Nuts & Bolts of HWE Cases (1)

Nuts & Bolts of Hostile Work Environment Cases NELA/NY Fall 2023 Conference

Friedman & Houlding Llp

Comparison of key elements of hostile work environment claims under federal, NYC and 2 the new NYSHRL law: Friedman: Outline of Discussion of Federal State and City Hostile Work Environment 9 Law.

Comparison of key elements of hostile work environment claims under federal, NYC and 2 the new NYSHRL law: Cases Orders, Motions and Declarations 18.

Comparison of key elements of hostile work environment claims under federal, NYC and 2 the new NYSHRL law: Beckner-Rendano: Order on Motion to Dismiss 19.

Comparison of key elements of hostile work environment claims under federal, NYC and 2 the new NYSHRL law: Sellars Order re Motion for Decertification 31.

Comparison of key elements of hostile work environment claims under federal, NYC and 2 the new NYSHRL law: Aviles - Order Denying MTD Class Allegations 63.

Comparison of key elements of hostile work environment claims under federal, NYC and 2 the new NYSHRL law: Aviles - Class Settlement Prelim Approval 76.

Comparison of key elements of hostile work environment claims under federal, NYC and 2 the new NYSHRL law: Miramontes v. Peraton, Inc., 2023 U.S. Dist. LEXIS 98024 86.

Comparison of key elements of hostile work environment claims under federal, NYC and 2 the new NYSHRL law: MOL - Motion to proceed under pseudonym 94.

Comparison of key elements of hostile work environment claims under federal, NYC and 2 the new NYSHRL law: Motion for Leave to File Complaint Pseudonymously 108.

Comparison of key elements of hostile work environment claims under federal, NYC and 2 the new NYSHRL law: Declaration in support of motion to file pseudonymously 112.

Comparison of key elements of hostile work environment claims under federal, NYC and 2 the new NYSHRL law: Staples - Plaintiff's Filing re 42 USC 1981 vs Title VII 114.

Comparison of key elements of hostile work environment claims under federal, NYC and 2 the new NYSHRL law: Declaration of Witness 120.

Comparison of key elements of hostile work environment claims under federal, NYC and 2 the new NYSHRL law: Declaration Witness 122.

Comparison of key elements of hostile work environment claims under federal, NYC and 2 the new NYSHRL law: Common Diagnoses in Hostile Work Environment Cases 124.

Comparison of key elements of hostile work environment claims under federal, NYC and 2 the new NYSHRL law: Difficult Diagnoses 145.

Comparison of key elements of hostile work environment claims under federal, NYC and 2 the new NYSHRL law: Prognosis 165.

Comparison of key elements of hostile work environment claims under federal, NYC and 2 the new NYSHRL law: Examination of Dr. Goldstein 175.

Table of Contents the new NYSHRL law Law

Comparison of key elements of hostile work environment claims under federal, NYC and the new NYSHRL law. §296(1)(h): 1. It shall be an unlawful discriminatory practice: (h) For an employer, licensing agency, employment agency or labor organization to subject any individual to harassment because of an individual's age, race, creed, color, national origin, citizenship or immigration status, sexual orientation, gender identity or expression, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, status as a victim of domestic violence, or because the individual has opposed any practices forbidden under this article or because the individual has filed a complaint, testified or assisted in any proceeding under this article, regardless of whether such harassment would be considered severe or pervasive under precedent applied to harassment claims. Such harassment is an unlawful discriminatory practice when it subjects an individual to inferior terms, conditions or privileges of employment because of the individual's membership in one or more of these protected categories. The fact that such individual did not make a complaint about the harassment to such employer, licensing agency, employment agency or labor organization shall not be determinative of whether such employer, licensing agency, employment agency or labor organization shall be liable. Nothing in this section shall imply that an employee must demonstrate the existence of an individual to whom the employee's treatment must be compared. It shall be an affirmative defense to liability under this subdivision that the harassing conduct does not rise above the level of what a reasonable victim of discrimination with the same protected characteristic or characteristics would consider petty slights or trivial inconveniences.

§300: Construction. The provisions of this article shall be construed liberally for the accomplishment of the remedial purposes thereof, regardless of whether federal civil rights laws, including those laws with provisions worded comparably to the provisions of this article, have been so construed. Exceptions to and exemptions from the provisions of this article shall be construed narrowly in order to maximize deterrence of discriminatory conduct.

Severe or Pervasive. Federal: Yes. NYSHRL §296(1)(h): Becker-Rendano v. NYS Off. of Info. Tech. Svcs, 904264-20 (Alb. Sup., March, 2, 2021)(Patrick Sorsby for Plaintiff), demonstrates how §296(1)(h) has eliminated distinctions between hostile work environment and retaliation claims, on the one hand, and discrimination claims: both are now evaluated under the single standard set forth in the amendment, whether Defendant has subjected Plaintiff: “to inferior terms, conditions or privileges of employment because of the individual’s membership in one or more of these protected categories,” which now include persons who have engaged in protected activity. The decision is unavailable online so it is included in the materials following this table. For the sake of brevity, it is questionable whether the hostile work environment allegations would have survived under the previous sufficiently severe or pervasive to interfere with Plaintiff’s ability to perform her job. The court denied the motion to dismiss the hostile work environment alleged in amended complaint because: “plaintiff has adequately alleged that defendant engaged in conduct which subjected her to inferior terms, conditions or privileges of her employment because of her disability.” Id. at 8. The court held that Defendant’s argument that the alleged conduct was mere petty slights or trivial inconveniences could not be considered on a MTD because it was an affirmative defense. Id. See also Cunliffe v. Sandberg, 2022 NY Slip Op 32035(U), ¶ 4 (Sup. Ct.)(under the amended NYSHRL just defendant’s comment about the color of plaintiff nanny's face and her encouragement of her son to make similar comments on several occasions are sufficient to state a claim for hostile work environment.) The Becker-Rendano court also denied the motion to dismiss Plaintiff’s retaliation claim. Id. at 9. The court found that by including among the protected classes which may not be harassed in §296(1)(h)persons who had engaged in protected activity, the Legislature had overruled decisions such as “Forrest v. Jewish Guild for the Blind, 3 NY3d at 313,” which had implied under §296(1)(e) a requirement that Plaintiff suffer an adverse employment action. §296(1)(h) is the first statute to define the substantive elements of a hostile work environment. Paired with §300, it effectively rearranges both the substantive law of hostile work environments and retaliation, and reduces them to the answer to the simple question posed in §296(1)(h). Courts are already noting that "the effect of [§300] is to render the standard for claims [brought under the NYSHRL] closer to the standard under the NYCHRL." Cherry v. N.Y.C. Hous. Auth., 564 F. Supp. 3d 140, 164 n.13 (E.D.N.Y. 2021).. City HRL: Experience has shown that there is a wide spectrum of harassment cases falling between "severe or pervasive" on the one hand and a "merely" offensive utterance on the other. 22 The City HRL is now explicitly designed to be broader and more remedial than the Supreme Court's "middle ground," a test that had sanctioned a significant spectrum of conduct demeaning to women. With this broad remedial purpose in mind, we conclude that questions of "severity" and "pervasiveness" are applicable to consideration of the scope of permissible damages, but not to the question of underlying liability. [D]efendants can still avoid liability if they prove that the conduct complained of consists of nothing more than what a reasonable victim of discrimination would consider "petty slights and trivial inconveniences." Williams v. N.Y.C. Hous. Auth., 2009 NY Slip Op 440, ¶ 15, 61 A.D.3d 62, 76, 80, 872 N.Y.S.2d 27, 38, 41 (App. Div. 1st Dept.).

Federal NYSHRL §296(1)(h) City HRL Severe or Yes Becker-Rendano v. NYS Off. of Info. Tech. Svcs, 904264-20 (Alb. Sup., Experience has shown that there is a wide Pervasive March, 2, 2021)(Patrick Sorsby for Plaintiff), demonstrates how spectrum of harassment cases falling between §296(1)(h) has eliminated distinctions between hostile work "severe or pervasive" on the one hand and a discrimination claims: both are now evaluated under the single The City HRL is now explicitly designed to be standard set forth in the amendment, whether Defendant has broader and more remedial than the Supreme subjected Plaintiff: “to inferior terms, conditions or privileges of Court's "middle ground," a test that had employment because of the individual’s membership in one or more sanctioned a significant spectrum of conduct of these protected categories,” which now include persons who have demeaning to women. With this broad engaged in protected activity. The decision is unavailable online so it remedial purpose in mind, we conclude that is included in the materials following this table. For the sake of questions of "severity" and "pervasiveness" are brevity, it is questionable whether the hostile work environment applicable to consideration of the scope of allegations would have survived under the previous sufficiently permissible damages, but not to the question severe or pervasive to interfere with Plaintiff’s ability to perform her of underlying liability.

job. The court denied the motion to dismiss the hostile work environment alleged in amended complaint because: “plaintiff has [D]efendants can still avoid liability if they adequately alleged that defendant engaged in conduct which prove that the conduct complained of consists subjected her to inferior terms, conditions or privileges of her of nothing more than what a reasonable victim employment because of her disability.” Id. at 8. The court held that of discrimination would consider "petty slights Defendant’s argument that the alleged conduct was mere petty and trivial inconveniences."

slights or trivial inconveniences could not be considered on a MTD because it was an affirmative defense. Id. See also Cunliffe v. Williams v. N.Y.C. Hous. Auth., 2009 NY Slip Op Sandberg, 2022 NY Slip Op 32035(U), ¶ 4 (Sup. Ct.)(under the 440, ¶ 15, 61 A.D.3d 62, 76, 80, 872 N.Y.S.2d amended NYSHRL just defendant’s comment about the color of 27, 38, 41 (App. Div. 1st Dept.) plaintiff nanny's face and her encouragement of her son to make similar comments on several occasions are sufficient to state a claim for hostile work environment.) The Becker-Rendano court also denied the motion to dismiss Plaintiff’s retaliation claim. Id. at 9. The court found that by including among the protected classes which may not be harassed in §296(1)(h)persons who had engaged in protected activity, the Legislature had overruled decisions such as “Forrest v. Jewish Guild for the Blind, 3 NY3d at 313,” which had implied under §296(1)(e) a requirement that Plaintiff suffer an adverse employment action.

§296(1)(h) is the first statute to define the substantive elements of a hostile work environment. Paired with §300, it effectively rearranges both the substantive law of hostile work environments and retaliation, and reduces them to the answer to the simple question posed in §296(1)(h). Courts are already noting that "the effect of [§300] is to render the standard for claims [brought under the NYSHRL] closer to the standard under the NYCHRL." Cherry v. N.Y.C.

Hous. Auth., 564 F. Supp. 3d 140, 164 n.13 (E.D.N.Y. 2021).

Subjectively Offensive: Reasonable Person Offensive. Yes, but see Meritor.: Yes. It would be worthwhile to use §300 and §296(1)(h) to demand that courts do away with the double standard applied only in sexual harassment cases, and only when the Plaintiff is a woman. This was the contribution of the Meritor Court. She is required to prove that she did not welcome the sexual harassment, whereas victims of racial harassment, disability harassment, religious harassment and all other forms of harassment based on protected categories need only prove that they found the hostile work environment subjectively offensive.: a reasonable victim of discrimination with the same protected characteristic or characteristics would consider [more than] petty slights or trivial inconveniences.. Yes: what a reasonable victim of discrimination would consider [more than] "petty slights and trivial inconveniences.".

Subjectively Offensive: Strict Liability for Supervisor Harassment. Yes, but see Meritor.: 1) Vance supervisor harassment culminating in a tangible employment action. Llampallas v. Mini-Circuits, Inc., 163 F.3d 1236, 1247 (11th Cir. Fla. 1998)(“[T]he fact that the harasser was the decision maker for the tangible employment action gives rise to an inference that the harasser's discriminatory animus motivated that action.”); 2) Proxy liability. Faragher v. City of Boca Raton, 524 U.S. 775, 789, 118 S. Ct. 2275, 2284 (1998)(Where the harasser was “president of the corporate employer [he] was indisputably within that class of an employer organization’s officials who may be treated as the organization’s proxy.”).. It would be worthwhile to use §300 and §296(1)(h) to demand that courts do away with the double standard applied only in sexual harassment cases, and only when the Plaintiff is a woman. This was the contribution of the Meritor Court. She is required to prove that she did not welcome the sexual harassment, whereas victims of racial harassment, disability harassment, religious harassment and all other forms of harassment based on protected categories need only prove that they found the hostile work environment subjectively offensive.: NYS law also recognizes strict liability under the Proxy doctrine. Sletten v. LiquidHub, Inc., 2014 U.S. Dist. LEXIS 94697, at *31 (S.D.N.Y. July 10, 2014)(“Brassington, a proxy of LiquidHub itself, harbored animus against Sletten based on his sexual orientation); Matter of Winkler v. N.Y. State Div. of Human Rights, 2009 NY Slip Op 904, ¶ 1, 59 A.D.3d 1055, 1056, 872 N.Y.S.2d 797, 798 (App. Div. 4th Dept.)(accord construing NYSHRL). Yes: §8-107 13. B. (1) An employer shall be liable for an unlawful discriminatory practice based upon the conduct of an employee or agent which is in violation of subdivision 1 or 2 of this section only where: (1) The employee or agent exercised managerial or supervisory responsibility.

Subjectively Yes, but see Meritor. It would be worthwhile to use §300 and §296(1)(h) to demand that Yes Offensive courts do away with the double standard applied only in sexual harassment cases, and only when the Plaintiff is a woman. This was the contribution of the Meritor Court. She is required to prove that she did not welcome the sexual harassment, whereas victims of racial harassment, disability harassment, religious harassment and all other forms of harassment based on protected categories need only prove that they found the hostile work environment subjectively offensive.

Reasonable Yes a reasonable victim of discrimination with the same protected what a reasonable victim of discrimination Person characteristic or characteristics would consider [more than] petty would consider [more than] "petty slights and Offensive slights or trivial inconveniences. trivial inconveniences."

Strict Liability 1) Vance supervisor harassment NYS law also recognizes strict liability under the Proxy doctrine. §8-107 13. B. (1) An employer shall be liable for Supervisor culminating in a tangible Sletten v. LiquidHub, Inc., 2014 U.S. Dist. LEXIS 94697, at *31 (S.D.N.Y. for an unlawful discriminatory practice based Harassment employment action. Llampallas v. July 10, 2014)(“Brassington, a proxy of LiquidHub itself, harbored upon the conduct of an employee or agent Mini-Circuits, Inc., 163 F.3d 1236, animus against Sletten based on his sexual orientation); Matter of which is in violation of subdivision 1 or 2 of this 1247 (11th Cir. Fla. 1998)(“[T]he Winkler v. N.Y. State Div. of Human Rights, 2009 NY Slip Op 904, ¶ 1, section only where: (1) The employee or fact that the harasser was the 59 A.D.3d 1055, 1056, 872 N.Y.S.2d 797, 798 (App. Div. 4th agent exercised managerial or supervisory decision maker for the tangible Dept.)(accord construing NYSHRL) responsibility employment action gives rise to an inference that the harasser's discriminatory animus motivated that action.”); 2) Proxy liability.

Faragher v. City of Boca Raton, 524 U.S. 775, 789, 118 S. Ct. 2275, 2284 (1998)(Where the harasser was “president of the corporate employer [he] was indisputably within that class of an employer organization’s officials who may be treated as the organization’s proxy.”).

Supervisor Faragher/Ellerth: Employer is If courts follow the line of cases holding that supervisor liability Strict liability Harassment liable for harassment by Vance standards are the same under Title VII and the NYSHRL, by Generally supervisor unless it can prove the prohibiting courts from relying on the absence of a complaint by affirmative defense that 1) it had Plaintiff to reject liability, §296(1)(h) will have a significant positive a policy against harassment impact. The defense bar in several blogs on the amendment where an employee could acknowledges that the new language rules out the F/E defense, and a complain without fear of couple of courts have reached the same conclusion in dictum. See retaliation and 2) the employee Ortiz v. Hempstead Union Free Sch. Dist., No. 17-CV-2990 (DRH)(AYS), failed to utilize the policy. 2021 U.S. Dist. LEXIS 38333, at *8 n.1 (E.D.N.Y. Mar. 1, As the Court held in Vance, Chauhan v. MM Hotel Mgmt. LLC, No. 18-CV-5963 (DRH)(SIL), 2019 negligence is always available as U.S. Dist. LEXIS 199894, at *17 n.7 (E.D.N.Y. Nov. 18, 2019)(same).

a basis for liability in the case of supervisor harassment. That However, as the NY COA explained in Forrest v. Jewish Guild for the includes harassment perpetrated Blind, 3 N.Y.3d 295, 311-12, 786 N.Y.S.2d 382, 395, 819 N.E.2d 998, by supervisors who plainly meet 1011 (2004) the standard of liability for supervisor and coworker the Vance standard. harassment under the NYCHRL has always been whether the Negligence is usually a more employer acquiesced in, or condoned, the harassment. Id. This was flexible Plaintiff-friendly doctrine, the harsh construction the COA accorded §296 which was silent on because in using the Vance the standard for employer liability.

supervisor F/E paradigm, courts tend to put Plaintiffs on trial for So long as the Plaintiff continues to have the burden of proving the failing properly to utilize the employer acquiesced, it makes no difference whether the employer is complaint mechanism. The only prohibited by the amendment from using the F/E affirmative defense question under the negligence on which it has the burden. It would have no reason to plead the doctrine is whether the employer defense.

owed a duty to prevent the harassment and whether it did Yet one could imagine a court inferring §300 and the absence of a enough to prevent it, by complaint may not be determinative language of §296(1)(h), as the apprehending the danger of legislative repudiation of the harsh construction NY judges accorded harassment and taking §296, which like Title VII was silent on the standard of liability. §300 reasonable steps to prevent it requires a liberal construction “regardless of whether federal civil from happening. For example, rights laws, including those laws with provisions worded comparably under F/E, a complaint to a low to the provisions of this article, have been so construed.” This can be level supervisor may be deemed understood as legislative overruling of standards less generous that inadequate because the Title VII, and requiring standards that are at least as generous. Cf.

Employee Handbook mandates a Williams v. N.Y.C. Hous. Auth., 2009 NY Slip Op 440, ¶ 4, 61 A.D.3d 62, complaint to a Manager, Human 66, 872 N.Y.S.2d 27, 31 (App. Div. 1st Dept.)(“federal However under a negligence law cannot fall’”). standard, such complaints are often deemed to put the employer on actual or constructive notice.

Coworker Negligence “Acquiescence or condonation,” which the courts frequently call Negligence based on actual or constructive harassment more demanding than negligence. There are two differences. Actual knowledge liability knowledge is required; constructive knowledge does not suffice. However State law offers one advantage: It is the only liability §8-107 13. B. (2) The employer knew of the standard where an employer’s conduct evincing condonation after employee's or agent's discriminatory conduct, the harassment will subject it to liability. See Father Belle Cmty. Ctr. v. and acquiesced in such conduct or failed to N.Y. State Div. of Human Rights, 221 A.D.2d 44, 56, 642 N.Y.S.2d 739, take immediate and appropriate corrective 748 (App. Div. 4th Dept. 1996)(“Condonation may be established by action; an employer shall be deemed to have knowledge acquired after the fact, combined with insufficient knowledge of an employee's or agent's investigation and corrective action [citations omitted]. Here, although discriminatory conduct where that conduct detailed complaints about Caruso's conduct were related to the was known by another employee or agent who Board of Directors, the Board as a whole undertook no serious exercised managerial or supervisory investigation or meaningful action on behalf of the complainants. responsibility; or Instead, it took a series of actions that exacerbated complainants' (3) The employer should have known of injuries. The Board had failed to establish any policy concerning the employee's or agent's discriminatory sexual harassment or mechanisms to allow the complainants to conduct and failed to exercise reasonable pursue harassment grievances in confidence.”) diligence to prevent such discriminatory conduct.

3d Party harassment liability: Punitive Damages. Holds employers liable in negligence where they are aware of third party harassment and fail to take reasonable steps to protect employees. Freeman v. Dal-Tile Corp., 750 F.3d 413, 423 (4th Cir. 2014)(“an employer is liable under Title VII for third parties creating a hostile work environment if the employer knew or should have known of the harassment and failed "to take prompt remedial action reasonably calculated to end the harassment."): Kolstad v. American Dental Ass'n, 527 U.S. 526, 529-530, 119 S.Ct. 2118, 2121 (U.S. 1999)(“Punitive damages are limited, however, to cases in which the employer has engaged in intentional discrimination and has done so ‘with malice or with reckless indifference to the federally protected rights of an aggrieved individual.’ Rev. Stat. § 1977, as amended, 42 U.S.C. § 1981a(b)(1).”). Yes. See Swiderski v. Urban Outfitters, Inc., No. 14-CV-6307 (JPO), 2015 U.S. Dist. LEXIS 72291, at *9 (S.D.N.Y. June 4, 2015)(relying on the same negligence standard as applied under Title VII): NYS common law standard: whether the wrongdoer has engaged in discrimination with willful or wanton negligence, or recklessness, or a conscious disregard of the rights of others or conduct so reckless as to amount to such disregard (does not require intentional discrimination as does Title VII). The City Law has no provision dealing with pure third-party harassment situations like customer harassment of employees, although it does expressly hold employers liable for violations by agents and independent contractors. See § 8-107. 1. “Employment. It shall be an unlawful discriminatory practice: (a) For an employer or an employee or agent thereof, . . .” and §8-107 13. c. “An employer shall be liable for an unlawful discriminatory practice committed by a person employed as an independent contractor, other than an agent of such employer, to carry out work in furtherance of the employer's business enterprise only where such discriminatory conduct was committed in the course of such employment and the employer had actual knowledge of and acquiesced in such conduct. Nonetheless, because like language in Title VII is held to make employers liable in negligence for harassment committed by third parties such as customers, such liability should be possible, since Williams holds that Title VII provides a floor beneath which the City Law’s protections cannot fall. Williams v. N.Y.C. Hous. Auth., 2009 NY Slip Op 440, ¶ 4, 61 A.D.3d 62, 66, 872 N.Y.S.2d 27, 31 (App. Div. 1st Dept.): Same as NYSHRL. Chauca v. Abraham, 2017 NY Slip Op 08158, ¶ 5, 30 N.Y.3d 325, 334, 67 N.Y.S.3d 85, 91, 89 N.E.3d 475, 481 When suing the employer on a theory of vicarious liability must the harasser or manager who knew of it and failed to act be senior enough that his actions are imputed to the employer as required by Kolstad..

3d Party Holds employers liable in Yes. See Swiderski v. Urban Outfitters, Inc., No. 14-CV-6307 (JPO), The City Law has no provision dealing with harassment negligence where they are aware 2015 U.S. Dist. LEXIS 72291, at *9 (S.D.N.Y. June 4, 2015)(relying on pure third-party harassment situations like liability of third party harassment and fail the same negligence standard as applied under Title VII) customer harassment of employees, although to take reasonable steps to it does expressly hold employers liable for protect employees. Freeman v. violations by agents and independent Dal-Tile Corp., 750 F.3d 413, 423 contractors. See § 8-107. 1. “Employment. It (4th Cir. 2014)(“an employer is shall be an unlawful discriminatory practice: (a) liable under Title VII for third For an employer or an employee or agent parties creating a hostile work thereof, . . .” and §8-107 13. c. “An employer environment if the employer shall be liable for an unlawful discriminatory knew or should have known of practice committed by a person employed as the harassment and failed "to an independent contractor, other than an take prompt remedial action agent of such employer, to carry out work in reasonably calculated to end the furtherance of the employer's business harassment.") enterprise only where such discriminatory conduct was committed in the course of such employment and the employer had actual knowledge of and acquiesced in such conduct.

Nonetheless, because like language in Title VII is held to make employers liable in negligence for harassment committed by third parties such as customers, such liability should be possible, since Williams holds that Title VII provides a floor beneath which the City Law’s protections cannot fall. Williams v. N.Y.C. Hous.

Auth., 2009 NY Slip Op 440, ¶ 4, 61 A.D.3d 62, 66, 872 N.Y.S.2d 27, 31 (App. Div. 1st Dept.) Punitive Kolstad v. American Dental Ass'n, NYS common law standard: whether the wrongdoer has engaged in Same as NYSHRL. Chauca v. Abraham, 2017 NY damages are limited, however, to to amount to such disregard (does not require intentional cases in which the employer has discrimination as does Title VII) When suing the employer on a theory of engaged in intentional vicarious liability must the harasser or manager discrimination and has done so who knew of it and failed to act be senior ‘with malice or with reckless enough that his actions are imputed to the indifference to the federally employer as required by Kolstad.

protected rights of an aggrieved individual.’ Rev. Stat. § 1977, as amended, 42 U.S.C. § 1981a(b)(1).”)

Minimum Number of Employees: Damage Caps. 15 (except under 42 USC § 1981 no minimum): Yes, (except under 42 USC § 1981 none). One: None. One: None.

Minimum Number of Employees: Who can sue. 15 (except under 42 USC § 1981 no minimum): Employees. One: Employees, independent contractors, consultants, vendors, subcontractors, and persons providing services pursuant to a contract.

Minimum Number of Employees: Who can be sued. 15 (except under 42 USC § 1981 no minimum): Employer only. One: Employer, aider and abettor who participated in creating hostile work environment (includes coworkers), individual with ownership interest or the power to do more than carry out personnel decisions made by others. Tromblee v. New York, No. 1:19-cv-00638 (BKS/CFH), 2023 U.S. Dist. LEXIS 51184, at *47 (N.D.N.Y. Mar. 27, 2023).. One: Employer, employees (express liability in statute), agents (same), and anyone who can be sued under State law. Fellah v. City Univ. of N.Y., 2022 U.S. Dist. LEXIS 179318, at *21-22 (S.D.N.Y. Sep. 30, 2022).

Minimum 15 (except under 42 USC § 1981 One One Number of no minimum) Damage Caps Yes, (except under 42 USC § 1981 None None none) Who can sue Employees Employees, independent contractors, consultants, vendors, subcontractors, and persons providing services pursuant to a contract Who can be Employer only Employer, aider and abettor who participated in creating hostile work Employer, employees (express liability in sued environment (includes coworkers), individual with ownership interest statute), agents (same), and anyone who can or the power to do more than carry out personnel decisions made by be sued under State law. Fellah v. City Univ. of others. Tromblee v. New York, No. 1:19-cv-00638 (BKS/CFH), 2023 N.Y., 2022 U.S. Dist. LEXIS 179318, at *21-22 U.S. Dist. LEXIS 51184, at *47 (N.D.N.Y. Mar. 27, 2023). (S.D.N.Y. Sep. 30, 2022)

Joshua Friedman (10 min).

Outline of Discussion of Federal State and City Hostile Work.

Environment Law.

There is a table which compares the substantive and liability standard.

under federal, state and NYC law in your materials..

I am going to spend time first on the remarkable amendment to our State.

law, which takes us further than even the City Law concerning employer.

liability, and then focus on two substantive aspects of 296(1)(h) which.

dramatically change the law on retaliation and hostile work environment in.

NYS..

296(1)(h) Cleans up The Morass of Thinking Caused by Gap Filling.

Title VII and state law are silent on harassment: 296(1)(a) states: It shall be.

illegal for an employer because of an individual's [protected class] to refuse.

to hire or employ or to bar or to discharge from employment such individual.

or to discriminate against such individual in compensation or in terms,.

conditions or privileges of employment..

Federal Courts assumed congress meant to prohibit harassment as.

conduct which violated the “terms conditions and privileges,” language, but.

because the Court was imposing liability where Congress had not provided.

rules, there was a need to distinguish for which acts the employer should.

be liable. In Meritor the Court engaged in some gap filling. The Defendant.

argued that congress only intended to address tangible actions. The Court.

disagreed, pointing out that making a workplace hostile due to sex clearly.

altered the terms conditions and privileges under which the Plaintiff worked..

The Court agreed that agency principles applied, but refused to set a.

standard, other than stating actual knowledge by the employer and failure.

to act (negligence), would be actionable. In F/E the Court created a.

confusing set of rules which were intended to be helpful to victims of.

supervisor harassment, such as when an employer could be held liable.

absent proof of fault..

The key point is that none of this federal case law about when the employer: is liable would have been necessary had Congress simply written:.

NY took a similar route in concluding that terms or conditions encompassed.

harassment but it was up to the courts to decide the question of liability..

In 1991 when the City Council created the new NYCHRL it apparently did.

not attempt to insert the word harassment into the prohibitory language: “to.

discriminate against such individual in compensation or in terms, conditions.

or privileges,” which tracked federal and state language. The City Counsel.

simply created strict liability for harassment by someone with supervisory.

powers, and essentially negligence for others. You can read them in the.

table..

It is important to know that the courts ignored the plain language of the new.

NYCHRL which imposed strict liability for supervisor harassment, among.

other things for 15 years. In 2005 the Council passed the Restoration Act.

which forced courts to enforce the NYCHRL as written. We cannot let that.

happen to our new law which advances equality in so many ways and.

makes plain that an employer is liable when its employees work in a hostile.

work environment..

