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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1998
- **Citation:** 523 U.S. 1106

## Text

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. 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

> ) |
; + .
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= = -
| 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

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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?

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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.

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’

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

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(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. | believe it does.

Q. Do you believe it does or it does”

A. I'm certain that it does.

Q. Do you recall meeting Mr. Roberts in the lunch room

prior to his step three grievance hearing”?

A. Yes, I do.

Q. Do you recall Mr. Roberts telling you that he would
like Mr. V. Volsey up there?

A. No, | don't.

Q. Never heard that?
A. Never heard that.
Q Do you recall Karl Roberts giving his account of the

events in the grievance hearing itself’?
A. Yes, I do.

Q. At that time, do you recall the names of coworkers

Apdx. D - 96

coming up’?
\ No, Sir

) Did you ask Mr. Roberts when he gives his accounts,

were there any bystanders to observe this or hear the
statements of Dennis Blake?
\ No, sul

O Do you have the opportunity 1f you get to a step three

vrievance hearing in a grievance laying out his account of the

events to stop the proceedings and go summon witnesses?

aN | believe | would have that right, ves, sir.
Q. Now, you've called witnesses in step three hearings

before, haven't you?

A. I'm certain I have.
Q. And you did not tor Mr. Roberts?
\. Did not tor Mr. Roberts.

Apdx. D - 97

of ok OK (TR beginning al pave 129 line S)

lestimony of Dennis Blake (Piaintiff'’s supervisor)

(). Sir, did you hear the question that | asked” Did vou
know what Graves’ Disease was”

A, No, sir,

Q. Did you ever ask Karl to supply you with any
document at all as to what Graves’ Disease was?

A. No, sir.

Q. In fact, you never saw any Verification whatsoever that
Karl actually had Graves' Disease. did you?

A. Not to my knowledge, no.

*** (TR beginning at page 130 line 1) ***

Q. Did you notice a sunken face at all?

A. No.

Q. Any protruding eves?

A. Like I said before, he had something wrong with his

eyes. [ thought it might be pink eye and | told him if it was

bothering him to go to the doctor.

Q. Did you notice bulging eves, sir’

A, No, sir,

(). And you saw Karl Roberts on a daily basis

A. Yes, sir,

Q. And you noticed none of those symptoms that I just
described.

Apdx. D - 98

\ No, sir

*** (TR beginning at page 131 line 6) ***

QO Did vou tell anyone that you were going to put that in
the file of Karl Roberts?

\ | don't recall.

QO Does it reflect that a cc copy was given to Karl

Roberts?

\ No, 1t doesn't.

Q. How about the chief shop steward, L.C. Monehan?
A. No, it doesn't.

Q. You're aware that at that point it went into the file, and

if a copy had bee cc'd, Karl Roberts would have had the

opportunity to grieve what you had filed?

\ | never thought of it betore.
Q. You didn't think of that at all?
\. No, sir.

*** (TR beginning at page 133 line 9) **?

Q. Do you recall citing Karl Roberts in any way for
insubordination on October Sth?
\ No.
QO. Was he insubordinate to you on October 5th?
) A. No, he was not.

Apdx. D - 99

Testimony of Edwin Barutio (V.P. Human Resources)

Q. Looking at Plaintiff's Exhibit Number 22. does that
appear to be the interrogatory which requested to list the
employees that were discharged over a five-year period?
A. Yes.
Q. And last year going backwards is the same year that
Karl Roberts was discharged; is that right?
A. Yes.
Q. In support of that, there was a request of production of
documents for you to provide listing the reasons why
employees were discharged; is that right?
A. Yes.

MR. BAGSBY: Your Honor, may I approach the
witness?

THE COURT: Yes.
Q. Now, you have in front of you Plaintiff's Exhibit 24.
Does that appear to be the documents that were provided
under the production of documents request of employees who
were discharged?
A. lt appears to be, yes.
Q. And you had given a deposition in this case: is that
right?
A. Yes.
Q. And we had gone through and you were asked to

