Petition for Writ of Certiorari — Roberts v. Unidynamics Corp.

eupreme Court, U.g,

rtuL & PD

B22 425 FEB 26 1999)

DELICE Ur THE CLERK

In The

Supreme Court of The United States

October Term 1997

+

KARL ROBERTS,

Petitioner,

v.

UNIDYNAMICS CORPORATION, et al.

Respondents.

¢

Petition For A Writ Of Certiorari

To The United States Court of

Appeals For The Eighth Circuit

¢

PETITION FOR WRIT OF CERTIORARI

+

JOSEPH L. GREEN*

LARRY A. BAGSBY

Baerveldt, Bagsby, Lee & Green

566 First Capitol Drive

St. Charles, Missouri 63301

(314) 947-8500

Attorneys for Petitioner

*Counsel of Record

APPELLATE ADVANTAGE

4264 N. OAK TRAFFICWAY@KANSAS CITY, MO 64116@816-453-2424

QUESTIONS PRESENTED

(1) Whether the Eighth Circuit panel’s opinion in

reversing the jury verdicts for insufficiency of evidence did so

far and egregiously depart trom the accepted and usual course

of appellate review as to require this Court to exercise its

supervisory power?

(2) Whether a perceived disability claim under the

Americans With Disabilities Act will require Plaintiffs to

produce direct evidence of the Defendant's perception?

(3) Whether a perceived disability claim under the

Americans With Disabilities Act requires a record of actual

impairment before liability may be imposed for being

regarded as having an impairment?

(4) Whether Petitioner’s Graves Disease, mistakenly

believed to be HIV or AIDS, qualifies as a perceived

disability under the Americans With Disabilities Act?

(5) Whether | statistical evidence offered to

demonstrate pretext must be exact in nature and character of

the offense to allow similarly situated comparisons?

(6) Whether direct evidence of perceived disability

by a chief shop steward who participated in the grievance

process is sufficient to impose liability against a Union

under the Americans With Disabilities Act?

LIST OF PARTIES TO THE PROCEEDINGS

Karl Roberts. Petitioner ts an individual and a

resident of the State of Illinois

2 Respondent

| yi | 1,

nidyvnamics is a Missour

corporauion

3. Respondent District Number 9, International

\ssociation of Machinists and Aerospace Workers is the

regional union for the State of Missouri

PABLE OF CONTENTS

QUESTIONS PRESENTED

LIST OF PARTIES TO PROCEEDINGS

OPINIONS BELOW VI

JURISDICTION : Vil

STATI rES INVOLVED IN THIS CASI Vil

STATEMENT OF THE CASI!

REASONS FOR GRANTING THE WRI

CONCLUSION 4)

APPENDICES

APPENDIX A |

APPENDIX B 19

APPENDIX C et. t

APPENDIX D 46

TABLE OF AUTHORITIES

( ‘ases

\nderson yv. Liberty Lobby, Inc

477 U.S. 242 (1986)

Furnco Const. Corp. v. Waters,

438 U.S. 567 (1978)

Hanes v. Kemer, 404 U.S. 519 (1972)

Int'l Brotherhood of Teamsters v. U.S..

ASU 43.5: SLE CISTI).

N.Y. City Transit Authority vy. Beazer,

BG Ub. SOS Te?. ok. kk

St. Mary's Honor Center v. Hicks,

S09 US. 502 (1992)

U.S. Postal Service Board of Governors

Statutes and Rules:

42 U.S.C. sec. 12101-12213 (ADA)

29 C.F.R. 1630.2(1), Comment

Other Authorities:

Childress, Steven A. and Davis, Martha S., Feder

Standards of Review, 2d Ed., Vol. 1 (1995)

Sasa; SOY AED CAE) sce sid wes

»)

Love v. Pullman Co., 404 U.S. 522 (197.

Pave

—-

3,16,29

PETITION FOR WRIT OF CERTIORARI |

Karl Roberts respecttully prays that a writ of certiorar |

issue to review the judgment and opimion of the United States

Court of Appeals for the Eighth Circuit entered in this

proceeding on October 6, 1997, rehearing denied November

28, 1997, in order to reinstate Petitioner's jury verdict and

resolve the important issues presented herein.

OPINIONS BELOW

On September 19, 1995, following six days ot trial, a

jury found that Respondents had discriminated against

Petitioner in his employment based on a perceived disability

in violation of the Americans With Disabilities Act ("ADA")

and the Missour: Human Rights Act ("MHRA"). The jury

awarded Petitioner $535,000.00 in damages and apportioned

fault 70% against Respondent Crane and 30% against

Respondent Union.

Che district court considered post-trial motions of all

parties and issued its final order and memorandum on

February 26, 1996, There the court determined that

$35,460.00 of the judgement represented back pay and

$499,540.00 represented compensatory damages. It thereby

reduced the compensatory damages to $300,000.00 pursuant

to its interpretation of the applicable statutory limitations. 42

U.S.C. 198la. The opinion and judgment is reprinted in

Appendix A hereto ("App. B") at page B-l.

Respondents appealed the jury verdict on several

yrounds and Petitioner cross-appealed. A three-judge panel of

the Eighth Circuit Court of Appeals reversed the jury verdict

based on insufficiency of the evidence. The opinion ts

reprinted in Appendix A herete ("App. -\") at page A-1. By

V1

Ne ne Te

, } . : . ‘

" ‘ | " ‘ : . 4% +,% i?

Orde! filed November! é py the covet denied Petuion

Suggestions and Petition tor Rehearing En Bane, The ord

reprinted in Appendix A hereto (App. A- 15)

JLRISDIC TION

Pursuant to Supreme Court Rule 13. this petitio

been filed within YO days of the denial of rehearin

iurtsdiction of the Court is invoked under 28 U.S.

L2S4(1)

STATUTES INVOLVED IN THIS CASE

Section 12112(a) of the ADA provides

No covered entity shall discriminate against a

qualified individual with a disability because of the disability

of such individual in regard to job application procedure, the

hiring, advancement, or discharge of employees, employe

compensation, job training, and other terms, conditions, ai

privileges of employment

The term “disability” means, with respect to ai

individual:

(A) aphysical or mental impairment that substantial)

limits one or more of the major life activities of suc!

individual:

(B) arecord of such impairment: o1

fi being revarded as having such an IMpalirmc nt, 42

U.S.C. see. 12102(2)

The term “regarding as having {a disability]” include

persons who have “a physical or mental impairment that

substantially limits major life activities only as a result of the

attitudes of others toward such impairment.” 29 C.F.R. Sec

|

1630.2(ay(2)

SLTALEMENTL OF THE CASE

lhe District Court entered judement based on a jury

verdict finding that Respondents wrongfully discharged

Pettuoner in violation of the Americans With Disabilities Act

Petitioner's claim was premised upon a perceived disability

of Graves Disease andor Human Immune deficiency Virus

(HIV) or Acquired Immune Deficiency Syndrome (AIDS)

lurisdiction of District Court was conterred upon by 2S

U.S.C. sections 1331 and 1343

During the trial it was shown that Petitioner suffered

a dramatic and unintentional weight loss (60 pounds) in the

spring of 1992. He experienced shakes and tremors and

required constant use of the restroom In the months

following, Petitioner's co-workers rumored that Petitioner

had the AIDS virus and deseribed him as dying

In June, 1992 Petitioner could no longer pertorm the

functions of his work in the paint department because of

erratic heartbeats from the Graves Disease. While in that

department, an assistant supervisor warned a co-worker of

Petitioner not to use Petitioner's equipment because he may

have AIDS

When Petitioner returned to the weld department, his

supervisor there told him he was a liability to the company

and to find another job

\t the end of September and the first week of

October, 1992, Petitioner was subjected to two fabricated and

unprecedented incidents for which he was discharged. He

was accused of insubordination, Statistically, the discharge

was also unprecedented and violated the employer's

progressive disciplinary policy

Che Eighth Circuit reversed holding the evidence was

insufficient to prove the Respondents regarded Petitioner as

disabled. In doing so, the appellate COUrT adopted completely

the Respondents’ version of the evidence, resolved conthict

in the evidence for the Respondents and plainly misstated that

liability was imposed on HIV or AIDS alone. The bias of the

opinion has violated Petitioner's Seventh Amendment right

to jury trial and egregiously departs from the usual standards

and limitations of appellate review

REASONS FOR GRANTING THE WRIT

| rhe Eighth Circuit Opinion so tar departs from the

accepted and usual course of judicial proceedings requiring

this Court to exercise its supervisory power.

A. Proper Standard of Review

lhe decision of the panel is in direct conflict with the

Seventh Amendment right to a jury trial and this Court's

precedent which requires that” credibility determinations,

the weighing of the evidence, and the drawing of legitimate

inferences from the facts are jury functions, not those of a

judge... The evidence of the non-movant is to be believed,

and all justifiable inferences are to be drawn tin his favor."

Anderson v. Liberty Lobby Inc., 477 U.S 242, 255 (1986)

See also Childress, Steven A. And Davis, Martha S., Federal

Standards of Review, 2d. Ed., Vol.1 at 3-14 (1995). (During

the reviewing process, a court may not weigh the evidence,

pass on the credibility of witnesses, or substitute its judgment

for that of a jury.) In this case, the court’s opinion not only

misstates the issue for liability before the jury, but provides

absolutely no deference to the jury verdict and Petitioner's

evidence

Moreover this Court has repeatedly stated that

Petitioners need not provide direct evidence of ultimate issues

but may rely on any form of evidence from which a jury may

infer the ultimate issue, giving the evidence whatever weight

and credence it deserves. U.S. Postal Service Board of

Governors v. Aikens, 460 U.S. 711(1983). The opinion

below completely disavows these standards of law and

evidences a bias against this Petitioner. So much so that had

the actual trial evidence been that as recited in the opinion

there would not have been a trial at all. What necessarily

follows, therefore, is the evidence Petitioner did produce.

B. The Evidence.

Respondent Crane is a manufacturer of food vending

machines, elevators and contract manufacturer for the postal

service (App. D, 112). Petitioner Karl Roberts was hired by

_ Crane on January 9, 1989 as a welder at its plant in St. Louis,

Missouri (App. D, 46,45). Respondent Union was the

exclusive bargaining representative of Petitioner throughout

his employment at Crane. Petitioner was discharged on

October 8, 1992 (App. C, 41).

In the spring of 1992, Petitioner began to experience

various physical ailments including rapid weight loss (45 to

60 pounds within two months), burning eyes, tremors, itching

and severe diarrhea (App. D, 46-48). The diarrhea causea

Petitioner to use the restroom between 20 and 30 times per

day (App. D, 46). In June, 1992, Petitioner was diagnosed

with Graves Disease (App. D, 48).

Petitioner’s physician testified that while the cause of

the Graves Disease is unknown, typical symptoms of the

disease include weight loss, tremor, fast heart rate or

tod

palpitations, diarrhea, itching and bulging eyes (App. D, 35).

If left untreated, Graves’ Disease can lead to permanent

blindness and even death (App. D, 86)

Petitioner presented several co-workers who testified

as to Petitioner’s grim appearance and rapid decline in the

months leading up to his termination. These co-workers

uniformly testified that: Petitioner had lost a great deal of

weight in a short time; that he became extremely skinny, like

someone with anorexia; that he looked pale, real sick; his face

was drawn in and his eyes bugged out; that Petitioner looked

like Rock Hudson just before his death and they though

Petitioner was going to die (App. D, 71, 74, 76, 77, 89, 91).

Respondents’ witness, chief shop steward L.C.

Monehan, testified at trial that Petitioner did not appear 11]

during the time in question, but was impeached by his own

deposition testimony where he stated that Petitioner looked

really ill, like he had the HIV virus. . . real skinny and dried

up like you see on T.V. (App. D, 91). Mr. Monehan was

present to hear the jokes and rumors that Petitioner may have

the AIDS virus (App. D, 74, 75).

Mr. Dennis Blake supervised the entire weld

department including Petitioner (App. D, 47, 48). Petitioner

testified that Mr. Blake questioned him regarding his frequent

use of the restroom (App. D, 68). Mr. Blake admitted he saw

Petitioner on a daily basis (App. D, 98), but categorically

denied noticing any change in Petitioner's appearance or

behavior other than believing that Petitioner might have had

pink eye (App. D, 99). Petitioner had informed Mr. Blake

that he had been diagnosed with Graves Disease and had bad

blood (App. D, 68). Mr. Blake seemed startled by this

information (App. D, 48). Blake never knew what Graves

Disease was (App. D, 98).

In June, 1992, Petitioner transterred to the paint

department where he remained for approximately two to three

weeks before transferring back to the weld department (App.

D, 48, 49). Petitioner testified that his Graves Disease caused

erratic heart beats while wearing the suit required 1n the paint

department (App. D, 48, 67). Although Petitioner had worked

in the paint department on previous occasions, the Graves

Disease caused him to become exhausted when wearing the

paint suit and unable to perform the job (App. D, 48, 67).

While working in the paint department, Petitioner's

supervisor was George Herman (App. D, 87). Mr. Mike

Branscum was a paint department employee which occupied

a position known as group leader (App. D, 87). Mr.

Branscum’s responsibilities included assisting Mr. Herman by

relaying orders to the painters, warning Mr. Herman of

dangers within the paint department and informing him of any

employees who may be ill (App. D, 87). Mr. Branscum

warned at least one of Petitioner's co-workers, Mr. Kelley,

not to use any of Petitioner's equipment because Petitioner

might have AIDS (App. D, 89). Mr. Kelley took the

statement by Mr. Branscum quite seriously and did not use

any of Petitioner’s equipment (App. D, 90).

In July or August, 1992, after Petitioner returned to

the weld department, supervisor Blake approached Petitioner

and informed him that he was a “liability to the company and

that he should find another job” (App. D, 50).

On September 30, 1992, while Petitioner and the

entire weld department was on break, Petitioner grabbed a

‘si

piece of scratch paper from Mr. Blake's desk and wrote a

personal note to a co-worker (App. D. 51). Mr. Blake

approached Petitioner and asked to see the note (App. D,

$1.52). Petitioner explained that the note was personal,

written on his break-time and he did not believe he had to

show it to Mr. Blake (App. D, 51-53).

Petitioner returned to work and was again approached

by Mr. Blake regarding the note (App. D, 51-53). Petitioner

repeated that it was personal and written on his break-time

(App. D, 52-53). When Mr. Blake continued to insist that

Petitioner turn over the note, Petitioner requested that the

When Mr. Monehan arrived, he told Petitioner to show Blake

the note (App. D, 52, 53). The note said, “Chartie, this is

Catfish, are you mad at me?” (App. D, 53). “Charlie” referred

to a co-worker, Charlie Goodson, and “Catfish” referred to

the Petitioner (App. D, 53).

At trial. Mr. Blake conceded that he had no authority

to seize or demand to sce a note written by an employee on

break-time (App. D, 111). Shop steward Monehan also

admitted that he did not know of any plant rule which gave

Mr. Blake authority to demand the note. In his 32 years at

Crane, Mr. Monehan had never heard of a member of

management demanding to see a note written while an

employee was on break (App. D, 91). Similarly, co- orker

Gary Inness who had been employed by Crane for 25 years

could not think of even one similar instance (App. D, 71, 72).

The incident was unprecedented.

Moreover, Mr. Blake did not cite Petitioner for any

wrongdoing after Petitioner revealed the note. Mr. Blake did,

6

however, prepare a disparaging memo to Petitioner's

personnel file recounting the events without informing

Petitioner or the shop steward that he had done so (App. D.

110, 111). Consequently, Petitioner had no knowledge of the

memo and was, in effect, barred from filing a grievance over

the incident (App. D, 110).

Just five days later, on October 5, 1992, Petitioner was

working at a station on the big-cabinet assembly line (App. D,

54). Since Petitioner usually worked on the small-cabinet

line, he was not at his regular work station. Mr. Blake

approached Petitioner and asked him if a spool lying on the

floor was his and Petitioner replied that it was not (App. D,

54). Mr. Blake asked Petitioner if he knew whose spool it was

and Petitioner replied that he did not. Blake then asked

Petitioner if he threw it there and Petitioner again replied that

he had not (App. D, 54). Blake then told Petitioner to pick it

up anyway and Petitioner acknowledged Mr. Blake's request

(App. D, 54). Co-worker, James Woolsey, corroborated

Petitioner's testimony regarding Mr. Blake's questioning of

Petitioner (App. D, 77, 78). A welding spool is made of

cardboard and approximately 12 inches long and 4 inches

wide.

After completing his job for the day, Petitioner forgot

to look for the spool Mr. Blake had referred to (App. D, 69).

The following day, October 6, 1992, Petitioner worked his

regular 8-hour shift on the small cabinet line (App. D, 55).

Prior to the end of the shift, Mr. Blake asked Petitioner to

work overtime on the big-cabinet line (App. D, 55). When

Petitioner began working on the big-cabinet line, production

up the production line with his welding helmet down when

Mr. Blake approached Petitioner and said, “I thought I told

you to pick up the spool” (App. D, 56, 57) Petitioner thought

Blake was referring to that same day, October 6, 1992, and

replied “You did not tell me to pick up a spool” (App. D, 56).

Mr. Blake then ordered Petitioner to pick up a spool and

Petitioner said, “Okay” (App. D. 57).

Petitioner continued to weld until he was caught up on

production (App. D, 58). Before Petitioner stopped welding,

his helper, Mr. Woolsey, scanned the areas for a spool and

was unable to locate one (App. D. 79, 80). After

approximately ten minutes, Petitioner was caught up on

production, stopped welding and looked for, but could not

find the spool Mr. Blake had referred to (App. D, 58).

Eventually, Mr. Woolsey did locate a spool, hidden

under a parts rack (App. D, 79, 80). Before anyone picked up

the spool, Mr. Blake, plant manager Ron Wilson and chiet

shop steward L.C. Monehan arrived at Petitioner's work

station (App. D, 58, 59, 80, 81). When confronted by Mr.

Wilson, Petitioner tried to explain that Blake had a standing

order that production was always the first priority-not picking

up trash- and that he did not understand Blake's order meant

stop production immediately. (App. D. 59). Petitioner then

attempted to explain that they had been unable to find a spool

but was denied the opportunity to explain (App. D, 59, 80,

81). In frustration, Petitioner asked Mr. Wilson, “Ron, what

am I supposed to do, show the guy the color underwear I got

on if he asks?” (App. D, 59).