No matter. The courts dutifully ignored the new language holding it.

equivalent to federal law. In 2005 the Council passed the Restoration Act.

(RA), wholly the brainchild of Craig Gurian, which finally brought fealty to.

the intent of the Council. 25 years in the desert. But the RA left the different.

liability standards in place for harassment by employees of different.

authority. There was no rewrite of the main prohibitory statute to say: to.

It shall be illegal for an employer because of an individual's [protected class] to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against or harass such individual in compensation or in terms, conditions or privileges of employment. In Father Bell the 4th Dpt clarified the distinction between federal and NYS law: Under New York law, in order to recover against an employer, the complainant must demonstrate that the employer acquiesced in the discriminatory conduct or subsequently condoned it. Father Belle Cmty. Ctr.

v. N.Y. State Div. of Human Rights, 221 A.D.2d 44, 53-54, 642 N.Y.S.2d

739, 746 (App. Div. 4th Dept. 1996)

discriminate against or harass such individual in compensation or in terms,: conditions or privileges..

discriminate against or harass such individual in compensation or in terms,: Now, finally, there is a statute which expressly makes employers.

discriminate against or harass such individual in compensation or in terms,: liable for harassment: 296(1)(h).

discriminate against or harass such individual in compensation or in terms,: 296(1)(h) lifted the cloud of federal and State, and even City thinking,.

discriminate against or harass such individual in compensation or in terms,: which all resulted from the failure of Congress to expressly prohibit.

discriminate against or harass such individual in compensation or in terms,: harassment. We need to lift that cloud from our own thinking..

1. It shall be an unlawful discriminatory practice:.

(a) For an employer or licensing agency, because of an individual's.

age, race, creed, color, national origin, citizenship or immigration.

status, sexual orientation, gender identity or expression, military.

status, sex, disability, predisposing genetic characteristics, familial.

status, marital status, or status as a victim of domestic violence, to.

refuse to hire or employ or to bar or to discharge from employment such.

individual or to discriminate against such individual in compensation or.

in terms, conditions or privileges of employment..

Now, harassment is defined in a separate subsection of 296, and it states.

that (1) it shall be an unlawful discriminatory practice: (h) For an employer ..

. . to subject any individual to harassment.

Section 296 Unlawful discriminatory practices (1)(a) still says what it has always said, and but for the addition of 296(1)(h) the liability standards would remain the same: because of an individual's [protected category] or because the individual [has engaged in protected activity] regardless of whether such harassment would be considered severe or pervasive under precedent applied to harassment claims. Such harassment is an unlawful discriminatory practice when it subjects an individual to inferior terms, conditions or privileges of employment because of the individual's membership in one or more of these protected categories. The fact that such individual did not make a complaint about the harassment to such employer. . . shall not be determinative of whether such employer . . . shall be liable.

Nothing in this section shall imply that an employee must demonstrate the existence of an individual to whom the employee's treatment must be compared. It shall be an affirmative defense to liability under this subdivision that the harassing conduct does not rise above the level of what a reasonable victim of discrimination with the same protected characteristic or characteristics would consider petty slights or trivial inconveniences.

A significant purpose of the amendment is to remove the reasoning—no.

prohibition of harassment—which courts assumed required them to create.

rules of liability, as well as liberally defining the elements of a hostile work.

environment..

Read together §300 and §296(1)(h) mandate employer liability for any.

harassment as defined by §296(1)(h)..

§300 states that: The provisions of this article shall be construed liberally.

for the accomplishment of the remedial purposes thereof, regardless of.

whether federal civil rights laws, including those laws with provisions.

worded comparably to the provisions of this article, have been so.

construed..

It goes on to require that: Exceptions to and exemptions from the.

provisions of this article shall be construed narrowly in order to maximize.

deterrence of discriminatory conduct..

Focusing solely on liability, the important part is the Exceptions clause..

Now that the Legislature has created a separate subsection defining.

harassment and making it illegal in employment, this is an injunction to.

jealously protect our new rights—which we failed to do after passage of the.

1991 NYCHRL. It also provides us the means which is a clear statement of.

the Legislature on how the new subsection should be construed: narrowly.

in order to maximize deterrence of discriminatory conduct. In other words,.

just exactly as we wrote it..

The first clause of §300 is an instruction to construe similar provisions to.

federal law as stated, however, §296(1)(f) is not similar to any federal law..

Changes to Substantive Provisions Which Support Employer Liability.

The changes to the substantive provisions suggest that the Legislature.

sought radical change. Removal of the severe or pervasive standard,.

and the affirmative defense that the Plaintiff didn’t complain. Don’t.

even think about a F/E defense is how the defense bar and courts (in.

dictum) are interpreting the “didn’t complain” clause. That makes no sense.

if distinctions between supervisor and coworker liability have been.

eliminated. It is more likely that the Legislature was simply sick of seeing.

victims treated as criminals for not complaining. The complaint or lack: thereof could be just as relevant under a negligence analysis, it need not.

victims treated as criminals for not complaining. The complaint or lack: reference F/E..

victims treated as criminals for not complaining. The complaint or lack: The employer’s only affirmative defense the harassment did not rise above.

victims treated as criminals for not complaining. The complaint or lack: the level of what a reasonable victim of discrimination with the same.

victims treated as criminals for not complaining. The complaint or lack: protected characteristic or characteristics would consider petty slights.

victims treated as criminals for not complaining. The complaint or lack: or trivial inconveniences. Stronger than NYCHRL..

victims treated as criminals for not complaining. The complaint or lack: Becker, which I’ll discuss in a few minutes, illustrates how the addition of.

victims treated as criminals for not complaining. The complaint or lack: “with the same protected characteristic or characteristics” changes the.

victims treated as criminals for not complaining. The complaint or lack: analysis: the court and jury is required to walk a mile in the Plaintiff’s shoes..

victims treated as criminals for not complaining. The complaint or lack: Slights can become less petty if you are disabled..

victims treated as criminals for not complaining. The complaint or lack: Such harassment is an unlawful discriminatory practice when it subjects.

victims treated as criminals for not complaining. The complaint or lack: an individual to inferior terms, conditions or privileges of employment.

victims treated as criminals for not complaining. The complaint or lack: because of the individual's membership in one or more of these protected.

victims treated as criminals for not complaining. The complaint or lack: categories..

victims treated as criminals for not complaining. The complaint or lack: The Courts are already very familiar with that language from the RA, which.

victims treated as criminals for not complaining. The complaint or lack: like §300 instructed courts to accord at least as favorable a construction to.

victims treated as criminals for not complaining. The complaint or lack: similarly worded federal or state law: treated less well ala Williams, federal.

victims treated as criminals for not complaining. The complaint or lack: is a floor beneath which we cannot fall..

victims treated as criminals for not complaining. The complaint or lack: Nothing in this section shall imply that an employee must.

victims treated as criminals for not complaining. The complaint or lack: demonstrate the existence of an individual to whom the employee's.

victims treated as criminals for not complaining. The complaint or lack: treatment must be compared. This could help, may not have been.

victims treated as criminals for not complaining. The complaint or lack: intended to modify the hostile work environment definition but it does and.

victims treated as criminals for not complaining. The complaint or lack: could be useful..

victims treated as criminals for not complaining. The complaint or lack: 296(1)(h) does away with two other burdens of proof Plaintiffs.

victims treated as criminals for not complaining. The complaint or lack: previously carried..

Plaintiff no longer has to prove the hostile work environment was subjectively offensive. Plaintiff wouldn’t be here if it were not subjectively offensive. This should do away with the offensive double standard the Meritor court created where other protected classes just had to show they were offended but women had to prove that they did not welcome the harassment. You still see this, references to how a Plaintiff dressed, does

It recasts Plaintiff’s former burden of proof of “objectively offensive” as an.

affirmative defense, and gives the employer very little wiggle room to.

excuse offensive conduct because it must be judged from the perspective.

of the Plaintiff in the protected class..

Further evidence the Legislature sought radical change is that.

the definition of a hostile work environment effectively overrules the Court.

of Appeals construction in Forrest of retaliation, and reduces both hostile.

work environment and retaliation to the answer to the simple question.

posed in §296(1)(h) was the Plaintiff subjected to inferior terms or.

conditions, ie, treated less well than persons outside her protected class..

that welcome unconsented touching. It should be gone but if it comes up under federal law shoot it down, its an equal protection violation, not applied to men. Becker-Rendano v. NYS Off. of Info. Tech. Svcs, 904264-20 (Alb. Sup., March, 2, 2021)(Patrick Sorsby of NELA/NY for Plaintiff, included in materials) is the most important case construing the amendments I found for two reasons. The court agrees that 296(1)(h) legislatively overrules the previous NYS standard for retaliation, and it shows how powerful the addition of “with the same protected characteristic or characteristics” can be.

In Becker Plaintiff was legally blind and hired to serve as accessibility tester. she requested that defendant hire a “Support Services Assistant” (hereinafter SSA) to provide her with Braille interpretation as an accommodation that would enable her to perform the essential functions of the job. Plaintiff received other assurances probably short of promises. This is taken directly from the AC:

25. Plaintiff’s supervisor . . . would demean the Plaintiff by routinely going to her SSA with questions regarding Plaintiff’s Braille translation software and hardware. This is demeaning because they knew that Plaintiff trained the SSA on said equipment and had far superior knowledge of this equipment and software.

26. This is just one of many examples where the Employer treated the Plaintiff like a child who was incapable of making important decisions; and went around her to her SSA with questions and tasks

that were solely within the purview of the Plaintiff to answer. Hostile Work Environment In paragraph 25 above it states “This is demeaning because they knew that Plaintiff trained the SSA on said equipment and had far superior knowledge of this equipment and software.” Ordinarily when you have to explain to the court why a statement was demeaning you are not going to meet severe or pervasive and possibly not get past petty slights or inconveniences. But 296(1)(f) levels the playing field by requiring that the severity of the hostile work environment be measured as experienced by someone in Plaintiff’s shoes: what a reasonable victim of discrimination with the same protected characteristic or characteristics would consider petty slights or trivial inconveniences.

Becker was a MTD and the court refused to address the Defendant’s affirmative defense, however when you put yourself in Plaintiff’s shoes, Defendant’s conduct seems much more than petty. Plaintiff had a major disability, and with her accommodation was expected to properly perform the core functions of her job. Being circumvented by your boss when you have so little margin for error takes on a whole different feel when you put yourself in Ms. Becker’s shoes.

Retaliation Becker is that it is the first case to hold that by including in §296(1)(h) among the protected classes which may not be harassed persons who had engaged in protected activity, the Legislature overruled decisions such as Forrest v Jewish Guild for the Blind. 3 NY3d at 313 [2004]; Suricl v Dominican Republic Educ. & Mentoring Project. Inc.. 85 AD3d 1464,1466 [2011]), which required a showing that the plaintiff suffered a “materially adverse change in the terms and conditions of employment.” Among protected classes the amended statute includes: “any individual who has opposed any practices forbidden under this article or because the individual has filed a complaint, testified or assisted in any proceeding under this article.” All Plaintiff had to show was that because of her complaint she was subjected to an inferior term or condition which someone outside of her protected class. When she complained she was ignored and thus treated

differently. The same supervisor who refused to work within the guidelines which had been agreed, allegedly responded to her complaint by suggesting that plaintiff develop a sense of humor about her disability. Id. at It is easy to imagine how this standard could affect the evaluation of employer behavior in retaliation claims. When someone complains to their employer that they are out of printer toner the employer responds by supplying toner. However, when someone complains about a violation of employment discrimination laws, the first thing Human Resources does after the Plaintiff leaves the office is review her personnel file to see what the Defendant has against her. It does not go looking for dirt against employees who have not filed a complaint. A look through Plaintiff’s personnel file would probably not constitute a “materially adverse change in the terms and conditions of employment,” even if something negative was found and used, such as tardies. This is a sea change in the law of retaliation.

Three other cases which evaluate the new hostile work environment are Cunliffe v. Sandberg, 2022 NY Slip Op 32035(U), ¶ 3 (Sup. Ct.)(MTD, Plaintiff was a live out nanny: “Under the NYSHRL's current standard, [mother]'s comment about the color of plaintiff's face and her encouragement of her son to make similar comments on several occasions are sufficient to state a claim for hostile work environment.”) and Weekes v.

Jetblue Airways Corp., No. 21-CV-1965 (MKB), 2022 U.S. Dist. LEXIS 167723, at *36-37 (E.D.N.Y. Sep. 16, 2022)(“Plaintiff alleges that Defendants ‘creat[ed] a hostile work environment’ because of his requests for accommodation for his disability and that Green and Ayala, among others, treated him less well by ignoring his complaints and requests for accommodation,” state a claim under amended NYSHRL).

See also Ndongo v. Bank of China Ltd., No. 22-cv-05896 (RA), 2023 U.S. Dist. LEXIS 31238, at *23-24 (S.D.N.Y. Feb. 24, 2023)(incorrectly concluding that allegedly offensive statements made to African American woman that do not reference race or gender could not meet pleading standard “because of,” when the test is whether persons outside her protected class were treated less well, and citing pre amendment authority) There are a lot of cases stating in dictum that is clear the legislature

intended that the amendment be construed in much the same way as the RA required the NYCHRL be construed, which is encouraging.1 However, we must remind the court of the major difference between the statutes, which is that 296(1)(h) expressly defines an employer as liable for a hostile work environment.

1 Barry v. Macy's, Inc., No. 20-cv-10692 (CM), 2022 U.S. Dist. LEXIS 68611, at *20-21 (S.D.N.Y. Apr. 6, 2022)(granting summary judgment based on Plaintiff’s failure to submit SUF)(essentially dictum); Cherry v. N.Y.C. Hous. Auth., 564 F. Supp. 3d 140, 164 n.13 (E.D.N.Y. 2021)("the effect of which is to render the standard for claims [brought under the NYSHRL] closer to the standard under the NYCHRL." Wellner v.

Montefiore Med. Ctr., No. 17-CV-3479, 2019 U.S. Dist. LEXIS 147844, 2019 WL 4081898, at *5 n.4 (S.D.N.Y Aug. 29, 2019); Ortiz v. Hempstead Union Free Sch. Dist., No. 17-CV-2990 (DRH)(AYS), 2021 U.S. Dist. LEXIS 38333, at *8 n.1 (E.D.N.Y. Mar. 1, 2021)(eliminates severe or pervasive and F/E); Chauhan v. MM Hotel Mgmt. LLC, No. 18-CV-5963 (DRH)(SIL), 2019 U.S. Dist. LEXIS 199894, at *17 n.7 (E.D.N.Y. Nov. 18, 2019)(same);

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CATHY SELLARS, on behalf of herself and all others similarly situated, et al.,: Plaintiffs,. No. C15-117-LTS.

CATHY SELLARS, on behalf of herself and all others similarly situated, et al.,: vs.. MEMORANDUM OPINION AND ORDER.

CATHY SELLARS, on behalf of herself and all others similarly situated, et al.,: CRST EXPEDITED, INC.,.

CATHY SELLARS, on behalf of herself and all others similarly situated, et al.,: Defendant..

In The United States District Court

For The Northern District Of Iowa

Cedar Rapids Division

CATHY SELLARS, on behalf of herself and all others similarly situated, et al., Plaintiffs, No. C15-117-LTS vs. MEMORANDUM OPINION

And Order

____________________

Table Of Contents

A. Motion for Partial Summary Judgment on Retaliation iii. CRST Practices in Responding to

iii. Does the Alleged Policy, Pattern or Practice Involve an Adverse B. Motion for Decertification of Hostile Work Environment

a. Failure to Corroborate Complaints Without

b. Failure to Discipline When Complaints are

c. Failing to Discipline DMs Who Do Not

Promptly Respond Appropriately to

I. Introduction

This case is before me on defendant’s motion (Doc. No. 171) for partial summary judgment on plaintiffs’ retaliation claim and motion (Doc. No. 172) for decertification of the hostile work environment class. Plaintiffs have filed resistances (Doc. Nos. 187, 188)1 and defendant has filed replies (Doc. Nos. 197, 198). I also allowed plaintiffs to file a sur-reply (Doc. No. 201) as to both motions. I find that oral argument is not necessary. See Local Rule 7(c).

1 Pursuant to the court’s order at Doc. No. 183, plaintiffs filed sealed resistances at Doc. Nos. 187 and 188 and redacted versions at Doc. Nos. 191 and 192. I will refer to the redacted versions throughout this order whenever possible.

Ii. Background

Plaintiffs are female truck drivers who assert claims of hostile work environment and retaliation in violation of Title VII of the Civil Rights Act of 1964 (Title VII) against their employer, CRST Expedited, Inc. (CRST). On March 30, 2017, I entered an order certifying the following classes:

a. The Hostile Work Environment Class: All women who

were or are employed as team truck drivers by CRST Expedited, Inc. at any time from October 12, 2013 to the present, who have been subjected to a hostile work environment based on sex as a result of any of the following alleged CRST policies: (1) failing to find their complaints were corroborated without an eyewitness or admission, (2) failing to discipline drivers after complaints were corroborated; and (3) failure to discipline DMs for failing to promptly respond to sexual harassment complaints.

b. The Retaliation Class: All women who were or are employed

as team truck drivers by CRST Expedited, Inc. at any time from October 12, 2013 to the present, who have been subjected to retaliation based on sex as a result of CRST requiring them to exit the truck in response to their complaints of sexual harassment. See Doc. No. 85 at 54-55. I also certified the following issues pursuant to Rule 23(c)(4)(a):

a. As to the Hostile Work Environment Class, whether CRST has any of the

following policies, patterns or practices that create or contribute to a hostile work environment: (1) failing to find their complaints were corroborated without an eyewitness or admission, (2) failing to discipline drivers after complaints were

corroborated and (3) failure to discipline DMs for failing to promptly respond to sexual harassment complaints and

b. As to the Retaliation Class:

Whether CRST has a policy, pattern or practice of retaliating against women complaining of sexual harassment by requiring them to exit the truck except when they are a lead driver or owner-operator Id. at 55. I noted the order could be altered or amended as appropriate before final judgment pursuant to Rule 23(c)(1)(C). Id. at 56. CRST now seeks summary judgment on the retaliation claim and decertification of the hostile work environment class.

Iii. Analysis

A. Motion for Partial Summary Judgment on Retaliation Claim 1. Parties’ Arguments CRST argues that plaintiffs’ retaliation claim fails for four reasons: 1. Plaintiffs cannot show that they suffered any materially adverse employment action. 2. Plaintiffs cannot show that their removal from their trucks was motivated by retaliatory animus against them for complaining of sexual harassment.

3. CRST has legitimate, non-retaliatory reasons for its remedial actions. 4. The record lacks any evidence of pretext. See Doc. No. 171. Plaintiffs argue an unpaid suspension or pay cut in response to sexual harassment complaints constitutes a materially adverse employment action. They contend they have direct evidence of retaliatory intent based on CRST’s admission that its policy is to

B. Motion for Decertification of Hostile Work Environment Class 1. Parties’ Arguments CRST argues that the hostile work environment class must be decertified for the following reasons:

a. Plaintiffs cannot meet the commonality and predominance requirements

b. The lack of classwide proof renders certification unmanageable

c. Issue certification under Rule 23(c)(4)(A) is improper

d. The hostile work environment class as certified is not ascertainable

See Doc. No. 172-1. CRST contends the class must be decertified pursuant to the commonality and predominance requirements because liability for this claim requires too much of an individualized analysis. See Doc. No. 172-1 at 7. It further argues that plaintiffs’ approach to proving the claim based on a compilation of recorded complaints by divining a pattern or practice out of the underlying circumstances, without the aid of an expert, is not “common evidence” that is typically necessary for classwide proof. Id.

at 8. It emphasizes that plaintiffs must provide “significant proof” of a “general policy” to proceed as a class and plaintiffs cannot meet that burden with anecdotal evidence from only two percent of class members. Id. CRST further contends that plaintiffs’ approach makes certification unmanageable because the first phase of trial to resolve liability will result in hundreds of mini-trials, eliminating any efficiency of the certification. Id.

Finally, it argues that the current class definition creates an improper, “win-win” situation for the plaintiffs, as they will either prevail as to liability at the first phase or, by virtue of losing, would not be considered members of the class such that this litigation would have no preclusive effect on them. Id. at 9.

Plaintiffs argue that CRST has not made any new arguments with regard to certification and that for the reasons stated in my original order (Doc. No. 85), certification of the hostile work environment class remains appropriate. See Doc. No. 192-1 at 44-45. They argue they intend to rely on the evidence that supported their

original motion for class certification as well as new evidence consisting of Rule 30(b)(6) testimony, testimonial evidence from CRST managers and documentary evidence (such as sexual harassment complaint investigation files) produced by CRST. Id. at 49-50. Plaintiffs argue they are allowed to prove their case using anecdotal evidence from CRST’s own personnel files to prove the existence of a policy, pattern or practice rather than statistical evidence. Id. at 57-60. Plaintiffs argue the class is manageable, relying on the arguments in their initial motion for class certification and the reasons stated in my order granting certification. Id. at 65-66. Finally, they argue the class is ascertainable, but suggest that the class definition could be revised to those who “have made a documented complaint” to satisfy any of CRST’s concerns. Id. at 67-68.

In reply, CRST argues that plaintiffs’ proposed approach of proving their case with inadmissible and unreliable “summary exhibits” prepared by their trial counsel, rather than relying on testimony from female drivers, does not establish the requirements of commonality and predominance. See Doc. No. 197 at 5. It contends that at trial, it would be entitled to present evidence concerning the full story with respect to each and every recorded entry in the summary exhibits, which demonstrates why plaintiffs’ proposed approach is unworkable. Id. at 5-6. It argues that proof through anecdotal evidence alone (without statistical analysis or the aid of an expert) is appropriate only in a limited number of circumstances (such as when the number of employees is small) and that the use of such evidence in this case is particularly problematic given the unique nature of CRST’s workplace. Id. at 7. CRST summarizes its argument as follows:

Plaintiffs have no evidence, and certainly not the common evidence required by Dukes, to prove their class-wide liability theory that highly confidential [HR] decisions about investigating and resolving individual complaints could somehow incite severe, pervasive, sex-based harassment by male drivers, each working on a different truck. They lack support for their assumption that any particular disciplinary failure overrode CRST’s explicit anti-harassment policy, became known outside the strict confidentiality of [HR], was part of a routine everyday company policy of tolerating sexual harassment, and engendered a hostile work environment so severe as to

alter the terms of employment of any other female driver – let alone of hundreds of other female drivers. They simply presume that every single allegation of sexual harassment was true, rose to a level cognizable under Title VII, and justified termination of the accused driver. Id. at 7-8 (emphasis in original).

2. Factual Background I previously certified the following Hostile Work Environment Class: All women who were or are employed as team truck drivers by CRST Expedited, Inc. at any time from October 12, 2013 to the present, who have been subjected to a hostile work environment based on sex as a result of any of the following alleged CRST policies:

(1) failing to find their complaints were corroborated without an eyewitness or admission, (2) failing to discipline drivers after complaints were corroborated; and (3) failure to discipline DMs for failing to promptly respond to sexual harassment complaints. Doc. No. 85-54-55. I also certified the issue of whether CRST has any of the following policies, patterns or practices that create or contribute to a hostile work environment:

(1) failing to find their complaints were corroborated without an eyewitness or admission (2) failing to discipline drivers after complaints were corroborated and (3) failure to discipline DMs for failing to promptly respond to sexual harassment complaints. Id. Each party has submitted a factual background, some of which overlaps with the factual background discussed in the certification order. See Doc. No. 85 at 3-18. As such, I will incorporate that background to the extent it is relevant to the hostile work environment class and will discuss the parties’ additional representations based on

discovery below. CRST states that upon receiving a complaint of sexual harassment from one of its drivers, its first priority is the safety of the complaining driver. Doc. No. 172-1 at 13. Upon receiving the complaint, an HR employee logs it into its “Positive Work Environment Employee Relations” spreadsheet and immediately commences an investigation, which includes gathering pertinent records, developing a line of questioning and speaking with the accused. Id. It states that each investigation depends on the circumstances of the complaint and the available sources of proof. After speaking with the accused regarding the nature and circumstances of her complaint, the HR employee then looks at whether there are any prior complaints against the accused driver and considers any relevant documents or communications, interviews any available witness and interviews the accused. Id. The HR employee then determines whether the complaint can be corroborated. CRST states that corroboration can come from a variety of sources and that the test if whether HR is “able to identify that the action was confirmed and that it took place.” Id. at 13-14. It further states it does not have a policy or practice of requiring an eyewitness statement or admission to corroborate a complaint.

Even if the HR employee cannot corroborate the complaint, CRST states it nonetheless takes remedial measures. It changes the accused male driver’s status to “male only” and assures the driver will never again be assigned to drive with the complainant. Id. at 14. These designations last indefinitely and can be removed only by HR. The accused driver also receives a copy of CRST’s written policy prohibiting harassment via certified mail. Id. If the complaint is corroborated, the accused driver faces disciplinary action up to and including termination. HR itself does not impose the discipline but recommends a course of action to the driver’s DM. Discipline depends on individual circumstances, including the nature and severity of the corroborated harassment. It could include verbal warnings, written warnings, counseling sessions with HR, Operations, Safety, or other personnel, removal of lead driver certification or termination. Id. at 15.

Plaintiffs suggest that authority over drivers is highly centralized. See Doc. No. 192-1 at 5. The drivers’ work is directed by DMs. There are 60 DMs in total and they all work in the same work area. Approximately 10 operations managers supervise the DMs. The operations managers report to two directors who report to CRST President, Cameron Holzer. Id. at 6.

Carlson has authority over the investigation of all harassment or discrimination complaints. Id. From June 2013 to approximately April 2014, she was solely responsible for investigating each of those complaints. Id. By late 2015, Carlson supervised two other employee relations representatives who assisted in investigating employee complaints. Id. at 6-7.

Plaintiffs reference their motion for class certification regarding the sexual harassment female drivers experience. That summary is as follows: Women who worked as team truck drivers for CRST were subjected to verbal sexual harassment; offensive sexual conduct; and unwanted physical contact including attempted sexual assault. This conduct frequently occurred on the team trucks while the drivers were in route. Examples of the verbal harassment female drivers experienced include requests or demands for sex (Ex. 5 ¶16, 18, 27, 36; Ex. 8 ¶11; Ex. 9 ¶7, 9; Ex. 7 ¶9, 16, 24, 26, 36, 53); comments about their bodies, come-ons, and other forms of verbal harassment (Ex. 4 ¶9-10, 13-15, 22, 27, 32, 56; Ex. 8 ¶38; Ex. 9 ¶7; Ex. 7 ¶9, 12, 17, 32, 34, 44, 50, 52; Ex. 5 ¶14, 26, 34-35).

Examples of offensive conduct they experienced include requests or attempts to get into bed with them (Ex. 4 ¶29; Ex. 6 ¶12; Ex. 7 ¶13-14, 53, 60), being stared at while they slept (Ex. 6 ¶11; Ex. 7 ¶60), and men ¶15). Examples of the unwanted physical contact include attempted sexual assault (Ex. 4 ¶44; Ex. 5 ¶28-29), and physical touching, including kissing or touching with genitals (Ex. 4 ¶12, 28, 29; Ex. 6 ¶8; Ex. 8 ¶8, 29-30; Ex. 9 ¶13; Ex. 7 ¶59). When women resisted the harassment or rejected sexual advances, the men harassing them retaliated against them. Examples of such retaliation included men kicking them off the truck and abandoning them (Ex. 6 ¶17; Ex. 7 ¶27), claiming they left the truck with no authorization (Ex. 4 ¶34), taking measures to stop them from communicating with dispatch (Ex. 8 ¶13; Ex. 7 ¶19-21), spreading rumors

¶12; Ex. 7 ¶18, 31, 55), making false reports about the woman to dispatch (Ex. 6 ¶18; Ex. 8 ¶35; Ex. 7 ¶45), calling the police on them (Ex. 8 ¶31), destroying their belongings (Ex. 6 ¶19), holding them captive (Ex. 5 ¶41- 46), and/or physically assaulting them (Ex. 6 ¶21; Ex. 8 ¶19). Doc. No. 35-1 at 13-14. Plaintiffs contend that although HR considers whether there are prior complaints against the accused driver as part of its investigation into a sexual harassment complaint, Carlson stated in her capacity as a Rule 30(b)(6) witness that the existence of prior complaints will not impact CRST’s determination as to whether the instant complaint is deemed corroborated. Doc. No. 192-1 at 14. The relevant facts for each of the three alleged policies will be discussed below.

a. Failure to Corroborate Complaints Without an Eyewitness or

Admission Plaintiffs rely on the following testimony from Carlson regarding the existence of CRST’s alleged failure to corroborate a complaint in the absence of an eyewitness or admission: Q: If the allegations of harassment concerned behavior that occurred on the truck while the drivers are there together, would it ever be possible for you to find that harassment was corroborated based on evidence other than a third person eyewitness who was on the truck

seeing harassment?