respond to the question of listing the reason why each one

Apdx. D - 100

Vas discharged: 1S that I
1}, »f -y
\ meres’ SLUVUILTLEA
\) Wo vou recall tron di WiLnOU Ope»:hliv We Wont
\ ‘hry \ , sry\ ry TS . trovry ’ ? tere 1, ‘
VL \ ik \ ict » LilipriWeVOCS 4 i » > LEK QUID Al
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ys if , > > . "
Exhibit Number 244A, Mr. Alexander
\ ()k t\
r ' hia : ~} ' ;
VU at was the reason Vir Was discharged
1}. ‘i 1) ] 4 * . | ’ . >»
\ That was a Miss Alexander and it was absenteeism
' , , ,4aAD , , -
, ' , | | , ) > ? | ,
UO OkKa\ \\ ould VOU LOOK al 24B dna could VOU tell US
, ‘ .
WhO Lal IS
’ Plan!
\ Vir. Blanks
\\"} " . . r . . 1")
O What was the reason he was discharged
\ bkle didn't vaetala \\ th the wen lau tT)
rie GUN t COMIPLY \ ‘ Ne iCave ADSeNee Clause i
,
Ine contract
() 4 ‘Ould YI WYTO that emplo -oand hous that
- ao ~LOULU V¢ ss &.% \ Lhe CLLapPikP VOU cblika W 14 IS Utbebl
’ 12 »
\ Vir. Bowens
' ' " r) 1, l or . .
O What was the reason Mr. Bowens was discharged
\ | really don't \ In mv letter. We just sav the
i tLahil ALVPit t mre | i i y Leet L LADt ly Lit
suspension Was Changed to a termination iwou d assume tl
. . sar re t)
Was INSUDOTUINAUON
() Phere hy vold he y Narrative ren yr?
“é i LitY SEIWPUIAL \. «al al ail - wR?
Dhore 3 > rrorry » " rr f row hy reyrarnw.on
\ rNere IS a NAMTauUvVe repo; [oO SUDO LALIT

yyv-aF Fd FDA > byabyit sarc —T .
ain Phan aaaiy CANTO, USt CITCiIeC ENR!

A Robert Carroll, that was production interference

Q. [he next employee’

A. Christenson.

O And the reason he was fired?

A He was fired under the attendance control program.
absenteeism.

Q. Okay

\. And Mr. Colyer would be next

QO Is that Plaintiff's 241

A. 24F

Q. And the reason he was discharged”

A Excessive absenteeism

Q. Go ahead Plaintiff's 24G

A. R. Cook would be next, absenteeism also. Mr. Criles

is production interference. Mr. Davis reported for work in an
unsafe condition. Mr. Dobbs, possession of an alcoholic
beverage on company property. Mr. Domijan, falsification of
public : cords. Mr. gray, submitted a false doctor's statement.
Mr. Hays, excessive absenteeism. Mr. Irving, production
interference. Mr. Mahone, attendance. Mr. Mahoney, this
Says attendance record ts attached so I have to assume that is
attendance also. Mr. Malone excessive absenteeism. Mr.
McFadden, is production interference. Mr. Nathan, violation
of the substance abuse policy. Mr. Petran, reporting to work
in an unsafe condition. Mr. Power. attendance contro!
program. Mr. Rance, altercation with another employee. Mr.

Shea, the status noted is checked poor under attendance. |

would assume that's under attendance. Mr. Slack.

talsitication of company records. Mr. Vasser, attendance
control program. Mr. Willhams, excessive absenteeism and
Vir. Wells, excessive absentecism

O Okay. Looking at Pluintitf’s Exhibit Number 12 then
and responding to the question of how many employees Were
discharged for their stated purpose being insubordination,

how many names up there do vou see that retlect that?

\ \pparently one

* > Wheeoiny © oe 141 hne
** (TR beginning at page 151 line 1)

QO You also produced again the records that pertain to
these acts of insubordination; ts that mght?
\. Yes

MR. BAGSBY: Your Honor, may | approach the
witness’

THE COURT: Yes

O You have in front of vou Plainutt’s Exhibit

~

oI

23: 1s that
. *)
correct

\ Yes

O And could vou look through that stack and does that
appear to be tn tact the documents that you produced?

\ Yes. They appear to be the documents that were
produced

O Okay. Could you go to Plainuff’s -- what's in tront of
vou would be 23B Clarence Bowens”

\ ll nght.

O Okay. Do you see a document in front of you that ts

dated February 29th,
document dated April 21st, 1988?
\ Yes

O \nd does that document reflect that Clarence Bow ens

. “stars 4 >} pie TR vachiy , ry} '?
Was cited for Plant Rule IS which is Insubordination

QO Does the narrative reflect that Mr. Bowens was using
abusive language towards his supervisor

\ Yes

Q. \nd does that document reflect that his discipline was

simply receiving a written reprimand?

