any point. 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 only information was through Mr. Davis. 18 03:05:45 That is simply not credible. 2 12 03:05:19 in this case. We have the fact that the We had finally Mr. Breisch, the volunteer, who 19 had no dog in this fight but happened to have made a 20 recording of Mr. Davis telling him he was not welcome 21 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 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 03:06:23 03:06:45 03:07:02 03:07:21 4 truth of what they were doing getting out. 5 fired everybody including volunteers but including a 6 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 you set this right. 10 So they That is And I made one promise to Ms. Fortson that I 11 would tell you something so I'm going to do that. 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 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 All right. 20 Courtroom Deputy swear in the Court Security Officer. At this time if I could have the 21 THE CLERK: 22 (Whereupon, the Court Security Officer was 23 24 03:08:03 So these are officials who did not want the 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 please. Would you all rise for the jury, 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

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