A: Not unless there was an admission by the accused individual. Id. at 15. Plaintiffs contend that CRST’s business records confirm this policy, which plaintiffs have compiled in summary fashion pursuant to Federal Rule of Evidence 1006. See Plaintiffs’ Figure 1 and 2. They state that the records reveal that either an eyewitness at 16. Plaintiffs rely on the anecdotal examples from their motion for class certification demonstrating that CRST disregarded evidence that could have corroborated sexual

harassment. Id. Now that they have compiled a list of all documented complaints of sexual harassment made by female drivers against male drivers during the class period that CRST deemed not to have been corroborated, plaintiffs contend the basis for their pattern or practice claim is even stronger. They state that CRST found 209 sexual harassment complaints made by female drivers not to be corroborated during the class period. Id.

They note that in 60 percent of those cases (124 out of 209), CRST’s investigation records show that it disregarded evidence that could have potentially corroborated the victim’s complaint, but did not consider that evidence to be eyewitness testimony or an admission of sexually harassing conduct. Id. at 17. In 36 cases, a witness was identified who could have provided evidence supporting that victim’s complaint (such as witnesses who heard harassment over the phone or saw the harasser’s conduct before or after the time the drivers were on the truck). Id. In 19 cases, evidence existed that could have supported the victim’s complaint (including text messages, pictures, a police report, or some other document that CRST either did not obtain or refused to credit). Id. In 52 cases, the alleged harasser made admissions that could have supported the victim’s complaint, but that CRST did not deem an admission of sexual misconduct. Id. Finally, in 17 cases more than one of these additional forms of evidence was available. Id. Plaintiffs conclude that in nearly 60 percent of “uncorroborated” cases, CRST either refused to obtain or credit evidence that could have distinguished the case from a true “he said/she said” situation. Id.

Plaintiffs assert that when confronted with examples of CRST refusing to find a complaint had been corroborated in light of this evidence, Carlson said she could not answer. Id. at 18. For instance, when Leslie Fortune complained about her lead driver, Carlson confirmed that this lead driver lied to HR when he stated he had not required Fortune to share a hotel room with only one bed. Id. Carlson deemed Fortune’s complaint uncorroborated. When asked why the lead driver was terminated only for

texting while driving when she was able to confirm that he had required a student to stay in a hotel room with only one bed in it and lied to HR about it, Carlson replied, “I can’t answer that.” Id. Fortune also complained that a co-driver called her a “lot lizard” (truck driver slang for prostitute) to another driver. Id. The investigation form shows that Carlson left a message for the driver to whom the statement was made but never followed up, even though she conceded that drivers are required to cooperate with HR investigations.

Id. She also did not make any further efforts to reach out to three other witnesses Fortune had identified beyond leaving them a single telephone message. Id. Plaintiffs identify one other specific example involving Fortune and an additional example involving Claudia Lopez. Id. at 19-20. In both instances, Carlson deemed the complaint uncorroborated, even though there was evidence that could have suggested it was true, such as statements by the accused or witnesses who were never contacted. Id.

Plaintiffs discuss two additional examples of uncorroborated complaints with supporting evidence that were handled by the two employee relations representatives. Id. at 21. Plaintiffs state that these examples and others in the investigation forms demonstrate the alleged policy, pattern or practice of failing to find a complaint is corroborated in the absence of eyewitness testimony or an admission by the accused. Id. at 22.

b. Failure to Discipline When Complaints are Corroborated

Plaintiffs argue CRST has a policy, pattern or practice of failing to discipline drivers when complaints are corroborated. While CRST states that HR merely makes a recommendation to DMs and operations managers regarding any discipline following a harassment complaint, plaintiffs provide deposition testimony from a DM and operations manager stating that he had no personal involvement in disciplining drivers outside of what HR instructed him to do. Id. Another DM during the class period also stated that “I just, in the end, was either told ‘male only,’ ‘female-only,’ ‘terminated.’” Id.

Plaintiffs state that these designations of “male only” are not disciplinary, as they do not reduce a driver’s pay and are not considered a disciplinary warning. Plaintiffs state that these same designations were used in many cases even when CRST found a sexual harassment complaint to be uncorroborated. Id. at 22-23. They also note that even CRST does not claim that its practice of sending the accused driver a copy of CRST’s sexual harassment policy is a disciplinary action. Id. at 23.

In addition to the anecdotal examples provided in their motion for class certification, plaintiffs argue that based on CRST’s own records, CRST imposed no discipline in over 60 percent of cases (34 out of 56) where CRST deemed some sexually instances where HR corroborated some sexually harassing conduct, but none of the harassing drivers were disciplined in any way, warned, or directed to sit through a PWE training. Id. at 23-27.

c. Failing to Discipline DMs Who Do Not Promptly Respond

Appropriately to Complaints Plaintiffs note that Stastny stated in her deposition that DMs who receive sexual harassment complaints and do not immediately convey those complaints to HR should be disciplined if they permit the truck to continue driving after learning of the sexual harassment complaint.

Q: If a driver manager doesn’t immediately convey a sexual harassment complaint that they have learned of to HR, they should receive some

form of discipline, right?

A: Correct. Q: And same with a situation where the driver manager has permitted the truck to continue onward past the point where they learned about

a sexual harassment complaint situation on the truck, right?

Doc. No. 192-1 at 27. An operations manager also admitted that DMs are required to notify HR of a sexual harassment complaint “[a]s soon as they conclude the conversation” in which they become aware of the complaint. Id. at 28. Carlson also testified as CRST’s Rule 30(b)(6) witness that a DM who receives a sexual harassment complaint is required to split the drivers. Id. Plaintiffs note that HR does not regularly review how DMs respond to sexual harassment. Id. Stastny could not recall a single instance in which a DM was terminated for failing to comply with CRST’s policy of reporting sexual harassment complaints to HR or disciplined for failing to appropriately handle a sexual harassment complaint. Id.

HR decides whether to discipline a DM for mishandling a sexual harassment complaint. When discipline is imposed upon a DM who has failed to appropriately handle a sexual harassment complaint, a disciplinary action form is filled out and stored in the employee’s file and within the HR employee relations files. Id. at 29. In discovery, plaintiffs requested all disciplinary action forms relating to any DM’s failure to timely or properly respond to a complaint of sexual discrimination or sexual harassment. Id. Only three forms were produced for the class period. Id. None of those disciplinary actions related to the anecdotes plaintiffs referenced in their motion for class certification. Id.

Plaintiffs then summarize 29 examples in which a complaint was allegedly mishandled and the DM did not receive any discipline, beyond a written warning in one instance and a three-day suspension in another. Id. at 29-31. Plaintiffs note that those examples are not an exclusive list of all failures by a DM to appropriately handle a sexual harassment complaint. Because there are only three documented occasions of a DM being disciplined, plaintiffs contend the extent of this failure can only grow as they uncover more examples. Id. at 32.

Plaintiffs further argue that failing to discipline DMs exacerbates the problem because the DMs can continue mishandling complaints without consequence. Id. They

cite an example of a DM who failed to immediately separate the drivers upon receiving a complaint but was not disciplined – even though HR had knowledge of how the DM handled the incident. Id. at 32-33. They cite another instance of the same DM taking no action regarding a complaint. Id. at 33. HR spoke with the DM and the DM admitted telling the complainant to “put her big girl panties on.” Id. HR told the DM the comment was unprofessional and should not be used going forward. The DM was not disciplined for the comment, or failing to separate the drivers and escalate the complaint to HR. Id.

The same DM then handled a complaint from a student driver against a lead driver. Id. The DM forwarded an email chain between the two drivers to HR, which revealed that the DM failed to promptly separate the drivers and ultimately had them deliver the load before separating them. The DM also made the following comment to the complainant:

That is strange because I have never had any one ever complain about that about him . . and he trains most women because we don’t’ [sic] have very many that will train women, . [sic] Unfortunately I will need to address this immediately in the morning with HR . .and it is too bad because he is a good trainer w/ good knowledge. I will figure out where to get you to . .

are you okay for the night?

Id. at 34. The DM was not disciplined for how this complaint was handled. Id. at 35. On a fourth occasion, this same DM handled another complaint by telling the complainant to deliver the load and then the drivers could separate at a CRST terminal. Id. When interviewed by HR, the complaining driver explained the DM’s response.

When HR spoke to the DM, the DM made admissions revealing the complaint had been mishandled and HR told the DM that when a driver mentions harassment, the DM should remove her right away. The DM, again, was not disciplined. Id. at 36. Plaintiffs cite examples with another DM in which a driver complained that her lead driver slept in the truck nude and refused to stop when she told him it bothered her.

Id. at 37. She told HR that her DM asked if she could deal with it one more day. This

DM was not disciplined for failing to immediately separate the drivers. On another occasion, a driver similarly reported to HR that upon complaining of her co-driver’s inappropriate behavior, the DM tried to require her to keep driving to move the load. The DM was not disciplined and was subsequently promoted to operations manager, a position supervising other DMs. Id.

Plaintiffs allege that under this operations manager’s supervision, other DMs engaged in similar behavior. They cite an example of a female driver who reportedly got off the truck after her co-driver approached her in his boxers, sat on her bed while she was lying down, watched videos of half-naked women in the cab of the truck and slapped her on the back several times while she was driving. Id. The driver reported that her DM hung up on her and did nothing to assist her with getting a hotel or transportation. The DM admitted that he probably should have sent an email to HR conveying the sexual harassment complaint, but neither the DM nor the operations manager were disciplined. Id. at 38.

In sum, plaintiffs contend that CRST repeatedly failed to discipline DMs for failure to follow its policy of immediately separating drivers upon receipt of a sexual harassment complaint and escalate that complaint to HR. They suggest that DMs are incentivized to keep the trucks moving because stopping them due to sexual harassment complaints will affect their compensation metrics. Plaintiffs allege sexual harassment is allowed to thrive under this purported policy, pattern or practice of failing to discipline DMs for mishandling complaints.

3. Applicable Law Federal Rule of Civil Procedure 23 governs class certification. Under Rule 23(a), the party seeking certification must demonstrate: (1) the class is so numerous that joinder of all members is impracticable (2) there are questions of law or fact common to the class

(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. The proposed class must also satisfy at least one of the three requirements under Rule 23(b). I found that the hostile work environment class was properly certified under Rule 23(b)(3), which requires that “the questions of law or fact common to class members predominate over any question affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). Because commonality and predominance are the two primary bases upon which CRST argues class certification is inappropriate, I will focus on those aspects of Rule 23(a) and Rule 23(b)(3).

“Commonality requires a showing that class members ‘have suffered the same injury.’” Powers v. Credit Mgmt. Servs., 776 F.3d 567, 571 (8th Cir. 2015) (quoting Falcon, 457 U.S. at 157). This requirement is satisfied when the legal question “linking the class members is substantially related to the resolution of the litigation.” DeBoer v.

Mellon Mortg. Co., 64 F.3d 1171, 1174 (8th Cir. 1995) (quoting Paxton, 688 F.2d at 561). “Their claims must depend upon a common contention – for example, the assertion of discriminatory bias on the part of the same supervisor.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). “That common contention, moreover, must be of such a nature that it is capable of classwide resolution – which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Id. The commonality requirement cannot be satisfied by demonstrating that class members have all suffered a violation of the same provision of law.” Bennett v. Nucor Corp., 656 F.3d 802, 814 (8th Cir. 2011). “Plaintiffs cannot ‘simply leap from the premise that they were the victims of discrimination to the position that others must also have been.’” Gonzalez v. Brady, 136 F.R.D. 329, 331 (D.D.C.

1991) (quoting Morrison v. Booth, 763 F.2d 1366, 1371 (11th Cir. 1985)).

Rule 23(b)(3) requires a finding “that the questions of law or fact common to class members predominate over any questions affecting only individual members and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Powers, 776 F.3d at 569. Rule 23(b)(3) is composed of two requirements: predominance and superiority. Common questions must “predominate over any questions affecting only individual members” and class resolution must be “superior to other available methods for the fair and efficient adjudication of the controversy.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 615 (1997). The rule lists the following factors are pertinent to these findings:

(A) the class members’ interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by or against class members; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties in managing a class action.

Fed. R. Civ. P. 23(b)(3). “The predominance inquiry ‘tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.’” Elkins v. American Showa Inc., 219 F.R.D. 414, 419 (S.D. Ohio 2002) (quoting Bacon v. Honda of America Mfg., Inc., 205 F.R.D. 466, 486 (S.D. Ohio 2001)). It is not satisfied if “individual questions . . .

overwhelm the questions common to the class.” Ebert v. General Mills, Inc., 823 F.3d 472, 478-79 (8th Cir. 2016) (quoting Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 133 S. Ct. 1184, 1196 (2013)). “An individual question is one where ‘members of a proposed class will need to present evidence that varies from member to member,’ while a common question is one where ‘the same evidence will suffice for each member to make a prima facie showing [or] the issue is susceptible to generalized, class-wide proof.” Ebert, 823 F.3d at 479 (quoting Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1045 (2016)). With regard to predominance, the Eighth Circuit has stated:

When determining whether common questions predominate, a court must conduct a limited preliminary inquiry, looking behind the pleadings, but that inquiry should be limited to determining whether, if the plaintiffs’ general allegations are true, common evidence could suffice to make out a prima facie case for the class. While limited in scope, this analysis should also be rigorous.

In re Zurn Pex Plumbing Prod. Liab. Litig., 644 F.3d at 618 (internal citations and quotation marks omitted). “In conducting this preliminary inquiry, however, the court must look only so far as to determine whether, given the factual setting of the case, if the plaintiffs[’] general allegations are true, common evidence could suffice to make out a prima facie case for the class.” Blades, 400 F.3d at 566. The predominance requirement is “far more demanding” that Rule 23(a)’s commonality requirement. Amchem, 521 U.S.

at 623-24. “In contrast to Rule 23(a)(2), the issue of predominance under Rule 23(b)(3) is qualitative rather than quantitative.” Ebert, 823 F.3d at 478. A class action also requires plaintiffs to prove by a preponderance of the evidence that the defendant engaged in a “pattern or practice of unlawful discrimination in various company policies.” Jenson v. Eveleth Taconite Co., 824 F. Supp. 847, 860 (D. Minn.

1993) (citing Craik v. Minnesota State Univ. Bd., 731 F.2d 465, 470 (8th Cir. 1984)). To establish a pattern or practice the discriminatory acts must not be “isolated, insignificant or sporadic” but must be “repeated, routine, or of a generalized nature.” Jenson, 824 F. Supp. at 860 (citing Catlett v. Missouri Highway and Transp. Comm’n, 828 F.2d 1260, 1265 (8th Cir. 1987)). The discrimination should be “the company’s standard operating procedure – the regular rather than the unusual practice.” Jenson II, 824 F. Supp. at 860 (citing Teamsters, 431 U.S. at 360-62). For instance, the pattern or practice theory could be that the employer “created and maintained a sexually hostile and abusive work environment . . . because it tolerated . . . individual acts of harassment by its employees by refusing to take notice of, investigate, and/or discipline the workers who sexually harassed employees.” E.E.O.C. v. Mitsubishi Motor Mfg. of America,

Inc., 990 F. Supp. 1059, 1069 (C.D. Ill. 1998). Sexual harassment that is “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment” constitutes unlawful sex-based discrimination under Title VII. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 73 (1986). To prove a claim of hostile work environment, plaintiffs must prove (1) that they are members of a protected group, (2) that they were subjected to unwelcome sexual harassment, (3) that the harassment was based on sex, (4) that the harassment affected a term, condition or privilege of her employment and (5) their employer knew or should have known of the harassment and failed to take appropriate remedial action. Nichols v. Tri-National Logistics, Inc., 809 F.3d 981, 985 (8th Cir.

2016). “Actionable harassment must have been both objectively and subjectively offensive affecting a term of employment.” Id. (citing Bainbridge v. Loffredo Gardens, Inc., 378 F.3d 756, 759 (8th Cir. 2004)). 4. Analysis As noted in my previous order, plaintiffs advocated for a Teamsters approach to their putative class action, which would bifurcate the case into two phases: liability and damages. See Teamsters, 431 U.S. at 360-62; Jenson, 824 F. Supp. at 875-76 (applying modified Teamsters framework to pattern or practice hostile work environment claim). I found that Phase I would determine whether CRST created or tolerated a hostile work environment by way of the three stated policies. If liability is established, each case would then proceed to Phase II to determine damages. As discussed below, this method is not as simple as it might seem in the context of a hostile work environment pattern or practice claim in which plaintiffs seek monetary and injunctive relief.

In my order certifying the classes, I noted that some courts applying the Teamsters approach for a pattern or practice hostile work environment claim find that only the objective component needs to be established during Phase I. See Mitsubishi Motor Mfg.,

The plaintiff in a: its initial burden is to demonstrate that unlawful discrimination has been a.

The plaintiff in a: regular procedure or. policy. followed by an employer or group of.

The plaintiff in a: employers. At the initial, “liability” stage of a. pattern. -or-. practice. suit the.

The plaintiff in a: Government is not required to offer evidence that each person for whom it.

The plaintiff in a: will ultimately seek relief was a victim of the employer's discriminatory.

The plaintiff in a: policy. . Its burden is to establish a prima facie case that such a. policy.

The plaintiff in a: existed. The burden then shifts to the employer to defeat the prima facie.

990 F. Supp. at 1078 (“All that the EEOC will have established in Phase I by a finding of pattern or practice is that an objectively reasonable person would find that, as a whole, the environment within the company is hostile and that the company was on notice of and was negligent regarding the systemic problem.”).17 In Phase II, the individual plaintiffs must then prove the subjective component to demonstrate they are part of the affected class. See Bremiller v. Cleveland Psychiatric Inst., 195 F.R.D. 1, 25, 26 (2000) (describing the two-phase approach for class action claims alleging pattern or practice of hostile work environment as a result of sexual harassment). Phase II would also involve individual determinations of damages. See Bremiller, 195 F.R.D. at 31 (“Whether individual class members are entitled to damages that resulted from the alleged policy of harassment is relevant only during the recovery phase of the proceedings and will be determined therein should a jury find Defendants liable for tolerating a policy of sexual harassment.”). Upon closer examination, and based on the additional record now before me, I find that Phase I may involve additional considerations beyond whether CRST created or contributed to a hostile work environment through the three alleged policies, patterns or practices.

The Teamsters Court defined the first stage as follows: The plaintiff in a pattern-or-practice action is the Government, and regular procedure or policy followed by an employer or group of employers. At the initial, “liability” stage of a pattern-or-practice suit the policy. Its burden is to establish a prima facie case that such a policy 17 Pattern or practice claims may be brought by the Equal Employment Opportunity Commission (EEOC) or by a class pursuant to Rule 23(a). The same liability standards apply. See E.E.O.C.

v. Dial Corp., 156 F. Supp.2d 926 (N.D. Ill. 2001) (referencing both EEOC and class actions

in discussing liability).

showing of a: proof is either inaccurate or insignificant.....

showing of a: If an employer fails to rebut the inference that arises from the.

showing of a: Government's prima facie case, a trial court may then conclude that a.

showing of a: violation has occurred and determine the appropriate remedy. Without any.

showing of a: further evidence from the Government, a court's finding of a. pattern. or.

showing of a: practice. justifies an award of prospective relief. Such relief might take the.

showing of a: form of an injunctive order against continuation of the discriminatory.

showing of a: practice. , an order that the employer keep records of its future employment.

showing of a: decisions and file periodic reports with the court, or any other order.

showing of a: “necessary to ensure the full enjoyment of the rights” protected by Title.

showing of a: VII..

showing of a pattern or practice by demonstrating that the Government's practice justifies an award of prospective relief. Such relief might take the practice, an order that the employer keep records of its future employment Teamsters, 431 U.S. at 360–61 (citation omitted). In discussing the employer’s defense, the Court noted:

The employer's defense must, of course, be designed to meet the prima facie case of the Government. We do not mean to suggest that there are any particular limits on the type of evidence an employer may use. The point is that at the liability stage of a pattern-or-practice trial the focus often will not be on individual hiring decisions, but on a pattern of discriminatory decisionmaking. While a pattern might be demonstrated by examining the discrete decisions of which it is composed, the Government's suits have more commonly involved proof of the expected result of a regularly followed discriminatory policy. In such cases the employer's burden is to provide a nondiscriminatory explanation for the apparently discriminatory result.

Id. at 360-61, n. 46. While that approach worked in Teamsters (a race discrimination case), it does not fit neatly into the pattern or practice claim of hostile work environment. As one court has explained: [I]n a race discrimination case[,] it is clear why a pattern or practice should have an effect on an employer’s liability to individual claimants. If an employer has an established policy of making employment decisions with racial animus in violation of Title VII, it is likely that any specific employment decision also violates Title VII, and if a particular decision was not discriminatory, the employer is in the best position to show why.

However, the impact of a pattern or practice finding in a hostile work

environment sexual harassment case is not so clear. In contrast with a race discrimination case – where the focus is on the employer’s basis for making an employment decision that adversely affected the claimant – a sexual harassment case centers on the gravity of the conduct to which a claimant was exposed. The sexual harassment suffered by the claimant must have been severe or pervasive enough (measured both objectively and subjectively) to constructively alter the terms or conditions of the claimant’s employment by creating a hostile work environment. Otherwise, no Title VII violation has occurred. Therefore, a finding that an employer had a pattern or practice of tolerating sexual harassment in violation of Title VII does not necessarily establish that an individual claimant was exposed to harassment or that the harassment an individual claimant suffered violates Title VII. It is thus unclear what effect a pattern or practice finding should have on an individual claimant’s suit for damages.

E.E.O.C. v. Int’l Profit Assocs., No. 01 C 4427, 2007 WL 3120069, at *3 (N.D. Ill. Oct. 23, 2007). Thus, a hostile work environment claim presents two primary questions for the trier of fact: (1) was the complainant, “because of her sex, subjected to such hostile, intimidating, or degrading behavior, verbal or nonverbal, as to affect adversely the conditions under which she worked” and (2) was “the defendant’s response or lack thereof to its employees’ behavior . . . negligent.” Mitsubishi Motor Mfg., 990 F. Supp.

at 1071 (quoting Carr v. Allison Gas Turbine Div., General Motors Corp., 32 F.3d 1007, 1009 (7th Cir. 1994)). CRST argues plaintiffs have only addressed the second question and their evidence as to the first question is insufficient to sustain a class. Plaintiffs have done little to explain precisely how their hostile work environment claim should be tried and where the certified issue fits into the overall method of proving liability and damages. Aside from advocating for a bifurcated approach (which I accepted in my order certifying the classes), plaintiffs have not explained how they intend to prove their hostile work environment claim on a class basis. Indeed, in resisting CRST’s motion for decertification, plaintiffs have offered no further detail regarding how they expect to prove each element of a pattern or practice hostile work environment claim prior to

reaching the issue of whether CRST tolerates a hostile work environment through the three alleged policies. Examining how such a case could be tried has guided my analysis as to whether any part of plaintiffs’ hostile work environment claim should be certified as a class under Rule 23(a) and 23(b)(3).

Int’l Profit Assocs. contains a helpful analysis of how a policy, pattern or practice claim of hostile work environment would play out at trial. In that case, the court carefully considered the bifurcated approach of Teamsters and how it had been used in other cases. It rejected the EEOC’s argument that the objective element of the hostile work environment claim could be determined at the pattern or practice phase. The EEOC had essentially argued that it intended to prove the objective component by showing that sexual harassment that occurred company-wide was sufficiently severe or pervasive such that a reasonable person would find the work environment as a whole to be hostile. The court rejected this approach with the following reasoning:

The EEOC’s belief that it can meet its burden of proof on the objective element by aggregating the acts of harassment to which all the claimants were subjected to derives primarily from Mitsubishi, which eliminated the objective component of the severe or pervasive test at the individual stage. As discussed above, the court’s rationale for doing so was that “[a]lthough ‘isolated’ or ‘sporadic’ instances of harassment . . . are typically not enough to establish hostile environment sexual harassment, single instances of conduct must be taken together with the continuous pattern of harassment in the workplace, which was established at the pattern or practice phase.” Mitsibishi [sic], 990 F. Supp. at 1081. The court therefore permitted the individual claimants to rely on the objective showing made as to the entire workplace at the pattern or practice phase rather than requiring them to make individual showings that the specific harassment they suffered was objectively severe. Id. at 1079-81.

The court declines to follow Mitsubishi’s approach (and, concurrently, that adopted in Dial and Jenson) because the court does not see how Mitsubishi can be reconciled with the Supreme Court’s hostile work environment jurisprudence. In Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986), the case in which the Supreme Court first articulated what has been the governing hostile work environment test for more than twenty

years, the Court stated that “[f]or sexual harassment to be actionable, it must be sufficiently severe or pervasive to alter the terms or conditions of [the victim’s] employment and create an abusive working environment.” Id. at 67 (alteration in original) (citation and internal quotation marks omitted). If the conduct at issue does not reach the Meritor threshold, no U.S. 742, 752 (1998) (citing Meritor, 477 U.S. at 65).

The Court elaborated on the Meritor test in Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1992), holding that sexual harassment is actionable only where the conduct at issue is “severe or pervasive enough to create an objectively hostile or abusive work environment – an environment that a reasonable person would find hostile or abusive.” Id. The Court also held that the plaintiff must subjectively perceive the environment to be hostile, for otherwise the conditions of the plaintiff’s employment have not actually been altered, regardless of whether a reasonable person would believe them to be. Harris, 510 U.S. at 21-22. Thus, the state of the law following Harris can be summarized as follows: “[I]n order to be actionable under the statute, a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that victim in fact did perceive to be so.” Faragher v.

City of Boca Raton, 524 U.S. 775, 788 (1998). . . . . The Court’s hostile work environment cases demonstrate that it intended to construct a test that would prevent eggshell plaintiffs – those who are offended by comments or actions that would not offend a reasonable person – from recovering under Title VII. The objective inquiry functions as a limitation on suits attacking the ‘genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex.’” Id. (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998)). But the EEOC’s proposed method of proof – and, in the court’s opinion, that endorsed by Mitsubishi, et al. – would strip the limitation of its significance in a pattern or practice case. Under the EEOC’s theory, if IPA is found to have a policy of tolerating severe or pervasive sexual harassment, then every woman who was exposed to any form of sexual harassment at IPA, however trivial, would be entitled to damages so long as she was subjectively offended by the conduct she was exposed to. In other words, a woman who experienced only an untoward glance or an isolated remark could nonetheless recover compensatory and punitive damages so long as she was subjectively

offended. This scenario is inconsistent with the principles announced in Meritor and Harris, and the court does not believe that the Supreme Court would sanction such a result, even in the context of a pattern or practice case. This is not to say, however, that the terms or conditions of employment are not altered when an employer has a policy of allowing severe or pervasive harassment to occur in its workplace. A policy of tolerating such behavior is itself a Title VII violation, but proof of such a policy establishes only that the employer behaved improperly with respect to a protected group in general, and therefore justifies only injunctive relief under Teamsters. That an employer has such a general policy does not mean that every employee who was harassed has been exposed to harassment meeting the Meritor threshold, and thus does not mean that the terms and conditions of employment have been altered for each employee who experienced harassment. It is entirely possible for an employee to work at a business with a policy of tolerating actionable sexual harassment, yet be exposed to harassment in only the most superficial of ways.

Of course, the extent to which a particular employee was exposed to the conduct relied on by the EEOC to prove the company’s hostile work environment (at the pattern or practice phase) is relevant to that employee’s individual hostile environment claim. But this is only to say, as Harris instructed, that the totality of each employee’s circumstances, not isolated instances, determine whether sexual harassment is actionable. The court therefore agrees with Mitsubishi that the work environment as a whole may be relevant to an individual claimant’s experience, see 990 F. Supp. at 1081, but disagrees that an individual claimant can satisfy her burden on the objective element by aggregating all claimants’ experiences. Instead, the court will focus on the conduct to which each individual claimant was exposed. This approach is more consistent with the Court’s admonition in Meritor and Harris that a Title VII violation occurs only when the harassment to which a particular claimant is exposed is so severe or pervasive that a reasonable person would be offended.

The court therefore agrees with IPA that the claimants cannot be relieved of their burden to make an objective showing at the individual phase of this lawsuit if the EEOC prevails on the pattern or practice aspect of this case in Phase I. An objective showing will be required at both Phase I and Phase II. At Phase I, the EEOC will be required to prove that a

reasonable person would find the sexual harassment occurring globally at IPA so severe or pervasive that the work environment as a whole was hostile or abusive toward women. At Phase II, the EEOC must also show that the harassment to which each individual claimant was exposed is severe or pervasive enough to be actionable.

Int’l Profit Assocs., Inc., 2007 WL 3120069, at *12-14. I agree with this approach as it applies to this case, particularly given the manner in which the sexual harassment is alleged to have occurred here – in trucks and by one individual against another. It would be unfair to conclude that a work environment as a whole is hostile by tallying up all instances of sexual misconduct when each person in the class may have been subject to only one of those instances and unaware of the others.

For that reason, Phase II must involve the question of whether the conduct particular to each individual is objectively and subjectively offensive. The district court in Int’l Profit Assocs. explained this as follows: As discussed above, proof that the employer had a policy of tolerating unlawful sexual harassment does not necessarily make it more likely that any particular claimant was subject to actionable sexual harassment.