A. Yes, it does.

Q. And that's on April 21st, 1988?

A. Yes.

Q. Could you turn to the next page and do you see a

narrative report dated April 19, 1988?

\. Yes

Q Could you go to the bottom of paragraph two where
the sentence that begins, "Clarence said fuck a reprimand.”
| repeated myself and he said. "Fuck a reprimand and vou
too,” does ' say that?

A. Yes.

O ls that a document that was submitted by Dennis-
Blake?

A. Yes, it is

O Going back to the front page, is that a document. the

Written reprimand was that issued by Dennis Blake?

\ Dennis signed the reprimand, yes

Q. Could you go to the third document of Clarence
Bowens which ts of poor quality but in the right-hand corner
vou should see a received stamp that's dated August 17, 1988?
A. Yes

Q. And Dennis Blake, do you see Ins signature at the
bottom”?

A. Yes.

Q. And trom what you can read of this, ts 1ta violation of
plant rule and appears to be number tour?

A Yes.

Q. lhe document itself, can you read anything else on it
as far as the narrative text of 1t?

A. It looks like on Friday, August the 12th employee
worked four hours and then it gets blurred and something for
the four-hour period was eight units short of a standard.

Q. Okay. Now, let's go to the document nght behind that
one and does that appear to be a narrative report?

A. Yes.

Q. And 1s it dated August 19, 1988?
. aes C
Q. Coula you go to what ts the third and fourth line

sentence that begins, "Gary indicated,” do you see that?

A. Yes.

QO Does that document reflect, "It says Gary indicated
Clarence said | wish | had vou in the back alley because you're
not so tough. Dennis replied he is not going to argue with
Clarence.” Does it later on reflect that this ts a -- in the

second paragraph he was given a layoff for insubordination 1n

Apdkx. D LOS

the next paragraph?

A, Chat's what the memo says, yes.

Q. And it's a two-day disciplinary day off?

A. Yes.

Q. Would you agree that the gist of it is that he offered to

take the supervisor out in the back alley to beat him up?

A. It could be interpreted that way, ves.

Q. [hat one is dated August 19, 1988?

A. Yes.

Q. Could you go to the next document. Do you see one

that's dated August 23rd, 1988?

A. ¥es.

Q. And does that document reflect that Mr. Bowens was
cited for violation of plant rule 18 insubordination?

A. Yes.

Q. Does that reflect that he was given a two-day

disciplinary layoff?

A. Yes.

Q. Could you go to the next document. It should be
dated October 19, 1988”

A. Yes.

Q. And does that document reflect that he's given another

reprimand to what appears to be violation of Plant Rule 27

production?

A. Yes.

Q. And his punishment was a written reprimand?

A. That's correct.

Q. Could you go to the next document and by the way

Apdx. D - 106

these have all been on Clarence Bowens, haven't they?

A. Yes.

Q. Phe next document appear to be dated February 21st,
1990; 1s that right?

\. Yes.

Q. And he ts being cited for needless waste of company
time; is that right?

A. That's correct.

Q. And does it appear that his punishment was a verbal
reprimand?

A. ¥es.

Q. Let's go to the next document as dated February 23rd,
1990. Does that document appear to reflect that Mr. Bowens
is being cited for violation of plant rule 18 insubordination

and plant rule threatening a supervisor?

A. Yes.
Q. And this is down in the text that he threatens to kill
Mr. Blake?
A. | wouldn't interpret it that he threatened to kill Mr.

Blake. He said he later approached the supervisor and made
reference to a former supervisor who met a violent death and
stated in part the same thing could happen to you. That

particular supervisor committed suicide | believe.

Q. You don't take this to be a threat of death though?
A. It wasn't a direct threat of death to the supervisor or

we would have handled it differently. [I remember the
incident.

Q. And 1s this a reprimand that's issued by Dennis Blake?

Apdx. D - 107

A, Yes.
Q. And his punishment was a two-day disciplinary

layoff?

A. That's correct.

Q. Could you go to the next document that's dated May
15, 1990?

A. Yes.

Q. And | tell you what, to refresh your recollection this is

a vague memo. Could you read that to yourself briefly?