Petitioner was then informed that he was being

suspended pending investigation for insubordination and

escorted from the plant (App. D, 59, 60). However, despite

Respondents’ testimony that the decision to tire Petitioner was

not made until October 8, 1992 (App. C. 41), a memo dated

October 6, 1992 depicting Mr. Blake's version of the events

that day 1s captioned “termination” (App. C, 42). (Blake had

therefore known two days betore the decision was purportedly

made by human resources. )

Co-worker Marvin Mullen, who had worked at Crane

for 31 years, testified at trial that the spool Mr. Woolsey

eventually found had been in that same spot for at least two

weeks and many employees had worked at that station during

that time (App. D, 83, 84). He believed that the entire

incident must have been a set-up (App. D, 84). Petitioner also

put on testimony by long-time employees of Crane that

production was always the number one priority; that

employees were given 5 minutes at the end of their shift to

clean up their work stations, and none of them had ever had

a member of management demand they stop production to

pick up trash (App. D, 71-73, 77, 78, 84). Furthermore, if

employees did not make a minimum rate of production, they

would be written up (App. D, 81).

Petitioner testified that, in hindsight, 1t was odd that

his supervisor asked him to work overtime on October 6,

1992 at the same station be was the day before since the

individual working at that station was also working overtime

but was moved to another station (App. D, 70). Common

practice by Crane would have had Petitioner working

overtime at the station where the other employee was

transferred to (App. D, 70).

Mr. Blake admitted at trial that Petitioner had not

Y

been insubordinate on October 5, 1992 by merely forgetting

to look for and pick up an empty spool (App. D, 100-103)

Moreover, Petitioner presented uncontradicted statistical

evidence at tral that showed, even if he had been

insubordinate on October 6, 1992, company policy would

have dictated a verbal or written reprimand at worst (App. D,

100-109, 112-127).

In the five years preceding Petitioner’s discharge, 27

employees had been discharged--only one tor insubordination

(App. D, 100-103). That one employee, Clarence Bowens,

was cited ten times for misconduct, six of those citations were

for insubordination (App. D, 103-109). Incidents of his

misconduct include, but are not limited to; (1) April, 1988:

abusive language; (2) August, 1988: threatened supervisor;

(3) May, 1990: walked off job and threatened supervisor; (4)

November, 1990; told supervisor to get out of my mother

fucking face and fuck a reprimand and other vulgar language

(App. D, 103-109).

During the same five year period, 24 employees were

cited for insubordination but only Mr. Bowens and Petitioner

were discharged (App. D, 103, 112-127).

In all, 16 employees were cited for two or more

incidents of insubordination and none were discharged. Seven

other employees were cited for insubordination one time and

received only verbal or written reprimands (App. D, 112-

127). Chief shop steward Monehan conceded that, in his 32

years with the company, he had never seen an employee

discharged for one act of insubordination (App. D, 93).

Director of human resources, Edwin Barutio, and

chief shop steward Monehan waived Petitioner’s first and

1O

second step grievances and reterred the grievance directly to

the third stage which involved a grievance hearing (App. D,

112, 113). Despite Petithoner’s attempts to contact union

officials, no one from Crane or the union notified Petitioner

of this action (App. D, 60-62). Petitioner only learned of the

vrievance hearing the mght betore it was scheduled when a

4

co-worker called him at home (App. D, 62)

Upon his arrival for the hearing, Petitioner requested

Mr. Woolsey be brought in to the hearing as a witness (a 2-3

minute walk from the plant floor) (App. D, 63, 64) and Mr.

Soutier replied, we'll take care of that when we get in there

During the hearing, Petitioner again told the union and

management representatives that Mr. Woolsey was a witness

to the spool incidents (App. D, 63, 64). However, at no time

did anyone from management or the union attempt to call Mr.

Woolsey to the hearing or even contact him as part of their

investigation (App. D, 81, 82).

During a break in the hearing, management officials

left the room and union representative Soutier scolded the

Petitioner saying, “What the fuck are you trying to do? Just

come up with this bullshit story. .. tell them you're sorry for

what vou did, it was your fault, and please give me my job

back” (App. D, 64). When the hearing reconvened, Petitioner

apologized and asked for his job back (App. D, 64, 65). Crane

thereafter denied the grievarice.

Union business representative Soutier testified that

Petitioner never requested witnesses at the hearing and made

no mention of witness names during the hearing (App. D, °6)

even though it would be nearly impossible to explain the

events without mentioning Mr. Woolsey. Shop steward

1]

Monehan also said that he did not hear Petitioner request

witnesses (App. D, 92) but was again impeached by his

deposition testimony where he stated that Petitioner did

request witnesses (App. D, 92). Both Mr. Monehan and Mr.

Soutier admitted at trial that they did not investigate

Petitioner's grievance or speak with any potential witnesses

(App. D, 92, 93, 97).

Petitioner's co-worker Charlie Goodson also testified

that chief shop steward Monehan threatened him shortly

before trial, indicating that Respondents had prepared suits

against co-workers who planned to testify for Petitioner at

trial (App. D, 129, 130).

The verdict-director forms submitted to the jury

demonstrates that the jury was to consider Petitioner’s Graves

Disease, as well as HIV and/or AIDS, in determining whether

Petitioner was perceived by Respondents as being disabled

(App. C, 44, 45).

C. Appellate Opinions Erroneous Conclusions of Fact

and Law

1. Evidence of Knowledge of Petitioner’s Condition

On page 3 and 9 of the Appellate Court’s opinion, it

refers to only AIDS and/or HIV (not Graves Disease) and

states the evidence was “insufficient to support the jury’s

conclusion that Crane regarded Plaintiff as having HIV or

AIDS.” It is undisputed, however, that Petitioner’s

supervisor, Mr. Blake, knew Petitioner had Graves Disease,

even though Blake did not know what that disease was. The

verdict-director allowed this jury to find for Petitioner if

Respondents regarded the Graves Disease, in addition to HIV

or AIDS, as a perceived disability. The Court’s exclusive

12

o

reliance on HIV or AIDS as the perceived disability plainly

ignores this critical fact and how the jury was instructed.

[his ts the first of many absolute misapprehensions ot

Petitioner's case made by the court below. As recited above,

the jury was instructed to determine whether Respondents

regarded him as disabled based on his Graves Disease, HIV

and/or AIDS.

Even if the jury was not convinced that Respondents

regarded Petitioner as having HIV or AIDS, they were

instructed that they could nonetheless find Respondents

regarded Petitioner as being disabled based on his Graves

Disease.

Petitioner put forth extensive evidence that regardless

of the cause, it was apparent to anyone who came in contact

with Petitioner that he was very sick and could be dying.

Although he could perform the functions of his job, his very

presence was a “liability” to the company.

This 1s precisely the type of discrimination that the

ADA was meant to prohibit. The legislative history of the

ADA indicates that Congress included the “regarded as”

cause of action to protect an individual who 1s discriminated

against because of the negative attitudes toward that person's

impairment. HR. Rep 101-485(II). It also protects

employees who are discriminated against because of

“concerns regarding productivity, safcty, insurance, lability,

attendance, cost . . and acceptance by workers” Comment, 29

C.F.R. sec 1630.2(1).

Whether or not Respondents believed Petitioner had

HIV and/or AIDS, the jury could reasonably infer from the

evidence that Respondents felt compelled to terminate him

based on his symptoms from Graves Disease. The evidence

that some individuals heard that Petitioner had HIV and/or

AIDS or believed that Petitioner had HIV and/or AIDS

merely serves to supplement the testimony which clearly

shows that Respondents had to know Petitioner's condition

was severe; and that it is more iikely than not that they did,

indeed, regard Petitioner as disabled.

In the first paragraph on page 4 of the Appellate

Court’s opinion, it states that “Dennis Blake [Petitioner's

supervisor], believed that [Petitioner] might have an eye

infection and advised him to see a physician.” The actual

knowledge or belief of Plaintiffs illness by his supervisor

was repeatedly contested at trial by witnesses who testified as

to the extremely afflicted appearance of Plaintiff during the

time in question. Plaintiff had lost a great deal of weight (45-

60 pounds) in a very short time. Plainuff's co-workers

thought he was going to die; they likened him to Rock

Hudson just before his death; he looked pale, real sick, his

face was drawn in and his eyes “bugged out”; and he was

extremely skinny, like someone with anorexia. Even chiet

shop steward L.C. Monehan who testified at trial that Plaintiff

did not appear ill but was impeached by his deposition

testimony stated that Petitioner looked 111, like he had the HIV

virus... real skinny.

Despite daily contact wich Plainuff for four years

(App. D, 46, 47), his supervisor and defense witness, Mr.

Blake, whose testimony the Appellate Court credits, did not

admit to noticing any change in Petitioner's appearance other

than believing he might have pink eye. Nor did Mr. Blake

acknowledge giving Plaintiff a difficult time for his frequent

14

use of the restroom (20-30 umes a day) during this time (App.

D, 67). Yet, this Court's opimon accepts Mr. Blake's

statement as fact, giving no deference to the jury verdict or

Plaintiff's evidence.

In the first paragraph of page 4 of the Court’s opinion

it states that “Blake did not request documentation of

[Petitioner's] diagnosis, but did ask whether it would interfere

with [his] ability to perform his job.” Again, this 1s defense

testimony that the jury did not believe and misapprehends

Petitioner's evidence. Petitioner testified that Mr. Blake did

want to know what was wrong with Petitioner (although he

did not request documentation) and sent him to a doctor (App.

D, 47).

In the last paragraph of page 7 of the Appellate

Court’s opinion, the Court states that the Petitioner did not

indicate that he had been discriminated avainst tn a letter to a

union representative. However, this is clearly an argument for

the defense and in no way indicative of whether Plaintiff had

actually suffered discrimination. As this Court has held, a lay

person is not expected to be well versed in legal theories and

nuances. Love v. Pullman Co,, 404 U.S. 522, 527 (1972);

Hanes v. Kerner, 404 U.S. $519, 520 (1972). Plaintiff clearly

realized that the circumstances surrounding his discharge

were more than unusual and he obviously felt he had been

wronged

In the middle of page 10, the Court again

misapprehends Petitioner's testimony on cross-examination.

Petitioner replied, “yes” to the question on cross suggesting

that he “did not believe that he had suffered discrimination

at the time of his discharge. However, it 's not surprising that

an individual with the nightmarishly absurd situations he had

encountered that week would have any idea why he was being

fired, other than what the company told him. Nor was he tn

a position to discover the evidence which counsel did at a

later date. This Court itself has stated that lay persons, even

under the best conditions, cannot be expected to know what

legal theories or terms to use in a given situation. Love,

Hainess, Id. Once again, the appellate Court here misapplied

the standard of review to the facts and the findings of the jury.

In footnote 4 on page 9 the Court mentions Mr.

Barutio’s statements that he, as Human Resource Manager at

Crane, heard rumors of employees infected with the HIV

virus (App. D, 113). The Court, however, simply accepts Mr

Barutio’s denial that Petitioner was one of those employees

and fails to consider that the assistant supervisor of the paint

department had warned at least one co-worker that Petitioner

may have HIV or AIDS. A reasonable juror could easily

consider Mr. Barutio’s denial inconsistent with this evidence

and his subsequent discriminatory treatment of Petitioner.

Also on page 9 of the opinion, the Court indicates that

Petitioner relies on his appearance during the time in question

almost entirely to show Respondents regarded him as being

disabled, perhaps implying that Petitioner is required to

provide direct evidence, such as an admission by the

Respondents. This Court has repeatedly stated that plaintiffs

need not provide direct evidence of ultimate issues but may

rely on any form of evidence from which a jury may infer the

ultimate issue, giving the evidence whatever weight and

credence it deserves. U.S. Postal Service Board of Governors

v. Aikens, 460 U.S. 711 (1983).

16

The substantial evidence of Petitioner's grim

appearance during the time in question and Respondents’

assertions that they were oblivious to any of his symptoms

clearly constitutes a question of fact for the jury. Moreover,

although Mr. Blake did not know what Graves Disease is, he

admitted being aware of Plaintiffs diagnosis (App. D, 98)..

The jury, in assessing the credibility of the witnesses

reasonably concluded that Respondents must have been aware

of Petitioner's tremendous weight loss, tremors, extensive use

of the restroom, etc. caused by his Graves Disease (which can

cause death if left untreated. Dr. Lynch) (App. D, 86).

Furthermore, Petitioner presented substantial

additional evidence that Respondents regarded Petitioner as

having HIV and/or AIDS because of his Graves Disease. Co-

worker Wes Kelley testified that while Petitioner was working

in the paint department, group leader and assistant supervisor

Michael Branscum warned Mr. Kelley not to use Petitioner's

respirator because Petitioner may have AIDS (App. D, 87-90).

Mr. Branscum admitted that part of his job was to relate to

management when employees were sick. (App. D, 131).

Although Mr. Branscum denied having made the

statement about Petitioner having AIDS to Mr. Kelley, Mr.

Kelley testified that he took the warning very seriously and

made sure not to use Petitioner’s respirator (App. D, 90).

Additionally, co-worker John Ray heard co-worker

Patrick Brown state on two separate occasions, in front of

others including shop steward Monehan and supervisor Blake,

that Petitioner had AIDS (App. D, 74, 75). On another

occasion, co-worker Ken Garner testified that Mr. Brown

approached him and stated that Petitioner might have AIDS

17

Seep SRS is NW be as Rhein i aaah

(App. D, 76). While it is improbable that Respondents would

openly admit that they perceived Petitioner as having a

disability under the ADA, given all the evidence, the jury

could reasonably infer that Mr. Blake and other members of

management had such a perception.

On page 9, the Appellate Court substitutes its own

judgment for that of the jury by selectively relying on

Defense-friendly testimony about (1) whether some of

Petitioner's witnesses themselves believed Petitioner had

HIV and/or AIDS, (2) that Mr. Blake did not indicate that he

heard one of the statements and (3) that the co-workers knew

of no evidence suggesting that Mr. Brown or Mr. Branscum

had made similar comments to others.

These facts, even if believed by the jury, do little to

challenge Petitioners substantial evidence that Respondents

perceived him as disabled. The panel's decision directly

adopts the Respondents’ version of the facts which the jury

chose not to believe, giving no deference to the jury verdict,

and thereby violating Petitioner’s Seventh Amendment rights

and U.S. Supreme Court precedent.

2. Evidence Of Pretext

(a) The Break-Time Note Incident

Petitioner set forth substantial evidence at trial that the

September 30th break-time note incident referred to in the

Court’s opinion at page 4 and 5 was a pretext to discharge

Petitioner because of his perceived disability. The panel’s

decision plainly loses sight of this event occurring on

Petitioners break time and the significance thereof.

Despite his 31 years at Crane, shop steward L.C.

Monehan never saw a member of management demand notes

18

written on employee break-time, nor did he know of any plant

rule which gave Mr. Blake the authority to demand such notes

(App. D, 91). Other co-workers, including Gary Inness who

had been employed by Crane for 25 years, similarly could not

think of even one similar instance (App. D, 71, 72).

Just weeks earlier, Mr. Blake had approached

Petitioner and told him he was “a liability to the company and

to find another job” (App. D, 50). Although the Court, on

page 11, cites Petitioners testimony on cross-examination that

Petitioner “blew it off like a joke”, it was no joke as later

events began to unfold, as would be a reasonable inference by

the jury. In the second sentence on page | 1, the Court again

adopts the Defense stance by stating that “Assuming that such

a statement was made. . .” The jury obviously found the

statement was made to Petitioner--by Mr. Blake--that he was

a liability to the company and should find another job. The

bias of the Appellate Court here is plain.

In reviewing a jury verdict, it is not for the Court to

determine whether the statement was made, but to ascertain

whether it supports an inference, in a light most favorable to

Petitioner Anderson y. Liberty Lobby, Inc., 477 U.S. 242.

255 (1986). It is true that Petitioner did not know, at the time

it Was made, why Mr. Blake would say such a thing. But in

light of the fact that: (1) Petitioner had never previously

received any reprimand or unsatisfactory review; (2)

Petitioner had just returned from two weeks in the paint

department because he could no longer tolerate the paint suit

he was required to wear due to his physical condition , and (3)

in view of the events that soon followed-the note and spool

incidents--it is reasonable to infer, as the jury did here, that

19

la Cee ym oT ey

Mr. Blake was referring to Petitioner's physical ailments.

The Respondents themselves had no other explanation.

Moreover. at trial. Petitioners supervisor, Mr. Blake.

conceded that Petitioner was not insubordinate on September

30th and he had no authority to demand a note ritten on an

employee's break time (App. D. 11 | ). Despite this admission,

Mr. Blake wrote a note to Petitioner's personnel file detailing

his account of the incident. Contrary to the collective

bargaining agreement, Blake did not notify Petitioner that he

was writing such a memo, thereby eliminating Petitioner's

opportunity to file a grievance disputing Mr. Blake's version

of the incident (App. D, 53, 110).

(b) The Missing Spool Incident and Petitioner's

Discharge

The missing empty spool incident to which the Court

refers on pages 5 and 6 also involved unprecedented demands

by Petitioners supervisor, Mr. Blake. Again, many of the facts

recited in the Court's opinion are from Defense, not Petitioner

testimony. Petitioner testified that he forgot to look for the

spool on October 5th (App. D, 69), believing It unnecessary

to stop production to look for an empty cardboard spool (App.

D. 59); and delayed looking for the spool on the 6th until he

was caught up on production (App. D, 58) while beginning a

second shift of over-time. At no time did Petitioner refuse to

pick up a spool.

Moreover, it was not clear to Petitioner that he should

have stopped production on October 6 to look for a spool

immediately because Mr. Blake never said “immediately” or

“right now” or anything to that effect (App. D, 58). In fact,

Mr. Woolsey testified that if employees did not make a

20

minimum rate of production, they are “written up” (App. D.

$1), leaving Petitioner in a catch-22 position.

Furthermore, co-workers Woolsey testified that he did

not initially see a spool but eventually found one under an

ammunitions rack on October Oth after the rack was empty

(App. D, 79, 80). Co-worker Mr. Mullen, an employee ot

Crane for 31 years testified that the spool had been in that

same spot tor at least two weeks and many employees had

worked at that station during that ume. He believed that the

entire incident must have been a “set-up” to fire Petitioner

(App. D, 83-84).

Petitioner testified that. in hindsight, it was odd that

his supervisor asked him to work over-time on the 6th at the

same station be was the da@ before since the individual

working at that station was working over-tume himself but

was moved to another station (App. D, 70). Common practice

by Crane would have had Petitioner working over-time at the

station where the other employee was assigned (TR 3-148).