Rather, a particular claimant could have experienced only mundane comments, even though the employer had a practice of tolerating far more objectionable actions. Thus, to remain consistent with the goals of Title VII, as articulated by the Supreme Court, each claimant must demonstrate that the harassment she experienced meets the objective threshold of Meritor and Harris. Nor would the employer be in a better position than the employee to demonstrate that the harassment experienced by a given plaintiff was not sufficiently severe or pervasive. To the contrary, each individual claimant should have knowledge of the specific harassment she experienced, and the relevant inquiry is whether this conduct, taken as a whole, would render the work environment hostile to a reasonable person.

Thus, shifting the burden on the objective element to the employer at the individual phase does not make sense under Teamsters. Id. at *15. I agree with the general framework discussed by the District of Northern Illinois regarding how a pattern or practice claim of hostile work environment should proceed. See id. at *17 (summarizing the legal framework for trial). Because plaintiffs

are seeking more than injunctive relief, and this is a class action – rather than an action brought by the EEOC – I must consider whether this approach is compatible with the requirements of Rule 23(a) and Rule 23(b)(3). CRST argues that plaintiffs are unable to meet the commonality requirement under Rule 23(a) and the predominance and superiority requirements under Rule 23(b)(3).

When applying the above framework in the context of a class action, it becomes obvious that individual issues will predominate common ones under Rule 23(b)(3). Even at Phase I, proof of the alleged sexual harassment will consist of individual and separate instances of conduct rather than conduct to which multiple women were exposed. Compare E.E.O.C. v. Pitre, Inc., 908 F. Supp. 2d 1165, 1177-78 (D.N.M. 2012) (“because the EEOC’s claims fall within the same course of conduct and do not present great individual differences, bifurcation of this matter would increase the efficiency of the trial and is appropriate.”).

Jenson v. Eveleth Taconite Co., 130 F.3d 1287 (8th Cir. 1997), involved a class action pattern or practice hostile work environment claim and utilized a modified Teamsters model, which the Eight Circuit adopted. Jenson is distinguishable from this case, however, in one important way. In Jenson, the alleged conduct involved sexually explicit graffiti and posters found in common areas such as the lunchroom, lockers, desks, offices, vehicles, elevators, women’s restrooms, inter-office mail and company bulletin boards. See Jenson v. Eveleth Taconite Co., 824 F. Supp. 847, 880 (D. Minn. 1993).

While women individually experienced unwelcome touching, including kissing, pinching and grabbing and offensive language, generic comments were also made to groups of women. Id. Here, the alleged conduct almost exclusively involves actions perpetuated by one individual against another individual in an isolated environment, not conduct in a common environment directed against several women at once. This is relevant to the proof plaintiffs intend to use to at Phase I to establish the offensive conduct, which is an element that plaintiffs have failed to address and that does not appear to be amenable to

common evidence. CRST argues that plaintiffs’ approach of examining each individual complaint in order to extrapolate some common policy, pattern or practice in the aggregate, and without any expert analysis, is insufficient to certify a class. See Doc. No. 172-1 at 27. Plaintiffs’ evidence primarily consists of CRST records during the relevant time period as to how CRST handled sexual harassment complaints and summary exhibits prepared by plaintiffs’ counsel based on those records. Plaintiffs argue the three alleged policies, patterns and practices are borne out by these records.

Even if plaintiffs are correct on this point, CRST argues that the policies, patterns and practices that plaintiffs identify would address only the second aspect of a hostile work environment claim as identified above – the employer’s response. See Doc. No. 197 at 20. CRST argues that plaintiffs have failed to describe how they intend to prove the other elements of a hostile work environment at Phase I and contends that proof of these elements cannot involve common evidence because each alleged incident of sexual harassment took place in isolation from any other. This raises the question of whether an employer’s common response to individualized hostile conditions can form the entire basis of a hostile work environment claim.

I find that it cannot. Plaintiffs are not alleging that CRST’s policies, patterns or practices themselves are the harassing conduct, but the means by which CRST tolerates, encourages and allows sexual harassment in the workplace. As CRST notes, this addresses the second part of a hostile work environment claim (the employer’s response), but the first part (the unwelcome sexual harassment and the severity of such harassment), is equally important to establish liability. Aside from the employer’s alleged negligence, plaintiffs must prove: (1) that they are members of a protected group, (2) that they were subjected to unwelcome sexual harassment, (3) that the harassment was based on sex, (4) that the harassment affected a term, condition or privilege of their employment. See Hall

v. Gus Const. Co., 842 F.2d 1010, 1013 (8th Cir. 1998). The harassment must be more

than isolated or sporadic. A hostile work environment occurs when “the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to later the conditions of the victim’s employment and create an abusive working environment.” Harris v. Forklift Sys. Inc., 510 U.S. 17, 21 (1993) (citations omitted). A hostile work environment claim does not involve isolated incidents, but ongoing and repeated conduct. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S.

101, 115 (2002). This is where the class structure falls apart, as there is no common evidence regarding the alleged harassment female drivers experienced. This is not a situation such as that in Jenson in which the plaintiffs were working in the same environment and the F. Supp. at 880 (describing that many of the alleged instances of unwelcome sexual harassment applied to all women including visual references posted around the workplace and comments by male co-workers to groups of women). Here, the harassment primarily took place one-on-one in a truck by a codriver against another codriver or by a lead driver against a student driver. While some women experienced multiple offensive encounters, most women reported only one instance of sexual harassment, as evidenced by plaintiffs’ summary exhibits. Of course, these women could have been subjected to other offensive conduct that was not reported or that is outside of the class time period. Nonetheless, the nature of the offensive conduct at issue is isolated and sporadic when viewed from each plaintiff’s perspective, even if appears severe and pervasive when all of the complaints are viewed together. Any commonality concerning CRST’s alleged response (or lack of response) to each reported incident of harassment has no bearing on the isolated nature of the harassing conduct.

Considering that at Phase II, the conduct will have to be evaluated again (regarding whether it is objectively and subjectively offensive), the class structure, even with regard to one issue (the employer’s negligence), loses its efficiency. See Int’l Profit Assocs.,

2007 WL 3120069 at *3 (“Therefore, a finding that employer had a pattern or practice of tolerating sexual harassment in violation of Title VII does not necessarily establish that an individual claimant was exposed to harassment or that the harassment an individual suffered violates Title VII. It is thus unclear what effect a pattern or practice finding should have on an individual claimant’s suit for damages.”). The allegedly offensive actions, not the employer’s alleged policies, are what create difficulties in trying hostile work environment claims as a class. See Elkins, 219 F.R.D. at 424 (“Given the variations in the frequency and the severity of the behavior to which different female workers were subjected, the Court must conclude that commonality is lacking.”).18 In sum, I find that the hostile work environment class and certified issue do not meet the predominance and superiority requirements under Rule 23(b)(3), nor the commonality requirement under Rule 23(a). The hostile work environment class must be decertified.

Iv. Conclusion

For the reasons stated herein: 1. Defendant’s motion (Doc. No. 171) for partial summary judgment regarding the class retaliation claim is granted. The class claim of unlawful retaliation is hereby dismissed. 2. Defendant’s motion (Doc. No. 172) for decertification of the Hostile Work Environment class is granted and the Hostile Work Environment Class is hereby decertified.

18 In discussing Elkins in my previous order, I focused on the policies that plaintiffs were subjected to rather than the conduct in concluding that plaintiffs’ claims were typical to the class. See Doc. No. 85 at 39-40. When viewing plaintiffs’ claims in this new light, it appears that plaintiffs would also have difficulties meeting the typicality requirement under Rule 23(a) because the offensive conduct differed from plaintiff to plaintiff – even if CRST’s response allegedly remained the same.

3. The plaintiffs may pursue their hostile work environment claims against defendant on an individual basis. In addition, while I have granted summary judgment as to the class claim of retaliation, this does not preclude the possibility that an individual plaintiff might have a viable retaliation claim based on the specific facts and circumstances of that plaintiff’s case.

IT IS SO ORDERED. DATED this 15th day of January, 2019. ________________________________ Leonard T. Strand, Chief Judge

United States District Court

Forthe Eastern District Of Virginia

Norfolk Division JANET AVILES, etal., for themselvesandonbehalfof all similarlysituatedindividuals, Plaintiffs, Civil ActionNo. 2:13cv418

Bae Systems Norfolk

SHIP REPAIR, INC., and

Bae Systems Ship Repair,

Defendants. ORDER This class action suit was originally filed on July 29, 2013. On December 17, 2013, Plaintiffs Janet Aviles, Jamieka Brown, Stephanie Jackson, and Kel Sharpe filed an Amended Complaint against Defendants BAE Systems Norfolk Ship Repair, Inc. ("BAE Norfolk") and BAE Systems Ship Repair, Inc. ("BAE"). Plaintiffs seek to represent a class consisting ofall female non-union employees of Defendants' Norfolk shipyard who have been discriminated against onthebasisofsex. Am.Compl. paras. 101-02. Defendants dispute Plaintiffs'abilityto bring this suit on a class basis.

The Amended Complaint asserts four claims: (1) sex discrimination in violation ofTitle VII ofthe Civil Rights Act of 1964("Title VII"), 42 U.S.C. §§ 2000e etseq., on behalf ofthe class; (2)sexdiscrimination inviolation ofTitleVII,on behalfofNamedPlaintiffs individually; (3) retaliation in violation ofTitle VII, on behalfofthe class; and (4) retaliation in violation of Title VII, on behalfofNamed Plaintiffs individually. Am. Compl. paras. 283-308, ECF No. 10.

Plaintiffs seek declaratory and injunctiverelief, lost wages, punitive damages, costs, attorney's fees, and interest. Id. at prayer for relief.

On February 21, 2014, Defendants filed a Motion to Strike (ECF No. 22) and a Partial Motion to Dismiss (ECF No. 24). Defendants' Motion to Strike asserts that Plaintiffs' claims cannot be litigated as a class action because they do not raise common questions oflaw and fact. Defendants' Partial Motion to Dismiss asserts that some of the incidents discussed in the Amended Complaint have been resolved or were not brought before the Equal Employment Opportunity Commission ("EEOC") in a timely manner.

Forthe followingreasons, Defendants' Motionto Strike(ECFNo. 22) and PartialMotion to Dismiss (ECF No. 24) are DENIED.

I. Factual Background

Defendants have moved to dismiss portions of the Amended Complaint for failure to state a claim, and to strike the class allegations for failure to state a claim. Ina motion to dismiss for failure tostate a claim, the Court accepts the claimant's well-pled allegations astrue. E.g., Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Such allegations are construed in the light most favorable to theclaimant. E.g., Philips v. Pitt Cnty. Mem'I Hosp., 572 F.3d 176, 180 (4thCir.

2009). Plaintiffs' allegations are as follows: BAE Norfolk follows a hierarchical business structure. Am. Compl. para. 20, ECFNo. 10. BillClifford is the President, and Russell Tjepkemais the Vice President. Id. BelowMr. Tjepkema are seven Craft Managers, each of whom supervises approximately three of BAE's twenty-two shops. Id. Each shop ismanaged bya Craft Shop Supervisor. Id. The remaining ranks are asfollows: Assistant Craft Shop Supervisor, Supervisor (Steps One, Two, and Three), Specialist, Mechanic (First, Second, and Third Class), Handyperson (First, Second, and Third Class), and Helper(First and Second Class). Id.

Step Two Supervisors and all subordinate employees are union workers whose employment is governed by a Collective Bargaining Agreement ("CBA"). Id. at paras. 20, 27. AllpositionsaboveStepTwo Supervisorarenon-unionpositions. See id. The Labor Shop is structured differently from the other shops: the only ranks below Supervisor are FirstClass Laborerand SecondClass Laborer. Id. at para. 29. As a result,First Class Laborers cannotbepromoted withoutfirstbeingtransferred toanothershop. Id. Laborers receivelesspaythanother low-rankedworkers. Id. at para.30.

Employees in other shops are sometimes loaned to the Labor Shop. Id. at para. 31. While working for the Labor Shop, employees' progress towards advancement in their own shops isimpeded. Id. atpara. 53. Plaintiffs allege thatfemale employees areloaned totheLabor Shop more frequently andfor longer periods oftime than male employees. Id.

The CBA provides that, whenever practicable, overtime fora task should beprovided to the employees who are usually assigned to that task. Id. at para. 47. When this is not practicable, overtime is to be divided as equally as possible between employees of the same seniority. Id. The CBA further provides that BAE Norfolk should post lists where the employees can sign up to volunteer for overtime work. Id. at para. 48. BAE Norfolk may employ contractors to work overtime only in emergencies or when regular employees are unavailable. Id. at para. 49.

Plaintiffs allege that female employees are often denied overtime even after signing up forit,andmale contractors aregivenovertime instead. Id. atparas.48-49. Under theCBA,unionworkers' pay is tiedto theworkers' ranks. Id. at para. 27. Craft Shop Supervisors and Craft Managers have discretion to determine the starting ranks of employees hired intheir shops, subject tothe approval ofthe Personnel Department. Id. atpara.

37, 43-44. Plaintiffs allege that female employees frequently are assigned to lower starting ranks than similarly-qualified male employees. Id. at paras. 35, 37. Inordertoprogress between ranks, an employee must request a promotion fromthe Craft Shop Supervisor, and this request must be approved by the Craft Manager and the Personnel Department. Id. at para.57. BAENorfolkalso hasan unofficialrequirementthatan employee obtain a recommendation from a supervisor in order to be promoted. Id. at para. 76. The decision to makesuch a recommendation is discretionary. Id. Plaintiffsallegethatsupervisors andmanagers often exercise thisdiscretion inadiscriminatory manner. Id. atpara. 58. Plaintiffs further allege that Human Resources often fails to inform employees of vacancies, preventing female employees from applying for them, and that female employees who seek promotions are required tomeet standards thatarenotimposed onmale employees. Id. atparas. 51-52,55,62.

Asa result ofthisdiscrimination, female employees must often file union grievances to obtain promotions. Id. at para. 56. Because the Step Two Supervisors and Step Three Supervisors are union members, aggrieved employees are often forced to rely on those supervisors to pursue the grievances, even if the union official handling the grievance is the supervisor against whom the grievance isdirected. Id. atpara. 79. Even when these grievances are granted, the possibility of discrimination is not investigated, and the aggrieved employee doesnot receivebackpayforthedelay. Id. at para.77-78.

BAE Norfolk has a four-year Apprenticeship Program, in which participants are promoted to First Class Mechanics. Id. at para. 59. BAE Norfolk also hasa two-year Trainee Program that promotes Helpers toSecond Class Handypersons. Id. atpara. 60. Plaintiffs allege thatfemale employees frequently aredenied such training opportunities. Id. atpara. 54.

By late 2012, there were only two women serving as Supervisors in the shops related to productionandmaintenance,and no womanhadever held a position above AssistantCraft Shop Supervisor in any shop. Id. at paras. 32-33. After learning that Plaintiffs intended to sue, BAE Norfolkpromotedwomento supervisorypositions. Id. at para. 34.

Plaintiffs allege that "BAE has failed to create adequate incentives for its managers to comply with equal employment opportunity laws and has failed to adequately discipline its managers andotheremployees whentheyviolate theanti-discrimination laws." Id. at para. 116. On several occasions, Vice President Tjepkema hascommented on female employees' physical appearances andmadesexuallysuggestive remarks directed atthem. Id. atpara. 64. Supervisors alsomakediscriminatory remarks or sexual overtures to female employees without reprisal, and frequently exchange pornography at work. Id. at paras. 65-67. Lower-level workers regularly engage insexual discussion andusederogatory termstorefertowomen. Id. atparas. 68-69.

Female employees complain frequently to their supervisors, upper management, and Human Resources about this behavior. Id. at para. 72. Harassment complaints are usually disregarded or investigated inadequately. Id. at paras. 80,82. When such complaints succeed, thewrongdoer israrely disciplined effectively. Id. atpara. 83. Female employees who complain aboutdiscriminationor harassmentareoftensubjectedtoretaliation. Id. at para.84.

Plaintiffs' Amended Complaint lists numerous incidents of alleged discrimination, harassment, and retaliation against Named Plaintiffs and other female employees of BAE Norfolk. Id. at paras. 126-282. Because Defendants do not contest the sufficiency of these allegations to state individual claims of sex discrimination and retaliation, the Courtforgoes a recitation ofthese allegations.

Plaintiffs seek to represent a class consisting of"all female citizens ofthe United States who are, or have been,employed by BAE at the Norfolk Shipyard and have experiencedgender discrimination atanytimeduringtheapplicable liability period,"excluding non-union managers and supervisors. Id. at paras. 101-02. Plaintiffs allege that this class includes more than one hundred members. Id. at para. 103.

Ii. Standard Of Law

A. MotiontoDismiss FederalRuleofCivilProcedure 12(b)(6)permitsadefendant to seekdismissalbasedona plaintiffs "failure to state a claim upon which reliefcan be granted." Fed. R. Civ. P. 12(b)(6) (2014). Amotiontodismissforfailuretostateaclaimshouldbegrantedifthecomplaintfailsto allege "enough facts to state a claim to relief that is plausible on its face." BellAll. Corp. v.

Twombly, 550 U.S. 544, 570 (2007). Requiring a claim to be plausible "does not impose a probability requirement at the pleadingstage." Id. at 556. However,it doesrequiremorethana "sheer possibilitythat a defendant has acted unlawfully." Iqbal, 556 U.S. at 678. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Because conclusory allegations "necessitate some 'factual enhancement' within the complaint to cross 'the line between possibility and plausibility ofentitlement to relief,'" a '"formulaic recitation of theelements ofa cause of action will notdo.'" Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009)(quoting Twombly, 550 U.S. at 555,557).

A 12(b)(6) motion "test[s] the sufficiency ofa complaint" and does not "resolve contests surrounding the facts, themerits of a claim, ortheapplicability of defenses." Presley v. City of Charlottesville, 464F.3d 480,483(4thCir.2006) (alteration provided) (quoting Edwards v. City

ofGoldsboro, 178 F.3d231,243(4thCir. 1999)) (internal quotationmarksomitted). Asnoted, a court should assume the truth of well-pleaded factual allegations. Iqbal, 556 U.S. at 679. Although the truth of the facts alleged is assumed, and the facts are taken in the light most favorable to theplaintiff, courtsare not bound by"legal conclusions drawn from the facts" and "neednot accept as true unwarranted inferences, unreasonable conclusions, or arguments." E.

ShoreMkts. Inc. v. J.D. Assocs. Ltd. P'ship, 213F.3d 175,180(4thCir.2000). B. TitleVII This Court has subject matter jurisdiction over job discrimination claims only if they werewithin thescopeoftheclaimant's EEOC charge. Jones v. Calvert Grp., Ltd., 551 F.3d297, 300(4thCir.2009). Foraclaimtobewithin thescopeofan EEOCcharge,itmustbe"statedin the initial charge, . . . reasonably related to the original complaint, . . . [or] developed by reasonable investigation of theoriginal complaint." Evans v. Techs. Applications &Serv. Co., 80F.3d 954, 963 (4th Cir. 1996). Ifanincident occurred more than 300days before thefiling of the plaintiffs EEOC charge, it can be raised in a subsequent lawsuit only if it was part of a continuing violation and at least one actinthat violation occurred within the300-day statute of limitations. Nat'I R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002). However, discriminatory events that do not provide bases for relief "may still constitute relevant background evidence for valid claims." Evans,80 F.3d at 962.

C. ClassAllegations A courtmaycertifya class actiononlywhen"there are questionsof lawor factcommon to the class." Fed. R. Civ. P.23(a)(2) (2014). "This does not mean merely thatthey have all suffered a violationofthe same provision of law." Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541,2251(2011). Instead,"[t]heirclaims must depend upon a common contention." Id. "That

common contention, moreover, must be of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke." Id. "What matters to class capacityofaclasswideproceedingtogeneratecommonanswersapt todrivetheresolutionofthe litigation." Id. (omission in original) (quoting Richard A. Nagareda, ClassCertification inthe AgeofAggregate Proof, 84N.Y.U. L.Rev.97,132 (2009))(internalquotation marksomitted).

While the decision whetherto certify a class action is normally made after discovery, "[s]ometimes the issues are plain enough from the pleadings to determine whether the interests oftheabsent parties arefairly encompassed within thenamed plaintiffs claim." Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160(1982). Because motionsto strikeclassallegations challenge the sufficiency of the pleadings, they are addressed under the same plausibility standard as motionstodismissunderFederalRuleof CivilProcedure 12(b)(6). SeeGlobalHub Logistics v.

Tamerlane GlobalServs., Inc.,No. l:12-cv-1350, 2013 WL 1332048, at *3 (E.D. Va. Mar. 29, 2013) ("In reviewing a motionto strike,a court . . . 'must view the pleading underattack in a light most favorable to the pleader.'" (quoting Racickv. DominionLawAssocs.,270 F.R.D. 228, 232 (E.D.N.C. 2010))); cf Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982) (stating that motionsarguing thatsubject matterjurisdiction is insufficiently pled are resolved under the same standard as motions under Rule 12(b)(6)).

Iii. Analysis

Defendants have filed a Motion to Strike Plaintiffs' class allegations and a Partial Motion to Dismiss. The Partial Motion to Dismiss is addressed first.

A. PartialMotionto Dismiss In their Partial Motion to Dismiss, Defendants assert that (1) some ofMs. Aviles's claims are barredbya ConciliationAgreementthat resultedfrom an earlier EEOC charge;(2) Plaintiffs did not exhaust their administrative remedies with respect to some of the allegations in the AmendedComplaint;and(3) Plaintiffs' allegationsofdiscriminatory hiringaretime-barred.

Defendants do not dispute that some of the allegations in the Amended Complaint are properly before the Court and that these undisputedly permissible allegations are sufficient to stateclaimsofdiscriminationand retaliationwithrespectto eachNamed Plaintiff. Even factual allegations which cannot provide relief "may still constitute relevant background evidence forvalid claims." Evans, 80 F.3d at 962. Therefore, evenassuming that the challenged allegations cannot provide freestanding bases for relief, those allegations are nonetheless properly included in the Amended Complaint as relevant background evidence.

Such evidence is especially relevant because Plaintiffs bear a burden of establishing that Defendants "operated under a general policy of discrimination." Dukes, 131 S. Ct. at 2553 (quotingFalcon, 457U.S.at 159n.15)(internal quotationmarksomitted). Defendants' Partial Motion to Dismiss is DENIED. B. MotiontoStrikeClassAllegations Defendants have also moved tostrike Plaintiffs' class allegations. Defendants argue that Plaintiffs' classallegationsare barredby Wal-Mart v. Dukes, 131 S. Ct. at 2554-55. Defendants alsoargue thatPlaintiffs lackstanding to bring claims of discriminatory hiring because Named Plaintiffs' individual claims of discriminatory hiring are purportedly time-barred. Finally, Defendants argue that Plaintiffs' claims of retaliation and requests for monetary damages precludeclasscertification becausethoseissuesareinherentlyindividualized.

Defendants' reliance on Dukes is unavailing. Dukes held that plaintiffs can pursueclass actions under Title VII if they offer "[significant proof that an employer operated under a general policy of discrimination" and "the discrimination manifested itself in hiring and promotion practices in the same general fashion, such as through entirely subjective n.15) (internal quotation marks omitted).

In Dukes, the plaintiffs submitted a social framework analysis of the defendant's corporate culture that concluded that the defendant's corporate structure was "vulnerable" to discrimination. Id. at 2553. The plaintiffs also submitted statistical and anecdotal evidence of discrimination. Id. at 2555. TheSupremeCourtheldthatthe socialframework analysiswastoo ambiguous to constitute "significant proof," and that the statistical and anecdotal evidence was unhelpful because evidence of discrimination in some regions did not provide evidence of a nationwide policy or practice of discrimination. Id. at 2554-55 ("In a company of [the defendant's] size and geographical scope, it is quite unbelievable that all managers would exercisetheirdiscretionin a commonway withoutsome commondirection."). As a result,the Supreme Court heldthat class certification inthat case was improper. Id. at 1556-57.

The FourthCircuit laterrecognizedthatDukes "did not set out a per se ruleagainst class certification where subjective decision-making or discretion is alleged." Scott v. Family Dollar Stores, Inc., 733 F.3d 105, 113 (4th Cir. 2013). "[E]ven in cases where the complaint alleges discretion, ifthereisalsoanallegation ofa company-wide policyof discrimination, the putative class may still satisfythe commonality requirement for certification." Id. at 114.

Plaintiffs' allegations meet this standard. Unlike the plaintiffs in Dukes, who reliedon an inconclusive study and "a few anecdotes selected from literally millions of employment

decisions," Dukes, 131 S. Ct. at 2553, 2556 n.9, Plaintiffs have alleged that Defendants' senior management publicly demonstrated discriminatory behavior, Am. Compl. para. 64, ECF No. 10. Such allegations, coupled with the fact that the managers in this case, unlike the managers in Dukes, are concentrated in one location, make it plausible that Defendants have encouraged a company-wide attitude of discrimination that has "manifested itself in hiring and promotion S. Ct. at 2553 (quoting Falcon, 457 U.S. at 159 n.15) (internal quotation marks omitted).

Therefore, Dukesdoes not preclude class certification in this case. Defendants also argue that Plaintiffs' mention of discriminatory hiring in their class allegations is improper because Named Plaintiffs' claims of discriminatory hiring are time- barred. EvenifNamed Plaintiffscannotstateclaimsfordiscriminatory hiring, theirallegations that they were subject to discriminatory hiringare relevantto their discriminatory pay claims.

Specifically, it is possible that Defendants will respond to NamedPlaintiffs' discriminatory pay claims byarguing that Plaintiffs' pay is based on gender-neutral pay scales. SeeAm. Compl. para. 27 (discussing thesescales). Named Plaintiffs' discriminatory hiring allegations help to rebut this argument by asserting that women are placed at lower ranks on these scales than equally qualified men,resulting inwomen receiving lowerpaydespitethefacial neutrality ofthe pay system. Because Named Plaintiffs' discriminatory hiring allegations provide useful background evidence for Plaintiffs' discriminatory pay claims, those allegations are properly included in the Amended Complaint. Evans,80 F.3d at 962.

Defendantsalsoarguethat Plaintiffs' retaliationclaims cannot be broughton a classbasis because such claims are inherently individualized. Retaliation claims often involve individualized questions, but theycan be brought on a classbasis if the plaintiffs "establishf] a

general practice of retaliation against employees who opposed discriminatory practices or exercisedrightsprotectedunderTitle VII." Holseyv. Armour &Co.,743 F.2d 199,217 (4thCir. 1984);accordDukes, 131 S. Ct. at 2553 (requiringproof ofa general policyofillegalconduct thatmanifesteditselfsimilarlywithrespecttoallclass members).

Here, the numerous instancesofpossibleretaliation recited in the Amended Complaint, coupled with the discriminatory attitudes allegedly demonstrated by Defendants' upper management, make Plaintiffs' claims that Defendants operated under a general policy of retaliation plausible. Therefore, Plaintiffs'classretaliation claimsareproper.

Finally, Defendants argue that Plaintiffs' claims for monetary damages are too individualized tobelitigated ona classbasis. TheSupreme Courthasheldthatwhen a plaintiff in a class action "seeks individual reliefsuch as reinstatement or backpay afterestablishing a pattern or practice of discrimination," the district court should first decide the issue of discrimination onaclassbasisandthenconductindividualized proceedingsontheissueofrelief.

Dukes, 131 S.Ct.at2561. Unlike the plaintiffs in Dukes, Plaintiffs do not rely solely upon "the bare existence of delegated discretion." Id. at 2555. Instead, Plaintiffs have alleged that Defendants' senior managementactivelyencourageddiscriminatoryattitudesthroughout the workplace. Theclaims of the class members can be resolved by common answers regarding the guidance that Defendants' upper management has given to lower managers and supervisors regarding sex discrimination. Defendants' challenge regarding the weight of the individual issues and class issues is best resolved after class discovery iscomplete. Therefore, Defendants' Motion to Strike is DENIED.

Iv. Conclusion

Plaintiffs have alleged facts that, if proven, will render class certification appropriate. Although Plaintiffs may be procedurally barred from obtaining relief for some of the incidents alleged, these allegations are properly included as background evidence for Plaintiffs* other claims. Defendants* Motion to Strike (ECF No. 22) is DENIED.