A. All right.
Q. Does that appear that he just in the narrative -- do you

interpret that to be that he just walked off his work station?
A. Yes.

Q. And that's on May 15, 1990?
A. That's correct.
Q. Did he receive a reprimand or anything out of that

incident?
A, On.
Q. Could you turn to the next document dated December

6, 1990. Just take a second to review that.

A. Ai right.
Q. Does that appear to be an incident of insubordination

Wherein Mr. Bowens again tells Dennis Blake | think the
phrase here is I'm giving you this, is Clarence speaking. "I'm
giving you a direct order. Get out of my mother fucking

face,” and then he continues to curse at Dennis?

A. That's correct.
Q. And he got suspended over that. That's November 6,

Apdx. [)- 108

1990; 1s that correct
\ Yes
O And then there appears to be a document it should be

last one there dated November 8, 1990 and says he's
terminated”?

\ [hat is correct

QO I'm not going to go through each one of these, sir, but
would you agree that there are employees in here who have
been written up one, two, three, or four times and never been

discharged tor insubordination?

\ Yes

\pdx [> - LOY

PRANSCRIPT VOLUME 5
*** (TR beginning at page 76 line 11)

lestimony of Dennis Blake (Plaintiff's supervisor)

O \nd again on the September 30th memo, you don't
give Karl Roberts a copy then, do you?
A No, SIF,

(). He doesn't even know that you prepared that and put

that in his file, does he?
A, No, sir
Q. Had he received a copy of it, he would have had an

opportunity to file a grievance against it, wouldn't he?

A. He could file a grievance anytime he wants.
Q. How is he going to file a grievance if he doesn't even

know that you are doing it?
MR. BEGIAN: Objection, Your Honor It's
argumentative.

THE COURT: I'll overrule the objection

Q. (BY MR. BAGSBY:) How is he supposed to know?
A. | don't know

Q). He's not going to know, is he?

A. Probably not.

Q). Chere is no way to know? Isn't that why vou don't

want to give him a copy so he can't agerieve it?
A The thought never entered my mind. It's my

documentation of what happened that day

Apdx. D - 110

*** (TR beginning at page 7S line I 2

() When vou go over to try to seize the note trom Karl,
is he on a break’

\ | don't recall. [ don't think so, no

O Do vou know any rule that would entitle you to see a

note that he writes on his break time’?

A, No. SIT

Apdx D- 11]

TRANSCRIPT VOLUME 6

*** (TR beginning at page 5 line 1) ***

lestimony of Edwin Barutio ( V. P. Human Resources)

(). Would you review again, sir, how long you have been
employed by Crane National Vendors and what your position
is with Crane National Vendors?

A. | was employed with another division of National
Vendors in 1962 in August. Presently my position is vice
president of Human Resources and I've held that position
since approximately 1969,

Q. And would you describe briefly for the jury exactly
what does National Vendors manufacture?

A. National Vendors manufactures vending machines,
primarily food vending machines. We also do some contract
manufacturing for the Postal Service. We manufacture coin
mechanisms and build elevators.

*** (TR beginning at page 22 line 2) ***

Q. Now, as | understand it there was a third-step meeting

conducted with respect to the Karl Roberts’ grievance.

correct?

A. That is correct.
Q. All right. What happened, sir, with respect to steps

one and two?

A. We agreed, or I agreed with L.C. Monehan that we

Apdx. D- 112

would DYypass steps one and two and rel e vrievance

directly to the third step

Q \s long as we're on the subject, have you ever heard
rumors of any employee at National Vendors being HIV

positive or having AIDS”

\ Yes.

QO Have vou ever heard a rumor that Mr. Roberts was
either HIV positive or had AIDS”

A No

(TR beginning at page 63 line 18) ***

QO Mr. Baruio, you've told the jury that you've heard
rumors about an employee that is now, | take it, working for
Crane; is that night, that has the AIDS virus?

\ Yes.

QO So, are you telling the jury that there are rumors that
occur out on the plant floor. that reach vou as vice president
of Human Resources Department?

\ Yes.

xx x

(TR beginning at page 73 line 6) *

Q [hank you, sir, you've answered the question. You

have in front of you Plaintiff's Exhibit 23. That would be the

Apdx. D-113

yellow document. And again, let's go back to incidents that
occur within a given window of time. That was a major
factor in your mind; is that right?