At the top of page | 1 of the Court's opinion, it states

that “[Petitioner’s] testimony was contradicted by testimony

of his co-workers James Woolsey and Gary Inness, both of

whom testified that Roberts did not even attempt to look for

the spool.” The co-workers’ testimony Goes not support this

Statement.

Petitioner's assistant. Mr. Woolsey. testified on cross-

examination that Petitioner did not help himself and Mr.

Inness took for a spool “at that ime”. On direct examination,

Mr. Woolsey testified that Petitioner did look for a spool

(App. D, 79, 80).

In footnote 6 on page || of the Court's opinion, it

+

Regie RP a | bas

again accepts as true the Respondents’ explanation of events

that occurred. Petitioner presented a type-written note at trial,

dated and signed by Mr. Blake on October 6, 1992 (App. C,

42). The caption on the note indicated that Petitioner was

being “terminated”. However, the decision to terminate

Petitioner was not allegedly made by Mr. Blake, but by Mr.

Barutio--on October Sth. The defense testified, and the Court

accepted as true, that a secretary presumably added the word

“termination” on her own even though the defense witnesses

admitted that she would have no independent knowledge of

the nature of the memo other than what Mr. Blake told her.

She simply had no independent means of knowing whether

Petitioner was being reprimanded, suspended or discharged.

This evidence was truly remarkable and demonstrative of the

pretextual nature of Respondents’ testimony.

The Court’s statement at the top of page 11 that

Petitioner “offered no evidence suggesting that the spool was

hidden . ..” again misapprehends the facts. As stated above,

there was testimony by co-worker Woolsey that there was no

spool immediately visible and when he found it, that it was

not in plain view (contrary to Mr. Blake's testimony), but

under an ammunition/gun rack. (App. D. 79,80).

In the second full paragraph of page 6 of the Appellate

Court’s opinion, it states that Mr Barutio, the Director of

Human Resources at Respondent Crane, “conducted an

investigation” of the missing spool incident. However, Mr.

Barutio conceded at trial that this investigation entailed

nothing more than speaking with other management officials

(App. D, 127). Despite the peculiar nature of the incidents

over the one week period leading to Petitioner’s discharge,

Mr. Barutio did not even attempt to speak with witnesses to

ale)

the events (App. D, 127).

A jury’s reasonable inference from Petitioner’s

evidence is that Respondent Crane singled out Petitioner in a

discriminatory fashion to make unique, even impossible,

demands of him. Moreover, Petitioner's supervisor, Mr

Blake, conceded at trial that Petitioner was not insubordinate

on October 5th by merely forgetting to look for the spool.

And, even if Petitioner were found insubordinate on October

6th, which the jury could reasonably infer he was not, Crane’s

“progressive disciplinary system” would have dictated

Petitioner receive a verbal or written reprimand at worst.

Just recently, this Court stated that a “fact-finder’s

disbelief of the reasons put forward by the employer to rebut

the employee’s prima facie case (particularity if disbelief is

accompanied by a suspicion of mendacity) may, together with

the elements of the prima facie case, suffice, with no

additional proof, to permit the fact finder, upon rejection of

the employer’s proffered reasons, to infer the ultimate fact of

intentional discrimination . . .”” St Mary's Honor Center v.

Hicks, 509 U.S. 502 (1993). See also Tribble v. Westinghouse

Electric Corp., 669 F.2d 1193 (8th Cir.), cert. denied, 460

U.S. 1080 (1982).

In this case, the jury, by its verdict and in-court

reaction to significant segments of defense witness testimony,

obviously found the Respondents’ rebuttal evidence

unconvincing and contrived. The jury’s belief that

Respondents fabricated events to discharge Petitioner is

enough, by itself, to support a reasonable inference of

intentional discrimination. Id. Yet the Appellate Court’s

decision sets forth defense witness testimony and other

rh as

Rt SSE I ep ED SA AMIS AEN GS LEN PCR II DR ii MEI bag tl hE SAFARI cine oA hen Mis nt alanis

defense evidence as if it were conclusive fact. This constitutes

a clear misapprehension of the facts and is inconsistent with

the stated standard of review which requires the Court to

accept the Petitioners evidence as true and review the case in

a light most favorable to the Petitioner

(c) The Statistical Evidence Of Respondents

Disciplinary Practices

The entire last paragraph of page || and continuing on

page 12 of the Court’s opinion constitutes perhaps the most

comprehensive misapprehension of the facts and law. Here.

Petitioner was discharged for one alleged act of

insubordination. To show discriminatory animus, Petitioner

presented substantial unbiased and uncontradicted statistical

evidertte of Respondent's ordinary practices related to

employee discipline.

In the five years preceding Petitioners discharge, 27

employees had been discharged-only one for insubordination.

That one employee, Clarence Bowens, was cited ten times for

misconduct, six of those citations were for insubordination.

Incidents of misconduct by Mr. Bowens included; (1) April,

1988: abusive language; (2) August, 1988: employee said he

wished he had supervisor in back alley because he’s not so

tough; (3) October, 1988: violation of plant rule 27; (4)

February, 1990: needless waste of time: (5) May, 1990:

walked off job and threatened supervisor-made reference to

former supervisor who met a violent death and stated the

same thing could happen to his current supervisor; (6)

November, 1990: employee states to supervisor, “Get out of

my mother fucking face” and “fuck a reprimand” and other

vulgar language (App. D, 103-109).

24

During the same five year period. 24 employees were

cited for insubordination but only Mr. Bowens and Petitioner

were discharged. The Court’s assertion that other employees

were not similarly situated or visibly insubordinate (App. D,

112, 127) comes directly from defense witness Barutio’s bare

assertions which is clearly contradicted by Respondent’s own

personnel files offered by Petitioner from those personnel

files, Petitioner showed at trial that one employee at Crane

repeatedly refused to rework a cabinet as ordered by his

supervisor and received no disciplinary action. The same

employee, just 4 days later, used abusive language and

ordered his supervisor out of the work area. He received a

written reprimand for the second incident-not a discharge. A

second employee was cited for insubordination and the

following day was cited for a safety violation. Again, the

employee was not discharged. A third employee was cited for

insubordination and given a verbal reprimand. Just 12 days

later the employee was again cited for insubordination and

given a written reprimand-not a discharge. A fourth employee

punched his supervisor and received a 2-day disciplinary lay-

off-not a discharge. A fifth employee spit on co-workers

and/or their equipment and was given a verbal reprimand.

rhree days later the employee was cited for careless work and

given a verbal reprimand. Eight days later the employee was

cited for careless work and given a written reprimand. Two

months later he was cited for careless work and given a two-

day layoff-not discharged (App. D, 103-109).

In all, 16 employees were cited for 2 or more incidents

of insubordination and none were discharged. Eight other

employees were cited for insu>ordination at least once and

25

received only verbal or written reprimands not discharges

(App. D, 112-127). Chief shop steward Monehan conceded,

as he had to, that in his 32 years with the company, never

knew of an employee who had been discharged for one act of

insubordination (App. D, 93).

This Court has long recognized the strength of this

type of evidence and has stated that it alone can establish

discriminatory intent by showing that one termination 1s

contrary to a stated company policy, or that the defendants

st is implausible or arbitrary. International Brotherhood

f_ Teamsters v. United 7 tates, 431 U.S. 324 (1977); New

poem aE! -azer, 440 U.S. 468 (1979);

Furnco Const. Corp. v. <n 438 U.S. 567(1978).

In this case, many other employees were cited for one

or more incidents of insubordination in a short period of time

and given verbal reprimands, written reprimands or

disciplinary lay-offs--not discharged. It 1s also clear that

many of the other employees engaged in conduct that was

much more visibly insubordinate and cavalier than

Petitioner's alleged conduct, Moreover, only one other

employee was discharged for insubordination after having

accumulated ten incidents of misconduct. This evidence, at a

minimum, shows that Respondents acted arbitrarily and

inconsistent with their progressive system of discipline.

The Court, however, simply discards this persuasive

evidence and declares that Petitioner's discharge was an

exercise of Defendants’ discretion. The statement of the Court

on page 12 that Crane's discretion is beyond the Court's

power to review, and implicitly the jury's. is plainly incorrect.

A reasonable fact finder may reject the Respondents’

26

proffered reasons and explanations for its actlons. Hicks v

St. Mary’s Honor Center, 509 U.S. 502 (1993). This jury did

SO.

3. Petitioner's Grievance Hearing

In the last paragraph of page 6 of the Appellate Courts

opinion, it states that “[Petitioner | waived the first and

second grievance steps. . .”. Nowhere 1s this found in the

evidence. It was not Petitioner, but Mr. Barutio and shop

steward L.C. Monehan who agreed to refer the grievance

directly to the third stage (App. D, 112, 113).

The Court also states at the bottom of page 12 that

‘“Monehan’s involvement in the grievance process consisted

of suggesting to [Petitioner] that he file a grievance,

requesting that Barutio give [Petitioner] a disciplinary layoff

in lieu of termination, and attending the hearing.” This is

plainly wrong. Mr. Barutio’s testimony clearly indicates that

Mr. Monehan played a significant role in the decision to

waive Petitioner's first and second stage grievance rights.

Moreover, the assertion that Mr. Monehan requested a layoff

is defense testimony and again violates the standards of

review set by this Court.

While the Court notes at the bottom of page 6 that

Petitioner requested Woolsey appear at the hearing as a

witness, it otherwise ignores Petitioners evidence. Testimony

at trial showed that Union Representative Soutier repeatedly

neglected to return Petitioner’s calls and did not inform

Petitioner of the grievance hearing (App. D, 60-62). In fact,

Petitioner was never notified of his grievance hearing by a

union or company official. He only learned of the hearing the

night before it was scheduled when a co-worker called him at

;

ee ae

_

home (App. D, 62).

Upon his arrival for the hearing, Petitioner requested

Mr. Woolsey be brought in to the hearing (a 2-3 minute walk

from the plant floor (App. D, 63, 64) and Soutier replied,

“We'll take care of that when we get in there” (App. D, 63.

64). During the hearing, Petitioner again told the union and

management representatives that Mr. Woolsey was a witness

to the spool incidents (App. D, 63, 64). At no time did any

one from management or the union attempt to call Mr.

Woolsey or even find out if he had helpful information (App.

D, 81, 82).

During the hearing, a caucus was held in which

management officials left the room and Union Business

Representative Soutier berated Petitioner saying "What the

fuck are you trying to do? Just come up with this bullshit

story. Tell them you’re sorry for what you did, it was your

fault, and please give me my job back" (App. D, 64). When

the hearing resumed, Petitioner apologized as Mr. Soutier

instructed him to do and asked for his job back (App. D, 64,

65).

Not surprisingly, Union Representative Mr. Soutier

testified that Petitioner never requested witnesses at the

hearing and made no mention of witness names during the

hearing (App. D, 96) even though it would be nearly

impossible to explain the events without mentioning Mr.

Woolsey. Shop steward Mr. Monehan also said that he did not

hear Petitioner request witnesses but was impeached by his

deposition testimony that he did (App. D, 92). Both Mr.

Monehan and Mr. Soutier admitted at trial that they did not

investigate Petitioners grievance or speak with any potential

28

witnesses (App. D, 92, 93-97).

On page 12 the Court states Monehan had not played

any role in the decision to arbitrate and any perception on his

part 1s insufficient to support an inference of discrimimation. .

Phe Court here again overlooks how the jury was instructed,

he decision to arbitrate was not relevant to the jury.

Specifically, the jury was instructed regarding “... District

No. 9's representation of the Petitioner in the grievance

proceedings against National Vendors” (App. C, 45).

Monehan, as chief shop steward was capable and obligated to

defend Petitioner as the business representative. He clearly

did not fulfill this obligation.

On page 13 the Court acknowledges that Mr.

Monehan described Petitioner as having HIV, but adopts the

Defense position by stating his description did not mean

Petitioner had proven Monehan believed Petitioner had HIV.

With this reasoning, the Court is requiring direct evidence of

Monehan’s belief, such as an admission. However, the this

Court has unequivocally stated that such factual

determinations car, be, and usually are, proven by

circumstantial evidence. United States |

of Governors v. Aikens, 400 U.S 711

plaintiffs would never prevail absent an admission by the

defendant. Clearly, Mr. Monehan’s description of Petitioner's

appearance would lead a reasonable fact finder to conclude

that Monehan perceived Petitioner as having a disability.

Co-worker Charlie Goodson also testified that shop

steward Monehan threatened him shortly before trial,

indicating that Respondents had prepared suits against co-

workers who planned to testify tor Petitioner at trial (App. D,

29

44, 45)

[he evidence of Petitioner as the foregoing

demonstrates, was Wholly manipulated in the opinion of the

Appellate Court which deprived Petitioner of his Seventh

Amendment right. The precedent of this Court was equally

disavowed

CONCLUSION

For the foregoing reasons, the petition tor writ o1

certiorari should be granted

Respectfully submitted:

BAERVELDT, BAGSBY, LEE & GREEN, LLC

Joseph L. Green *

Larry A. Bagsby

566 First Capitol Drive

St. Charles, MO 63301

(314) 947-8500

Attorneys for Petitioner

*('‘ouasel of Record

earnestness eernensteneneenerenenennenennennenndenenrrnnne: Mltimmaseseneeessneur

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

io lanabialiiatiamased

OPINION

§ FILED, OCTOBER 6, 1997

} PAGE I

&

ORDER DENYING REHEARING

: FILED, NOVEMBER 28, 1997

i Page 18

4

:

4 +

og uphill Waa is oa it i

l nited States Court of Appeals

FOR THE EIGHTH CIRCUIT

i_nidynamics © orporatio:

Missouri Corporation: do

|

business as Crane Nation A\ppea ron

Vendor. * United States Distric

District No. 9 Internatio:

Association of Machinist

and Aer Spac C Wor k ers

C |

Vi sour ( porauion

| } )

GOVT) DUS 1]

( ' e Nat } “ (1¢

Detendant Apne

District No. 9 ratio

\ Clal t Machinis

d Aerospace Workers

Detendant Appellec

No. 96-2440

Karl Roberts,

Plaintiff/Appellant.

Unidynamics Corporation, a

Missouri Ccrvoration,

doing business es Crane

National Vendor; District

No. 9 International

\ssociation of Machinists

and Aerospace Workers.

Defendants’ Appellees

No. 96-3445

m

%

Ey

:

*

4

Karl Roberts. ‘

Plainuff Appellee.

Unidynamics Corporation,

doing business as Crane

National Vendor,

a Missouri Corporation:

District No. 9 International

Association of Machinists

and Aerospace Workers, :

Defendants/ Appellants

Submitted: June 11, 1997

Filed: October 6. 1997

Before WOLLMAN, Circuit Judge, HENLEY, Senior Circunt

Judge, and BEEZER,’ Circuit Judge.

WOLLMAN Circuit Judge

Unidynamics Corporation, which does business as

Crane National Vendors (Crane), and District No. 9

fhe HONORABLE ROBERT R BEEZER, United

States Circuit Judge for the Ninth Circuit, sitting by

designation.

Apdx. A - 3

lrnternatime \ tine ' \1 byes ' rie \er ;

PPCM AaLOlad | SSUL Tati) Vici ilil dig CTOSpdace

Vorkers (the union), appeal trom the judement entered on the

erdict in favor of K Lobe Robert uit 1s based

| Is j tal ( ra - (| ! 4 il i evarded iT

rrving the man in PTI (HIV) or havu

Acquired Immun Deticiency Svndrome (AIDS) and

; ' ,

“’ | ‘*) ry rey ; " tis t Sa : , , ?

MSCrimMiMated avadainst him hH¢ 1use Of thal percepuon Roberts

: wal . , eS Pa cael - —_ i

CTOSS-dppedis On SCN CTii! i” i rye == . tne jdvment ana

iS nis lf . if SS-dPDCd! i ‘ |

; ' ;

ort oc . . ; ( i : .

Roberts began working in 1989 as a welder at Crane.

a company that manufactures such items as vending machines

and elevators. He continued to work in the weld department

| tor , ' ] . “~ bevy hyrye , ’ .

his termination in 1992. except for a brief period of ume

until

during which he worked tn the paint department. In the spring

of 1992, Roberts began experiencing weight loss, eye

irritation, tremors, weakness, and diarrhea. Roberts’

supervisor in the weld department, Dennis Blake, believed

that Roberts Might have an eye infection and advised him to

see a physician. Roberts followed Blake's advice and. in June

ot 1992. was diaynosed as having ¢ Waves disease Roberts

(graves: disease | ‘ disordet Ol the thyroid ol

unknown but probably autoimmune ctiology " The

Sloane-Dorland Annotated Medical-Legal Dictionary, p. 182

(1992 Supplement).

Se Te YT ae ee eC

roe Neonat St Least TAME aR MNS ad ies eae

nek babs ey

RW TA. oh

REM ah ARM, BN he Eig Mae geRU

reported the diagnosis lo Blake. Blake did not request

documentation of Roberts’ diagnosts

would interfere with Roberts ability to

Roberts replied that 1t wou.d not

Roberts’ physical condition Was . Iso observed

co-workers. Sev eral stated at trial that thes had

‘ae : }

the had lost a vreal deal

change in Roberts appearance 1M thi

of weight, that he looked gaunt and sickly. and tha

"kind of bulged” or "bugged out.”

On September 30, 1992. Roberts was at Blake's desk

writing a note to a coworker during a break. Blake approached

him and requested to see the note. Roberts told Blake the note

was private and refused to give it to him. Roberts testified that

Blake continued to demand to see the note and that Roberts

refused to permit him to do so. Roberts stated that he walked

to his work station and that Blake “was right behind {him},

kind of hounding [him] about it." When Roberts arrived at his

work station, Blake "gave [him] a direct order" and stated, "1

want to see the note.” Roberts responded, "No, it's private and

After Blake gave him

Roberts demanded

| don't think | have to show it to you.”

another direct order to hand over the note

Roberts’ treating physician testified that the classic

signs of Graves’ disease "are diffuse generalized enlargement

Of Your thyroid or goiter along W ith weight loss, tremor, fast

heart rate or palpations, history of diarrhea. history of itching.

Sometimes the patients will have cyes that are bulging and

that's a classic sip of Graves’ Disease 01 hyperthyroidism.”

Apdx. A - 5

that L.C. Monehan. the shop steward, be called over to

resolve the dispute.