Defendants" Partial Motion to Dismiss(ECFNo. 24) is DENIED. IT IS SO ORDERED. ArendaVwngnt-a'njen United States District Judge rfolk. Virginia

Case 2:13-cv-00418-AWA-RJK Document 105 Filed 09/28/15 Page 1 of 10 PageID# 1558

In The United States District Court

For The Eastern District Ofvirginia

Norfolk Division

Janetaviles, Jamieka Brown, )

STEPHANIE JACKSON, and KEL SHARPE, ) individually and on behalfofall others similarly ) situated, ) Plaintiffs, ) ) Case No.: 2:13-cv-0()418-A\VA-TK.M v. )

Bae Systems Norfolk Ship Repair, )

INC. and BAE SYSTEMS SHIP REPAIR. INC., ) Defendants. )

Osed}Order Granting:

(1) Preliminary Approval Of Class Action Settlement;

(2) Preliminary Certification Of Settlement Class;

(3) Approval Of Notice Plan; And

(4) Setting Schedule For Final Appr()Val

Havingreviewedthe unopposed motionof plaintiffs Janet Aviles. Jamieka Brown. Stephanie Jackson, Kel Sharpe. individually and on behalfofall others similarly situated ("Plaintiffs"), forpreliminary approval oftheclassaction Settlement Agreement andJoint Stipulation ("Settlement" or"Agreement") between Plaintiffs and Defendants BAE Systems Norfolk ShipRepair. Inc. and BAE Systems ShipRepair, Inc. (collectively"BAESystems" or "Defendants"), preliminary certification ofasettlement class in thisaction, appointment of ClassRepresentatives. ClassCounsel and theSettlement Administrator, approval of the notice ofsettlement to be sent to Sub-Class B/Monetary RclicfClass members, and the setting ofa hearing datefor final approval (hereinafter. "Motion for Preliminary Approval"): the accompanying memorandum in support; the declarations ofJoshua Friedman and Jennifer Reisch in support; thearguments ofcounsel: the pleadings and filings in this action: and good cause appearing therefore, the Court hereby ORDERS as follows:

Case 2:13-cv-00418-AWA-RJK Document 105 Filed 09/28/15 Page 2 of 10 PageID# 1559 TheMotion forPreliminaryApproval isGRANTED as setforthherein. TheCourt further makes the following findings and orders:

A. Preliminary Approval Ofclass Action Settlement

1. The Court has reviewed the terms ofthe Settlementattached as Exhibit A to the DeclarationofJoshua Friedman inSupportofthe Motion for Preliminary Approval, including theinjunctive reliefandmonetaryreliefprovisions. ThedefinitionsintheAgreement arehereby incorporatedasthough fullyset forth inthisOrder,andcapitalized terms shall have the meaning attributed to them inthe Agreement. The Courtalso reviewed the supporting papers and declarationsofClassCounsel, which describe their legaland factual investigationand their assessment ofPlaintiffs' action and the Settlement. Based on review ofthose papers, the Court concludes thatthe Settlementterms appearsufficient and fair, reasonable, and adequate to warrant dissemination ofthe proposed settlement as provided inthe Notice Plan. The Court findsthat the Partiesentered into the Agreement ingood faith, following extensive, arms' length negotiations between their respective counsel, the settlement process was non-collusive, the Settlement has noobvious defects, and it iswithin the rangeofpossible settlement approval such that class notice isappropriate.

2. It is therefore ORDERED that:

a. The Settlement Agreement and the class action settlement itembodies is

herebyPRELIMINARILY APPROVED. Final approval oftheSettlementissubjecttothe hearingofanyobjectionsofmembersoftheSettlement Class,asdiscussedbelowandprovided in the Settlement.

b. Pending final determination ofthe fairness ofthe Settlement, all further

litigation ofthisaction notrelated totheapproval process ishereby STAYED.

c. The full terms ofthe Settlement Agreement will be made available inthe

Court's files at 600 Granby Street, Norfolk, VA, 23510 or online at http://www.vaed.uscourts.gov/ecf/index.html.

Case 2:13-cv-00418-AWA-RJK Document 105 Filed 09/28/15 Page 3 of 10 PageID# 1560

B. Preliminary Certification Of Settlement Classes

1. TheCourt preliminarily certifies, forsettlement purposes only, the following settlement classes pursuant to Rule 23 ofthe Federal Rules ofCivil Procedure:

a. Pursuant to Rule 23(b)(2), aSub-Class A/lnjunctive ReliefClass1

consistingof: Allwomen who held aNon-Management Position at BAE SystemsNorfolk Ship Repair,Inc.at any timeduring the periodOctober 5,2007 through December 31, 2014, excludingthose individuals who previously entered into releases ofclaims as partofindividual agreements with BAEthat did notcarve out an exception for this Action atany time prior tothe Preliminary Approval Date; and

b. Pursuant to Rule 23(b)(3), a Sub-Class B/A Monetary Relief

Class consisting of: Allwomenwho helda BargainingUnitPositionat BAESystemsNorfolkShip Repair,Inc.atanytimeduringtheperiodOctober5, 2007throughDecember31, 2014, excludingthose individuals who previously entered into releases ofclaims as partofindividualagreementswithBAEthatdid notcarveoutanexceptionfor thisActionat anytimepriortothe PreliminaryApproval Date.

2. TheCourthereby finds thattheproposed settlement classes (collectively, the "SettlementClass"or"'Class")satisfytherequirementsforcertificationunderRule23(a):

a. TheSettlementClassissufficiently numeroussuchthatjoinderofall

membersinasingleproceedingwouldbeimpracticable;

b. There arequestions oflaworfact common totheClass, including, for the

Injunctive Reliefclass (Sub-Class A): (I) whether female employees in Non-Management Positions atBAE Systems Norfolk ShipRepair, Inc. weresubjected tohostile work environment sexual harassment that was notadequately addressed orremedied byseniormanagers and supervisors, and (2) whether managers orsupervisors retaliated against female employees in Non-Management Positions atBAE Systems Norfolk Ship Repair, Inc. for complainingabout genderdiscrimination orharassment in violation ofthe Company's anti-retaliation policy; and Sub-Class A includesall membersofthe Settlement Class.

Case 2:13-cv-00418-AWA-RJK Document 105 Filed 09/28/15 Page 4 of 10 PageID# 1561 formembersofthe Monetary ReliefClass (Sub-Class B):(1) whether BAESystems' policies andpractices withrespect toshopordepartment assignments andhoursdiscriminated against femaleemployeesinBargainingUnitPositions,and(2)whether BAESystems' policiesand practiceswith respecttopromotion during the relevant perioddiscriminated against female employees in Bargaining Unit Positions;

c. Named Plaintiffs' claims are typical ofthe claims ofthe classes they seek

to representinthateach Named Plaintiffasserts that she wassubject to gender discrimination in promotions andassignments and wassubject toa hostile work environment on the basisofher sex, and that members ofthe proposed SettlementClass were subject to the same treatment; and

d. The Named Plaintiffshave fairlyand adequately represented theclasses

theyseek to represent and will continue todo so; and

e. PlaintiffsandtheSettlementClassare representedbyqualified,reputable

counsel who areexperienced inpreparing and prosecuting employment discrimination matters andclassactions,includingthose involvingthesortsofpracticesalleged intheComplaint. 3. The Court finds that the Sub-Class A/Injunctive ReliefClass satisfies the requirementsof Rule23(b)(2)becausethechallengedpracticesand policiesappliedtotheclass generally,suchthatfinalinjunctivereliefisappropriaterespectingtheclass asawhole.

4. TheCourt finds thatthe Sub-Class B/Monetary ReliefClass satisfies the requirements of Rule 23(b)(3)becausecommon questions oflawandfactpredominate over questions affecting any individual Class member, thecentral issues raised inthis action are susceptible tocommon proof, and resolving the common liabilityand damages issues in asingle actionwould befarmoreefficientthanlitigating individual claimsinseparateactions.

C. Appointment Of Class Representatives And Class Counsel

1. TheCourtfinds thatNamedPlaintiffsJanetAviles,JamiekaBrown, Stephanie Jacksonand KelSharpehave fairlyandadequatelyrepresentedthe interestsofthe Settlement Classandwillcontinuetodo so,andthusappointsthemtorepresentPlaintiffsasClass Representatives.

Case 2:13-cv-00418-AWA-RJK Document 105 Filed 09/28/15 Page 5 of 10 PageID# 1562 2. The Court finds that the Law Offices ofJoshua Friedman PC and Equal Rights Advocates haveextensiveexpertise inemployment discrimination cases and class actionsand herebyappointsthemto represent Plaintiffsandthe Settlement Class as Class Counsel.

D. Approvalof Notice Plan

1. The Court approves, as to form and content, the Notice ofPendency ofClass Action Settlement, Verification form and instructions, and Exclusion Statementform and instructions attached to the Class Action Settlement as Exhibits 1,2,and 3(collectively, the "Notice Packet"). The Court has reviewed the submitted Notice Packet and concludes that:

a. The parties' proposed NoticeofPendency ofClass Action Settlement

(Exhibit I to the Settlement) sufficiently informs Sub-Class B/Monetary ReliefClass Members ofthetermsoftheSettlement,theirrightsundertheSettlement(including,butnot limitedto, theirrighttoparticipateinthemonetaryportionoftheSettlementand/orobjecttotheSettlement, ortheir rightto requestto beexcluded fromthe monetary relief provided inthe Settlement), and the date and location ofthe final approval hearing.

b. Pursuant to the Settlement, Notice Packets will be mailed to all Sub-Class

B/MonetaryReliefClassMemberswhoseidentitiesareknownto theparties. TheNoticePacket willbedisseminatedaccordingtothenoticeplandescribedinthe SettlementAgreementand substantially inthe form submitted bythe parties. 2. TheCourtalsoapproves theprocedure fordisseminatingnoticeoftheproposed settlementtotheSettlementClassasset forthintheSettlementAgreement. TheCourtfindsthat theplanofnotice under theproposed Settlement constitutes thebestnotice practicable underthe circumstances, and constitutes valid, due, and sufficient notice to the SettlementClass in full compliance with therequirements ofapplicable law, including theDueProcess Clause ofthe United States.

Case 2:13-cv-00418-AWA-RJK Document 105 Filed 09/28/15 Page 6 of 10 PageID# 1563 3. Accordingly, the Court hereby ORDERS as follows:

a. The form and content ofthe proposed Notice ofPendency ofClass Action

Settlement, Verification Form,and Exclusion Statement (respectively, Exhibits 1,2and 3to the Settlement) are approved;

b. The manner ofdistributing theNotice Packet isapproved;

c. The Court approves Settlement Services, Inc. ("SSI") to serve as the

Settlement Administratorand authorizes and directs SSIto implement the notice planand claims administration termsofthe proposed Settlement Agreement, which include:(i) mailingNotice Packetsto membersofSub-Class B/MonetaryReliefClass; (ii) establishing thetoll-free informational telephonenumber;(iii)establishtheSettlementwebsite;(iv) receivingand processing Verification Forms and Exclusion Statements; and (v) carrying out such other responsibilitiesasare provided forinthe Agreementor may beagreed to bythe Parties;

d. Within20calendardaysafterthedate thisorder isentered,BAESystems

shall provide class member information to the Settlement Administrator, which shall distribute the Notice PackettoSub-Class B/Monetary ReliefClass Members within 30daysofreceipt of theclassmemberinformation,asset forthinParagraph48ofthe Settlement;

e. TheCourtauthorizesnoticeandsettlementadministration expenses and

fees incurred bySSI, which ithasestimated will amount toapproximately $20,000, tobepaid from the $3 million Settlement Fund tobe administered by SSI. In accordance with Paragraph 105 oftheSettlement Agreement, theSettlement Administratorshall provide reasonable notice andexplanation tothe Partiesbeforeincurringorcharginganynoticeoradministration fees or expenses inexcess of$20,000. Anyadditional costsandexpenses ornotice andsettlement administrationwillalso bepaidoutoftheSettlementFund.

f. TheSettlement Administratorshall provide counsel fortheParties witha

declaration onadministration of noticeshowingthattheClassNoticewasdisseminated in accordance with this Orderand the Settlement Agreement, including areport ofany/all exclusion requests received andofthose participating Sub-Class B/Monetary ReliefClass Members to

Case 2:13-cv-00418-AWA-RJK Document 105 Filed 09/28/15 Page 7 of 10 PageID# 1564 whom an individualsettlement share payment isdue,along with the projected amounts ofthose payments, no laterthan 15calendardays priorto the Final Approval Hearing Date.

E. Procedures And Deadlines Relating To Final Approval Ofthe

Settlement

1. Class Counsel's Motion for Attorneys' Fees and Costs Class Counsel shall file with this Court their motion foran award ofreasonable attorneys' feesand expenses no laterthan 10calendardays prior to the FinalApproval Hearing and at least 10calendardays priorto the deadline forclass members to submit written objections tothe Settlement to the Court. The motion shall be posted on the website established by the Settlement Administratordesigned to provide information to and communications with class members.

2. Verification and Exclusion Process; Deadlines for Sub-Class B/Monetary ReliefClass Members to Participate in or Opt Out ofthe Settlement

a. Sub-Class B/Monetary ReliefClass Members who wish to participate in

themonetaryreliefportion ofthe Settlementand receivean individual settlement share payment mustcompletetheverificationprocessasdescribedinParagraph50oftheSettlement Agreement. Sub-Class B/Monetary ReliefClass Memberswill have until 50days after thedate the Settlement Administrator initially mails Notice Packets tocomplete verification forms,and anadditional 10 daystocompletetheverificationprocessviaphoneor theSettlementwebsite createdbytheSettlement Administrator(the"Verification Deadline")inordertocompletethe verificationprocessand thereby becomeeligible to receivean individual settlement share payment upon final approval ofthe Settlement.

b. AnymemberofSub-ClassB/Monetary ReliefSub-Classmayrequestto

beexcluded (or"optout")from thatSub-Class andthemonetary reliefportion oftheSettlement. Sub-Class B/Monetary ReliefClass Members who wish toexclude themselves from the monetary portionofthe Settlement must submit signed exclusion statements to the Settlement Administrator, postmarked no laterthan50daysafter the date that the Settlement Administrator firstmailstheNotice Packets(the"Opt-Out Deadline"). Exclusionstatements must be

Case 2:13-cv-00418-AWA-RJK Document 105 Filed 09/28/15 Page 8 of 10 PageID# 1565 personally signed and dated by the Sub-Class B Member requestingexclusion andcontain a statement substantiallysimilar incontent to that ofExhibit 3to the Settlement Agreement. No person mayopt-out on behalfofanyother person,or beopted-out byany other person. Except forthose persons who have properly and timely submitted exclusion statements, all Sub-Class B MemberswillbeboundbytheAgreementandtheFinalJudgmentand OrderApproving Settlement, includingthe Release ofClaims contained at Paragraph 104therein, regardlessof whethertheycompletetheverificationprocessor receiveanymonetary relief. AnySub-ClassB Memberwhoproperly requests tobeexcludedfrom Sub-ClassB(themonetary portion ofthe Settlement)shallnot:(a)beboundbythe ReleaseofClaimscontained intheAgreement;(b)be entitled toanymonetary reliefunderorpursuant totheAgreement; or(c)beentitled tofileany objections toanyaspectoftheSettlementorappearattheFinal Approval Hearingtovoiceany objectionstotheSettlementortoClassCounsel'smotion foranaward ofattorneys' fees and costs.

3. Objections to the Settlement

a. AnySettlementClassmemberwhocomplies withtherequirementsofthis

Paragraph anddoesnotsubmitanexclusion statement may objecttoanyaspect oftheproposed SettlementAgreement ortoClassCounsel'smotion foranawardofattorneys' fees andcosts eitheronhisorherownorthrough anattorney hired athisorherexpense. AnySettlement Class Member who wishes to object to the proposed Settlement must file with the Court, and serve on the Settlement Administrator, Class Counsel, and Defendant's Counsel, at the addresses set forth below, awritten statement ofobjection nolaterthanfifty (50)calendardaysafterthedatethe Settlement Administrator initially mailsNotice Packets (the"Objection Deadline").

b. Writtenstatementsofobjectionshall include:(i)the name,address,

telephone numberand, ifavailable, e-mail address ofthe person objectingand, ifrepresented by counsel, ofhis/hercounsel; (ii)astatement ofhis/her membership intheSettlement Class (iii) specificallyandinwriting, eachandeveryobjection totheproposed Settlementand/ortoClass Counsel's motion forattorneys' fees and costs, along with adetailed description ofthe grounds

Case 2:13-cv-00418-AWA-RJK Document 105 Filed 09/28/15 Page 9 of 10 PageID# 1566 foreach;and(iv)noticeofwhetherhe/she intends toappearatthe Final Approval Hearing, cither with or without counsel.

c. Objections must be served on Counsel for the Parties and sent to the

Settlement Administrator at the following addresses: Settlement Administrator Settlement Services Inc. P.O.Box 1657 Tallahassee, FL 32302-1657 Class Counsel Joshua Friedman. Esq. Law Offices ofJoshua Friedman. P.C. 1050 Seven Oaks Lane Mamaroneck, NY 10543 Jennifer Reisch. Esq. Equal Rights Advocates San Francisco, CA 94102 Defendant's Counsel Carson Sullivan, Esq.

Paul Hastings LLP 875 15th Street, N.W. Washington, D.C. 20005

d. Any SettlementClass Member who does not timely file and serve a

written objection pursuant to the terms hereofshall be deemed to have waived, and shall be foreclosed from thereafter raising, any objection to the Agreement. Any objection that isnot timely made shall be barred. 4. Final Approval Motion Deadline and Hearing Date

a. Class Counsel shall filea Motion for Final Approval ofthe Settlement no

laterthan 10days before the final approval hearing. The parties may file a reply to any objection, jointlyor separately, no laterthan fivecourt days before the final approval hearing.

b. A hearing on final approval ofthe Settlement Agreement and on an award

ofattorneys' feesandexpenses toClass Counsel(the "Final Approval Hearing") shall be heldat onVeb \Oh 20ljfat 4-COAM,, before the undersigned in Courtroom 3_ofthe United

Case 2:13-cv-00418-AWA-RJK Document 105 Filed 09/28/15 Page 10 of 10 PageID# 1567 States District Court for the Eastern District ofVirginia, 600 Granby Street, Norfolk, VA 23510. Atthe Final Approval Hearing, the Court will consider: (a) whether the Agreement should be finally approved as fair, reasonable, and adequate for the Settlement Class; (b) whether togrant final certificationofthe Settlement Class: (c) whether ajudgment grantingapprovalof the Agreement and dismissing the Action with prejudice should be entered: and (d) whether Class Counsel's motion forattorneys' fees and expenses should be granted. The Court reserves the right to continue the date ofthe final approval hearing without further notice to class members.

IT IS SO ORDERED. Arenda LTWHght,Allen United States District Judge 3T *oiy Dated The IIon. Arenda Wright Allen United States District Judue

Miramontes v. Peraton, Inc. United States District Court for the Northern District of Texas, Dallas Division June 6, 2023, Decided; June 6, 2023, Filed

Civil Action No. 3:21-Cv-3019-B

Reporter 2023 U.S. Dist. LEXIS 98024 *; 2023 WL 3855603 CARLOS MIRAMONTES, Plaintiff, v. PERATON, INC., Defendant. Prior History: Miramontes v. Peraton Inc., 2022 U.S. Dist. LEXIS 216516, 2022 WL 17364263 (ND. Tex., Dec. 1, 2022) Counsel: [4'1] For Carlos Miramontes, Plaintiff: Joseph E Ackels, Sr, LEAD ATTORNEY, Gregory Kaleel Ackels, Jr, Joseph Ellis Ackels, Jr, Ackels & Ackels LLP, Dallas, TX.

For Peraton Inc, Defendant: Jeremy Wayne Hawpe, LEAD ATTORNEY, Littler Mendelson PC, Dallas, TX; Ryley T Bennett, Littler Mendelson, Dallas, TX. For ADR Provider, Mediator: Cecilia H Morgan, LEAD ATTORNEY, JAMS, Dallas, TX. Judges: JANE J. BOYLE, UNITED STATES DISTRICT JUDGE. Opinion by: JANE J. BOYLE Opinion

Memorandum Opinion And Order

Before the Court is Plaintiff Carlos Miramontes's Motion for Sanctions for Spoliation of Evidence (Doc. 62). Miramontes claims Defendant Peraton, Inc. should be sanctioned for (1) failing to preserve text messages between its employees Joe Capalbo and Victor Stemberger and (2) failing to produce certain emails and agendas related to Miramontes's selection for termination. As a sanction, Miramontes requests a finding of liability as to discrimination. Because the Court finds a lesser sanction is appropriate, the Court GRANTS in part the Motion for Sanctions (Doc. 62).

As sanctions, the Court DENIES Peraton's Motion for Summary Judgment (Doc. 30) and permits Miramontes to serve five additional interrogatories and three additional requests [*2] for production. Miramontes's Motion to Strike Defendant's Summary Judgment Evidence (Doc. 37) is DENIED AS MOOT. I.

Background

Rebecca Houlding

United States District Court For The

Northern District Of New York

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A.S., Plaintiff, -against- No. 1:21-CV-620 (BKS) (ATB)

City School District Of Albany; City

School District Of Albany Board

Of Education; Lori Mckenna, In Her

Individualcapacity; Dale Getto, In Her

Individualcapacity; Anne Savage, In

Her Individual Capacity; Jeffrey

Honeywell, In His Individual Capacity,

Defendants.

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Memorandum Of Law In Support Of

Plaintiff’S Motion To Proceed Under Pseudonym

On theBrief: Rebecca Houlding, Esq. Giselle Schuetz, Esq.

Friedman& Houlding Llp

1050 Seven Oaks Lane Mamaroneck, New York 10543 212.308.4338 866.731.5553 rebecca@friedmanhouldingllp.com giselle@friedmanhouldingllp.com

Table Of Contents

B. Denying Anonymity Risks Harm to Plaintiff and Innocent Student Third

Memorandumof Law

Plaintiff A.S. (“Plaintiff”) makes the instant motion to proceed in the above-captioned case as a pseudonymous plaintiff. This Court should permit A.S. to protect her identity from public disclosure because this case involves matters of the highest sensitivity (sexual misconduct toward a minor), it is pursued against a government defendant with a diminished interest in protecting its reputation, the public’s interest is furthered by anonymity in this and other sexual misconduct cases, innocent non-parties as well as Plaintiff would be harmed by public disclosure of her identity, Plaintiff’s identity has been kept publicly undisclosed to date, and Defendant will suffer no prejudice from Plaintiff’s anonymity. Plaintiff’s motion should be granted.

I. Facts

In her Complaint, Plaintiff A.S. alleges she was harassed by a male student perpetrator while she attended a high school operated by Defendants City School District of Albany and the City School District of Albany Board of Education. As set forth in her Complaint, the perpetrator sexually harassed Plaintiff beginning when she was just fifteen years old, including but not limited to by writing andcirculating a violent rape fantasy concerning Plaintiff via text message to male classmates (Dkt. 1 ¶¶63-66)and going so far as to publicly ask his Chemistry instructor how to make chloroform, which was an element in the rape narrative (¶67); circulating violent sexual text messages concerning Plaintiff and another female student that referenced their bodies, oral sex, mutilation, Viagra-fueled rape, and noise-cancelling headphones (¶¶146-149; see also Dkt. 1,Exhibit B); grabbing and holding plaintiff’s arm (¶73); asking her “do you want to be my dominatrix?” (¶74); screaming profanities at her (¶56); and other highly offensive conduct and actions. He further engaged in offensive sexual conduct toward other students not parties to this case, about which Plaintiff was aware: hetexted a third-party student a sexually

violent “song” with lyrics suggesting he had raped her and left her crying on the floor (¶61), told a student that she should post color photos of herself on Instagram because he “masturbated better to color photos” (¶69), stalked and made sexual comments to another student including about penis size (¶78), and engaged other offensive sexual conduct. The Complaint does not identify the perpetrator student nor the third-party students by name. Plaintiff now seeks leave to pursue her claims under a pseudonym.

Ii. Legal Standard

Under the Federal Rules of Civil Procedure, generally “the title of the complaint must name all the parties” and “an action must be prosecuted in the name of the real party in interest.” Fed. R. Civ. P. 10(a), 17(a)(1). However, courts “approve[] of litigating under pseudonym in certain circumstances.” Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 190 (2d Cir. 2008).

To proceed anonymously a plaintiff must demonstrate that she has “a substantial privacy right which outweighs the customary and constitutionally-embedded presumption of openness in judicial proceedings.” Macinnis v. Cigna Grp. Ins. Co. of Am., 379 F.Supp.2d 89, 90 (D. Mass. 205) (internal quotes and cites omitted). “[T]he decision whether to allow a plaintiff to proceed anonymously rests within the sound discretion of the court.” Doe v. C.A.R.S. Protection Plus, Inc.,, 527 F.3d 358, 371 n.2 (3d Cir. 2008). In exercising this discretion, courts in this Circuit “balance [the] interest in anonymity against both (a) the public interest in disclosure and (b) the potential prejudice” to the other party. Sealed Plaintiff, 537 F.3d at 185. The following ten factors should be considered:

(1) “whether the litigation involves matters that are highly sensitive and [of a] personal nature”;

[seeking to proceed under pseudonym] or even more critically, to innocent non-parties”; (3) “whether identification presents other harms and the likely severity of those harms”; (4) “whether [a party or non-party] is particularly vulnerable to the possible harms of disclosure”; (5) “whether the suit is challeng[ing] the actions of the government or that of private parties”; (6) whether there would be any prejudice to a party by proceeding with the case anonymously; (7) whether the parties’ identities have been kept confidential; (8) “whether the public’s interest in the litigation is furthered by requiring” the identification of the parties or non-parties; identities”; and (10) “whether there are any alternative mechanisms for protecting the confidentiality of the [parties or non-parties].” Sealed Plaintiff, 537 F.3d at 190 (citations and internal quotes omitted).

Iii. Argument

The ten factors taken together weigh heavily in favor of permitting Plaintiff to proceed under a pseudonym. As set forth in detail below, this case involves matters of the highest sensitivity (sexual misconduct toward a minor), it is pursued against a government defendant with a diminished interest in protecting its reputation, the public’s interest is furthered by anonymity in this and other sexual misconduct cases, innocent non-parties as well as Plaintiff

would be harmed by public disclosure of her identity, Plaintiff’s identity has been kept undisclosed to date, and Defendant will suffer no prejudice from Plaintiff’s anonymity as it is already aware of her identity as well as those of the student witnesses. Plaintiff, the alleged perpetrator, and witnesses were all minors at the time of the events in question. Plaintiff’s Motion should be granted.

A. The Subject Matter of This Litigation is of the Highest Sensitivity The central allegations in this case involve sexual harassment of--including violent rape fantasies regarding—an underage child. There are few matters that are more “highly sensitive” than sexual misconduct, and courts have not hesitated to permit pseudonymous filing in such cases. See, e.g., Doe v. Univ. of Conn., 2013 U.S. Dist. LEXIS 119251, *88 (D. Conn. Aug. 22, 2013) (permitting plaintiff to proceed under pseudonym where complaint involved allegations of sexual harassment, and stating “it is difficult to conceive of allegations that can be more sensitive or personal”); Painter v. Doe, 2016 U.S. Dist. LEXIS 91003, *17 (W.D.N.C. July 12, 2016) 2014)(Dkt. 5) (“the allegations made here involve matters that are highly sensitive and of a personal nature, as they deal with sexual assault and harassment”) (cites omitted). In fact, courts in this Circuit routinely allow plaintiffs to proceed pseudonymously in Title IX cases involving allegations of gender-based misconduct. See, e.g., Doe v. Colgate Univ., 2016 U.S. Dist. LEXIS 48787, *6-7 (N.D.N.Y. Apr. 12, 2016) (“the Court finds that protecting the anonymity of sexual assault victims and those accused of committing sexual assault can be an important safeguard to ensure that the due process rights of all parties are protected”; B.B. v. The New School, No. 1:17- cv-8347 (S.D.N.Y.); Doe v. Weill Cornell Med. Coll. Of Cornell Univ., No. 1:16-cv-3531

(S.D.N.Y.), Order (May 12, 2016) (ECF 12); Doe v. Meisels, 1:14-cv-5725 (E.D.N.Y.), Order (Nov. 6, 2014) (ECF 5); Doe v. Columbia Univ., No. 1:14-cv-3573 (S.D.N.Y.), Order (June 9, 2014) (ECF 3). Additionally, "[a]llegations of sexual abuse of minors typically weigh significantly in favor of a plaintiff's interest [in anonymity]." Rapp v. Fowler, 2021 U.S. Dist.

F.Supp.2d 54, 55 n.1 (D. Conn. Mar. 31, 2008) (“[b]ecause this case involved the sexual assault of a minor, the Court granted the plaintiff's motion to proceed in a fictitious name and to refer to the minor child by her initials,” and although the parties used their real names at trial, which also are recorded in the jury charge and trial transcripts,” [t]o protect [plaintiff’s]privacy, however, the Court will use her initials and her mother's pseudonym in this ruling”on defendant’s post- trial motions)); Local Rule 5.2(a)(2) (requiring that in all filings with the court “[i]f the involvement of a minor child must be mentioned, use only the initials of that child”).

Here,theComplaint alleges that the perpetratorsexually harassed Plaintiff, including by making her the subject of written rape fantasies that he circulated among classmates when she was only fifteen years old, and circulating violent sexual text messages referencing Plaintiff and another female student that referenced their bodies, oral sex, mutilation, Viagra-fueled rape, and noise-cancelling headphones. This humiliating conduct is highly sensitive both in its inherent nature, and due to Plaintiff’s age at the time it occurred. The first factor therefore weighs heavily in favor of Plaintiff’s request to proceed under a pseudonym.