A. Yes.

Q. Let's go to Mr. McFadden, Plaintiff's Exhibit 23A. Do
you have a document in tront of you that's dated February 29.

1988?

A, Yes.

Q. And that's regarding Mr. McFadden?

A. Yes.

Q. And it's violation of shop rule 18°

A. That's correct.

Q. And on this occasion, Mr. McFadden used abusive

language towards his supervisor and then ordered the
supervisor out of his work area. Do you see that?

A. Yes.

Q. And the disciplinary action given for this occurrence
Was a written reprimand; is that right?

A. That's correct.

Q. And when you say "written reprimand," you're not
even talking about a two-day suspension or disciplinary
layoff, are you? You're just talking about, here's your
punishment, it's a written reprimand?

A. Yes.

Q. Is there a document right behind that reflecting that
four days earlier on February 25th 1988, Mr. McFadden was
again insubordinate and this was prior to the incident we just

talked about?

Apdx. D - 114

| 5 T } } | } | k
" tore wot ¢ yTit +9
Does it retlect from Dennis Blake. that Dennis Blake
] { 7. ' — ' ; }
cells M Vick addet ( ework some cabdinets LT .
y yitiT ) +2 } 5 } 1 + +} . ‘ , 4 i \ S ‘ PIGIAKL Ral SLi t Le t v
' hy ;
itt i. Sti v bSLS
\ Yes
, t? , ’
() \ Mi Nel CTe Goes apped ve AN yUNnIsShAMe iI
'
} ‘ . ; - wes lis ‘ }
W umSoevel WCAUSL ) Cren CVeCl i J Va

\ No, it was just documented

O (And those two incidents occurred within a four-day
period of time; is that nght?

\ Phat is correct

QO And would you agree those were challenges to Dennis
Blake's authority, refusing to do what he told him and

ordering him to get out of his work area

QO \nd the worst he got was a written reprimand?
\ [hat 1s what we 1ssued at the time, yes
Q Could you turn to 23D, Mr. Large? Do you have a

- 1 ' ; : >
document tn front of vou that's dated March 22, 1989”
\ Yes
O And it's violations of plant rule number 18.

insubordination, and plant rule 4, needless wast of company

time; 1s that mght?

\ Yes

O Now, this one 1s dated March -- the event occurs on
March 20th, 1989: 1s that mght

Apdx. D - 115

t } tj \ ? } if \ wrk .
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a

*** (TR beginning at page 76 line 23)

O Here you list two incidents from the year prior and the
punishment was a verbal reprimand, a written reprimand and
then in the following year he gets a two-day disciplinary
layoff. That seems to contradict what you said, doesn't it?
\. Well. I believe that the date of this reprimand that was
issued, even though the date of the occurrence was the 20th,
reprimand was issued the 22nd. Those reprimands were stll
in effect. They were not in effect on the date of the
occurrence granted.

Q. Well, sir, by looking at this document, aren't you
taking into account what happens in the year earlier?

A. Well, this happened on April 29th of 1988, as far as
the insubordination is concerned. This incident occurred on
March 20th, 198°.

Q. Well, by listing the other two incidents on this
document, the 1989 event, the 1989 insubordination, it looks
like you are grading up, doesn't it, as far as punishment goes,
and are you taking into account prior incidents?

A. Yes, we are.

Q. Okay. Let's go at the 23G, D. Gray. | believe the first
document is going to be dated June 3rd, 1988; is that correct?
A. Yes.

O And this is not an insubordination. This is production
interference and conduct towards fellow workers; 1s that
night?

A. Yes.

Apdx. D - 117

1

2) \lso a violation of company rules?
\. Yes
Q. \nd on this incident on June 3rd. 988. it appears that

Mr. Gray was spitting on co-workers?

~

A. That's what it indicates, yes
O \nd for that he was given a verbal reprimand?
\ He actually was not spitting on co-workers. He was

spitting on the equipment that the co-workers used.

Q. Okay. He was given a verbal reprimand for this: is
that mght?

A. Yes.

Q. And these were for events that occurred May 27th.
1988; 1s that right?

A. Yes.

Q. And then could you turn to the next page, document
dated June 14, 1988, and that appears to be a reprimand for
careless workmanship?