Monehan told Roberts to show Blake the note.

whereupon Roberts did so. Atter Blake read the note, which

}a co-worker}, this is Catfish, are vou mad at

read, “Charlie

me?”, he said that Roberts’ behavior was childish and a waste

of time and informed Roberts that he was on notice and that

if such behavior continued he, Blake, would take further

action.

On October 5, 1992, Blake noticed an empty welding-

wire spool, approximately eight to twelve inches long and

four inches wide, lying on the floor near the big cabinet line

where Roberts was stationed. He asked Roberts if the spool

was his. Roberts replied, "I'm assuming that since | just got

to this work station I know it's not mine." Blake then asked

Roberts if he knew whose it was, to which Roberts replied

that he did not. Blake said, "Well, pick it up." Roberts

replied, "Okay," but made no attempt to look for or pick up

the spool.

The following day, Roberts was stationed on the small

cabinet line. At the end of Roberts’ eight-hour shift, Blake

asked him if he would be willing to work overtime. Roberts

agreed and was moved to the big cabinet line. After Roberts

had been working for about 25 Minutes, Blake approached

him and said, "I thought | told you to pick up a spool."

Roberts retorted, "You didn't tell me to pick up the spool.”

Blake said, "Pick it up, that's an order,” to which Roberts

replied, "I really don't appreciate the way you said that."

Apdx. A-6

Blake said, “Well, pick it up." Roberts said "Okay," but

resumed welding. Blake repeated his order and Roberts

replied, "I heard you,” but continued to weld.

Blake contacted Kay Merz. Crane's human resource

manager and described Roberts’ conduct. Merz agreed that

Roberts’ conduct was "blatant and suggested Roberts be

suspended pending further investigation. Blake then

contacted Ron Wilson, general production supervisor, who

agreed with Merz's recommendation. Blake and Wilson

notified Monehan, and the three approached Roberts. Wilson

said to Roberts, "I hear that you're refusing a direct order trom

your supervisor by not picking up a spool." — Roberts

explained that he could not find the spool, and Wilson told

him he was suspended pending further investigation. Roberts

then said, "Ron, what am | supposed to do, show this guy the

color underwear I| got on if he asks me?"

Blake prepared a memorandum documenting the

incident, which was submitted to Edwin Barutio, Crane's vice

president of human resources. Barutio conducted an

investigation of the incident and concluded that Roberts

should be terminated. Barutio, testified that he came to this

conclusion because Roberts had engaged in several acts of

insubordination within a short period of time, the incidents

were highly visible to other employees. and Roberts had

demonstrated a "cavalier" attitude.

Immediately following his suspension, Monehan

advised Rok 2rts to file a grievance. Roberts waived the first

and second grievance steps, and the case proceeded to a third

Apdx. A - 7

step grievance meeting. At the third step meeting, Barutio,

Wilson, Blake, and Merz represented Crane. — Business

representative Bob Soutier, Monehan, and shop steward Al

Bohmer represented the union. Roberts was also in

attendance. Roberts testified that just prior to the meeting he

informed Monehan and Soutier that James Woolsey was a

witness to the spool incident and that he should be called.

Woolsey was not contacted, however. During a break in the

meeting, Soutier told Roberts to apologize and ask for his job

back. Roberts then apologized to the Crane officials for "any

inconvenience" he may have caused.

At the conclusion of the meeting, Sooner asked that

Roberts be reinstated. Monehan suggested to Barutio that

Roberts receive a disciplinary layoff rather than termination.

Barutio denied the grievance and terminated Roberts. The

union decided not to process Roberts’ grievance for lack of

merit. Sooner who made the decision not to pursue the

grievance, explained that he believed Blake's requests of

Roberts were reasonable, that Roberts’ acts of insubordination

had occurred over a short period of tune, and that he did not

believe that Roberts had merely forgotten to pick up the spool

on October 5 as Roberts testified to at trial.

On November 23, 1992, Roberts wrote to Jim

Bagwell, Directing Business Representative of District 9,

complaining that Sooner had failed to investigate his

grievance or to make a statement on his behalf at the hearing.

Roberts did not indicate that he believed that either Crane or

the union had discriminated against him. On March 15,

Apdx. A-8

AB TE

Po ae Ore

en ee ee

1993. Roberts filed a complaint ith the Equal Employment

Opportunity Commission (EEOC) and the Missouri

Commission on Human Rights (MCI IR) alleging that he had

been discharged because of a "handicap perceived handicap

(Graves Disease)." The EEOC and MCHR notified Roberts

of his right to sue, and Roberts filed suit against Crane and the

union under the Americans with Disabilities Act (ADA), 42

U.S.C. 8 12 101 et seq., and the Missouri Human Rights Act

(MHRA), Mo. Rev. Stat. § 213,010 et seq., alleging that

Crane had terminated him and the union had failed to

investigate and pursue arbitration of his grievance because of

his actual and/or perceived disabilities.. Following the jury's

verdict in favor of Roberts, the district court denied Crane's

and the union's motions for judgment as a matter of law ora

new trial.

Il.

We review the district court's denial of a motion for

judgment as a matter of law de novo, applying the same

standard as the district court. See Triton Corp. v. Hardrives.

Inc.. 85 F. 3d 343, 345 (8th Cir. 1996). "(W]e will not reverse

a Jury's verdict for insufficient evidence unless, after view ing

‘The district court granted summary judgment in favor

of Crane and the union on Roberts' claims of discrimination

based on actual disabilities, a ruling that Roberts does not

contest on appeal.

Apdx. A -9

the evidence in the light most favorable to fhe verdict, we

conclude that no reasonable juror could have returned a

verdict for the non-moving party." Ryther v. KARE 11, 108

F.3d 832, 836 (8th Cir. 1997) (en banc), cert. denied. 117 S.

Ct. 2510 (1997). Although we accord Roberts the benefit of

reasonable inferences, "Inferences must be more than

speculation or conjecture to be reasonable." Day v. Johnson,

No. 95-4024, slip op. at 6-7 (Sth Cir. Jul. 10, 1997).

In order to establish a prima facie claim of a perceived

disability under the ADA, Roberts must show that each

defendant ... regarded [him] as having’ an impairment that

‘substantially limits’ a 'major life activit{y]."' Wooten _v.

Farmland Foods, 58 F.3d 382, 385 (8th Cir. 1995) (quoting 42

U.S.C. § 12102(2)(C)).. A defendant cannot be liable for

discharging an employee unless it regarded the plaintiff as

having a disability. See Webb v. Mercy Hospital, 102 F.3d

958, 960 (8th Cir. 1996); Hedberg v. Indiana Bell Tel. Co..

Inc., 47 F.3d 928, 932 (7th Cir. 1995). See also Gerdes v.

Swift-Eckrich. Inc., No. 97-1006, slip op. (8th Cir. Sept. 11,

1997). An individual is regarded as having a substantially

limiting impusment when others treat that individual as

having such an impairment See Webb, 102 F.3d at 960.

Similarly, under the MHRA, Roberts must establish that the

defendant regarded his condition as substantially impairing

his life activities. See Mo. Rev. Stat. § 213.010(10); Lorenz

v. Filtronetics. Inc. (In re Estate of Latimer), 913 S.W.2d 51,

56 (Mo. Ct. App. 1995).

Apdx. A - 10

A, Crane

Crane argues that the evidence Was insufficient to

support the Jury's conclusion that Crane regarded Roberts as

having HIV or AIDS. We agree. Roberts emphasizes his

appearance as pivotal in Crane's percepuon of him, but the

fact that several CO-“ orkers testified to their observations of

Roberts’ physical condition 1S insufficient to permit an

inference that Roberts’ supervisors regarded him as having

HIV or AIDS.

Likewise, there is no substantial e\ idence that Roberts’

co-workers regarded him as having AIDS. A paint

department employee testified that a co-worker told him not

to use Roberts’ respirator because Roberts "might have AIDS

or something." No one else was present when the comment

was made. Two other employees stated that a co-worker

mentioned that Roberts might have AIDS. One of the two

testified that Blake, although several feet away when the

comment was made, gave no indication that he had heard the

alleged comment. In addition, this witness stated that the

comment was made in a joking manner. All three of these

co-workers testified that they did not repeat the alleged

comments and knew of no evidence suggesting that the

speaker had made similar comments to anyone else

Furthermore, of the nine co-workers who testified for

Roberts, only one testified that he believed Roberts had HIV

or AIDS.

Roberts has failed to link the alleged rumors to Crane

Apdx. A- | |

ON Oe ee a

—

|

)

decisionmakers. He admitted at trial that none of the

comments he believes support his disability discrimination

claim were made by or to company officials. His

unsupported speculation that Crane officials heard such

rumors ts simply insufficient to permit a reasonable jury to

find for him on the issue of Crane's knowledge of those

rumors. See Hedberg , 47 F.3d at 932.”

——

Roberts asserts that Blake told him in July or August

of 1992 that he was a liability to the company and that he

should find a new job... Assuming that such a statement was

made, it falls to show that Blake regarded Roberts has having

HIV or AIDS. The statement itself does not evince any

discriminatory animus toward Roberts. See Aucutt, 85 F.3d

at 1316. Roberts admitted that he and Blake were not

discussing his physical condition when Blake made the

alleged statement and that Blake said or did nothing to

“Roberts emphasizes that Barutio testified that he had

heard rumors that three Crane employees were HIV positive

or had AIDS. Barutio testified, however. that Roberts was not

one of those individuals, that two of the employees had

passed away, and the third remained employed at Crane at the

time of trial

‘Roberts alleges that Blake made this statement "after

hearing rumors that [Roberts] had AIDS." There is no

evidence, however, that Blake ever heard rumors that Roberts

had AIDS.

Apdx. A - 12

indicate that it related to a perception that Roberts had HIV or

AIDS. Roberts admitted that at the time Blake made the

alleged comment he. Roberts. "blew it off like a joke.”

Moreover. Roberts had informed Blake that his symptoms

were due to Graves’. disease, adduced no evidence showing

that Blake disbelieved this explanation, and admitted that his

belief that Blake's alleged statement related to HIV or AIDS

was merely speculation.

Roberts submitted no other evidence sufficient to

support a finding that any Crane decisionmaker believed that

Roberts had HIV or AIDS. In fact, Roberts acknowledged

that at the time of his discharge he did not believe that he had

suffered discrimination and admitted that he subsequently

learned of no evidence to support his claim that Crane

perceived him as having HIV or AIDS.

Even had he succeeded in showing that Crane

regarded him as disabled. Roberts’ claim would fall, for he

has not adduced any evidence that would permit an inference

that he was terminated because of his disability. See Webb,

102 F.3d at 960; Price v. S-B Power Tool, 75 F.3d 362, 365

(Sth Cir.), cert. denied, 117 S. Ct. 274 (1996); Miners _v.

Cargill Communications, Inc., 113 F.3d 820, 824 (8th Cir.

1997) (evidence sufficient to show employee was terminated

because of disability); Lorenz 913 S.W.2d at 55. Roberts

argues that the spool incident was a "set up" and that he " was

suspended for failing to pick up a spool that nobody could

find. not even Blake." He offered no evidence suggesting

that the spool was hidden, however, other than his own claim

Apdx. A - 13

that although he looked tor the spool on October 6 he could

not tind it. His testimony was contradicted by testimony of

his co-workers James Woolsey and Gary Inness, both of

whom testified that Roberts did not even attempt to look for

the spool Vioreover, Woolsey attested that he was able to

locate the spool after looking for approximately five minutes,

testimony corroborated by Inness.”

Roberts also asserts that the discipline meted out to

him was different from that imposed upon other employees

and argues that the treatment he received shows that

discrimination was the cause of his termination. The record

does not reveal, however, that the other employees cited for

insubordination were similarly situated. Barutio's testimony

was that the discipline an employee receives depends upon

factors such as the employee's seniority and the nature of the

insubordination. Barutio believed that Roberts’ acts merited

termination because they occurred within several days of each

other and were highly visible on the production floor.

\lthough one other employee who had committed several acts

of insubordination within several days received a disciplinary

\s turther evidence of a “set-up,” Roberts argues that

because the memorandum Blake prepared for Roberts’ personnel file

is captioned “Termination,” the jury could inter that Crane knew on

the date of his suspension that Roberts would be terminated. Blake,

however, tesutied that he hand-wrote the memorandum and that the

secretary who typed the memorandum presumabiy added the

caption. Barutio corroborated Blake's testimony, testifying that he

received a copy of Blake's handwritten memorandum and that it did

not contain the caption.

Apdx. A-14

lay-off rather than termination, Roberts neither offered any

evidence of that employee's seniority nor showed that the

employee's acts were similarly visible Sull another

employee was not discharged tor insubordination until he had

engaged in acts more insubordinate than Roberts’. Those acts

were separated by intervals of at least ses eral months.

however, and the record does not reveal that employ ce’'s

seniority or the visibility of his insubordinate acts. Although

Roberts may have had reason to believe that his termination

was a sanction disproportionate to the conduct that

precipitated it, the degree of discipline was a matter

committed to Crane's discretion. So long as the exercise of

that discretion was not motivated by an unlaw ful

consideration, it is beyond our power to review Il.

We conclude that the evidence, viewed in the light

most favorable to Roberts, establishes only that Roberts was

terminated because he failed to follow his supervisor's orders

Accordingly, the district court should have granted Crane's

motion for judgment as a matter of law.

B. The Union

The union argues that the evidence Is insufficient to

support the Jury's conclusion that the union refused to

investigate Roberts’ grievance and pursue his claim to

arbitration because it perceived him as having HIV or AIDS.

We agree. It is undisputed that Soutier, who was responsible

for determining whether Roberts’ grievance should be pursued

Apdx. A- 1S

to arbitration, had not met Roberts before the third step

hearing and thus did not have first-hand knowledge of

Roberts’ physical condition. Souter denied ever hearing

rumors that Roberts had HIV or AIDS, and Roberts

introduced no evidence suvvesting that Soutier held such a

perception

Roberts alleges that "it 1s undisputed that the shop

steward, [Monehan].. . clearly had knowledge of Plaintiff's

perceived disability.” Roberts failed, however, to show that

Monehan was a decisionmaker involved in the union's

decision not to arbitrate. Monehan's involvement tn the

grievance process consisted of suggesting to Roberts that he

file a grievance, requesting that Barutio give Roberts a

disciplinary layoff in lieu of termination, and attending the

hearing Roberts produced no evidence showing that

Monehan played any role in the decision not to arbitrate

Roberts’ grievance, and any alleged perception on his part is

therefore insufficient to support an inference of discrimination

by the union. See Herrero v. St. Louis University Hospital,

109 F.3d 481, 484 (8th Cir. 1997): Bradford v. Nortolk

Southern Corp., 54 F.3d 1412, 1421 (Sth Cir. 1995).

Even if Monehan could be considered a union

decisionmaker, Roberts’ evidence ts insufficient to support his

contention that Monehan "clearly had knowledge of Plaintiff's

disability.” Roberts points out that when Monehan was

asked at trial how he had recalled Roberts’ physical

description during his deposition, Monehan replied, "I think

what I told you that what | had seen on a person that would

Apdx A-16

been [sic] ill in the effect of HIV virus that 1t was someone

real skinny and dried up like you sce on TV." — Even

construing this less-than-clear statement as indicating that

Monehan thought that Roberts physically resembled someone

with HIV, his belief that Roberts exhibited symptoms which

might be associated with HIV does not necessarily show that

he believed Roberts had HIV. See Webb, 102 F.3d at 960;

Aucutt, 85 F.3d at 1319. Roberts offered no evidence

showing that Monehan's statement, if construed to relate

specifically to Roberts, was more than an observation of

Roberts’ appearance. Roberts asserts that Monehan was

nearby when a co-worker made a joke suggesting that Roberts

had AIDS, but his two-tiered assumption that Monehan might

have heard the joke and that hearing such a joke caused him

to believe Roberts had HIV or AIDS is mere speculation

insufficient to support a finding of discrimination. Hedberg,

47 F.3d at 932.

The judgment is reversed, ard the case is remanded to

the district court with instructions to enter judgment in favor

of Crane and the union. The cross-appeal is dismissed as

moot.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS,

EIGHTH CIRCUIT.

Apdx. A - 17

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

A. sllas < waar | smtreamca Da .

Appellee. Order VDenving Petition

or Rehearing and

N. * Suggestions for Rehearing

En Bane

District No. 9. International

Association of Machinists

and Aerospace Workers,

et al.,

Appellants.

[he suggestion for rehearing en banc is denied. The

petition for rehearing by the panel is also denied.

November 28, 1997

+}

Order Entered at the Direction of the Court

s/ Michael E. Gans

Clerk, U.S. Court of Appeals, Eighth Circuit

Apdx. A- 18

APPENDIX B

UNITED STATES DISTRICT COURT

FOR THE

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

(ialsicacilie aisibiiat

JUDGMENT

FILED, FEBRUARY 26, 1996

PAGE 19

Order and Memorandum Opinion

Filed, February 26, 1996

Page 21

+

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

KARL ROBERTS, )

Plaintiff, )

}

VS. ) No. 4:94CV2101-DJIS

)

UNIDYNAMICS )

CORPORATION, d/b/a )

Crane National Vendors, )

and DISTRICT NO. 9,

INTERNATIONAL

ASSOCIATION )

OF MACHINISTS AND )

AEROSPACE WORKERS, )

Defendants. )

IL DGOMENT

Pursuant to the jury's verdict and the memorandum

opinion separately entered herein this day,

IT IS HEREBY ORDERED, ADJUDGED and

DECREED that judgment is entered in favor of plaintiff Kar!

Roberts and against defendant Unidynamics Corporation.

d/b/a Crane National Vendors. in the amount of $234,822.00.

Apdx. B - 19

representing $24,822.00 in backpay and $210,000 in

compensatory damages, plus costs and such post-judgment

interest as 1s allowed by law at the applicable rate of 4.89%.

iT IS FURTHER ORDERED, ADJUDGED and

DECREED that judgment ts entered in favor of plaintiff Karl

Roberts and against defendant District No. 9, International

\ssociation of Machinists and Aerospace Workers, in the

amount of $100,638.00, representing $10.638-00 in backpay

and $90,000.00 in compensatory damages, plus costs and

such post-judgment interest as is allowed by law at the

applicable rate of 4.89%.