B. Denying Anonymity Risks Harm to Plaintiff and Innocent Student Third Parties The second and third factors also weigh in favor of Plaintiff’s request to proceed under a pseudonym. Disclosure of Plaintiff’s identity would potentially subject her to humiliation, the risk of public disapproval, and further emotional distress, which alone supports her request for

anonymity. See, e.g., Doe v. Evans, 202 F.R.D. 173, 176 (E.D. Penn. July 13, 2001) (holding pseudonym is justified where inter alia “plaintiff’s fear of increased embarrassment, humiliation, and emotional distress should her friends and business associates learn of these events [her experience of sexual misconduct] is well-founded”). Plaintiff already has a justified fear of retaliation from certain persons who areaware of her identity who have issued threats; for instance, the School Board President’s threat to sue Plaintiff and her family both while Plaintiff was in high school and again recently; and the school Vice Principal’s threat to Plaintiff and another student victim that the Board President was “angry with them” and to “watch out,” among others. Complt. ¶¶4, 137. These ongoing threats exacerbate Plaintiff’s reasonable fear of public disapproval or retribution should she be identified to the broad public. Moreover, these risks are magnified by the internet, which would make information regarding humiliating events experienced during Plaintiff’s childhood permanently accessible to anyone with a smartphone.

See Rapp, 2021 U.S. Dist. LEXIS 84214 at *9 (“[I]t bears mentioning that the digital age has adversely affected the privacy of litigants. The days when court records of litigation largely escaped public notice as they languished in countless file rooms largely ended with the advent of electronic case files, the internet, search engines, and other aspects of the information age.”).

Additionally, identifying Plaintiff could allow the public to moreeasily identify the other students discussed in the Complaint who are also alleged to have suffered humiliating sexual harassment from the same individual, but who are not plaintiffs in the case. Courts recognize that third parties have an even greater interest in anonymity: for instance, in Doe v. Univ. of Miss., 2018 U.S. Dist. LEXIS 58972 (S.D. Miss. Apr. 6, 2018), the plaintiff college student sought to proceed pseudonymously to protect his own identity and that of the student he had been accused of sexually assaulting. The court granted the plaintiff’s motion, and regarding the third party

alleged victim, held that “[t]hough she is not a party to this litigation, it will focus upon, and has already described in detail, extraordinarily intimate details of a sexual encounter. Her right to privacy with regard to the events described within the complaint outweighs the public’s right to know her identity.” Id. at *4; see also Doe v. Trs. of Dartmouth Coll., 2018 U.S. Dist. LEXIS 74066 (D.N.H. May 2, 2018) (granting plaintiff’s motion for anonymity inter alia because “[s]hould plaintiff be publicly identified, Sally[, a third party victim] would likely be identified as well, and Sally has a stronger case for anonymity”).

As set forth in the Complaint, the perpetrator in this case texted a third-party student a sexually violent “song” with lyrics suggesting he had raped her and left her crying on the floor (Dkt. 1 ¶61), told a student that she should post color photos of herself on Instagram because he “masturbated better to color photos” (¶69), stalked and made sexual comments to another student including about penis size (¶78), and is alleged to have engaged in other offensive sexual conduct. These students—who are referred to only by pseudonym in the Complaint—would be significantly more easily identifiable by the public and the media if Plaintiff’s identity were disclosed, even though they currently have not pursued legal claims against Defendants. Plaintiff has also referred to the perpetrator student by pseudonym in the Complaint – and has even used a pseudonym for his school board member parent, to maintain the student’s identity as confidential. Permitting plaintiff to proceed anonymously is therefore necessary to protect not only her own privacy, but to prevent harm to the third-party student victims, and even the alleged student harasser. See Doe v. Trs. Of Dartmouth Coll., 2018 U.S. Dist. LEXIS 74066 at *15 (permitting plaintiff’s anonymity and noting third party victim’s interest in anonymity is “[e]ven more salient to the court”).

Moreover, requiring Plaintiff to proceed under her name would be particularly damaging where a case concerning sexual misconduct in a school is likely to attract media attention, given national media trends. Cf. Doe v. Colgate Univ., 2016 U.S. Dist. LEXIS 48787, *6 (“Recently, cases stemming from investigations of sexual abuse on college and university campuses have garnered significant media attention, posing the risk of further reputational harm to both the plaintiffs in these cases and their accusers.”). This enhances the need for pseudonymity in this case.

C. Defendant Will Suffer No Prejudice from Plaintiff’s Anonymity Permitting Plaintiff to proceed under her initials will cause Defendant no prejudice. "[T]here is no prejudice to [defendant's] ability to conduct discovery or try the matter if plaintiff were to proceed under a pseudonym where the defendants already know the plaintiff's name."

Doe v. Solera Capital LLC, 2019 U.S. Dist. LEXIS 55860, *18 (S.D.N.Y. Mar. 31, 2019), quoting EW v. New York Blood Ctr., 213 F.R.D. 108, 112 (E.D.N.Y. Feb. 19, 2003). See also Doe No. 2 v. Kolko, 242 F.R.D. 193, 198 (E.D.N.Y. 2006) (“Other than the need to make redactions and take measures not to disclose plaintiff’s identity, defendants will not be hampered or inconvenienced merely by plaintiff’s anonymity in court papers.”).

Defendants here already know Plaintiff’s identity. Further, all the other students who potentially have information concerning the allegations in the Complaint are also known to the government defendant already, since it possesses lists of the students enrolled at Plaintiff’s school, possesses attendance records, and knows which students were assigned to which courses at which times—allowing Defendant to determine who could have been present for which events described in the Complaint. Plaintiff’s pseudonymity in public court filings will therefore have no impact on Defendant’s ability to conduct discovery or otherwise to make out any defense. The

sixth factor therefore also weighs in favor of anonymity. See EW, 213 F.R.D. at 112 (granting anonymity where, inter alia, "defendant has not identified any prejudice to its ability to conduct discovery or try the matter if plaintiff were to proceed under a pseudonym[,]" and "conceded at oral argument, that it already knew plaintiff's name"); Doe v. Univ. of Miss., 2018 U.S. Dist.

LEXIS 58972 at *4 (permitting pseudonymity of plaintiff and third party “will not prejudice or pose a threat of fundamental unfairness to Defendants, as they are already aware of the individuals’ identities”). D. The Government Defendant Weighs in Favor of Anonymity Regarding the fifth factor, where "'a plaintiff attacks governmental activity, for example a governmental policy or statute, the plaintiff’s interest in proceeding anonymously is considered particularly strong.' That is because '[i]n such circumstances the plaintiff presumably represents a minority interest (and may be subject to stigmatization)," and "'the government is viewed as having a less significant interest in protecting its reputation from damaging allegations than the ordinary individual defendant." Plaintiffs # 1-21 v. Cty. of Suffolk, 138 F. Supp. 3d 264, 274-75 (E.D.N. Y. 2015), quoting EW v. New York Blood Ctr., 213 F.R.D. 108, 111 (E.D.N.Y. 2003) (citations omitted). Here, Defendants City School District of Albany and its Board of Education, the main Defendants, are government entities, with diminished interests in protecting their reputation, and Plaintiff, as a student who was subjected to discrimination by Defendants as a minor, represents a minority interest with an enhanced need for anonymity. Plaintiff’s claims against the additional individual defendants in this case are based upon their association with this government defendant. Therefore, this factor also supports Plaintiff’s request for anonymity. See, e.g., Doe v. City of New York, 2020 U.S. Dist. LEXIS 4655, *12 (E.D.N.Y. Jan. 9, 2020) (redacting plaintiff’s full name where plaintiff challenged government action).

E. The Public’s Interest is Furthered by Anonymity Regarding the eighth factor in the ten-factor test, courts hold that there is a recognized public interest in ensuring that victims of sexual misconduct are not deterred from coming forward in the courts. See, e.g., Doe v. Evans, 202 F.R.D. 173, 176 (allowing anonymity and holding “the public has an interest in protecting the identities of sexual assault victims so that other victims will feel more comfortable suing to vindicate their rights”); Doe No. 2 v. Kolko, 242 F.R.D. 193 (“the public generally has a strong interest in protecting the identities of sexual assault victims so that other victims will not be deterred from reporting such crimes”).

The Local Rules of this Court also reflect recognition of theimportance of this interest: Rule5.2(a), concerning personal privacy protection, requires filers to “use only information that does not tend to identify the victim(s) of sexual assault, and redact the name to ‘Victim 1,’ ‘Victim 2’, etc.”Permitting Plaintiffto pursue her claims under a pseudonym is consistent with and furthers this important public interest.

F. Plaintiff’s Identity Has Been Kept Confidential Regarding the seventh factor, Plaintiff’s identity—and the identity of the male student who allegedly harassed her—have to date been kept confidential. Whilelocal community members wereaware of at least some of the allegations set forth in the Complaint and some of the identities of the minor students involved during the course of the events described, there has been no press coverage revealing Plaintiff’s name, nor that of the perpetrator student or the other student victims. The press coverage of a student protest concerning Defendants’ mishandling of Plaintiff’s complaints did not identify Plaintiff by name, norstate what was the nature of her allegations, nor discuss the events that gave rise to her claims. Further, aCommissioner of Education decision relating to the events in the Complaint solely used Plaintiff’s, the

perpetrator’s and victims’ initials. In the event there is press coverage concerning the instant Complaint, granting this motion will only make it more likely that Plaintiff’s and other victims’/witnesses’ names will not be revealed in the media. Plaintiff’s request for anonymity therefore is not moot. This weighs in favor of permitting her to proceed pseudonymously. See, e.g. Doe v. Univ. of Conn., 2013 U.S. Dist. LEXIS 119251 at *89 (permitting plaintiff to continue litigating under pseudonym because, inter alia, “[f]or purposes of this litigation, plaintiff’s identity has thus far been kept confidential”); Doe v. City of New York, 2020 U.S. Dist.

LEXIS 4655 at*12 (redacting plaintiff’s full name where “plaintiff has proceeded anonymously throughout the instant litigation thus far”).

Iv. Conclusion

Due to the highly sensitive nature of the key allegations in this case, the risk of harm to non-party students, the lack of any prejudice to Defendants, the important public interest served, the identity of the government Defendants, and the continued confidentiality of Plaintiff’s identity to date, the ten factors, on balance, weigh heavily in favor of permitting Plaintiff to pursue her claims pseudonymously. Plaintiff thereforerespectfully requests that her motion be granted.

Dated: June 1, 2021

For Plaintiff A.S.:

BY: Rebecca Houlding Rebecca Houlding, Esq. Giselle Schuetz, Esq.

Friedman & Houlding Llp

1050 Seven Oaks Lane

Mamaroneck, New York 10543

(T) 212.308.4338 x5

(F) 866.731.5553

rebecca@friedmanhouldingllp.com giselle@friedmanhouldingllp.com

In The United States District Court For The

Middle District Of Tennessee

Nashville Division

Jane Roe, |

Plaintiff, | | No. 3:21-cv-00415 v. | | Judge William L. Campbell

G6 Hospitality Llc. |

and |

M6 Goodlettsville, Llc, |

Defendants. | JURY DEMAND __________________________________________|

Motion For Leave To File Complaint Pseudonymously

Plaintiff, by and through her undersigned counsel, hereby moves for leave to file her Complaint pseudonymously, because filing under her own name would compel her to disclose information of the utmost intimacy, i.e., her HIV-positive status. Such public disclosure would be likely to negatively impact Plaintiff’s ability to find future employment, and risks disclosure of Plaintiff’s diagnosis to her minor child. Plaintiff’s proposed Complaint is attached hereto as Exhibit A.

I. Background

Plaintiff is an HIV-positive woman. She has lived with her diagnosis for seven years and has one minor child to whom she has not yet disclosed her diagnosis. Plaintiff brings the instant lawsuit against her former employers G6 Hospitality, LLC (“Motel 6”) and M6 Goodlettsville, LLC (“M6”). As set forth in the enclosed Complaint, while employed by Motel 6 Plaintiff suffered harassment due to her HIV status. Plaintiff disclosed her HIV status solely to her

managers because she was concerned for their safety, letting them know that if she fainted on the job as a consequence of a new medication with the potential side effect of dizziness, and began bleeding, they should call 911 rather than touching her and potentially making contact with her blood, because she was HIV-positive. See Complt. ¶¶22-23. One of the two managers went on to harass Plaintiff by, inter alia, telling Plaintiff’s coworkers that she “had AIDS” (¶¶27, 29) telling Motel 6 guests this information (¶28), telling coworkers not to use the restroom after Plaintiff (¶30), leaving Clorox wipes in the restroom to signal Plaintiff’s “uncleanliness” (¶31), calling the work phone line to tell Plaintiff “oh you’re a nasty bitch, you’re AIDS” (¶34), and other daily offensive conduct. Plaintiff complained, but Defendant Motel 6 took no action. The hotel at which Plaintiff worked was subsequently sold to franchisee Defendant M6. When Plaintiff told M6 management that she intended to pursue legal action against Defendant Motel 6 relating to her health condition, M6 fired her in retaliation. ¶¶52-55, 64.

II. Argument

Generally, “a complaint must state the names of all parties.” Doe v. Porter, 370 F.3d 558, 560 (6th Cir. 2004), citing Fed. R. Civ. P. 10(a). “However, we may excuse plaintiffs from identifying themselves in certain circumstances.” Id. Courts consider several factors to determine “whether a plaintiff's privacy interests substantially outweigh the presumption of open judicial proceedings.,” including “(1) whether the plaintiffs seeking anonymity are suing to challenge governmental activity; (2) whether prosecution of the suit will compel the plaintiffs to disclose information "of the utmost intimacy"; (3) whether the litigation compels plaintiffs to disclose an intention to violate the law, thereby risking criminal prosecution; and (4) whether the plaintiffs are children.” Id.

Here, Plaintiff should be permitted to file her Complaint pseudonymously because prosecution of her suit would compel her to disclose information of utmost intimacy—her HIV- positive status. Courts have frequently granted leave to file pseudonymously to HIV-positive Plaintiffs. See, e.g. Roe v. City of N.Y., 151 F. Supp. 2d 495 (S.D.N.Y. July 25, 2001) (granting leave to proceed pseudonymously and collecting cases). As other courts have noted, “given the stigma that HIV still carries in much of the country, Plaintiffs would be severely prejudiced by having to publicly disclose their medical condition.” Doe One v. CVS Health Corp., 2018 U.S.

Dist. LEXIS 70024 (S.D. Ohio Apr. 26, 2018) (granting leave to proceed under a pseudonym). Without anonymity, to vindicate her employment rights Plaintiff would be forced to accept the result her harasser intended—widespread knowledge of her HIV status, with the attendant risk for discrimination and mistreatment by others. While Plaintiff has disclosed her status in limited settings where necessary to protect the health and safety of others, filing the instant suit under her own name would make her HIV status instantly available to all future prospective employers who conduct an internet search on her name, increasing the risk that she will have difficulty becoming re-employed. Publicization of her HIV status also creates the risk that her status will be disclosed to her minor child before the time Plaintiff has judged appropriate to discuss with the child her diagnosis and its meaning.

To avoid the need for anonymity, Plaintiff’s counsel considered the possibility of referring only to an immune disorder in the instant Complaint. However, because the particular nature of the harassment in this case involved use of terms like “AIDS,” and because Plaintiff’s reason for informing her managers of her diagnosis reveals her condition to be a communicable disease, Plaintiff’s counsel judged that the legally necessary allegations in the Complaint would inevitably reveal Plaintiff’s HIV status even if she solely pled that she has an immune disorder.

III. Conclusion

Therefore, for the reasons set forth herein, Plaintiff respectfully requests leave to file her Complaint pseudonymously, in the form attached hereto as Exhibit A. Dated: May 27, 2021 Nashville, TN Respectfully submitted, Local Counsel:

Collins & Hunter, Pllc

By: /s/ Heather Moore Collins Heather Moore Collins Brentwood, Tennessee 37027 Tel: 615.724.1996 Fax: 615.691.7019 Local Counsel for Plaintiff

Friedman & Houlding, Llp

By: /s/ Giselle Schuetz Giselle Schuetz Friedman & Houlding, LLP 1050 Seven Oaks Lane Mamaroneck, NY 10543 888-369-1119 x8 Fax: 866-731-5553 giselle@friedmanhouldingllp.com To Be Admitted Pro Hac Vice

In The United States District Court For The

Middle District Of Tennessee

Nashville Division

Jane Roe, |

Plaintiff, |

| Civil Action Complaint

v. |

| Jury Trial Demanded

G6 Hospitality Llc. |

and |

M6 Goodlettsville, Llc, |

Defendants. | __________________________________________|

Sworn Declaration Of Heather Moore Collins

I, Heather Moore Collins, declare under penalty of perjury that the following facts are true, correct, and based upon my personal knowledge. 1. My name is Heather Moore Collins. I am an adult citizen, over the age of eighteen (18), and I am competent to make the statements contained in this Affidavit. I am duly licensed to practice before the courts of the State of Tennessee and I am local counsel for Plaintiff in the above-styled case. I make this declaration in support of Plaintiff’s Motion to File Under Pseudonym based on my personal knowledge, and if called upon to do so, I could and would testify competently thereto.

2. Public policy favors the allowance of anonymity for HIV-positive victims of discrimination and harassment as requiring public disclosure may otherwise act as a deterrent to the reporting and pursuit of these claims by victims. Case 3:21-cv-00415 Document 4-1 Filed 05/27/21 Page 1 of 2 PageID #: 23112

3. My client, Plaintiff Jane Roe, is identified in the Complaint as a resident of the State of Tennessee, Davidson County, and is thirty-six (36) years old. Jane Roe lives and works locally, and has a minor child. She is an HIV-positive woman. At this time, she desires for her identity to remain anonymous to the public.

4. My client, Plaintiff Jane Roe, is identified as “Jane Roe” in the underlying case filed in the United States District Court for the Middle District of Tennessee. 5. Given the nature of the allegations and the Plaintiff’s status as an HIV-positive individual, I respectfully submit that at this time my client’s anonymity is necessary and outweighs the standard presumption of public access to the identities of litigants.

Further this Affiant sayeth not. I declare under penalty of perjury that the foregoing is true and correct. s/ Heather Moore Collins Heather Moore Collins Date: 05/25/21 Case 3:21-cv-00415 Document 4-1 Filed 05/27/21 Page 2 of 2 PageID #: 24113

MARCUS STAPLES,: Plaintiff,.

MARCUS STAPLES,: v.. Civil Case No. 3:22-cv-31-REP.

MARCUS STAPLES,: B&K TECHNOLOGY SOLUTIONS, INC..

MARCUS STAPLES,: d/b/a ADVANCED TECHNOLOGY.

MARCUS STAPLES,: RECYCLING, INC.,.

MARCUS STAPLES,: Defendant..

In The United States District Court

For The Eastern District Of Virginia

Richmond Division

v. Civil Case No. 3:22-cv-31-REP

Plaintiff makes the instant filing pursuant to this Court’s Order of April 5, 2022, directing Plaintiff to: “file an explanation for the reliance herein on 42 U.S.C. Sec. 1981, rather than Title VII.” Dkt. 15. 42 U.S.C. 1981 Compared to Title VII Section 1981 provides that “[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens . . . .” Aleman v. Chugach Support Servs., Inc., 485 F.3d 206, 211 (4th Cir. 2007), quoting 42 U.S.C. § 1981(a). Racially hostile work environment claims may be brought under Title VII or Section 1981, and under either statute are analyzed in the same way. Spriggs v.

Diamond Auto Glass, 242 F.3d 179, 183-84 (4th Cir. 2001) (“The elements [of a racially hostile work environment] are the same under either § 1981 or Title VII.”). “The burden of proof on a plaintiff in an employment discrimination case is the same for claims under Title VII, [and] § 1981 (Payne, J.), citing Gairola v. Commonwealth of VA Department of Gen'l Servs., 753 F.2d 1281, 1285 (4th Cir. 1985).

The Supreme Court has noted this “necessary overlap” between Title VII and 1981, and has explained that “Congress explicitly created the overlap in respect to direct employment discrimination.” CBOCS West, Inc. v. Humphries, 553 U.S. 442, 455 (2008) (holding that Section 1981 encompasses claims of retaliation relating to employment discrimination, and further holding that the “remedies available under Title VII and under Section 1981, although related, and although F.3d at 211 (in holding that Title VII exclusion for Alaska Native Corporations does not apply to Section 1981 claim, noting Section 1981 applies not only to employment discrimination but to other relationships, and noting the “Supreme Court has instructed us to treat [Section 1981] as a separate and distinct cause of action” from Title VII). Similar “overlapping” claims exist under other statutes: for example, certain disability discrimination claims may be brought under either the Rehabilitation Act or the ADAAA; and certain discrimination claims may be brought under either Title VII or 42 U.S.C. Sec. 1983.

However, several important distinctions between the statutes are relevant to a plaintiff’s decision whether to proceed under Title VII versus Section 1981. First, compensatory damages for Title VII claims are subject to a statutory cap of $300,000.00. See Univ. of Tex. Southwestern Med. Ctr. v. Nassar, 570 U.S. 338, 367 n.1 (2013) (noting damages cap applies to Title VII claims [which caps range from $50,000 to $300,0001 depending upon the size of the employer]). In contrast, there are no damages caps applicable to claims brought pursuant to 42 U.S.C. Section 1981. 42 U.S.C. 1981a-(b)(4); see also Yates v. Computer Scis. Corp., 2014 U.S. Dist. LEXIS 184674, *2 (E.D. Va. Mar. 21, 2014) (noting “a statutory cap on punitive damages indeed applies only to her Title VII claim, and not to her corresponding § 1981 claim”); Jordan v. StoneMor Partners L.P., 2018 U.S. Dist. LEXIS 31015, *42 (W.D. Va. Feb. 27, 2018) (rejecting request to cap plaintiff's damages “in accordance with Title VII” because “there is no cap for damages under Section 1981, and because her claims move forward under that statute, the caps do not apply to 1 42 USC 1981a-(b)(3).

her”); see also Jin Ku Kim v. Nash Finch Co., 123 F.3d 1046 (8th Cir. 1997) (“the Title VII statutory cap does not apply to § 1981 claims; the 1991 Civil Rights Act, which made compensatory and punitive damages available under Title VII, specifically provides that 'nothing in this section shall be construed to limit the scope of, or the relief available under, section 1981 of this title.'”), quoting 42 U.S.C. § 1981a(b)(4). A plaintiff’s potential recovery is therefore significantly larger when proceeding under Section 1981 as opposed to Title VII.

U.S.C. § 2000e-5(e)(1) (EEOC charge must be filed within 180 or 300 days of the discriminatory act) and § 2000e-5(f)(1) (suit must be filed within 90 days of obtaining an EEOC notice of right to sue)--whereas claims brought under Section 1981 are subject to a four year statute of limitations. Jones v. R. R. Donnelley & Sons Co., 541 U.S. 369 (2004) (holding that four year statute of limitations applies to Section 1981 racially hostile work environment claim).

Moreover, Title VII claims require a plaintiff to file with the Equal Employment Opportunity Commission, and to show that the specific claims being pursued in court were adequately exhausted by that filing. Bryant v. Bell Atl. Md., Inc., 288 F.3d 124 (4th Cir. 2002) (explaining that to file a Title VII claim, a plaintiff “must exhaust his administrative remedies by filing a charge with the EEOC[,]” and that thereafter “the scope of the civil action is confined only by the scope of the administrative investigation that can reasonably be expected to follow the charge of discrimination”) (quotes and citations omitted). By contrast, claims filed under Section 1981 require no EEOC filing and failure to exhaust is unavailable as a defense. CBOCS, supra, at 455 (“We have pointed out that Title VII provides important administrative remedies and other benefits that §1981 lacks.”); see also Johnson v. Portfolio Recovery Assocs., LLC, 682 F. Supp.

2d 560, n.12 (E.D. Va. June 12, 2009) (“A plaintiff must have exhausted administrative remedies through the statutory process before bringing suit under Title VII. Therefore, for Title VII claims, the Court looks to the EEOC charge to determine whether administrative remedies have been exhausted. § 1981 claims, on the other hand, do not require administrative remedies to be exhausted, so the EEOC charge is irrelevant to § 1981 claims. Therefore, the Court looks only to

the allegations of the Complaint in analyzing § 1981 claims.”). As alleged in his Complaint, Plaintiff in the instant action did file an EEOC charge, and that conduct is protected activity. Thomas v. City of Annapolis, 851 Fed. Appx. 341, 350 (4th Cir. 2021) (“Protected activity includes the right to file an EEOC charge or similar complaint with a state agency[.]”). However, pursuing an identical claim under two statutes, where one statute provides a superior potential for recovery of damages, is potentially confusing for a jury.

In sum, claims brought under 42 U.S.C. § 1981 have no caps on damages, do not require exhaustion with the EEOC, and have a four year statute of limitations, whereas claims under Title VII have caps on compensatory damages that range between $50,000 and $300,000, require filing with the EEOC, and have a shorter statute of limitations, including filing a Complaint in court within 90 days of receipt of a “Right to Sue” letter. Therefore, Section 1981 is a more favorable statute under which to bring certain race-based employment discrimination claims, as Plaintiff has done in the instant case.

Jurisdiction In Plaintiff’s Complaint, he cited as a jurisdictional basis 28 U.S.C. § 1343. Dkt. 1, par. 52. For claims brought under Section 1981, this Court has jurisdiction both under 28 U.S.C. Sec. 1343(a)(4) (which specifically provides that the “district courts shall have original jurisdiction of secure equitable or other relief under any Act of Congress providing for the protection of civil rights”), as well as under 28 U.S.C. Sec. 1331 (which more broadly provides that the “district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States”). That is, this Court has jurisdiction over this action under 28 U.S.C.

2 Plaintiff’s Complaint states, “This Court has jurisdiction pursuant to 28 U.S.C. § 1343.” Defendant Answered: “The allegations contained in this paragraph constitute legal conclusions to which no response is required; to the extent a response is required, those allegations are denied.” Dkt. 12, par. 5.

Sec. 1343 because Section 1981 is a civil rights statute, but in any event the Court alternatively has jurisdiction over this action under 1331 because it arises under federal law. Dated: April 13, 2022 Newport News, VA Respectfully submitted, By: /s/ James H. Shoemaker Jr. Local Counsel for Plaintiffs Rebecca Houlding Giselle Schuetz FRIEDMAN & HOULDING, LLP.

1050 Seven Oaks Lane Mamaroneck, NY 10543 888-369-1119 x11 Fax: 866-731-5553 rebecca@friedmanhouldingllp.com giselle@friedmanhouldingllp.com Admitted Pro Hac Vice James H. Shoemaker, Jr., VSB No. 33148 PATTEN, WORNOM, HATTEN & DIAMONSTEIN, L.C. Newport News, Virginia 23602 Telephone: 757.223.4500 Facsimile: 757.249-1627 jshoemaker@pwhd.com

Certificate of Service I hereby certify that today, April 13, 2022, I will electronically file the foregoing Filing in Response to Court’s Order, Dkt. 15, with the Clerk of Court using the CM/ECF system, which will send a notification of such filing (NEF) to all counsel of record. Dated: April 13, 2022 By: /s/ James H. Shoemaker Jr Patten, Wornom, Hatten & Diamonstein, L.C.

Newport News, Virginia 23602 Telephone: 757.223.4500 Facsimile: 757.249.1627 jshoemaker@pwhd.com

Declaration Of B G Pursuant To 28 U.S.C. § 1746 Under The

Penalty Of Perjury

1. I am B G I am over the age of 18 and make this Declaration based on personal knowledge. 2. I worked at Advanced Technology Recycling from 7/2017 to 8/2020, and for the duration of Marcus Staples's employment. ________ 3. I heard project manager Josh Addison refer to Mr. Staples and other African American workers Bennington as “boy” and/or “boys” on a daily basis throughout 2019. As the only white worker, Josh referred to me as B or Mr. G He never called the African American workers by their given names.

4. I was not present the day Josh called Mr. Staples a “monkey who eats bananas,” however, I was present the very next day when Josh handed Mr. Staples a bag of chicken. I was both shocked and offended by Josh's extremely racist targeted behavior toward Mr. Staples. 5. Mr. Staples told me he reported the “monkey/chicken” incidents to our warehouse supervisor Shaneka and to corporate. Shaneka heard everything that was said and went on, her office was right on the warehouse floor. It is a small area and there is no way she did not hear Josh's constant racial slurs toward Mr. Staples and the other African American workers.

6. I was so upset by Josh's offensive racism, I frequently complained to Shaneka about it myself. During 2019, I complained to Shaneka about Josh's behavior on approximately a weekly basis, either on my own or with co-workers. She said she would take care of it, but nothing changed to remedy the situation.

7. I was both surprised and affronted that corporate permitted Josh to remain as Mr. Staples’s project manager, and that his ongoing racist and disrespectful treatment toward Mr. Staples and

the other African American workers was swept under the rug. Josh continued to call Mr. Staples and other African American workers “boy” and/or “boys” daily, even after corporate and supervisor Shaneka were long aware this was going on. 8. I declare under penalty of perjury that the foregoing is true and correct.