A. Yes.

Q. And on this occasion he gets a written reprimand: is
that right?

A. Yes, different issue.

Q. Okay. Go to the next document. Does there appear to
be a document dated June 6th, '88?

A. Yes.

Q. And that one reflects careless workmanship?
\. Phat's correct.
Q. And for that he gets a verbal reprimand?

\ Yes

\pdx. D- 118

) led xweentd trirn ft j siren? ted Auvgu per. va |
() { ould you turn to a document dated UYUST ~nd,

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SS i » ) Mel v NpPiover Cpr ihe
\ All right
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\ All LiSiit
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() And that appears le ~ ad Teprimanad Of Careiess
\\ yy} wmvancnin FONT) 1 Try ot ry +?
WUELALIII ib? edhlichili, iS thiell CUPLTOCL
.
\ Yes
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“" (TR beginning at page 87 line 3)
festumony of Edwin Barutio (V. P. Human Resources)
O Violation of plant rule 18, insubordination
\ Yes
Q \nd tor this June 26th incident, Mr, Power receive
a written reprimand, just the document itself?
\ Yes
©) \nd does it reflect the prior incident of disciplinary

. ‘
2 davs Defore

action taken |
\ Yes
Q. \nd is that for insubordination’

A. Yes

Q. \nd for that first insubordination. Mr. Power received

a verbal reprimand?

\ [That's correct

QO Okay. So, there are two incidents 12 davs apart,
correct

A Yeah

Q. Let's go to 23N, K. Tucker. Should have a document

dated Decciuiber Ss. LOX9

A Yes

, ‘
iob that he was assigned to

tbae

\ Phat's nght.

A Yes

QO And prior to that on April 10th, the month betore, he
Was written up for conduct towards fellow workers; 1s that
correc

A. Yes.

’ “Ar } ha . _ ie }
O And tor that he was given a two-day discl

~

plinary

? ~ oy ‘)
iavolt, too

- That's correct
es + ~~ } So ~~ > ' | 2 ‘ e
O Let's xO to 23U, Plaintiff's 25U. That would be Mr.

~

. } an “el ‘ * yr? > t , } . > ; ; . . ,
Mahone. Is the first document vou have dated August 22,
TORR”?

\ Yes.

ft thant + ict servant sote mech smi att .
© And Ldadt JUST SLTIDIN LIstS TMSuo Ginaton
\ Yes

R Ns
() An } thor i ) sii day IC SLI « ma tb bh chR RPI CLI ’

'
(WO Other days: 1s that correct
ry ’
\ i nat S COTTeC
| : 1] ‘ 1 ape |
() ()} al ( OUuId VOL ry O the ] cumentl denind nat
1 a = ERASE SF - foe 1
which 1s dated August [4 MSS. a WERK earirel Voes that
appear tO De a document that is sMmpivy a memo for
rt I
' j ¢
nr } - try otis
InsuDOTaINalr t
\ Yes.
{ ) ()| 1 \ T) ,.cry ft rt > CF ~+1 " t ‘ ly = renrim * | ee
id Na\ MOesSht even refiect a Verbal CVIilitidhGd, GOCS
it’?
bh
\ .. . : “ft 1 , yor -— - {+}
\ Well, that subject is suspension of Lester Mahone
() Do \ I rar 1] 1% thing bh ,tT tl _me lis ¢*)
” U VOU TeCall anvining d Out the Incident

A. No, | don't.
Q. Could you go down into the middle of the par graph.
the third paragraph? There is a quote there that says Mahone

Ad | ’ | 7 | ’
said, "that's tne way the paragraph begins

A Yes

' ' ' i ;
tio? \ ; tf Th r | rao } sry ft aed trey ft
Q Is Lois W nal (nat GOc Lil ent oa VS i don ‘ need VUU LO)
+] | Gand
> me 424r years ~ ma mop my1it THA rrr neSrtiyww.: ce tr x
come Over here aSaxAINng Me adout MIL OL LLIMWPLEICTIULALILY UadVsS

17

| ~ hy > | Cc >
Just told nim, Lester.