S

UNITED STATES DISTRICT JUDGE

Dated: 2 26/96

Apdx. B - 20

UNITED STATES DISTRICT COURT EASTERN

DISTRICT OF MISSOURI EASTERN DIVISION

KARL ROBERTS. )

Plainuff, )

)

VS. )

) No. 4:94CV2101-DJS

UNIDYNAMICS )

CORPORATION, d/b/a )

Crane National Vendors, and )

DISTRICT NO. 9, )

INTERNATIONAL )

ASSOCIATION OF )

MACHINISTS AND )

AEROSPACE WORKERS. )

Defendants. )

ORDER and MEMORANDUM OPINION

The instant action was tried before a jury on plaintiff's

claims that his former employer, defendant Unidynamics

Corporation d/b/a Crane National Vendors ("Crane"), and his

union, defendant District No. 9, International Association of

Machinists and Aerospace Workers ("the Union"),

discriminated against him on the basis of a perceived

handicap, namely plaintiff's Graves' Disease and/or an

Apdx. B - 21

erroneous belief that plaintiff was infected with the Human

Immunodeticiency Virus ("HIV") or had Acquired Immune

Deficiency Syndrome ("AIDS"). More specifically, plainutt

alleges that Crane discriminatorily terminated _ his

employment, and that the Union diseriminatorily tailed to

adequately represent plaintuitt in his grievance proceedings

against Crane. Plaintiff asserts clanms under both the

Americans with Disabilities Act, 42 U.S.C. 512101 et seg.,

and the Missour: Human Rights Act, $213.010 R.S.Mo. er

seq.

The verdict form submitted to the jury contained a

single blank for the jury's findings as to actual damages,

which were defined in Instruction #20 to include both

backpay and compensatory damages for "emotional pain,

suffering, inconvenience and mental anguish." Because the

substantive law of the ADA and the MHRA are the same as

applicable to plaintiff's claims, the jury instructions generally,

and the verdict form in particular, made no distinction

between plaintiff's claims under the different statutes. None

of the parties objected to these aspects of the verdict form.

The jury found in plaintiff's favor as against both defendants,

and further found, with respect to each defendant, that it had

not been proven by a preponderance of the evidence that the

defendant would have treated plaintiff in the same manner

regardless of any perceived disability. The jury found

plaintiff's aggregate actual damages to be $535,000.00.

The matter is before the Court on defendants’ separate

motions for the amendment and reduction of the jury's

Apdx. B - 22

damages award based on the limitations imposed by 42

U.S.C. $198 1a(b)(3) on an award of compensatory damages

under the ADA. Plaintitf argues in response that the total

award can be construed as made under the MHRA, pursuant

to which there is no quantitative cap on compensatory

damages. Defendants take the position that plaintiff cannot

recover any compensatory damages of the type here sought

under the MHRA, because Missouri law requires expert

medical testimony to support any ‘claim of emotional distress

damages, and plaintiffs belated aitempt to name a medical

expert witness for this purpose was defeated when the Court

granted defendants’ motion to strike the expert as untimely

designated.

Plaintiff first argues that the actual damages which

courts have found to be available under the MHRA are of

several types -- loss of enjoyment of life, shame, humiliation,

mental anguish and emotional distress, for example -- and that

expert medical testimony would be vequired only to recover

for emotional distress, but not for the other types of non-

pecuniary loss for which damages are available. The Court

is not persuaded, based in large part on its review of Bass v.

Nooney Co., 646 S.W.2d 765 (Mo.bane 1983), the case in

which the Missouri Supreme court rejected the old "impact

rule" and instituted the requirement that emotional distress be

"medically diagnosable and... of sufficient severity so as to be

medically significant" in order to be compensable. Id. at 772-

> de ke |

773. Subsequently, Bass has been interpreted "to require

expert medical testimony when no physical injury is

Apdx. B - 23

volved.” Glover v. McDonnell Douglas Corp., 981 F.2d

SS. 395 (Sth Cir. 1992) (see also cases cited therein).

In Bass, the Supreme Court used the term "mental

njury” as well as "emotional distress,” which suggests that

the scope of its holding ts not so linuted as plaintiff contends.

Furthermore; irenunciating this test, the court noted that it

“responds to well considered suggestions by legal writers”

which the court quoted at some length. Id. at 773, n.4. Among

the discussions which the court cited with approval is one

advocating a "middle ground... definition of ‘emotional harm'

which excludes mere upset, dismay, humiliation, grief, and

anger,” because such emotions do not justify the imposition

of liability. Id., quoting Comment, Negligence and the

Inflicti f Emotional Harm: A Reappraisal of the Nervous

Shock Cases, 35 U.Chi.L.Rev. 512, 517 (1968). Against

such a background, the court concludes that the Bass test,

where it applies, is intended to be applicable to all forms of

emotional or mental injury, however described.’

Plaintiff's next argument rests on his interpretation of

a recent Missouri Court of Appeals decision and the line of

cases on which it 1s based. In Fust v. Francois, No. 66740,

‘This analysis instructs that it may be ill-advised to use

more particular terms to illustrate types of emotional harm,

and that perhaps the simple use of "emotional distress" as a

general term is preferable. For example, in Instruction 120 in

this case, the Court would readily conclude that "emotional

pain,” "suffering" and "mental anguish" were used merely as

descriptive variations or species of emotional distress.

Apdx. B - 24

1995 WL 593016 (Mo.App. 1995), a malicious prosecution

suit, the Court of Appeals reviewed and adhered to a line of

malicious prosecution and false imprisonment cases in which

Missouri courts had distinguished Bass as inapplicable and

held that emotional distress damages “may be presumed to

flow from the malicious prosecution without the need for

medical testimony." Id., slip op. at 19. The holding tn Fust

is, in the Court's view. clearly limited to the malicious

prosecution and false imprisonment contexts. Of the three

underlying cases, Lipari v. Volume Shoe Corp., 664 S.W.2d

953 (Mo.App. 1983) fails to discuss and distinguish Bass.

which was decided earlier the same year. and Hupp v. North

Hills Lincoln-Mercury, 610 S.W.2d 349, 356-57 (Mo.App.

1980), predates Bass.

The third, Signorino v. Natione' Super Markets. 782

S.W.2d 100, 104 (Mo.App. 1989), distinguishes Bass as

applicable only to negligence claims and not to intentional

torts. Both the Eighth Circuit and this Court, however, have

applied the Bass standards to MHRA claims since Signorino

was decided, see Glover. 981 F.2d at 395, and Heller v.

Heritage Environmental Services. Inc., 835 F.Supp. 1124,

1126 (E.D.Mo. 1993) [Jackson, J.]. This precedent directly

on point binds and informs this Court's determination of the

issue and is not seriously challenged by the general dictum tn

Signorino. Furthermore, Missourt courts have applied the

Bass standards to claims of intentional infliction of emotional

distress in the employment context notwithstanding

Signorino, which further bolsters the conclusion that

Apdx. B - 2

Signormno is limited to its factual and legal context. See

Duncan v. Creve Coeur Fire Protection District, 802 S.W. 2d

205, 207 (Mo.App. 1991), Hendnx v. Waimwright Industries,

755 S.W.2d 411, 412 (Mo.App. 1988). For all the reasons

stated above, the Court rejects plainutt’s contention that

compensatory damages tor emotional distress may be

construed to be awarded in this case under the MHRA rather

than the ADA.

The Court also rejects plaintutf's argument that the

amount of damages rendered by the jury may include, in

addition to backpay, recovery for plainuff's "inability to

procure healthcare coverage in the future." Pltff. Response in

Opp. filed 10/6/95 [Doc. #149], p.3. The jury is presumed to

have followed the Court's instructions, and the scope of actual

damages as set out in Instruction #20 does not encompass

such an award for future loss or expense, which is, as

defendants point out, instead within the parameters of

frontpay and an issue for the Court's determination. Neither

did plaintiff present evidence which would have supported an

award of damages of this kind. This argument, too, tails to

shield any portion of the damages award trom scrutiny under

42 U.S.C. $198 1a.

Plaintiff's final contention is that defendants are

precluded f rom seeking a reduction of the award due to their

failure to object to the relevant language of Instruction #20 or

to the manner in which damages are addressed in the verdict

form. Because the chief difficulty presented is_ the

determination how to apply the $198la(b) (3) limitations on

Apdx. P. - 26

compensatory damages where there are two defendants and

damages are apportioned, the Court 1s not-persuaded that

there was a pertinent objection which might properly have

been made, given that the statute specifically forbids

informing the jury of the statutory caps. See $198 1a(c)(2).

Similarly, the fact that the verdict form did not distinguish

between damages under the MHRA and under the ADA was

not of itself objectionable:

[Plaintiff's] causes of action are simply

alternate theories seeking the same relief. In

this situation, a plainuff is not entitled to a

separate compensatory damage award under

each legal theory. On the contrary, he is

entitled only to one compensatory damage

award if liability is found on any or all of the

theories involved.

Greenwood Ranches. Inc. v. Skie Construction Co., Inc., 629

F.2d 518, 521 (8th Cir. 1980).

Although the failure to make a proper objection may

constitute a waiver of error in jury instructions or a verdict

form, see Fed.R.Civ.P. 51, a “narrow exception" ts "reserved

for plain error which would result in a miscarriage of justice

if the challenged instruction and verdict were allowed to

stand." Denniston v, Burlington Northern, Inc., 726 F.2d 391,

393 (Sth Cir. 1984): see also Nebraska Public Power Dist. v.

Austin Power. Inc.. 773 F.2d 960, 972 (Sth Cir. 1985). Even

Apdx. B - 27

if a proper objection had been available on the pertinent

points, a waiver of such an objection resulting in substantial

damages in excess of applicable statutory maximums would,

in the Court's view, constitute a miscarriage of justice which

would override the waiver. For each and all of the foregoing

reasons, the Court concludes that the issues now betore it on

defendants’ motions were not waived by defendants’ failure to

object to the relevant aspects of the verdict form. 2

Having disposed of these threshold issues, the Court

must now address the parsing of the jury verdict as rendered.

Plaintiff fails to contest, and therefore concedes, defendants’

assertion that plaintiff sought backpay in the amount of

$35,460.00. This fact is also established by the trial record

itself. The plaintiff testified to that amount as his lost

income. Transcript, Vol. 3, p.23. In closing argument,

plaintiff's counsel referred to that testimony, and specifically

asked the jury to award $35,460.00 in backpay. Transcript,

Vol. 7, p.2l. Plaintiff further sought a compensatory

damages award of $600,000. Id, at 22.

The Court therefore readily concludes that of the

$535,000 jury award, $35,460 represents backpay and

$499,540 represents compensatory damages.” The

defendants agree with this extrapolation, and plaintiff has not

‘This compensatory damages figure of roughly

$500,000 appears to indicate that the jury agreed to award

much but not all of the $600,000 in compensatory damages

which plaintiff requested.

Apdx. B - 28

contested it. The Court is then faced with determining how

to apply the limitations of $198la (b) (3), given several

circumstances present here which are not contemplated by the

statute: the involvement of multiple defendants, one of whom

is not sued as an employer, and as to which liability ts to be

apportioned according to the jury's \ erdict, The two

defendants propose different methods of applying the

statutory caps and percentages of apportionment, and plainutt

has not proposed any, choosing instead to rely on the

arguments, discussed above, in support of preservation of the

entire damages award.

Pursuant to §198la(b)(3), plaintiffs — total

compensatory damages are subject to a cap hich ranges from

$50,000, “in the case of a respondent who has more than 14

and fewer than 101 employees,” to $300,000, "in the case of

a respondent who has more than 500 employees." The

Court's application of the statute parts from both defendants:

in that the Court deems the Union to be subject not to the

limitation dictated by the small number of its employees, but

by the number of its members. District No. 9's business

representative Robert Soutier testified at trial that the district

"is comprised of approximately 11 local lodges throughout tts

geographic area," with a total membership of 12,000 in

approximately 400 bargaining units. Transcript, Vol. 6, pp.

127-28. District No. 9 has only 21 employees. Id, at 128-29.

Because the Union is sued in its capacity as a union, and not

as an employer, and because the size of its membership 1s far

more indicative of its financial size and strength than its

Apdx. B - 29

number of employees, the Court would predicate the

application of the statutory cap on the membership figure,

yielding the maximum $300,000 cap. Consideration of

defendant Crane yields the same cap. because Crane has more

than 500 employees. See Transcript. Vol. 6, pp. 5-6

(testimony of Edwin J. Barutio, Vice President of Human

Resources).

Bearing in mind that the jury apportioned Crane's

-“

liability at 70% and the Union's at 30°o, the Court would

calculate the defendants’ shares of the compensatory damages

as their respective percentages of the maximum $300,000

award, i.e., $210,000 for Crane and $90,000 for the Union.’

This calculation preserves both the relative apportionment

fixed by the jury, which Crane's proposed solution would not

do if applied to both defendants. The Court's calculation also

limits plaintiff's total compensatory damages to the maximum

allowed by the statute, which the Union's proposed solution

would not do if applied to both defendants. The Court will

likewise apportion the backpay award of $35,460, and assess

70% or $24,822 against crane and the remaining 30% or

‘The Court also notes that if the membership of

plaintiff's own bargaining unit were used to determine a cap

on the Union's compensatory damages liability, the figure

yielded by the Court's method would not exceed it. L.C.

Monehan, the chief steward of plaintiffs bargaining unit,

testified that the unit contained between 300 and 350

employees, which falls within the $200,000 cap of $19 8 la

(b) (3) (C). See Transcript, Vol. 6, p. 100.

Apdx. B - 30

$10,638 against the Union.

Although the Court has not adopted the particular

method of calculation -urged by either defendant, the Court

will consider Crane's "Motion for Amendment of Jury

Verdict" and the Union's "Motion to Reduce the Verdict" each

to be granted in part, based on the Court's agreement that the

application of $198 1a(b)(3) requires the reduction of the jury's

compensatory damages award. The damages against each

defendant based on the jury's verdict and the Court's

application of §1981a(b)(3) are as follows:

Defendant Crane $210,000 in compensatory damages

+ 24,822 in backpay

$234,822

Defendant

District No. 9 § 90, 000 in compensatory damages

+ 10,638 in backpay

$100,638

The Court next proceeds to consideration of the award

of any equitable relief, namely reinstatement or frontpay.

The equitable remedies of reinstatement and frontpay

are before the Court for its determination. Having considered

the pleadings, the testimony of the witnesses, the documents

in evidence, and the stipulations of the parties, and being fully

Apdx. B - 31

advised in the premises, the Court makes the following

lindings of tact and conclusions of law relevant to the issues

of reinstatement and frontpay.

Findings of Fact

Plainutf Karl Roberts began employment as a

welder with defendant Unidynamics, Corporation, d/b/a Crane

National Vendors ("Crane") on or about January 9, 1989.

ra During his employment with Crane, plainuft

was a member of Lodge 1345 of defendant District No. 9,

International Association of Machinists and Aerospace

Workers ("the Union") , and was covered by a collective

bargaining agreement between Crane and the Union.

3. On October 6, 1992, Crane suspended plaintiff

ls employment pending investigation of charges of

insubordination by his supervisor, Dennis Blake; the

suspension was converted to a discharge on October 81 1992.

4. On October 6, 1992, plainut? filed a grievance

protesting his suspension, which was later construed by all

parties as directed to plainuff's discharge.

2 At the October 20, 1992 meeting on plaintiff's

vrievance, Robert Soutier, a Union business representative,

represented plaintiff and sought plaintiff's reinstatement with

lost pay and benefits plus retroactive seniority.

6. By letter dated October 27, 1992, Crane

informed the Union that it denied plaintiff's grievance and

would not reinstate him.

”

By letter dated November 17, 1992, Soutier

Apdx. B - 32

advised plaintiff that the Umon would not process his

grievance further.

8. At the conclusion of a six-day trial conducted

on September 12, 13, 14, 15. 18 and 19, 1995, a jury returned

its verdict finding in favor of plaintiff and against both Crane

and the Union on plainuffs claims that defendants

discriminated against him based on their perception that

plaintiff was disabled by Graves’ Disease, HIV and/or AIDS,

Crane by discharging plaintiff and the Union by failing to

represent plaintiff adequately in the grievance proceedings.

9. In its verdict, the jury found that plainutt's

backpay and compensatory damages totaled $535,000, and

apportioned liability 70% to Crane and 30% to the Union.

10. Following his October 8, 1992 termination,

plaintiff was next employed by Casey ile Auto Salvage in

July of 1993, where he remained employed at the time of trial,

earning approximately $9.00 per hour,

11. With Caseyville Auto Storage, plainutf works

in sales and does not employ skills similar to those he utilized

as a. Welder for Crane.

pe Plaintiff was very briefly employed by

American Steel Foundries, from August 11 through August

16, 1994, at an hourly wage rate of $10.89, which exceeded

his $10.39 hourly wage with Crane at the time of his

termination.

13. Plaintiff voluntarily terminated _his

employment with American Steel, walking off the job without

formal notice on August 16, 1994.

Apdx. B - 33

14. Had plamntutf remained employed = with

American Steel and completed the 45-day probationary

period, the applicable collective bargaining agreement

between American Steel and the United Steelworkers of

America would have provided plainuff with benefits

including medical insurance, vacations and pension which

were equal to or greater than the benefits he received during

his employment with Crane.

15. Although plaintiff testified that he quit his job

with American Steel based on his. dissatisfaction with and

concerns about working conditions including smoke, dust and

heat, plainuff also admitted that he sought no accommodation

or protective device, such as a mask which he was aware

some other employees wore.

16. Plaintiff made no complaints to his supervisors

or to regulatory authorities concerning the working conditions

which he claims prompted his voluntary termination.

17. Plaintiff's decision to quit his employment at

American Steel was not based on the advice of a physician.

18. Numerous other employees of American Stee!

were daily exposed to the same conditions which plaintiff

claims motivated his voluntary termination.

19, Since he began work at Caseyville Auto

salvage in July of 1993, plaintiff has made no attempts to find

different employment, other than his brief tenure with

American Steel, even during the period in October 1994

during which he was laid off from Caseyville Auto Salvage.

Apdx. B - 34

Conclusions of Law

Defendant Crane is an employer within the meaning

of the Missouri Human Rights Act and the Americans with

Disabilities Act. Defendant Union is a labor organization

within the meaning of both statutes. Under both statutes, the

equitable remedies of frontpay and reimstatement are Issues

for the Court's determination. The remedies are "alternative.

rather than cumulative,” and frontpay is generally considered

only where reinstatement is "inappropriate or infeasible."

Suggs v. ServiceMaster Education Food Management, 72

F.3d 1228, 1234 (6th Cir. 1996).

Plaintiff requests reinstatement, which Crane opposes.