(cid:48)(cid:48)(cid:51)(cid:51)(cid:47)(cid:47)(cid:48)(cid:48)(cid:49)(cid:49)(cid:47)(cid:47)(cid:50)(cid:50)(cid:48)(cid:48)(cid:50)(cid:50)(cid:49)(cid:49) _ __ __________ B G Date

Declaration Ofj A Pursuant To 28 U.S.C. § 1746 Under The

Penalty Of Perjury

1. I am J A . I am over the age of 18 and make this Declaration based on personal knowledge. 2. I worked at Advanced Technology Recycling from September 2018 to August 2019. 3. While working there, I worked in the same warehouse with Marcus Staples. 4. Project Manager Josh A--d--d-i- s present at the warehouse for several weeks at a time, Bennington and whenever he was there, I heard him call me, Marcus, and theother African-American employees in the warehouse “boy” on a near-daily basis.

5. He also called theAfrican-American workers “my boys” and “you sons of bitches.” 6. Josh never called B G , the only white worker, “boy” or “my boy.” 7. I told Josh not to call me and the other African-American workers these names, but he continued to do it whenever he was at the warehouse. 8. In or around April 2019 some coworkers came to tell me Josh had just called Marcus a “monkey.” I went over to see Marcus right away and found him very upset.

9. The next day, I saw Josh hand Marcus a ziplock bag of fried chicken. Marcus was extremely upset. 10. Ifelt this was a totally racist thing to do on Josh’s part, and Iwill never forget the image of Josh hanging Marcus a bag of chicken right after he called him a “monkey.” 11. As we were leaving work at the end of that day, Marcus told our supervisor Shaneka Butts that he couldn’t believe Josh had offered him a ziplock bag of chicken after calling him a monkey. Shaneka brushed it off, saying “I don’t think he meant it like that.”

12. Neither Shaneka nor anyone else from management ever interviewed me about Josh’s conduct. 13. Josh was at the warehouse for several weeks after the day he handed Marcus chicken, and in that time he continued to call Marcus and the other African-American workers “boy” and “my boys” on a near-daily basis the same as before.

14. I declare under penalty of perjury that the foregoing is true and correct. (cid:48)(cid:48)(cid:51)(cid:51)(cid:47)(cid:47)(cid:50)(cid:50)(cid:52)(cid:52)(cid:47)(cid:47)(cid:50)(cid:50)(cid:48)(cid:48)(cid:50)(cid:50)(cid:49)(cid:49) _____ _ __________ J A Date

Mental and Emotional Injuries in Employment Litigation Second Edition James J. McDonald, Jr. Fisher & Phillips LLP Francine B. Kulick Kulick Psychological Corporation Mood Disorders Major Depressive Disorder Dysthymic Disorder Anxiety Disorders Panic Disorder TGeneralized Anxiety Disorder Posttraumatic Stress Disorder Adjustment Disorders With Depressed Mood With Anxious Mood Mixed

are typically time-limited, with symptoms receding naturally and even without treatment after one to two years. Between individual episodes, the disorder is said to be in remission. The affected individual is often returned to his or her psychological baseline entirely symptom-free. Major Depressive Disorder is a biological phenomenon, passed through the generations genetically. It involves imbalances inthe relative concentrations of neurotransmitters of the brain, and it is responsive to biochemical (medical) interventions. Individual episodes may be triggered by stressful environmental events, or they may occur spontaneously, without noticeable external provoca- tion. Approximately 50 to 60 percent of individuals with Major Depressive Disorder, Single Episode can be expected to have a recurrent episode at some later point in their lives. The probability of further episodes increases with each successive bout endured.

In the context of employment litigation and other nonmedical circum- stances, it becomes particularly critical to differentiate emotional upset-reac- tive feelings of sadness, despondency, anger, or irritability that arise inresponse to environmental provocation but that fade shortly following the removal of the environmental stressor-from the biological psychopathology of Major Depressive Disorder. Overlap of vocabulary and experience lends itself to misunderstanding and even frank exploitation and abuse in a contentious legal arena. Simple feelings of sadness or indignation-even though described in the vernacular as "depression"-are normal human responses to stress and should not be misconstrued as rising to the level of diagnosable psychiatric disorder.

DSM-IV-TR diagnostic criteria are designed to establish the minimal con- stellation of symptoms necessary to warrant the hypothesis that an episode of Major Depressive Disorder underlies presenting complaints of altered mood. Symptom criteria required for diagnosis of a Major Depressive Episode are set forth in Table 5-6. Those necessary to diagnose Major Depressive Disorder, Single Episode are outlined in Table 5-7, and those involved in a diagnosis of Major Depressive Disorder, Recurrent are listed in Table 5-8.

Table 5-6 DSM-IV-TR Diagnostic Criteria for Major Depressive Episode A. Five (or more) of the following symptoms have been present during the same 2-week period and represent a change from previous functioning; at least one of the symptoms iseither (I) depressed mood or (2) loss of interest or pleasure.

Note: Do not include symptoms that are clearly due to a general medical condition, or mood-incongruent delusions or hallucinations. (1) depressed mood most of the day, nearly every day, as indicated by either subjective report (e.g., feels sad or empty) or observation made by others (e.g., appears tearful). Note: In children and adolescents, can be irritable mood.

(2) markedly diminished interest or pleasure in all, or almost all, activities most of the day, nearly every day (as indicated by either subjective account or observation made by others) continued

176 Mental and Emotional Injuries in Employment Litigation Table 5-6 Continued. DSM-IV-TR Diagnostic Criteria for Major Depressive Episode (3) significant weight loss when not dieting or weight gain (e.g., a change of more than 5% of body weight in a month), or decrease or increase in appetite nearly every day. Note: In children, consider failure to make expected weight gains.

(4) insomnia or hypersomnia nearly every day (5) psychomotor agitation or retardation nearly every day (observable by others, not merely subjective feelings of restlessness or being slowed down) (6) fatigue or loss of energy nearly every day (7) feelings of worthlessness or excessive or inappropriate guilt (which may be delusional) nearly every day (not merely self-reproach or guilt about being sick) (8) diminished ability to think or concentrate, or indecisiveness, nearly every day (either by subjective account or as observed by others) (9) recurrent thoughts of death (not just fear of dying), recurrent suicidal ideation without a specific plan, or a suicide attempt or a specific plan for committing suicide B. The symptoms do not meet criteria for a Mixed Episode.

C. The symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. D. The symptoms are not due to the direct physiological effects of a substance (e.g., a drug of abuse, a medication) or a general medical condition (e.g., hypothyroidism).

E. The symptoms are not better accounted for by Bereavement, i.e., after the loss of a loved one, the symptoms persist for longer than 2 months or are characterized by marked functional impairment, morbid preoccupation with worthlessness, suicidal ideation, psychotic symptoms, or psychomotor retardation.

Source: Reprinted with permission from the Diagnostic and Statistical Manual ofMental Disor- ders. Fourth Edition. Text Revision. 356. Copyright 2000 American Psychiatric Association. Table 5-7 DSM-IV-TR Diagnostic Criteria for Major Depressive Disorder, Single Episode A. Presence of a single Major Depressive Episode.

B. The Major Depressive Episode isnot better accounted for by Schizoaffective Disorder and is not superimposed on Schizophrenia, Schizophreniform Disorder, Delusional Disorder, or Psychotic Disorder Not Otherwise Spec- ified. C. There has never been a Manic Episode, a Mixed Episode, or a Hypo- manic Episode.

184 Depressive Disorders significant distress or impairment that persist for at least 2 weeks in an individual whose presentation has never met criteria for any other depressive or bipolar disorder, does not currently meet active or residual criteria for any psychotic disorder, and does not meet criteria for mixed anxiety and depressive disorder symptoms.

Unspecified Depressive Disorder This category applies to presentations in which symptoms characteristic of a depressive dis­ order that cause clinically significant distress or impairment in social, occupational, or other im­ portant areas of functioning predominate but do not meet the full criteria for any of the disorders in the depressive disorders diagnostic class. The unspecified depressive disorder category is used in situations in which the clinician chooses not to specify the reason that the criteria are not met for a specific depressive disorder, and includes presentations for which there is insuf­ ficient information to make a more specific diagnosis (e.g., in emergency room settings).

Specifiers for Depressive Disorders Specify if: With anxious distress: Anxious distress is defined as the presence of at least two of the following symptoms during the majority of days of a major depressive episode or persistent depressive disorder (dysthymia): 1. Feeling keyed up or tense. 2. Feeling unusually restless.

3. Difficulty concentrating because of worry. 4. Fear that something awful may happen. 5. Feeling that the individual might lose control of himself or herself. Specify current severity: Mild: Two symptoms. Moderate: Three symptoms. Moderate-severe: Four or five symptoms. Severe: Four or five symptoms and with motor agitation.

Note: Anxious distress has been noted as a prominent feature of both bipolar and ma­ jor depressive disorder in both primary care and specialty mental health settings. High levels of anxiety have been associated with higher suicide risk, longer duration of ill­ ness, and greater likelihood of treatment nonresponse. As a result, it is clinically useful to specify accurately the presence and severity levels of anxious distress for treatment planning and monitoring of response to treatment.

With mixed features: A. At least three of the following manic/hypomanic symptoms are present nearly every day during the majority of days of a major depressive episode: 1. Elevated, expansive mood. 2. Inflated self-esteem or grandiosity. 3. More talkative than usual or pressure to keep talking. 4. Flight of ideas or subjective experience that thoughts are racing.

5. Increase in energy or goal-directed activity (either socially, at work or school, or sexually).

186 Depressive Disorders B. Two (or more) of the following: 1. Significant weight gain or increase in appetite. 2. Hypersomnia. 3. Leaden paralysis (i.e., heavy, leaden feelings in arms or legs). 4. A long-standing pattern of interpersonal rejection sensitivity (not limited to epi­ sodes of mood disturbance) that results in significant social or occupational im­ pairment.

C. Criteria are not met for “with melancholic features” or “with catatonia” during the same episode. Note: “Atypical depression” has historical significance (i.e., atypical in contradistinction to the more classical agitated, “endogenous” presentations of depression that were the norm when depression was rarely diagnosed in outpatients and almost never in ado­ lescents or younger adults) and today does not connote an uncommon or unusual clin­ ical presentation as the term might imply.

Mood reactivity is the capacity to be cheered up when presented with positive events (e.g., a visit from children, compliments from others). Mood may become euthymic (not sad) even for extended periods of time if the external circumstances remain favorable. Increased appetite may be manifested by an obvious increase in food intake or by weight gain. Hypersomnia may include either an extended period of nighttime sleep or daytime napping that totals at least 10 hours of sleep per day (or at least 2 hours more than when not depressed). Leaden paralysis is defined as feeling heavy, leaden, or weighted down, usually in the arms or legs. This sensation is generally present for at least an hour a day but often lasts for many hours at a time. Unlike the other atypical features, pathological sensitivity to perceived interpersonal rejection is a trait that has an early onset and persists throughout most of adult life. Rejection sensitivity occurs both when the person is and is not depressed, though it may be exacerbated during depressive periods.

With psychotic features: Delusions and/or hallucinations are present.

■ ■ ■■ » I

With mood-congruent psychotic features: The content of all delusions and hal­ lucinations is consistent with the typical depressive themes of personal inade­ quacy, guilt, disease, death, nihilism, or deserved punishment. With mood-incongruent psychotic features: The content of the delusions or hal­ lucinations does not involve typical depressive themes of personal inadequacy, guilt, disease, death, nihilism, or deserved punishment, or the content is a mixture of mood-incongruent and mood-congruent themes.

With catatonia: The catatonia specifier can apply to an episode of depression if cata­ tonic features are present during most of the episode. See criteria for catatonia asso­ ciated with a mental disorder (for a description of catatonia, see the chapter "Schizophrenia Spectrum and Other Psychotic Disorders”).

With peripartum onset: This specifier can be applied to the current or, if full criteria are not currently met for a major depressive episode, most recent episode of major de­ pression if onset of mood symptoms occurs during pregnancy or in the 4 weeks follow­ ing delivery. Note: Mood episodes can have their onset either during pregnancy or postpartum.

Although the estimates differ according to the period of follow-up after delivery, be­ tween 3% and 6% of women will experience the onset of a major depressive epi­ sode during pregnancy or in the weeks or months following delivery. Fifty percent of “postpartum” major depressive episodes actually begin prior to delivery. Thus, these episodes are referred to collectively as peripartum episodes. Women with peripartum major depressive episodes often have severe anxiety and even panic

DSM-5 Criteria: Major Depressive Disorder Box 4. DSM-5 Diagnosis: Major Depressive Disorder Major Depressive Episode: F Five (or more) of the following symptoms have been present during the same 2-week period and represent a change from previous functioning; at least one of the symptoms is either (1) depressed mood or (2) loss of interest or pleasure.

Note: Do not include symptoms that are clearly attributable to another medical condition. — Depressed most of the day, nearly every day as indicated by subjective report (e.g., feels sad, empty, hopeless) or observation made by others (e.g., appears tearful) — Markedly diminished interest or pleasure in all, or almost all, activities most of the day, nearly every day (as indicated by subjective account or observation) — Significant weight loss when not dieting or weight gain (e.g., change of more than 5% of body weight in a month), or decrease or increase in appetite nearly every day — Insomnia or hypersomnia nearly every day — Psychomotor agitation or retardation nearly every day (observable by others, not merely subjective feelings of restlessness or being slowed down) — Fatigue or loss of energy nearly every day — Feelings of worthlessness or excessive or inappropriate guilt (which may be delusional) nearly every day (not merely self-reproach or guilt about being sick).

— Diminished ability to think or concentrate, or indecisiveness, nearly every day (either by subjective account or as observed by others) — Recurrent thoughts of death (not just fear of dying), recurrent suicidal ideation without a specific plan, or a suicide attempt or a specific plan for committing suicide F The symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.

F The episode is not attributable to the physiological effects of a substance or to another medical condition. Note: The above criteria represent a major depressive episode. F The occurrence of the major depressive episode is not better explained by schizoaffective disorder, schizophrenia, schizophreniform disorder, delusional disorder, or other specified and unspecified schizophrenia spectrum and other psychotic disorders.

F There has never been a manic episode or a hypomanic episode. Note: This exclusion does not apply if all of the manic-like or hypomanic-like episodes are substance- induced or are attributable to the physiological effects of another medical condition. floridamedicaidmentalhealth.org

Interpretive Report: Clinical Settings

M Mpi-2-Rf®

M innesota Multiphasic Personality Inventory-2-Restructured Form® Yossef S. Ben-Porath, PhD, & Auke Tellegen, PhD N ame: IM E2 A ge: 57 G ender: Female M arital Status: Not reported Y ears of Education: Not reported Date Assessed: 02/27/2022 Copyright © 2008, 2011, 2012 by the Regents of the University of Minnesota. All rights reserved.

Distributed exclusively under license from the University of Minnesota by NCS Pearson, Inc. Portions reproduced from the MMPI-2-RF test booklet. Copyright © 2008 by the Regents of the University of Minnesota. All rights reserved. Portions excerpted from the MMPI-2-RF Manual for Administration, Scoring, and Interpretation. Copyright © 2008, 2011 by the Regents of the University of Minnesota. All rights reserved.

Used by permission of the University of Minnesota Press. Minnesota Multiphasic Personality Inventory-2-Restructured Form and MMPI-2-RF are registered trademarks of the University of Minnesota. Pearson is a trademark in the U.S. and/or other countries of Pearson Education, Inc., or its affiliate(s). This report contains copyrighted material and trade secrets. The qualified licensee may excerpt portions of this output report, limited to the minimum text necessary to accurately describe their significant core conclusions, for incorporation into a written evaluation of the examinee, in accordance with their profession's citation standards, if any. No adaptations, translations, modifications, or special versions may be made of this report without prior written permission from the University of Minnesota Press.

[ 4.3 / 57 / Qg ]

MMPI-2-RF® Interpretive Report: Clinical Settings 02/27/2022, Page 2 IM E2 MMPI-2-RF Validity Scales 120 --- --- --- --- --- --- --- T --- --- --- 30 --- VRIN-r TRIN-r F-r Fp-r Fs FBS-r RBS L-r K-r Cannot Say (Raw): 0 Percent True (of items answered): 35% The highest and lowest T scores possible on each scale are indicated by a "---"; MMPI-2-RF T scores are non-gendered.

VRIN-r Variable Response Inconsistency Fs Infrequent Somatic Responses L-r Uncommon Virtues TRIN-r True Response Inconsistency FBS-r Symptom Validity K-r Adjustment Validity F-r Infrequent Responses RBS Response Bias Scale Fp-r Infrequent Psychopathology Responses

---.

--- ---.

MMPI-2-RF® Interpretive Report: Clinical Settings 02/27/2022, Page 3 IM E2 MMPI-2-RF Higher-Order (H-O) and Restructured Clinical (RC) Scales Higher-Order Restructured Clinical 100 --- --- --- --- --- --- --- --- --- 90 --- 40 --- --- --- --- --- --- --- --- 30 --- EID THD BXD RCd RC1 RC2 RC3 RC4 RC6 RC7 RC8 RC9 The highest and lowest T scores possible on each scale are indicated by a "---"; MMPI-2-RF T scores are non-gendered.

EID Emotional/Internalizing Dysfunction RCd Demoralization RC6 Ideas of Persecution THD Thought Dysfunction RC1 Somatic Complaints RC7 Dysfunctional Negative Emotions BXD Behavioral/Externalizing Dysfunction RC2 Low Positive Emotions RC8 Aberrant Experiences RC3 Cynicism RC9 Hypomanic Activation RC4 Antisocial Behavior

--- --- --- --- ---.

MMPI-2-RF® Interpretive Report: Clinical Settings 02/27/2022, Page 4 IM E2 MMPI-2-RF Somatic/Cognitive and Internalizing Scales Somatic/Cognitive Internalizing 100 --- --- --- --- --- --- --- --- 80 --- --- --- 40 --- --- --- --- --- --- --- --- --- --- --- --- --- ---

Mls Gic Hpc Nuc Cog Sui Hlp Sfd Nfc Stw Axy Anp Brf Msf

The highest and lowest T scores possible on each scale are indicated by a "---"; MMPI-2-RF T scores are non-gendered. MLS Malaise SUI Suicidal/Death Ideation AXY Anxiety GIC Gastrointestinal Complaints HLP Helplessness/Hopelessness ANP Anger Proneness HPC Head Pain Complaints SFD Self-Doubt BRF Behavior-Restricting Fears NUC Neurological Complaints NFC Inefficacy MSF Multiple Specific Fears COG Cognitive Complaints STW Stress/Worry

--- ---. ---.

--- ---. --- --- --- ---.

MMPI-2-RF® Interpretive Report: Clinical Settings 02/27/2022, Page 5 IM E2 MMPI-2-RF Externalizing, Interpersonal, and Interest Scales Externalizing Interpersonal Interest 100 --- 90 --- 80 --- --- 40 --- --- --- --- --- --- --- --- --- ---

Jcp Sub Agg Act Fml Ipp Sav Shy Dsf Aes Mec

The highest and lowest T scores possible on each scale are indicated by a "---"; MMPI-2-RF T scores are non-gendered. JCP Juvenile Conduct Problems FML Family Problems AES Aesthetic-Literary Interests SUB Substance Abuse IPP Interpersonal Passivity MEC Mechanical-Physical Interests AGG Aggression SAV Social Avoidance ACT Activation SHY Shyness DSF Disaffiliativeness

MMPI-2-RF® Interpretive Report: Clinical Settings 02/27/2022, Page 6 IM E2 MMPI-2-RF PSY-5 Scales 100 --- --- --- 30 --- --- --- AGGR-r PSYC-r DISC-r NEGE-r INTR-r The highest and lowest T scores possible on each scale are indicated by a "---"; MMPI-2-RF T scores are non-gendered. AGGR-r Aggressiveness-Revised PSYC-r Psychoticism-Revised DISC-r Disconstraint-Revised NEGE-r Negative Emotionality/Neuroticism-Revised INTR-r Introversion/Low Positive Emotionality-Revised

MMPI-2-RF® Interpretive Report: Clinical Settings 02/27/2022, Page 7 IM E2

Mmpi-2-Rf T Scores (By Domain)

Protocol Validity

Content Non-Responsiveness 0 43 65 T CNS VRIN-r TRIN-r F-r Fp-r Fs FBS-r RBS L-r K-r

Substantive Scales

Rc1 Mls Gic Hpc Nuc Cog

EID RCd SUI HLP SFD NFC 50 67 RC2 INTR-r RC7 STW AXY ANP BRF MSF NEGE-r

Thd Rc6

RC8 PSYC-r

Bxd Rc4 Jcp Sub

RC9 AGG ACT AGGR-r DISC-r

Fml Rc3 Ipp Sav Shy Dsf

Aes Mec

S cale scores shown in bold font are interpreted in the report. Note. This information is provided to facilitate interpretation following the recommended structure for MMPI-2-RF interpretation in Chapter 5 of the MMPI-2-RF Manual for Administration, Scoring, and Interpretation, which provides details in the text and an outline in Table 5-1.

MMPI-2-RF® Interpretive Report: Clinical Settings 02/27/2022, Page 8 IM E2 This interpretive report is intended for use by a professional qualified to interpret the MMPI-2-RF. The information it contains should be considered in the context of the test taker's background, the circumstances of the assessment, and other available information.

Synopsis

Scores on the MMPI-2-RF validity scales raise concerns about the possible impact of under-reporting on the validity of this protocol. With that caution noted, scores on the substantive scales indicate emotional, thought, and interpersonal dysfunction. Emotional-internalizing findings relate to anxiety.

Dysfunctional thinking relates to ideas of persecution. Interpersonal difficulties include social avoidance and cynicism.

Protocol Validity

C ontent Non-Responsiveness There are no problems with unscorable items in this protocol. The test taker responded relevantly to the items on the basis of their content. O ver-Reporting There are no indications of over-reporting in this protocol. U nder-Reporting The test taker presented herself in an extremely positive light by denying many minor faults and shortcomings that most people acknowledge. This level of virtuous self-presentation is very uncommon even in individuals with a background stressing traditional values. Any absence of elevation on the substantive scales is uninterpretable1. Elevated scores on the substantive scales may underestimate the problems assessed by those scales2.

Substantive Scale Interpretation

Clinical symptoms, personality characteristics, and behavioral tendencies of the test taker are described in this section and organized according to an empirically guided framework. Statements containing the word "reports" are based on the item content of MMPI-2-RF scales, whereas statements that include the word "likely" are based on empirical correlates of scale scores. Specific sources for each statement can be accessed with the annotation features of this report.

MMPI-2-RF® Interpretive Report: Clinical Settings 02/27/2022, Page 9 IM E2 The following interpretation needs to be considered in light of cautions noted about the possible impact of under-reporting on the validity of this protocol. S omatic/Cognitive Dysfunction There are no indications of somatic or cognitive dysfunction in this protocol. However, because of indications of under-reporting described earlier, such problems cannot be ruled out.

E motional Dysfunction The test taker reports feeling anxious3 and is likely to experience significant anxiety and anxiety-related problems4, intrusive ideation, and nightmares5. T hought Dysfunction The test taker reports significant persecutory ideation such as believing that others seek to harm her6.

She is likely to be suspicious of others7, to experience interpersonal difficulties as a result of suspiciousness8, and to lack insight8. B ehavioral Dysfunction There are no indications of maladaptive externalizing behavior in this protocol. However, because of indications of under-reporting described earlier, such problems cannot be ruled out.

I nterpersonal Functioning Scales The test taker reports having cynical beliefs, distrust of others, and believing others look out only for their own interests9. She is likely to be hostile toward others10 and feel alienated from them11, and to have negative interpersonal experiences as a result of her cynical beliefs12. She also reports not enjoying social events and avoiding social situations13. She is likely to be introverted14, to have difficulty forming close relationships15, and to be emotionally restricted16.

I nterest Scales The test taker reports an average number of interests in activities or occupations of an aesthetic or literary nature (e.g., writing, music, the theater)17. She also reports an average number of interests in activities or occupations of a mechanical or physical nature (e.g., fixing and building things, the outdoors, sports)18.

Diagnostic Considerations

This section provides recommendations for psychodiagnostic assessment based on the test taker's MMPI-2-RF results. It is recommended that she be evaluated for the following: E motional-Internalizing Disorders - Anxiety-related disorders including PTSD19

MMPI-2-RF® Interpretive Report: Clinical Settings 02/27/2022, Page 10 IM E2 T hought Disorders - Disorders involving persecutory ideation20 In terpersonal Disorders - P ersonality disorders involving mistrust of and hostility toward others21 - Disorders associated with social avoidance such as avoidant personality disorder22

Treatment Considerations

This section provides inferential treatment-related recommendations based on the test taker's MMPI-2-RF scores. P s ychotherapy Process Issues - P ersecutory ideation may interfere with forming a therapeutic relationship and treatment compliance23. - Cynicism may interfere with forming or seeking a therapeutic relationship24.

P o ssible Targets for Treatment - A nxiety25 - P ersecutory ideation23 - L ack of interpersonal trust21 - Difficulties associated with social avoidance26

Item-Level Information

U nscorable Responses The test taker produced scorable responses to all the MMPI-2-RF items. C ritical Responses Seven MMPI-2-RF scales--Suicidal/Death Ideation (SUI), Helplessness/Hopelessness (HLP), Anxiety (AXY), Ideas of Persecution (RC6), Aberrant Experiences (RC8), Substance Abuse (SUB), and Aggression (AGG)--have been designated by the test authors as having critical item content that may require immediate attention and follow-up. Items answered by the individual in the keyed direction (True or False) on a critical scale are listed below if her T score on that scale is 65 or higher. The percentage of the MMPI-2-RF normative sample that answered each item in the keyed direction is provided in parentheses following the item content.

Anxiety (AXY, T Score = 70) 228. I feel anxiety about something or someone almost all the time. (True, 17.3%) 289. I have often been frightened in the middle of the night. (True, 12.7%)

MMPI-2-RF® Interpretive Report: Clinical Settings 02/27/2022, Page 11 IM E2 Ideas of Persecution (RC6, T Score = 70) 71. I believe I am being plotted against. (True, 2.0%) 110. I feel that I have often been punished without cause. (True, 9.9%) 194. I am sure I am being talked about. (True, 17.1%) 264. Someone has it in for me. (True, 5.3%)

MMPI-2-RF® Interpretive Report: Clinical Settings 02/27/2022, Page 12 IM E2

Endnotes

This section lists for each statement in the report the MMPI-2-RF score(s) that triggered it. In addition, each statement is identified as a Test Response, if based on item content, a Correlate, if based on empirical correlates, or an Inference, if based on the report authors' judgment. (This information can also be accessed on-screen by placing the cursor on a given statement.) For correlate-based statements, research references (Ref. No.) are provided, keyed to the consecutively numbered reference list following the endnotes.

3 Test Response: AXY=70 6 Test Response: RC6=70 9 Test Response: RC3=70 13 Test Response: SAV=75 17 Test Response: AES=39 18 Test Response: MEC=52 21 Inference: RC3=70 23 Inference: RC6=70 25 Inference: AXY=70 26 Inference: SAV=75

MMPI-2-RF® Interpretive Report: Clinical Settings 02/27/2022, Page 13 IM E2

Research Reference List

The following studies are sources for empirical correlates identified in the Endnotes section of this report. 1. Anderson, J. L., Sellbom, M., Ayearst, L., Quilty, L. C., Chmielewski, M., & Bagby, R. M. (2015). Associations between DSM-5 Section III personality traits and the Minnesota Multiphasic Personality Inventory 2-Restructured Form (MMPI-2-RF) scales in a psychiatric patient sample.

P sychological Assessment, 27, 801-815. doi: 10.1037/pas0000096 2. Anderson, J. L., Sellbom, M., Pymont, C., Smid, W., De Saeger, H. & Kamphuis, J. H. (2015). Measurement of DSM-5 Section II personality disorder constructs using the MMPI-2-RF in clinical a nd forensic samples. Psychological Assessment, 27, 786-800. doi: 10.1037/pas0000103 3. Arbisi, P. A., Polusny, M. A., Erbes, C. R., Thuras, P., & Reddy, M. K. (2011). The Minnesota Multiphasic Personality Inventory-2 Restructured Form in National Guard soldiers screening positive for posttraumatic stress disorder and mild traumatic brain injury. Psychological A ssessment, 23, 203-214. doi: 10.1037/a0021339 4. Arbisi, P. A., Rusch, L., Polusny, M. A., Thuras, P. & Erbes, C. R. (2013). Does cynicism play a role in failure to obtain needed care? Mental health service utilization among returning U.S.