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~Lreency ii hf {Pp , NHiem Viah sn 164 rer Tne *i if
ASAING if YOu Nave a prodviem Q@iiULIC sald, SOL Lie [TUCK OUT
= » =
mv nr >t} erty) “king fare 1on't have to do a fiirkinge thing \ }
my motnertuc} tiie Lat, UU aye WW UN a TULATIIC LITT VOU
tall r > 7 , r,t t ’ ' scoN if
( And that appears t S INnSUDOTAa illO Goesn t |
\ Yes
() An { 1AtT LA ~rIrr ; vo > > b> v rect IIAnA
% U at VELULICU c VOCA = ~ Llc SUES LAI)
i\vo1ment
WW uil il
iP 2 [AN hi eile \ eh eee
: ) \ ? Talat, |,
VIR EGIAN: Objection. ir Honor, that's a
And, rT) ,7x
\ \ -_ —_

.

mischaracterization of the exhibit. The prior document trom
which he read was the very date August 15, 16, and 17, which

the second memo documents.

Q. The document that | just read from, is it dated August
15, 1988”

A. Yes, 10 is.

Q. The document n front of that, 1s it dated August 5.8 8S
1988” |

A. Yes. but it also says disciplinary layoff for the

remainder of the shift on August the 15th, 16th, and 17.

Q. Okay. But he’s not terminated over this, is he?

A. No, he's not.

Q. Would you agree that that challenges supervisor
authority”

A. You.

Q. Could you go to 23V, T. Little’ And do you have a

document dated September 14, 1988?

A. Yes.

Q. And this is where Mr. Little apparently punched the
supervisor?

A. Apparently.

Q. Could you go to a document directly behind that, and
that's dated June 26, 1991”

A. ¥es.

Q. And is that a ‘ ‘olation of plant rule 18,
insubordination?

A. Yes.

Q. And for that he received a two-day disciplinary layott:

Apdx. D - 123

is that correct?
A. Well, he received the remainder of the day off on June
25th and the entre day on June 26th. | can't say whether that

was two full days or not.

Q. But he wasn't fired as a result of it. was he?
A. No.
Q. Let's go back up to L. Jennings, 23C. And that

document itself is very difficult to see, isn't it?
A. Yes.

Q. Can you read the date up there in the left corner, April
29th, ‘88?
A. Yes.

THE COURT: What's the number on this one?

MR. BAGSBY: This is 23C, L. Jennings.
Q. (By Mr. Bagsby) And this 1s a verbal reprimand for
insubordination; 1s that correct?
A. Yes.
Q. Okay. Now, let's go down to 23E, K. Barnett. I'm
sorry, looking at Mr. Jennings's there real quickly. Is that the

only document in there?

A, Yes

Q. Okay. Now moving down to Barnett. Does that
appear to be a document dated May 27, ‘88?

A. I'm sorry, Where did you go?

Q. Upper left corner --

A. What exhibit are we talking about?

Q. 23E., K. Barnett. Do you see a document dated May

27, ‘88?

Apdx. D - 124

A, Yes.

Q. And does that appear to be the only document
provided tn there?

A. Yes.

Q. And that's a verbal reprimand for insubordination; ts

that correct?

A. Yes.

Q. That's the only ineident?

A. Phat's the only one in this document.

Q. For Mr. Barnett, okay. Let's go to H. Wild, the

following, that would be 23F. And do you see a document

dated June 3rd, 1988”?

A, Yes.

Q. And that's for insubordination?

A. Yes.

Q. And for this the employee received a_ verbal
reprimand; ts that correct?

A. Yes.

Q. Is that the only document under H. Wild?

A. 1c.

Q. Let's go down to 23H, J. Hayes. Do you see a

document dated January 11, 1989”
\ Yes.
@) And does this appear to be a document that's a verbal

reprimand for insubordination?

A Yes
@) Okay. Is that the only document contained in this file?
A. Yeah.

Apdx. D - 125

Q. Let's go down to 230, J. Brown. Do you see only one
document under J. Brown?

A. Yes.

Q. Does the document that's in there appear to be a verbal

reprimand for insubordination”?

A. Yes.

Q. And again that's the only incident: is that correct?

A. Yes.

Q. Let's go down to 23Q. K. Meyers. Does there appear

to be only one document in that file?
A. Yes.
Q. And is that a document that's a verbal reprimand for

violation of rule 18, insubordination?

A, Yes.
Q. Okay. Let's go to 23R, C. Hatcher. And is that a

Written reprimand for violation of rule 18, insubordination?
A. Yes.

Q. Is that the only document in that file?
A. Yes, it

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_2304%3A1. Public record. Not legal advice.