The Union supports reinstatement as the preferred of the two

alternatives, and argues that if reinstatement is not ordered

due to Crane's opposition, that Crane alone should bear any

frontpay which is awarded to plainuff. Crane asserts, and

plaintiff concedes, that if plaintiff were reinstated to his

former position with Crane he would again be under the direct

supervision of Dennis Blake, whose charges of

insubordination led up to plaintiff's termination. Plainutf

further concedes in his proposed conclusions of law that his

reinstatement would "create a strong likelihood of tension and

animosity affecting the supervisory “authority.” Pitft.

Proposed Findings of Fact, p. 3.

Upon careful consideration, the Court finds that

reinstatement is not an appropriate remedy in this case. In

light of all the evidence, and particularly in view of the

Apdx. B - 35

| plainult and ot Dennis Blake, both tts

— , - ,

vi the attitiege the teeti 7 { ted n t} a1 rt

C U e altitude the testimony reftiected on the part ol

c we ryyvi7nya th > sth »y Thy am | iin? “Vy ly ong thy 17

\ Ls CULTICCIIIIIS LI OLIICL, LI Urt CONCIUGYS thal

ere exists 100 great a likelinood of continuing antagonism

lit, roh thar " Nrocdiuctive rit > .c hle y -L-servcy

» Lit Y SLL TL Cidecdl re | peat GUCUVeE ANG AMIMCADIC WOTAINY

ionship would be impossible EEOC vy. Prudential

a ’ ’ } —%

Cae ii Savi IVS « | oan \ Sn, Oo. } a) LOO | (10th

PN iiS Ss O& 1.0dt) LP

- ; - } = 1} .

LYSD), yuoted In Brooks \ W oodlhine * Motor Fr reigt ht t. Inc..,

5 a | } 1; ~ | : | "

S52 F.2d 1061, 1065 (Sth Cir. 1988)

Turning next to consideration of an award of fronipay,

following tactors have been identified as relevant:

(1) the employee's future in the position from

vhich [he] was terminated; (2) [his] work and

life expectancy; (3) [his] obligation to mitigate

his damages; (4) the = availability” of

comparable employment opportunities and the

time reasonably required to find substitute

employment; [and] (5) the discount tables to

determine the present value of future damages.

Suggs, 72 F 3d at 1234. Furthermore. "|d]etermination of

when to award front pay ts within the discretion of the trial

court, and such awards are reviewed under the abuse of

discretion standard.” Id. The Court concludes that a number

of relevant considerations counsel against the award of any

lrontpay

The plaintiff failed to adduce evidence on either of the

first two factors, concerning his job future at Crane and his

Apdx. B -

PAL MINE EE AOL TS SOE TN, OS

tiny SE

j

2

}

4

work and life expectancies. The trial record does not revea

plaintiff's age (although it is asserted in plaintiff's proposed

findings of fact and conclusions of law) and contains no

testimony or stipulation which might support a finding

concerning the number of years plaintiff will continue to

work. Neither does the record contain evidence concerning

plaintiffs job history, which might be relevant to a

conclusion as to plaintiff's expected tenure with Crane. The

insufficient evidentiary basis for a determination of front pay

is compounded by lack of any proof as to the present value of

plaintiff's claimed future damages. Plaintiff did not present

an expert to support a claim for frontpay, and has not used

discount tables, as indicated in the fifth factor above, to

determine present value. As the D.C. Circuit has noted:

The plaintiff bears the initial burden of

providing the district court "with the essent

data necessary to cal

certain front pay award

amount of the proposed

time the plaintiff expect m

defendant, and the app

Barbour v. Merrill, 48 F.3d 1270, 1279 (D.C. Cir. 1995),

quoting McKnight v. General Motors Corp., 973 F.2d 1366,

1372 (7th Cir. 1992). An award of frontpay cannot be

"unduly speculative." Dunlap-McCuller___v. _ Riese

Organization, 980 F.2d 153, 159 (2nd Cir. 1992) ; see also

Reneau v. Wayne Griffin & Sons, Inc.. 945 F.2d 869, 870

Apdx. B - 37

\ i ik :

yam ied it » O milieate

l bo OLOW TI 1] , i rau till rere .aas

IHNroo!l Lnoiainin | ooptar plo ! nt betwee

() Lone ‘ (pt)? tC] i ry { ; a iis liu] tp

employment with Casey \uto Sal and the Court, a

del I cl ele nt Se 2 ae lrontpa Ol

persuaded that plaintitt made good faith attempts during this

period to mitigate his damages by seeking other employment

[his conclusion 1s also relevant to the fourth factor listed

above

In addition, plamutf's decision to terminate his

employment with American Steel was not sufficiently

justified to warrant the imposition of froatpay liability on the

defendants so as to make plaintiff whole for the relatively

small differential in pay between his employment with Crane

and his continuing employment with Caseyville Auto

Salvage [he Court concludes, for the reasons stated in

Findings of Fact #12 through #18 above, that plaintiff's

reyecuion of the job opportunities with American Steel was so

abrupt and ill-considered as to be unreasonable for purposes

of mitigation of his trontpay damages. Furthermore, plaintiff

has otherwise remained in a slightly lower paying position

without any attempt to secure skilled employment of the

better-paying variety he obtained with both Crane and

\merican Steel. “Front pay may be denied or reduced when

the employee fails to mitigate damages." Reneau, 945 F.2d

\pdx. B- 38

> ) |

; + .

+s : r

= = -

| 3 ‘ | ‘

erences -_

Accordingly,

Il IS HEREBY ORDERED that defendant

Unidynamics Corporation's motion for amendment of jury

verdict | Doc. #146] and defendant District No. 9's motion to

reduce the verdict {[Doc. #147] are granted in part and denied

In part.

s

UNITEDSTATES DISTRICT JUDGE

Dated: _ 2/26/96

Apdx. B - 40

APPENDIX C

EXHIBITS AND INSTRUCTIONS

°

+)

a

a

ae

gy

&

tg

F<,

a

a

ba

7

=.

=

e

=

4

=

=:

a

:

*

s

Nf

pe

2.

.

es

-

a

aa

S

Poe

x

*

S

pa

October 9, 1992

Karl Roberts

402 Clarence

Collinsville, [linois 62234

Dear Mr. Roberts:

Your suspension of Tuesday, October 6, 1992, tor

insubordination has been changed to a termination effective

October 8, 1992. Enclosed ts your final check including all

accrued vacation pay.

Sincerely,

NATIONAL VENDORS

s/_ Kay Merz

Kay Merz

Human Resources Manager

Oe

Art Klopstein

Bob Soutier

Ron Wilson

L.C. Monehan

DATE: October 6, 1992

TO: FILE

FROM: Dennis Blake

SUBJECT: — Karl Roberts (Termination)

On October 5, 1992, as 1 passed through Karl Roberts’ work

area, I noticed an empty spool of wire lying on the floor. |

asked Karl if he knew anything about the empty spool, or how

it got there. He looked surprised, and then turned away and

sarcastically denied any knowledge of the spool. I told him

I thought it would be a good idea if he picked it up, and I left

the area. The next day as I passed through Karl 's work area,

| noticed the empty spool was still lying on the floor where it

had been the day before. | asked Karl .f he was going to pick

up the empty spool as | had asked him the day before. He did

not answer me. I told him | would make it an order if I had

to. He turned away and mumbled something. | could not

hear what he said. It was apparent to me that he was not

going to pick up the spool. | told him that it was now an

order; he should pick up the spool. Karl said, "No, I don't

like the way you said it.” and turned away and started

welding. | told him to stop, that | wanted to make sure that

he understood that I was living him a direct order to pick up

the spool. He said, "I heard you.” But he made no effort to

Apdx. C - 42

pick up the spool. He started to weld again.

| then left his area, returned to my desk, and called Kay Merz

in Human Resources. I explained to her what had just

happened; she agreed that it was blatant insubordination and

suggested suspension of the employee. | agreed and told her

| would inform Ron Wilson, | immediately went to see Ron

Wilson and explained the situation to him. I told Ron that |

had contacted Kay Merz. and I was going to suspend Karl

Roberts. He agreed, and we returned to the Weld

Department together. Along the way, we contacted L.C.

Monehan, the Chief Shop Steward. Ron and I told L.C. what

had transpired, and that Karl was to be suspended pending

further investigation.

When we arrived at Karl's work station, he was standing 1n

front waiting for us. Ron asked Kar! if he had been

instructed by his Supervisor to Dick up the empty wire spool.

Karl exploded and denied any knowledge of the spool. Ron

told Karl thet when he was given instructions by a Supervisor,

he was to follow those instructions. Karl shouted at Laos

“Can he do that, L.C.? Can he tell me do anything he wants?

Can he tell me to tell him what color underwear I have on?”

L.C. explained to Karl that he had to carry out the instructions

of his Supervisor.

Apdx. C - 43

INSTRUCTION NO. 14

In order for plainutf Karl Roberts to establish his

claim of intentional discrimination by defendant National

Vendors, he has the burden of proving the following essential

elements by a preponderance of the evidence:

One, that defendant National Vendors perceived

plaintiffas disabled by Graves’ Disease, HIV and/or AIDS, as

the term "disabled" 1s defined in these instructions;

Two, that defendant National Vendors intentionally

discriminated against pldintiff because of the perceived

disability, that is, that the perceived disability of plaintiff was

a motivating factor in defendant National Vendors’ decision

to terminate the plaintiff; and

Three, that as a direct result of defendant National

Vendors’ intentional discrimination, the plaintiff sustained

damages.

If any of the above elements has not been proven by

a preponderance of the evidence, your verdict must be for

defendant National Vendors.

Apdx. C - 44

INSTRUCTION NO. 15

In order for plaintiff Karl Roberts to establish his

claim of intentional discrimination by defendant District No.

9. he has the burden of proving the following essenual

elements by a preponderance of the evidence:

One, that defendant District No. 9 perceived plainuff

as disabled by Graves’ Disease, HIV and or AIDS, as the term

"disabled" is defined in these instructions:

Two, that defendant District No. 9 intentionally

discriminated against plaintiff because of the perceived

disability, that is, that the perceived disability of plaintiff was

a motivating factor in defendant District No. 9's

representation of the plainuff in the grievance proceedings

against National Vendors; and

Three, that as a direct result of defendant District No.

9's intentional discrimination, the plaintiff sustained damages.

If any of the above elements has not been proven by

a preponderance of the evidence, your verdict must be for

defendant District No. 9.

Apdx. C - 45

i Naphe eet ER eit e p Rick Ret ok cittin, WTR is A ASIA LE

Naps wa

hye

i RED ela nga A te dA RI de Sacred

Ly AC ape late Wana ahs 28 le

gee Moe CE

APPENDIX D

TRIAL TRANSCRIPT (PARTIAL)

(TR beginning at page ne 2)

lestimony of Karl Roberts (Plainuth)

() Now, I'm going to draw your attention to the veatr

1992. In the spring of that year did you become ill in any

AA al\ ,

\ Ye

(). Can you tell, first of all, the jury when, what time of

year you first became tl?

A. It was in May of "92 with rapid weight loss, eyes were

burning, they were burning so bad I had to wear sunglasses to

work, nervousness, that's about it

Q. Did it also cause diarrhea’?

\ Yes, severe.

Q. As to the diarrhea, approximately how may times a

day did you have to use the rest room”?

\. 20, 30.

Q And did you know at that time what it was you had?

\. No

*** (TR beginning at page 126 line 20) ***

Q). During the spring of 1992 then, could you tell the jury

who your supervisor was?

\ Dennis Blake.

O \nd what department was he the supervisor of?

\pdx 1) - 46

\.

Q.

Department 41, weld department

Was he the supervisor when. you first began with

Crane in |9S9”?

\

QO

\

Yes

Was he there throughout 1990”

Yes

199]?

\ CS

1992”

Yes.

All mght. Prior to the weight loss you suffered in

1992, what did you weigh in the beginning of that year?

Of 1989”

1992.

‘92, 100 -- at the beginning or end, I'm sorry.

Before the illness.

Betore the illness, 220, approximately.

Okay. And when you first reported to a physician, do

you recall what you weighed then?

>

Q.

160,

Okay. And what physician did vou go see?

Dr. Lynch.

Now, is there a reason why you go to see a physician?

| was so weak.

Did Dennis Blake specifically request you to see your

physician?

A.

Q.

Yes.

All nght. And did he ask you to inform him of what

Apdx. D - 47

Was Wrong with you?

A Yes, he did

(). Okay. When are you eventually diagnosed with

something”?

‘ I'd say June of '92

(). Okay. And do you intorm Mr. Blake of what it was

you'd been diagnosed with?

A. Yes.

Q. What did you tell him you were diagnosed with?

A. Graves’ disease.

Q. Did he have a response to that, a reaction?

A. Looked surprised.

Q. Briefly, could you tell the jury what is, to your

understanding, Graves’ disease?

A It's a hyperthyroid, | guess an overactive one, it's a

regulator of your body, the way I understand it. It regulates

all your organs and tells them what to do. Mine was

malfunctioning, overactive type, and making them all work

without stopping, | guess.

Q. So vou were first diagnosed in June of 1992”

A. Yes.

*** (TR beginning at page 129 line 21) **

Q. (BY MR. BAGSBY:) In June, shortly after June 1992,

do you move to the paint department?

A. ¥es.

Q. And when you moved to the paint department was

Apdx. D - 48

there special equipment you were required to wear?

\ Yes

() \nd was that plastic equipment. plastic gear?

\ { was respiratory, gloves, and a plastic overall suit

() Did you have nay difficulty in performing the

functions of the paint department?

\ Yes. | did.

O What specifically was wrong?

A Heat exhaustion, heart was beating fast. Just couldn't

handle the heat.

(). As a result of going through this experience with the

paint department, were you required to undergo any medical

care because of that?

*** (TR beginning at page 132 line 18) ***

Q. (BY MR. BAGSBY:) — Karl, going back to this

question. Were you required in any way to undergo any kind

of medical treatment as a result of your burn scars in the paint

department?

A. No.

Q. Up to this point in time, July of 1992, you're in the

paint department and you're taken out, correct?

A. Right,

Q. And then you go back to the weld department, right?

A Yes.

Q. What month do you go back to the weld department?

A. In July of "92.

Apdx. D - 49

of the month?

\ fowards the end

() Lp to this point in tin had you ever, since LO89. the

day You Were hired up to that noint. ever been written up ft

or cited for bemeg insubordinate

i. No.

) In any Way of a violation of a company rule?

\. None.

*** (TR beginning at page | 34 line 23) **"

2: (BY MR. BAGSBY:) Anytime during August or

September of 1992, does Dennis Blake make any derogatory

statements to you?

A. | don't know what derogatory 1s

Q. Demeaning or threatening to you

A He told me that I was a liability to the company

Q. Okay. Now, when did he say that to you”

A. He said that to me in July or August.

Q. Okay. Now, did he put that in any kind of context’

Did he say I'm talking about this or I'm talking about that’

A. After I got back from the paint department he just told

me that I was a liability to the company and suggested I find

another job.

Q. Is that the extent of the conversation?

A, Yes

Q. Was anybody else around’?

Apdx. D - 50

() Were vou alone?

\ Yes

() \\ here Were Vou ‘

\ | was at the gum and mint station by myself.

O I'm voing to draw your attention to September 30,

1992. Do you recall an incident regarding Mr. Blake

requesting to see a note that you had written?

\ Yes, | do.

QO Could you briefly explain to the jury what that

incident was?

A. Well, | was on my break, | was writing a note to one

of my friends and went over to Dennis's desk to use a piece of

scratch paper, which everybody uses for writing down

inquires for production and stuff, and I figured it was there for

everybody if they just needed it for any reason. | was writing

a note, like I said on my break to one of my fellow workers,

and went back to my work station and wrote it and didn't like

it so | went back to Dennis's desk and | got another piece of

scratch paper, wrote another one.

Q. Let me stop you there. Was anyone else sitting at the

desk of Dennis Blake?

A, Yes, Marvin Mullen was. He always takes his break

at Dennis's desk. I don't take my break at his desk but Marvin

Mullen always does.

Q. Listen to my questions. Is Marvin Mullen a co-worker

of yours?

A. Yes, he ss.

Apdx. D - 51

t.*)

(). Was he there the entire time that vou were on break

\ Yes

(), Do vou take breaks at the same ume?

\ Yes

O They end the same time’?

A. Yes

Q. And does Dennis Blake approach you at the desk?

A. Yes.

Q. And what does Dennis Blake request of you?

A. He just tells me that he wants to see the note I'm

writing and | told him no, | said it's private. He says, "I want

to see it" and I said, "No, it's private." We argued a little bit

longer and he just kept demanding to see it and | kept telling

him no. So | tried to get to my work station and on my way

back over there Dennis was right behind me, kind of

hounding me about it. When I made it to my work station he

demanded to see it again and | said no and then he gave me a

direct order. His direct order, "I want to see the note." I said,

"No, it's private and I don't think | have to show it to you."

Then he ee me another direct order, he wants to see it. |

said, "Let's see what L.C. Monithan's got to say about it."

*** (TR beginning at page 138 line |)

weld department?

A, He's in the paint department. I'm in the weld

department.

Q Does Mr. Blake summon Mr. Monthan?

=<

Apdx. D - 52

\ Yes.

(), What happens and what transpires once Mr. Monthan

arrives”?

\ Mr. Monthan arrives, he comes there and he says.

“What's going on?” Dennis says that Karl's retusing to show

me a note and he said it was wrote on company time. | said

it Wasn't wrote on company time. L.C. said, "Well, let me see

it’ and I showed it to L.C. tle said, "Just show it to him."

G. What did the note say”

\. It says, "Charlie, this 1s Catfish, are you mad at me?"

(). Is that the extent of the note?

A. Yes.

QO. Who's Catfish?

A Phat's me.

(). Charlie is who”

A A co-worker.

Q. What's his last name’?

7 Goodson.

Q. Did Mr. Blake then cite you tor being insubordinate?

A. No.

Q Did he give you a verbal reprimand?

\ No.

Q. Did he give you a written reprimand?

A No.

Q). Are you aware that he prepared a memo regarding that

incident?

A. No.

(). Did he tell you he was voiny lo do that’

)

\pdx. D- 53

relax. October Sth

\ lhe Sth, ['m son | ) ibinet

line on the Sth and I worked on tt all that day and then Denni

walked up and he said to me. “Is that ve pool?" and | sai

"No." He says, "Do you know who And | dl

"No." He goes, "Did you throw it ther | said, “Ne H

voes, "Well, pick itup.” I said, "Oka So | finished my di

there

© On the day of the 5th, does he point out where

spool is at?

\. No

() Does he tell you where th poo! it?

\ No

() lo vou have a co-worker with vou this da

** (TR beginning at page |42 line 21)

a Is there a company rule pertaining to clean-up ume al

the end of the day

\ Yes, there 1s

O What does the rulc iv, do you know?

\ | never did read it myself, but | seen people do |

betore. You're supposed to have five minutes at the end ot

the « le h up and cle our are

() Do vou recall eve enn spool! laying out in the

nen

\ () e Sth | didi rd | did know and [| didi

yrobab| oon as De s told me

0) we Ci yourself to m

question

\ Ka

O Did you see a spoo

\. No

Q Does this persist over to October 6th”?

A Yes. it does.

QO Vhat happens on October 6th?

\ October Oth, I start out on a small cabinet line at the

beginning of the day and I finished my eight hours there. Ten

minutes before then Dennis comes by and asks me if | want

Ve |

to work overtime on the big line. And I said, "Yeah, I'll work

overtime.”

QO Let me stop you there. Is that two separate lines’

\ Yes, they are.

2) So he's moving you from one place to another?

\ Yes

63 Go ahead

\ So he asked me to work overtime and I told him |

would. So when my day was ended at the small line, at 15

after three, | moved over to the big cabinet line and they were

running a tough cabinet. Me and Woolsey sat around there

for a while until the cabinets started coming down for us.

> by { } ' ' 1 \ } . !

VY TICTL Lilt 11d COTTA ) caret ) Vm

| } ,

rir | \ ’ t tr Ww ;

WHI 1 i Call) t ‘ | ) \ ree i 1 \ i

{

} ry) ’ 5 | i? i ’ ‘ 1 )

i . iwi pied i i

ThE ) L ~. ' te ' rtil

, , | ?) ’ ’ ;

( ‘ | ‘ale | rid]

; ry \ ’ | \ ? ) iT) '

> ‘ ‘

fyih

\IDp | 4% ‘ ; 7

VII LINIHAN mn )

t \ 1 1

Honor | question V Nd Vir. i

THE COURT: Let's limit it to what he said

YQ (BY MR. BAGSBY:) Did Mr. Blake ask you about

POO

4

\ Yes

() What was vour respon

\ He asked me how come vou didnt pick up Spool!

that spool

S Pn micetoums , [2 is,

(TR beginning at page |4 e |)

or is your spool, what do vou say?

{ el. ¢}. ‘ } . » 4 1) ni

Y When he approaches you on the 6th, what are you and

Woolsey doing at the tims

\ We're working

A. No.

Q. Did Mr. Blake frequently push a policy of production

first?

A. Absolutely, rule number one.

(). And you were behind?

A. Yes.

Q. When he approaches you and asks you about the spoo!

on the Oth, are you welding ai the time?

\. Ye.

Q. ls Woolsey right next to you?

A. Yes.

*** (TR beginning at page 146 line 1) ***

Q. (BY MR BAGSBY:) How close is Woolsey?

A. Two or three feet.

Q. What else transpires after he mentions the spool?

A. After he mentions the spool? | just -- this is on the

oth, right?

Q. The Oth.

A. He comes up to me and says, "I thought I told you to

pick up the spool." [| said, "You didn't tell me to pick up the

spool." He says, "Pick it up, that's an order." 1 told him, "I

really don't appreciate the way you said that." And then he

said, "Well, pick it up, that's an order.” And I said, "Okay"

and | started welding.

Q. Let me stop you there. Does he leave then?

A. Yes.

Apdx. D - 57

iS

Q. Had he at any time told you to stop your production

and pick this spool up?

A, No.

Q. Did he point out where the spool was on the 6th?

A, No.

Q. Did he tell you where the spool was on the 6th?

A. No.

Q. And he specifically did not say stop now?

A. No.

Q. Had you ever been given a request from 1989 up to

1992 to stop production and pick up a spool?

A. Never.

Q. What happens after he leaves?

A. After he leaves | start welding.

Q. Okay.

A. I'm welding and ten minutes pass by it seems like and

I'm a pretty good welder anyway, so a break comes up in the

line and | ask Woolsey, "Have you seen that spool that Dennis

is talking about?" And Woolsey says, "No." | said, "Well.

let's see if we can find that." I scanned the area, couldn't find

it, and I looked down the rows. Where | was at ain't that big

anyway, but there are 100 gun boxes. these four by four boxes

everywhere, and | looked down aisles, between gun boxes, on

top of them, in them, Woolsey looked. Neither one of us

could find it anywhere. So at that point I assumed either

Dennis picked it up himself or had somebody else do it. From

there | was walking back and by the time I made it to my weld

sation Ron Wilson, L.C. Monihan. and Dennis Blake were

Apdx. D - 58

already at my work station.

*** (TR beginning at page 148 line 1)

refusing a direct order from your supervisor by not picking up

a spool. | told him that | couldn't find the spool. I said,

"Where ts it at, Dennis?” He says, "That's good enough. You

are suspended pending further inv estigation.” From that

point, since all this stuff happened to me in a week, | was

thinking --

MR. LINIHAN: | object to the witness testifying about

his speculation.

THE COURT: Okay. Rephrase the question.

Q. (BY MR. BAGSBY:) Did you make any response

back to either Mr. Wilson or Mr. Monihan once you found out

you were suspended?

A. | told Ron Wilson, is who | was talking to, I said,

"Ron, what am | supposed to do, show this guy the color

underwear | got on if he asks me." I said, "He gives me two

different orders. He says always keep production moving and

he says then to pick up a piece of trash." | said, "I have to

make a decision mght there which one I feel is more

important, the piece of trash or production. And Dennis's

number one rule is production and | was following that order

first. When I got a break in line" -- well, then he didn't want

to hear no more of the story. Just told me to shut up pending

further investigation and from that point there he suspended

me and we walked to the bathroom to get my personal

Apdx. D - 59

belongings, me, L.C. and Ron Wilson did

(Q). You were hired on as a welder: 1s that right?

\ Yeah, a spot weldet

QO That's what you got paid to do for at least three vears,

eight hours a day ts to weld. right

\. Yes

Q). You didn't get paid to pick up trasa. did you”

A. No

©. And there is a five minute break at the end of the day

to pick up trash?

A. Yes.

Q. What transpires in the bathroom when you and Mr.

Monihan go back there?

A. Me. Ron Wilson, Dennis Blake. and L.C. walked to

the bathroom and Ron Wilson and Dennis stopped at the

bathroom. me and L.C. walk in the bathroom to my locker to

get my personal belongings. | said to L.C., 1 said, "What's

’

going to happen to me over this?” He said, "You'll get

suspended.” I said, "I don't think I deserve it. I tried to tind

it, | can't find the spool that he's talking about." I said, "What

should I do?" He said, "Go file a grievance nght now." |

said. "Where?" And he said. “At the Union hall."

Q. Did you then go down to the Union hall?

A Yes. immediately.

*** (TR beginning at page 157 line 3) ***

Q. And again, who ts Mr. Soutier’

Apdx. D - 60

A. [he business representauve.

Q. What was your understanding of why you even had to

contact Mr. Soutier?

\. lo take care of my suspension.

*** (TR beginning at page 157 line 21)

Q. (BY MR. BAGSBY:) What was the business

representative going to do for you?

A. To straighten out the problem that | had, which was

the suspension, and I guess to get my overtime that I lost at

that particular time is what I was wanting him to do.

Q. You tried to contact Mr. Soutier?

A. Yes.

Q. How did you try to contact Mr. Soutier?

A. By phone.

Q. How many times did you try to contact Mr. Soutier?

A. Eight to ten.

Q. Did you leave messages with his secretary?

A. Every time.

Q. Did he ever call you back?

A. No.

Q. Did you ever reach him before the date of your

grievance hearing?

A. ¥es.

QO Was this by phone’

A. Yes.

Q. What happens when you speak to him on the phone?

Apdx. D - 61

\. Just tell Bob basically what was on my grievance and

told him in great detail what had happened and I asked him

what would happen to me over this and he said I would get

suspension as well. And [| told him again that | don't think

that | deserve suspension

Q. Okay. Does he at that time say look, I'll let you know

when the grievance hearing Is coming up?

A. No.

*** (TR beginning at page 160 line 11)

Q. (MR. BAGSBY:) Now, were you aware that there was

going to be grievance hearing at some point?

A. Yes.

Q. You knew that event was sometime going to happen?

A. Yes.

Q. Did anyone ever tell you when that was going to

happen?

A. No.

Q. How did you find out about it?

A. Through a co-worker.

Q. Okay. When did you find out about it?

A. The night before my grievance.

Q. And at that -- it was not Mr. Monthan that contacted

you?

A. No, sIr.

<

*** (TR beginning at page | 62 line 25) ***

Apdx. D - 62

Q. What happens when Mr. Soutier arrives?

A. He comes in, I guess | waved at him, he waves to me.

I'm sitting ai the table with coffee and he sits by me but at the

next table. Him and L.C. engage in a conversation about

somebody that owes Union dues. | get a break 1n there and |

tell Mr. Souter, "What are we going to do here?” And he

says, "I'll handle it in a minute.” Then they talk for three or

four more minutes and | seen another break and I said, "You

know, what are we going to do at my hearing here?” I[ said,

"James Woolsey's a witness," | said, "We need to call him

up.” He goes, "We'll take care of it when we get 1n there,

Karl", is what he said. | said, "Okay."

*** (TR beginning at page 164 line 11) ***

Q. All night. Does Woolsey's nate come up in the

conversation?

A. Yes, it does.

Q. When you lay out the events?

A. | told him that Woolsey was a witness.

Q. Does Mr. Soutier at any time during that hearing

before it ends say let's hold on and let's get Woolsey up here?

A. No, he hasn't even got a pen with him.

MR. HAMMOND: It's not responsive to the question,

Your Honor.

Q. (BY MR BAGSBY:) Does he ever request that

Woolsey come up?

A. No.

Apdx. D - 63

Q. Does Mr. Barutio ask for Woolsey to come up”

A. No

Q. Does Mr. Monthan ask for Mr. Woolsey to come up”

A. No.

Q. How far way is Mr. Woolsey trom where this meeting

is happening’?

A. Walking, I'd say two, three minutes.

*** (TR beginning at page 165 line 20) ***

Q. What's discussed when you're in the room alone then?

A. As soon as they leave Soutier turns around to me and

says what the F --

Q. Tell them exactly what he said, what exactly did he

say?

A. He said, "What the fuck are you trying to do?" And |

told him, "What do you mean?" He said, "Just come up with

this bullshit story that you didn't know where it was and you

tried to find it but you couldn't find it." | said, "That's what

happened.” He said, "Do you want your job back?” | said,

"Yeah, I want my job back." He said, "Tell them this, tell

them you're sorry for what you did, it was your fault, and

please give me my job back." Then I told Mr. Soutier that if

he doesn't help me, I'll find ways to get help after this hearing

is over. He just told me, "That's fine, I'm just trying to tell

you how to get your job back." And then he told me that he

appreciates my response.

Q. Is that the extent of the conversation

Apdx. D - 64

\. Phat was it and yeah, that was 1

Q. And did the company officials come back in?

3 Thirty seconds late:

o 3 All of them?

\. All of them?

Q. What happens when they come back in?

A. [hey say does anybody have any further comments

and | told them I did. They said go ahead, and that was

Barutio that said that. And | said, "I'd like to tell you gust that

I'm sorry for any inconvenience that | caused because you

misread my grievance form in the original form." And I said,

but I explained a great deal that I was sorry that they

misunderstood it.

*** (TR beginning at page 202 line 24) ***

Q. (BY MR. BAGSBY:) Karl, let's go back to your intent

to contact someone within District 9 about the status of your

grievance hearing.

A. Yes.

Q. You had written a letter; 1s that correct?

A. Yes.

Q. Regarding what is the status; is that correct?

A. Yes, sir.

Q. Now, you have in tront of you Plaintiff's Exhibit 10;

Is that nght?

A. Yes, sir.

Q. Is there a one page letter in there addressed to

Apdx. D - 65

\ a

\ \

\ ] at | : ~.

() \ irc \ir. B

() te id p (

addressed ( \I 3 UJ . Ih

\ \ oo

{) \ di | lirst Wa < tne \ oO Nit Jauwell

tos

y t | | 1

A. He's the President of the International Association o!

Machinists. Mr. Soutier's boss

| 1 , . ;

Q And ts that the letter that vou wrote to Mr. Bagwell?

A. Yes.

TRANSCRIPT VOLUME 3

oe KK ( | R beginning al pave 47 line 12) ay

festimony of Karl Roberts (Plainuff)

O As a matter of fact. you testified on Direct

Examination that when you were having this problem with

Graves’ disease you Were having to use the rest room 20 to 30

times a day?

A. Yes, SI.

Q. And you make no contention in this lawsuit that the

company prevented you from exercising the privilege of going

to the bathroom 20 or 30 times?

A. Yes, he did. Dennis Blake did question it.

Q. Did you ever testify to that fact during the course of

your deposition in October of 1994?

*** (TR beginning at page 50 line 1) **”

Q. As | understand it, sir, your inability to work 1n the

paint department had nothing to do with your Graves'

condition; 1s that mght?

A. | thought it was my burns but when I| think about it |

think it was my Graves’ because I worked in those plastic

suites before. As a matter of fact, for six years | used to wear

the same type of suits and they never bothered me. | think it

was because my heart was beating so fast and It was wearing

me out fast.

Apdx D- 67

AK (TR beginning at page O4 line Z)

(Q). What ts the basis, Mr. Roberts, the tacts that you have

to support your claim that National Vendors perceived you as

HIV positive?

A. Phe liability, the expression on his tace when | told

him that I had bad blood, the time he sent me home when my

eyes were burning and | was on the verge of a heart attack.

skin and bones. He wanted to know what was wrong with

me. I let him know right away. And the general talk of the

weld shop rupors do get to supervisors about what people

have and National Vendors and Patrick Brown was one of the

biggest gossipers 1n there.

Apdx. D - 08

eK

(TR beginning at page 102 line 6) ***

Q. During the course of that day, sir, during the regular

workday, at any time did you do what your supervisor told

you and throw away a spool’?

A. | wasn't in that work area in the morning hours, sir.

Q. | didn't ask you that. I'm asking you did you do what

your supervisor told you --

A. I'm_not allowed to leave my work area to go over

there. But to be quite frank, | forgot anyway.

*** (TR beginning at page 147 line 18) ***

Q. Now, when you start your job on October 6th, did you

start that morning's eight hour shift in the same place you

were October Sth?

A. No

Q. And Dennis Blake asks you to work overtime; ts that

night?

A, Yes, he did.

Q. And did you find it peculiar that he put you back into

this same position, the same work station you were the day

before?

MR. LINIHAN: Objection, Your Honor. I object to

his state of mind about peculiarity. Besides, it's irrelevant.

MR. HAMMOND: I would object on that ground,

Your Honor, plus it was earlier asserted that this does seem to

Apdx. D - 69

Nese

very much pattern the Direct Examination. | believe al

questions have been asked earlier

THE COURT: Well, | think a number of these

questions came up during the Cross-Examination. — I'll

overrule the objection.

Q. (BY MR. BAGSBY:) Did you find it peculiar that vou

got moved to the exact same station that vou were at the day

before?

\. Yes

(). Was there a welder at that station on October Oth for

the eight hour shift before you got there’

A Yes. There was Jeff Cutler that was welding on that

line before I got there and right where | was welding. And

what Dennis should have done is he was on that line and he

should have stayed right there where | got put. And he was

moved to another job.

Apdx D - 70

*** (TR beginning at page 152 line 22) ***

Testimony of Gary Inness (co-worker)

Q. Sir. would you tell the jury your full name, please?

A. Gary Michael Inness.

Q. Mr. Inness, where are you employed?

A. Crane National Vendors.

Q. How long have you been employed there?

A. 25 years.

*** (TR beginning at page 154 line 4) ***

Q. Could you describe to the jury what physical changes

you saw?

A. He lost a great deal of weight, his cyes kind of bulged,

his clothes didn't fit him properly at all. | kind of thought he

was going to die. | didn't know what was wrong with him.

*** (TR beginning at page !56 line 1) ***

anything he says regarding the note incident will be hearsay.

THE COURT: He can testify as to what he has

observed but there needs to be some foundation laid for the

question.

Q. (BY MR. BAGSBY:) Have you ever observed in your

23 years a supervisor demanding to see a note or anything that

an employee has written on his break time?

Apdx. D - 7]

A. No.

Q. Have you ever heard of that’?

A. No.

MR. BEGIAN: Objection, Your Honor, as to what he

may or may not have heard.

THE COURT: I'll sustain that objection.

Q. (BY MR. BAGSBY:) Are you familiar with any plant

rule that entitles a supervisor to see notes written on break

time?

A. No.

Q. Anything in the Collective Bargaining Agreement?

A. Not that I know of, not that I'm aware of.

Q. Is there a company rule to pick up trash at the end of

the day?

A. Yes. there is. You're allowed five minutes from the

last five minutes of the day to clean up your area.

Q. Did you find, under the circumstances, that to be a

peculiar o1uer to pick up that spool, to stop production?

MR. BEGIAN: Objection, Your Honor. It's a

mischaracterization and his conclusion as to the priority of the

order.

THE COURT: I'm going to sustain the objection.

Q. (BY MR. BAGSBY:) Are you aware, sir, of any

incident as long as you've been employed at Crane where

either you or a co-worker have been asked to stop production

Apdx. D - 72

j

'

now iede

|

bes

Not to my k

)

priority

XX

*** (TR beginning at page 199 line 18)

lestrmony ot John Ray (co-worker)

Q. Was L.C. Monihan in close proximity to Patrick

Brown when the statement was made

A. Yes

4 } ” 1} 7 1 } } 1.1] }

Q. Do you recall specitically what Kar! looked like in his

last year?

\ He had | t lat trayveroht he ] we ad le he] ked

€ Nad 1OSt 4 1Ov OF Welent, he lOOKed Pale, Ne loOoKeC

sick.

,1°

; i 4

*** (TR beginning at page 213 line 3)

Q. Mr. Ray, my name is Cary Hammond and I represent

District 9. Mr. Ray, | want to direct your attention to the

second of the remarks that you attribute to Patrick Brown.

And I believe it's your testimony that L.C. Monihan was

present when the second remark was made?

A. Yes.

Q. Who else was present?

A. Let's see

Q. Do you remember?

\. Honestly, I just remember ihe three of us or four; Karl,

Patrick Brown, L.C. Monthan, and myself in the immediate

work area.

~

i - } tesall —_ = ee Re ae "

QO. And Mr. Monthan was actually working at the time.

)

wasn't he

Apdx. D - 74

All of us were.

Did you ever talk to Mr. Monthan about that incident?

No.

So you don't know for sure that he heard it, do you?

R75 lasshan onbees ts el a a su°> he heard it

He laughed pretty nird, ves, | KHnOW he Nea;©ra it

*** (TR beginning at page 217 line 17)

festimony of Ken Garner (co-worker)

Q. (BY MR. BAGSBY:) Mr. Garner, I'm going to repeat

the question. Have you seen on television a person who in

real life had the AIDS virus’

A. Yes. I have. probably the most famous was Rock

Hudson.

Q. Was the physical appearance of Karl Roberts in 1992

consistent with that appearance?

A. Yes, it was. You could tell the apparent weight loss

and gaunty looking and he looked sickly like Rock Hudson.

Q. Okay. Let me ask you this: Do you know a co-worker

in the weld department by the name of Patrick Brown”?

A. Yes, I do.

Q. Did Patrick Brown ever make a statement to you that

Karl Roberts had the AIDS virus’

A. Patrick come up to me one day at my work station and

said I think Karl is sick, | think he might have AIDS.

Q. When he said that, was he joking to you”?

A. No, he had a serious look on his face, he was not

joking, he was not laughing.

Apdx. D - 76

*** (TR beginning at page 235 LINE 6) ***

lestumony of James Woolsey (co-worker)

Q. Specifically, in that year do vou recall Karl Roberts’

< ;

physical appearance changing In any Way”?

A. Yes.

Q. Could you describe to the jury what the physical

change was?

A. Face drawn in, lost weight, eyes kind of bugged out,

you know, kind of like a goggled-eye fish, kind of bugged out.

*** (TR beginning at page 236 line 8) ***

Q. Okay. Now, I'm going to draw your attention to

October 5th, 1992 when a Dennis Blake requests Karl to pick

up a spool; do you recall that?

A. Uh-huh.

Q. You recall the spool incident?

A. Yes.

Q. Were you there both days?

A. Yes.

Q. On the first day, could you tell me what Karl was

doing when Dennis Blake approaches him and_ starts

commenting on the spool?

A The first day?

Q. Yes. Could you stay forward though because I think

we're going to lose you on the mic.

Apdx. D - 77

NE SOC GE A aS

A. Okay. He asked the man to pick the spool up and |

believe he said, I didn't throw it there.

Q. Okay.

A. And I believe Dennis said, well, why don't we pick it

up anyway, or something to that effect and we were working

| know, and let's see, then Dennis left.

Q. Okay. Do you specifically recall Dennis Blake ever

making any statement on that first day. this is a direct order.

pick up the spool?

A. The first day?

Q. Yes.

A. No, I sure don't.

Q. Did you hear Mr. Blake state where the spool was

located that first day?

A. Don't remember, no.

Q. Did you see him point to where the spool was located

the first day?

A. No.

Q. Now, do you have a five minute departmental clean-

up at the end of each day?

A. Exactly.

Q. What's that for?

A. It's to clean up your department and your personal self.

Q. And basically to pick up trash?

A. Trash, clean and sweep up around your work area, and

personal hygiene, your hands or your face, whatever.

Apdx. D - 78

Q. Okay. Now after he left, did you and Karl attempt to

find this spool]?

A. | attempted to find 1t so I could throw it away so it

would be no problem and he could keep welding and maybe

| could try to work in finding the spool to throw it away while

in between setting up fixtures.

O You were doing that so Karl could keep working?

A Right, so there wouldn't be no problems, nobody

vetting into any trouble.

Q. When you looked for the spool, do you recall where

you looked for the spool?

A. All over down there on that side where it was

supposed to be at.

Q. Had a spool been laid out in the open floor, do you

think you would have seen it?

A. Yeah, I think so, around the work area anyway.

Q. Did you locate any spools laying in the open?

A. Yeah, eventually did, ves.

Q. Was it in the open?

MR. BEGIAN: Objection, Your Honor, asked and

answered.

THE COURT: I'll overrule the objection.

O (BY MR. BAGSBY:) Was the spool you located in

the open?

A, No

Apdx. D - 79

Q. Where was the spool?

A. It was and it wasn't. There was a four poster and there

was some steel parts across It that Were being used on the line

and when they used enough parts, tll they got down to that

part, then you could see the spool because the thing became

empty.

*#*e* (TR beginning al page 241 line 1)

Q. Does Karl stop and does he look with you?

A. I' don't remember him -- yeah, he did stop but that was

just right, it was all bang, bang, bang, right as they were

coming over.

Q. Was he just getting caught up?

A. | can't remember 1f we had gotten caught up or not.

Q. Okay.

A. | don't think we had gotten caught up because it was

a short period of time.

Q. Do you specifically recall Karl looking for the spool?

A. | remember him coming off the platform, yeah, and |

showed hii. where the spool was at. I said it's night there and

just as we stepped back up on the platform here everybody

was coming.

Q. Was there any time. at that point when you say

everybody was coming --

A, I see Ronnie Wilson and I see L.C. and I see my boss,

you know, and | wanted to run over and get It but I'm thinking

somebody is going to think | did this on purpose if I go over

Apdx. D - 80

and get this thing, somebody 1s going to think I'm doing

something funny.

*** (TR beginning at page 243 line 12) **

Q. Do you get docked in the weld department for not

making what's called a rate’

A. You don't get docked but they would write you up.

*** (TR beginning at page 244 line 17) ***

Q. (BY MR. BAGSBY:) Were you able to witness

whether or not Karl was able to completely explain what was

going on?

A. Yes.

Q. Was Karl able tc completely e.plain what was

happening?

A. No.

Q. After Karl is escorted from the Crane property, were

you ever approached by L.C. Monihan tor the purpose of

giving statement about the events of October 5th and October

6th?

A. No.

Q. Were you ever approached by Mr. Barutio -- I'm sorry,

Robert Soutier from the Union about giving a statement to the

events on October 5th and October 6th’

A. No.

Q. Did Ewin Barutio come down and talk to you about

Apdx. D- 81

EES ea Oe oS TR A

the event

he events on October Stl

ctober Sth and October Oth?

\ No

\pdx 1) $2

)

*** (TR beyinning at page 206 line 22)

om ere

Festimony of Marvin Mullen (co-worker)

O (BY MR. BAGSBY:) Do you know where the spool!

was found?

\. Yes, it Was under a skid or a four poster.

Q Phat particular spool, do you recall seeing that spool

there over a yiven period of time?

A. Yes, | did.

Q. Could you tell the jury approximately how long that

spool had been laying near that area?

A. I'd say approximately two weeks.

QO. All right. Was there a number of co-workers or

welders that worked at the station during that two week

period?

A. | worked there, Karl worked there, | think there was

one more worked in there, in the same area.

Q. How about, do you know o: anybody named Jeff

Cutler?

A. Yes

Q. Was he a welder?

A. He's a welder.

Q. Did you -- you know, I take it, about the demand to

pick up this spool; ts that right?

A. Yes

Q. You've been there how long again?

A. 31 years.

Apdx. D - 83

6) In reflection of these 3] years, did vou find it peculiar

that Dennis Blake had given a direct order to Karl Roberts to

pick up that spool ”

A, Yes. | did.

2) Why ‘

A. Because it had been laving there too lony and too mar

of us work by it

’

*** (TR beginning at page 268 line 19)

Q. (BY MR. BAGSBY:) Have you ever in your 3] years

had such a request that was made of Karl Roberts to stop your

production?

A. No.

*** (TR beginning at page 276 line 11)

Q. Mr. Mullen, you had stated to Mr. Begian you have no

evidence or no facts that the company perceived Karl to be

HIV positive?

™ Phat’s correct.

Q). However, you do believe that the incident over the

spool was a setup, didn't you?

\ Yes. SIT,

\pdx [) -S4

TRANSCRIPT VOLUME 4

*** (TR beginning at page 12 line 4) ***

lestumony of Edward Lynch. M.D. (Plainuff's physician)

Q. And, sir, could you tell the jury what are the classic

sings of Graves' Disease?

A. The classic signs are diffuse generalized enlargement

of your thyroid or goiter along with weight loss, tremor, fast

heart rate or palpations, history of diarrhea, history of itching.

Sometimes the patients will have eyes that are bulging and

that's a classic sign of Graves’ Disease or hyperthyroidism.

*** (TR beginning at page 16 line 17) ***

Q. Dr. Lynch, going back to Graves' Disease itself, what

causes that?

A. Graves’ Disease cause is unknown. It's a

hyperfunctioning of the thyroid gland that occurs in many. It's

a fairly common disease that we see.

Q. Is it a treatable disease?

A. It's a very treatable disease.

Q. If it's not treated, what can happen with the disease?

"*

Well, your thyroid is overactive. Your heart rate !s

speeding up. You're losing weight.

MR. BEGIAN: He's again offering expert testimony

In this issue.

THE COURT: The objection ts overruled.

Apdx. D - 85

Q. It left untreated what would happen specifically in

Karl Robert's case based upon what you observed?

A. Well, he would have kept on losing Weight. If

symptoms would have kept getting worse. He would have

been more tired and run down. He would have dev eloped

other complications such as the eye disease that can lead to

blindness. If he had nay kind of heart disease which he may

have had or may have because he was a smoker, that could

lead to a heart attack, if your thyroid is overactive for any

length of time. His was caught at a fairly early stage.

Q. Following up, though, if left untreated, it could cause

death?

A. It could cause death, yes.

Apdx. D - 86

<=

(TR beginning at page 46 line 1) **

lestimon, Ol \W es Kelle (CO worker)

() Do vou recall who vour supervisor was tn 1992”

\ G;eorve Herman

) Is there a position known as a group leader 1n the paint

department?

\ Yes, Ves, there 1s

(). And did you see what the group leader would do as tar

as his duties?

A. He would take orders from the supervisor, George

Herman. He would relay them to the painters, kind of like an

assistant and relay that order to us and tell us what to do.

Q. All nght. In the year 1992, did the group leader at that

time ever warn you about a physical --

MR. BEGIAN: Objection, Your Honor, leading the

Witness

THE COURT: I'll sustain the objection.

Q. Who was the group leader in 192”

A. Mike Branscum.

QO And did Mr. Branscum ever make a statement to vou

that Karl Roberts may have --

MR. BEGIAN: Objection, Your Honor, he's leading

the witness

Q. Are you aware of any statements in the year 1992

regarding Karl Roberts having the Aids virus?

MR. BEGIAN: Objection, Your Honor.

\pdx. D - 87

THE COURT: Okay. Let's just answer the question.

THE WITNESS: Yes

(). Who made the statement to you?

A. Mike Branscum.

(). Where did he make the statement to you at?

A. In the paint shop.

Q. Was the tone of his statement serious or jokingly?

A. It was serious.

Q. Could you tell the jury to the best of your recollection

what was his statement he told you?

A. On a particular day Karl Roberts and I were painting

on the pain‘ line. Karl was using by fresh air hood. It's a

hood you put over your head so you won't breathe paint fumes

and et cetera, and I was using a respirator which is a mask that

you put on your face. I got relieved. Somebody relieved me

for my break and I went to Mike Branscum who was turning

cabinets, sanding them in the middle of the aisle, and | asked

Mike if he had another helmet that | could make up another

fresh air hood because Karl was using mine because he didn't

have one. | asked him that because --

MR. BEGIAN: I'm going to object. This is not

responsive to the question.

THE COURT: Let's put it in question and answer

form.

O Were you explaining to them how the statement

comes out?

A.” Right, i'm explaining how it came about.

Q. And 1s this right betore the statement?

Apdx. D - 88

A Right betore the statement.

Q. Could you go ahead and tell the jury how the

statement comes out”

\. Okay. | told Mike I needed a helmet because | didn't

want to be using a helmet with anybody else because tt

spreads germs and people sneeze and they cough in them, et

cetera, and Mike made a statement to me saying you better

not MIX your respirator up with Karl's because he could have

Aids and then he paused or something

Q. Did you see Karl Roberts in the vear 1992 when he

Was in the paint department?

\. Yes, | did.

Q. Did you see him on a daily basis’

A. Yes.

Q. Did he appear ill to you at ail?

A Yes, very ill.

Q Could you describe to the jury what the physical

symptoms Were, signs that you saw?

A. He was extremely skinny like a person would be if

they Were anorexic.

MR. BEGIAN: Objection, Your Honor, as to th

>

C

analogy

THE COURT: Just describe his physical character.

THE WITNESS: He was very skinny. His tace was

sunken into -- like really skinny. He had no build on his face.

His eyes were sunken in and dark. He just looked really sick

like a real sick person | guess

Apdx D - 89

\

|

~CU

’

:

alii’

. +

. an.

f tf

) x

) VU

}

r

~

~~

~

jee 4

7

,

¢ “

. )

= ‘ ‘ uv

n = —

3 3

. | ‘

4 = .

te J

/ Y 4

+ Vv UV ad

Cc h- \ “

4

wl 1) , ,

(TR beginning at page 84 line 7)

festumony ot L.C. Monehan (chief shop steward)

(). Sir, in the 26 years or 28 years, I'm sorry, that you've

been at Crane, can you think of one incident, one, where an

. ] —— re _ tle . | . m')

employee Was Tired OVer a single act ot insubordination

*** (TR beginning at page $4 line 16)

QO Sir, can you think of one?

A. No.

*** (TR beginning at page 87 line 18) ***

QO Sir, do you recall when | asked you what you recalled

his physical description to be in your deposition?

\. Yes

QO Do you recall what your answer was?

\. | think what | told you that what | had seen on a

person that would been ill in the effect of HIV virus that it

was someone real skinny and dried up like you see on TV.

Q. In the 32 years that you've been emploved at Crane,

had you ever up to that point heard of an incident where a

supervisor demanded to see something that an employee had

written on his break time’?

\ No, SIT.

Apdx. D - 9]

*** (TR beginning at page 94 line 8) *

Q. Okay. Did you meet Karl Roberts on the day of his

step three grievance hearing in the lunch room?

A. Yes, sir.

Q. Do you recall overhearing Mr. Roberts tell Mr. Soutier

that he wants Mr. Woolsey there?

A. No, sir, I didn't.

Q. Sir, do you recall from your deposition, page 73, do

you recall the following question being asked to you, "You

said before in response to one of Mr. Perkin's questions" and

that was the attorney from the union, "that Karl did make a

request to Bob Soutier of witnesses where they were

discussing witnesses and Karl is the one who brought that

subject up; is tat correct?" And your answer, "Yes, sir."

A. Yes, sir, did say that, yes, sir.

*** (TR beginning at page 96 line 2) ***

Q. You certainly had the opportunity to talk to and take

a statement trom Mr. Woolsey, didn't you?

A. | would have if he would have come forward, yes, sir.

Q. If who would have come forward’?

A. Mr. Woolsey. See he never mentioned no witness or

he told me that nobody said anything that they had seen

anything.

Q. So you specifically let me ask this. Did you ask Mr.

Woolsey if he saw anything”

Apdx. D - 92

\ No, SIT.

QO Did you ask Gary Inness if he saw anything?

\ The only thing | asked Mr. --

O Sir, did you ask Mr. Inness if he was anything?

MR. HAMMOND: I'd like to have the witness have

the opportunity to answer the question, Your Honor.

MR. BAGSBY: He's being non-responsive.

THE COURT: Yes, all mght. Sir, try to answer the

question directly and the other attorneys will have an

opportunity to expand upon the answer to the question.

THE WITNESS: No, sir.

Q. Did you speak to Mr. Mullen?

A. | don't recall the name.

Q. In the 32 years that you've been there, are you aware

of any incident where an employee was fired for a single act

of insubordination?

MR. HAMMOND: Object to the form of the question.

MR. BEGIAN: And It assumes tacts not in evidence

In this case.

THE COURT: He can answer if he knows.

THE WITNESS: No, sir

Apdx D-93

*** (TR beginning at page 110 line 2) ***

festimony of Robert Soutier (Business Representative)

Q). Did you advise Mr. Monehan ahead of time before the

yrievance hearing to cover the witnesses if there are anv?

A. No, sir.

Q. Did you yourself go out and investigate in the plant or

speak to any witnesses regarding Karl Robert specific

A

hearing it could be tremendously helpful to have someone

vrievance?

No, sir.

Would you agree, sir, that in a step three grievance

corroborate a grievance?

A. It could be helpful.

Q. You did not speak at all by phone, by letter or

correspondence to Mr. Roberts before the grievance hearing,

did you?

A. [ can't be certain of that. I believe I did.

Q. All nght. At any time did you advise Mr. Roberts that

he needs to schedule an appointment so we can discuss the

grievance?

A. With me personally?

Q. Yes.

A. No, sir, I did not.

Q. All mght. Did vou have Mr. Monehan make any such

arrangement?

A. No, sir, I did not.

Apdx. D - 94

he had already been

(). And you were aware that

terminated; ts that right?

\ Yes

O So the step three grievance hearing that 1s now going

to happen ts essentially your last chance, 1s that nght, that vou

can get involved in?

\ No

Q \side trom arbitration?

\. Aside from arbrtration, that's correct.

O [That's going to be a much more complex, costly

experience, isn't it?

A. Yes.

Q And the purpose of the step three grievance hearing 1s

to avoid the chance of a avoiding an arbitration, isn't it, to see

if We can get it resolved at that level?

A Certainly if you can resolve it at the third step there

would be no need tor arbitration.

Q. Even before you get to the third step, there's a step

one, step two chance as to resolve it: isn't it correct, in

discharge cases, In any case?

\ In any case you can have a step one or two, yes, sir.

Q. Now, as a business representative, does the grievant

have to present his grievance through you? Does he have to

rely on you”

\ Yes, si

O He's not entitled to go through a step three grievance

hearing by himself, 1s he?

\ No. he's not.

\pdx. D - 95

Q). He has to have the assistance of a business

x

representative?

A, That's correct.

Q. And basically you've got a duty to represent him?

A. Absolutely.

Q. And a part of that duty, the union made sure that you

would have access under the labor agreement to company

grounds to search for witnesses any time: isn't that correct?

A. | don't believe I've ever been denied access.

Q. You understand your labor agreement makes very

specific assurance that you're entitled to get on company

grounds and inspect those company grounds and talk to

witnesses?

A.

This text is long and has been trimmed here. Open the source document for the complete record.