N ational Guard soldiers. Psychological Assessment, 25, 991-996. doi: 10.1037/a0032225 5. Arbisi, P. A., Sellbom, M., & Ben-Porath, Y. S. (2008). Empirical correlates of the MMPI-2 Restructured Clinical (RC) Scales in psychiatric inpatients. Journal of Personality Assessment, 90, 1 22-128. doi: 10.1080/00223890701845146 6. Ayearst, L. E., Sellbom, M., Trobst, K. K., & Bagby, R. M. (2013). Evaluating the interpersonal content of the MMPI-2-RF Interpersonal Scales. Journal of Personality Assessment, 95, 187-196.

d oi: 10.1080/00223891.2012.730085 7. Block, A. R., Ben-Porath, Y. S., & Marek, R. J. (2013). Psychological risk factors for poor outcome of spine surgery and spinal cord stimulator implant: A review of the literature and their assessment with the MMPI-2-RF. The Clinical Neuropsychologist, 27, 81-107. doi:

1 0.1080/13854046.2012.721007 8. Burchett, D. L., & Ben-Porath, Y. S. (2010). The impact of over-reporting on MMPI-2-RF s ubstantive scale score validity. Assessment, 17, 497-516. doi: 10.1177/1073191110378972 9. Cox, A., Courrege, S. C., Felder, A. H., & Weed, N. C. (2017). Effects of augmenting response options of the MMPI-2-RF: An extension of previous findings. Cogent Psychology, 4, 1323988.

d oi: 10.1080/23311908.2017.1323988 10. Cox, A, Pant, H., Gilson, A. N., Rodriguez, J. L., Young, K. R., Kwon, S., & Weed, N. C., (2012). Effects of augmenting response options on MMPI-2 RC Scale psychometrics. Journal of P ersonality Assessment, 94, 613-619. doi: 10.1080/00223891.2012.700464

MMPI-2-RF® Interpretive Report: Clinical Settings 02/27/2022, Page 14 IM E2 11. Crighton, A. H., Marek, R. J., Dragon, W. R., & Ben-Porath, Y. S. (2017). Utility of the MMPI-2-RF Validity Scales in the detection of simulated underreporting: Implications of i ncorporating a manipulation check. Assessment, 24, 853-864. doi: 10.1177/1073191115627011 12. Finn, J. A., Ben-Porath, Y. S., & Tellegen, A. (2015). Dichotomous versus polytomous response options in psychopathology assessment: Method or meaningful variance? Psychological A ssessment, 27, 184-193. doi: 10.1037/pas0000044 13. Forbey, J. D., Arbisi, P. A., & Ben-Porath, Y. S. (2012). The MMPI-2 computer adaptive version (MMPI-2-CA) in a VA medical outpatient facility. Psychological Assessment, 24, 628-639.

d oi: 10.1037/a0026509 14. Forbey, J. D., & Ben-Porath, Y. S. (2008). Empirical correlates of the MMPI-2 Restructured Clinical (RC) Scales in a non-clinical setting. Journal of Personality Assessment, 90, 136-141. doi: 1 0.1080/00223890701845161 15. Forbey, J. D., Lee, T. T. C., Ben-Porath, Y. S., Arbisi, P. A., & Gartland, D. (2013).

Associations between MMPI-2-RF validity scale scores and extra-test measures of personality and p sychopathology. Assessment, 20, 448-461. doi: 10.1177/1073191113478154 16. Forbey, J. D., Lee, T. T. C., & Handel, R. W. (2010). Correlates of the MMPI-2-RF in a college s etting. Psychological Assessment, 22, 737-744. doi: 10.1037/a0020645 17. Franz, A. O., Harrop, T. M., & McCord, D. M. (2017). Examining the construct validity of the MMPI-2-RF Interpersonal Functioning Scales using the Computerized Adaptive Test of Personality Disorder as a comparative framework. Journal of Personality Assessment, 99, 416-423. doi:

1 0.1080/00223891.2016.1222394 18. Gottfried, E. D., Anestis, J. C., Dillon, K. H., & Carbonell, J. J. (2016). The associations between Minnesota Multiphasic Personality Inventory-2-Restructured From and self-reported physical and sexual abuse and posttraumatic symptoms in a sample of incarcerated women.

I nternational Journal of Forensic Mental Health. doi: 10.1080/14999013.2016.1228088 19. Handel, R. W., & Archer, R. P. (2008). An investigation of the psychometric properties of the MMPI-2 Restructured Clinical (RC) Scales with mental health inpatients. Journal of Personality A ssessment, 90, 239-249. doi: 10.1080/00223890701884954 20. Ingram, P. B., Kelso, K. M., & McCord, D. M. (2011). Empirical correlates and expanded interpretation of the MMPI-2-RF Restructured Clinical Scale 3 (Cynicism). Assessment, 18, 95-101.

d oi: 10.1177/1073191110388147 21. Marion, B. E., Sellbom, M., Salekin, R. T., Toomey, J. A., Kucharski, T., & Duncan, S. (2013). An examination of the association between psychopathy and dissimulation using the MMPI-2-RF V alidity Scales. Law and Human Behavior, 37, 219-230. doi: 10.1037/lhb0000008 22. Menton, W. H., Crighton, A. H., Tarescavage, A. M., Marek, R. J., Hicks, A. D., & Ben-Porath, Y. S. (2017). Equivalence of laptop and tablet administrations of the Minnesota Multiphasic P ersonality Inventory-2 Restructured Form. Assessment. doi: 0.1177/1073191117714558

MMPI-2-RF® Interpretive Report: Clinical Settings 02/27/2022, Page 15 IM E2 23. Rogers, M. L., Anestis, J. C., Harrop, T. M., Schneider, M., Bender, T. W., Ringer, F. B., & Joiner, T. E. (2017). Examination of MMPI-2-RF substantive scales as indicators of acute suicidal affective disturbance components. Journal of Personality Assessment, 99, 424-434. doi:

1 0.1080/00223891.2016.1222393 24. Sellbom, M., Anderson, J. L., & Bagby, R. M. (2013). Assessing DSM-5 Section III Personality Traits and Disorders with the MMPI-2-RF. Assessment, 20, 709-722. doi: 1 0.1177/1073191113508808 25. Sellbom, M., & Bagby, R. M. (2008). The validity of the MMPI-2-RF (Restructured Form) L-r and K-r scales in detecting under-reporting in clinical and non-clinical samples. Psychological A ssessment, 20, 370-376. doi: 10.1037/a0012952 26. Sellbom, M., Bagby, R. M., Kushner, S., Quilty, L. C., & Ayearst, L. E. (2011). Diagnostic construct validity of the MMPI-2 Restructured Form (MMPI-2-RF) scale scores. Assessment, 19, 1 76-186. doi: 10.1177/1073191111428763 27. Sellbom, M., & Ben-Porath, Y. S. (2005). Mapping the MMPI-2 Restructured Clinical (RC) Scales onto normal personality traits: Evidence of construct validity. Journal of Personality A ssessment, 85, 179-187. doi: 10.1207/s15327752jpa8502_10 28. Sellbom, M., Ben-Porath, Y. S., & Bagby, R. M. (2008). Personality and psychopathology:

Mapping the MMPI-2 Restructured Clinical (RC) Scales onto the five factor model of personality. J ournal of Personality Disorders, 22, 291-312. doi: 10.1521/pedi.2008.22.3.291 29. Sellbom, M., Graham, J. R., & Schenk, P. (2006). Incremental validity of the MMPI-2 Restructured Clinical (RC) Scales in a private practice sample. Journal of Personality Assessment, 8 6, 196-205. doi: 10.1207/s15327752jpa8602_09 30. Sellbom, M., Lee, T. T. C., Ben-Porath, Y. S., Arbisi, P. A., & Gervais, R. O. (2012).

Differentiating PTSD Symptomatology with the MMPI-2-RF (Restructured Form) in a Forensic D isability Sample. Psychiatry Research, 197, 172-179. doi: 10.1016/j.psychres.2012.02.003 31. Shkalim, E. (2015). Psychometric evaluation of the MMPI-2/MMPI-2-RF Restructured Clinical S cales in an Israeli sample. Assessment, 22, 607-618. doi: 10.1177/1073191114555884 32. Tellegen, A., & Ben-Porath, Y. S. (2008/2011). The Minnesota Multiphasic Personality Inventory-2-Restructured Form (MMPI-2-RF): Technical manual. Minneapolis: University of M innesota Press.

33. Van der Heijden, P. T., Egger, J. I. M., Rossi, G., Grundel, G., & Derksen, J. J. L. (2013). The MMPI-2 Restructured Form and the standard MMPI-2 Clinical Scales in relation to DSM-IV. European Journal of Psychological Assessment, 29, 182-188. doi: 10.1027/1015-5759/a000140 End of Report

MMPI-2-RF® Interpretive Report: Clinical Settings 02/27/2022, Page 16 IM E2

Item Responses

Client is capped under Title VII yet Employer Settled for Well Above Cap Diagnosis – Causation – Prognosis Function is always key Forensic Psychiatrist Conclusions: In view of my findings, I have reached the following conclusions in this case to a reasonable degree of psychiatric certainty: 1. Ms. Client is suffering from a serious psychiatric condition. Her diagnoses are Posttraumatic Stress Disorder; Major Depressive Disorder, Recurrent, Severe, without Psychotic Features; Generalized Anxiety Disorder with Panic Attacks (and Agoraphobia). Her prognosis is very poor.

2. As a result of her psychiatric condition, she continues to experience clinically significant emotional distress and her functioning has deteriorated in a number of important areas. 3. In my differential diagnosis, I have considered and ruled out malingering as the cause of her psychiatric condition.

4. My differential diagnosis includes other possible alternative causes of her psychiatric condition. This would include the family discord surrounding the disposition of her father’s property and her altercation with her brother. These issues were a chronic source of stress over many years and, in my professional opinion, were not causally related to her present psychiatric condition. A medical condition, namely, menopause (and hormone replacement therapy) may have possibly contributed to some extent to her psychiatric condition.

5. Ms. Client’s perceptions of alleged constant sexual harassment, a hostile work environment, and a punitive demotion at work, as described above, were a substantial cause of her psychiatric condition, causing overwhelming traumatic emotional stress which resulted in severe and persistent psychiatric symptoms and deteriorated functioning.

6. Ms. Client’s condition has remained refractory and she has not shown a favorable response to evidence-based treatment measures. In view of her lack of improvement despite intensive treatment for about one and a half years with psychotherapy and a regimen of psychotropic medications and her mental health

providers’ repeated statements that she requires continuing medical leaves and remains unable to return to work, as well as the determination by Social Security Disability that she is disabled and entitled to disability benefits, in my professional opinion, she will never be able to return to work at Employer in the same capacity (i.e. Executive Assistant to the CEO) or be able to function in a comparable position at the same level of responsibility and duties at another major medical facility in Montana. Moreover, in my professional opinion, the totality of circumstances has establishedthat, in view of her refractory disabling psychiatric condition, emotional fragility, entrenched functional deterioration, and the humiliation ofstarting from the bottom again, she would be unable to start over again and return to work at any other type of non-medical administrative job.

7. There is not a scintilla of evidence that Ms. Client has demonstrated slow but steady progress, or any progress whatsoever, in treatment; nor is there any realistic psychiatric basis to prognosticate that she is likely to respond to continuing treatment measures in the future to the extent that she will be able to return to a functional level of daily living including the ability to return to employment of any kind.

8. Ms. Client would benefit from continuing mental health treatment to attempt to alleviate her emotional distress to whatever extent possible and to prevent further deterioration of her condition and a need for hospitalization in the future. 9. I have had extensive clinical experience in the evaluation and treatment of PTSD. I treated and supervised the treatment of well over a thousand patients suffering from PTSD during my tenure as Director of Psychiatric Outpatient Services at the New York VA Medical Center. Over the years, I have treated many patients suffering from PTSD in my private practice; I have been retained as a psychiatric expert in a number of criminal and civil cases on the issue of PTSD; and I have authored articles in the professional literature on stress-related psychiatric conditions and given lectures and presentations on the diagnosis and management of PTSD.

Example of the caselaw including in the 9th Cir where we were and excerpt of letter to opposing counel: In Pollard v. E. I. du Pont de Nemours & Co., 532 U.S. 843 (2001), the Court held that where “reinstatement [was] not viable because of . . . psychological injuries suffered by the plaintiff as a result of” sexual harassment, “front pay [i]s a substitute for reinstatement, . . . not an element of compensatory damages within the meaning of § 1981a, and, . . the statutory cap of § 1981a(b)(3) is inapplicable to front pay.” 532 U.S. at 846- 848.

In Wooten v. BNSF Ry. Co., No. 19-35431, 2020 U.S. App. LEXIS 19446, at *5-7 (9th Cir. June 22, 2020), this Circuit affirmed an award of over 33 years of front pay. The court noted that: Wooten had a limited education and was from a small railroad town. He came from a railroad family—his grandfather retired from the railroad— and worked at one of the best paying jobs in the area. Notably, Wooten acquired at BNSF a specific set of skills that were related only to the transportation industry. After being dismissed in violation of the FRSA,1 Wooten was faced with an essentially non-existent job market [*6] for comparable paying jobs.

Wooten v. BNSF Ry. Co., No. 19-35431, 2020 U.S. App. LEXIS 19446, at *5-6 (9th Cir. June 22, 2020). Crediting the jury’s verdict, the Ninth Circuit noted Defendant had the burden of proof that Plaintiff failed to mitigate, and that: BNSF did not show that Wooten would be able to find a comparable job at any point over his expected working career.

Moreover, given the salary Wooten earned at BNSF and the benefits associated with the seniority that he enjoyed, Wooten would not have had any economically rational reason to ever leave BNSF, making it far from speculative to find that he would have stayed at the company until his retirement. Wooten v. BNSF Ry. Co., No. 19-35431, 2020 U.S. App. LEXIS 19446, at *6 (9th Cir. June 22, 2020)(unpublished)

There are significant parallels between the Ninth Circuit’s holding and the instant case. The Ninth Circuit found it important that: BNSF's own expert . . . testified that Wooten had a highly specialized set of skills derived from his work at BNSF; . . [and] that it was unclear whether another railroad would even be willing to hire him.

Wooten, 2020 U.S. App. LEXIS 19446, at *6 (9th Cir. June 22, 2020) Here, the expert selected by Defendant opined that Ms. Client would be “incapable of functioning efficiently or in being able to concentrate. I would encourage continuation of the FMLA until her physicians feel that she is prepared to return to her regular duties.” Report of Psychologist, Ph.D. April 10, 2019. At trial Employer will face a much steeper uphill battle than the Defendant in Wooten. It will also be forced to impeach its own highly respected mental health practitioners. Emily psychiatrist, a respected former attending psychiatrist at Employer, wrote in April 2019 that “I am currently unable to estimate a return-to- work date. This will depend greatly on her progress with aggressive medication management and psychotherapy.” Ms. Client’s current treating practitioner Anne Nurse-Practitioner, APRN, also a respected mental health practitioner and current employee of Defendant, wrote in a January 17, 2020 letter Ms. Client “continues to experience severe anxiety including panic attacks with agoraphobia and symptoms of depression. . . I am currently unable to estimate a return-to-work date.” Ms. Nurse-Practitioner has not changed her opinion. Ms. Client will call both of these providers.

age. 31-Dec. elapsed. W2 AMOUNT (2019. % change. avg % change. present value discount @ 1% based on 10. tax by year. lump sum tax. tax gross up. present value of lost wages 14 and 19 years out.

FRONT PAY.

2002. 31,532.

2003. 31,446. 0%.

2004. 34,562. 10%.

2005. 35,724. 3%.

2006. 37,725. 6%.

2007. 39,872. 6%.

2008. 45,727. 15%.

2009. 49,217. 8%.

2010. 49,566. 1%.

2011. 53,161. 7%.

2012. 55,275. 4%.

2013. 56,637. 2%.

2014. 56,547. 0%.

2015. 59,207. 5%.

2016. 60,875. 3%.

2017. 67,929. 12%.

2018. 71,416. 5%.

52. 2019. 1 year. 74,987. 5%. 5%. $ 74,245. $ 19,194.

53. 2020. 2 years. 78,737. $ 77,957. $ 20,564.

54. 2021. 3 years. 82,673. $ 81,855. $ 22,003.

55. 2022. 4 years. 86,807. $ 85,948. $ 23,514.

56. 2023. 5 years. 91,147. $ 90,245. $ 25,100.

57. 2024. 6 years. 95,705. $ 94,757. $ 26,766.

58. 2025. 7 years. 100,490. $ 99,495. $ 28,597.

59. 2026. 8 years. 105,515. $ 104,470. $ 30,534.

60. 2027. 9 years. 110,790. $ 109,694. $ 32,568.

61. 2028. 10 years. 116,330. $ 115,178. $ 34,703.

62. 2029. 11 years. 122,146. $ 120,937. $ 36,945.

63. 2030. 12 years. 128,254. $ 126,984. $ 39,300.

64. 2031. 13 years. 134,666. $ 133,333. $ 41,662.

65. 2032. 14 years. 141,400. $ 140,000. $ 43,840.

1,469,648. $ 1,455,098. $ 425,290. $ 645,237. $ 219,947. $ 1,675,045.

66. 2033. 15 years. 148,470. $ 147,000. $ 46,128.

67. 2034. 16 years. 155,893. $ 154,350. $ 48,529.

68. 2035. 17 years. 163,688. $ 162,067. $ 51,051.

69. 2036. 18 years. 171,872. $ 170,171. $ 53,699.

70. 2037. 19 years. 180,466. $ 178,679. $ 57,082.

2,290,036. $ 2,267,365. $ 681,779. $ 1,024,667. $ 342,888. $ 2,632,924.

MITTIGATION PAY.

56. 2023. 5 years. 35,000. $ 34,654.

57. 2024. 6 years. 36,750. $ 36,386.

58. 2025. 7 years. 38,588. $ 38,205.

59. 2026. 8 years. 40,517. $ 40,116.

60. 2027. 9 years. 42,543. $ 42,122.

61. 2028. 10 years. 44,670. $ 44,228.

62. 2029. 11 years. 46,903. $ 46,439.

63. 2030. 12 years. 49,249. $ 48,761.

64. 2031. 13 years. 51,711. $ 51,199.

65. 2032. 14 years. 54,296. $ 53,759.

440,226. $ 435,868. $ 435,868.

66. 2033. 15 years. 57,011. $ 56,447.

67. 2034. 16 years. 59,862. $ 59,269.

68. 2035. 17 years. 62,855. $ 62,233.

69. 2036. 18 years. 65,998. $ 65,344.

70. 2037. 19 years. 69,298. $ 68,612.

755,250. $ 747,773. $ 755,250.

FRONT PAY REDUCED BY MITIGATION.

age 65. $ 1,239,177.

age 70. $ 1,877,675.

1 age 31-Decelapsed (2019 % change avg % change based on 10 tax by year lump sum tax tax gross up and 19 years out

2 Front Pay

3 2002 31,532 4 2003 31,446 0% 5 2004 34,562 10% 6 2005 35,724 3% 7 2006 37,725 6% 8 2007 39,872 6% 9 2008 45,727 15% 10 2009 49,217 8% 11 2010 49,566 1% 12 2011 53,161 7% 13 2012 55,275 4% 14 2013 56,637 2% 15 2014 56,547 0% 16 2015 59,207 5% 17 2016 60,875 3% 18 2017 67,929 12% 19 2018 71,416 5% 20 52 2019 1 year 74,987 5% 5% $ 74,245 $ 19,194 21 53 2020 2 years 78,737 $ 77,957 $ 20,564 22 54 2021 3 years 82,673 $ 81,855 $ 22,003 23 55 2022 4 years 86,807 $ 85,948 $ 23,514 24 56 2023 5 years 91,147 $ 90,245 $ 25,100 25 57 2024 6 years 95,705 $ 94,757 $ 26,766 26 58 2025 7 years 100,490 $ 99,495 $ 28,597 27 59 2026 8 years 105,515 $ 104,470 $ 30,534 28 60 2027 9 years 110,790 $ 109,694 $ 32,568 29 61 2028 10 years 116,330 $ 115,178 $ 34,703 30 62 2029 11 years 122,146 $ 120,937 $ 36,945 31 63 2030 12 years 128,254 $ 126,984 $ 39,300 32 64 2031 13 years 134,666 $ 133,333 $ 41,662 33 65 2032 14 years 141,400 $ 140,000 $ 43,840 34 1,469,648 $ 1,455,098 $ 425,290 $ 645,237 $ 219,947 $ 1,675,045 35 66 203315 years 148,470 $ 147,000 $ 46,128 36 67 203416 years 155,893 $ 154,350 $ 48,529 37 68 203517 years 163,688 $ 162,067 $ 51,051 38 69 203618 years 171,872 $ 170,171 $ 53,699 39 70 203719 years 180,466 $ 178,679 $ 57,082 40 2,290,036 $ 2,267,365 $ 681,779 $ 1,024,667 $ 342,888 $ 2,632,924

42Mittigation Pay

43 56 2023 5 years 35,000 $ 34,654 44 57 2024 6 years 36,750 $ 36,386 45 58 2025 7 years 38,588 $ 38,205 46 59 2026 8 years 40,517 $ 40,116 47 60 2027 9 years 42,543 $ 42,122 48 61 2028 10 years 44,670 $ 44,228 49 62 2029 11 years 46,903 $ 46,439 50 63 2030 12 years 49,249 $ 48,761 51 64 2031 13 years 51,711 $ 51,199 52 65 2032 14 years 54,296 $ 53,759 53 440,226 $ 435,868 $ 435,868 54 66 203315 years 57,011 $ 56,447 55 67 203416 years 59,862 $ 59,269 56 68 203517 years 62,855 $ 62,233 57 69 203618 years 65,998 $ 65,344 58 70 203719 years 69,298 $ 68,612 59 755,250 $ 747,773 $ 755,250

61Front Pay Reduced By Mitigation

63 age 65 $ 1,239,177 64 age 70 $ 1,877,675

1 David R. Spiegel, Md

2 Exhibit 3, but you're also able to view it on

3 the screen, correct, Doctor?

4 A. Yes. 5 Q. Alrighty. And I'd like you just to 6 take a moment to review it and tell me if you 7 recognize it as the DSM-V criteria for paranoid 8 personality disorder. 9 A. Yes. 10 Q. Thank you. So the document seems to 11 be broken down into two sections, A and B, and 12 tell me if this is correct:

13 "A" sets forth a couple of conditions 14 that are absolute, that have to be present, and 15 then it lists seven conditions, four of which 16 have to be present. 17 A. Yes. 18 Q. And in A, among those that have to be 19 present is onset of the paranoid personality 20 disorder beginning by early adulthood. Is that

21 correct?

22 A. Yes. 23 Q. And it doesn't rule out the 24 possibility that it could have manifested

25 earlier than early adulthood, correct?

TransPerfect Legal Solutions 212-400-8845 - Depo@TransPerfect.com

1 David R. Spiegel, Md

2 A. Potentially, correct. 3 Q. So in order for you to reach your 4 diagnosis, you relied on facts or evidence that 5 demonstrated that Ms. paranoid 6 personality disorder was manifested latest by

7 early adulthood, correct?

8 A. Correct. 9 Q. I'd like you to tell me what those 10 facts were. And if those facts were provided to 11 you by a source, I'd like you to tell me what 12 the source was. 13 A. Well, again, we'll start with the 14 MMPI because that source said she also had 15 paranoid personality disorder. But beyond that, 16 the -- I'm attributing the variety of context of 17 the legal action to be some rough evidence.

18 I didn't know in her 19 20s, so I couldn't tell you exactly when, but it 20 is certainly not uncommon for patients with 21 paranoid personality disorder not present to 22 treatment, so it would be hard to say exactly 23 when in early adulthood it began. 24 All I can tell you is that it clearly 25 predated this working episode, and my TransPerfect Legal Solutions 212-400-8845 - Depo@TransPerfect.com

1 David R. Spiegel, Md

2 understanding would be that it probably occurred 3 in her adulthood. But, again, I did not know 4 her, so -- at that point. 5 Q. Are you aware of any other evidence 6 that the onset was in early adulthood besides

7 what we've just discussed?

8 A. Well, paranoid -- by definition of 9 paranoid personality disorder, which the MMPI 10 came up with as just as well as me, it has to 11 occur in early adulthood. So even if we weren't 12 there, the fact that the test and the screening 13 criteria and the symptoms meet the criteria, 14 that would imply that it began by early 15 adulthood. But if you ask me did she develop it 16 in her early 20s, mid 20s, I couldn't tell you 17 the exact time she developed it.

18 Q. You cannot tell me the exact time she

19 developed it, correct?

20 A. I don't know if could 21 tell me the exact time she developed it because 22 I don't think she has any insight that she has 23 this condition. So even if I asked her, I don't 24 think she would know. 25 Q. But did you ask her questions that TransPerfect Legal Solutions 212-400-8845 - Depo@TransPerfect.com

1 David R. Spiegel, Md

2 were intended to determine when it developed in 3 order to determine that it meet -- it met

4 Criterion A?

5 A. Honestly, I didn't document it in the 6 note, so therefore -- or the report, so I can't 7 say I did or did not ask her. Obviously it 8 would be on the tape. 9 When the time I evaluated her, I 10 initially -- like I said, I came in there 11 objective and independent, so I wasn't out to 12 necessarily diagnose her with anything other 13 than what she told me.

14 And after I did the MMPI, that I got 15 collateral history from her former occupations 16 in terms of the similar litigation, and then 17 based on that, the most logical parsimonious 18 explanation is paranoid personality disorder. 19 Q. The litigations you referred to were 20 approximately ten years before the current

21 lawsuit?

22 A. The three other suits?

23 Q. Well, we'll get to the number, but I 24 just want to make sure we're talking about the 25 same thing. TransPerfect Legal Solutions 212-400-8845 - Depo@TransPerfect.com

1 David R. Spiegel, Md

2 A. If you're stipulat- -- Mr. Friedman, 3 if you're stipulating that they were within the 4 last ten years -- I don't remember exactly when 5 they were, but if you are stipulating to me that 6 you've seen they were within the last ten years, 7 then I will agree with you. 8 Q. I'm not. I'm saying they're 9 approximately, give or take, within the last ten 10 years.

11 A. If you're stipulating that to me, 12 then I agree with you. 13 Q. Yeah. And is currently 14 59, so if that approximate number of years is 15 correct, those lawsuits would have been in her 16 mid to late 40s. Am I correct that that would

17 not be early adulthood?

18 A. Again, the lawsuits are just showing 19 a pattern. The most -- okay, to answer your 20 question, your 40s is not early adulthood. The 21 lawsuits are the manifestation of clearly what's 22 been happening with this woman for a fairly long 23 time, but she didn't engage litigation until the 24 last ten years.

25 Q. I'm just trying to make sure we're on TransPerfect Legal Solutions 212-400-8845 - Depo@TransPerfect.com

W Shawn Buffkin - Recross-Exam 01:23:59 1 testify now. 01:23:59 2 THE COURT: And slightly out of order. 01:24:01 3 MS. HOULDING: Yes. 01:24:02 4 THE COURT: To accommodate the schedule of 01:24:04 5 this next witness, he will be coming not in the order of 01:24:09 6 proof that in a perfect world plaintiff would 01:24:11 7 appreciate, but recognizing the need to accommodate his 01:24:16 8 schedule, plaintiff has called him to the stand now.

01:24:21 9 Is there anything further you wanted me to

01:24:22 10 say?

01:24:23 11 MS. HOULDING: No. Thank you, Your Honor. 01:24:26 12 THE COURT: So that explains a little bit 01:24:29 13 about the order. 01:24:37 14 THE CLERK: Please watch your step whenever 01:24:39 15 coming up on the carpet. There's a little bit of an 01:24:42 16 incline. 01:24:42 17 Please come forward and stand in front of 01:24:44 18 the clerk's bench. Place your left hand on the Bible 01:24:49 19 and raise your right hand.

01:24:50 20 State your name for the Court. 01:24:54 21 THE WITNESS: Robert L. Goldstein, M.D. 01:24:56 22 THE COURT: Please spell your name for the 01:24:58 23 Court. 01:24:59 24 THE WITNESS: G-o-l-d-s-t-e-i-n. 01:25:02 25 (Whereupon the witness was sworn by the

Goldstein - Direct Exam 01:25:06 1 clerk.) 01:25:06 2 THE CLERK: Thank you. Please take the 01:25:21 3 witness stand and be seated.

01:25:31 4 Robert L. Goldstein, M.D., Direct Examination

01:25:31 5 By Ms. Houlding:

01:25:31 6 Q. Good morning, Dr. Goldstein. 01:25:33 7 A. Good morning. 01:25:34 8 Q. If you could, could you just state your full name 01:25:37 9 for the record and the jury again, please. 01:25:39 10 A. Robert L. Goldstein, M.D. 01:25:41 11 Q. And would you describe for the jury your 01:25:45 12 educational background briefly, please.

01:25:47 13 A. Okay. I'm a medical doctor. I obtained my M.D. 01:25:52 14 degree from Chicago Medical School. I then did a 01:25:57 15 one-year internship in internal medicine at New York 01:26:03 16 Presbyterian Lower Manhattan Hospital. I did a two-year 01:26:09 17 residency in psychiatry at Downstate Medical Center in 01:26:13 18 Brooklyn, New York; my last and third year of 01:26:18 19 psychiatric residency at Bellevue Hospital in New York 01:26:22 20 City. I took a fellowship in child and adolescent 01:26:27 21 psychiatry, also at Bellevue; and a fellowship in 01:26:33 22 psychoanalytic psychotherapy at Hillside Hospital in 01:26:38 23 Glen Oaks, Queens.

01:26:43 24 Q. What degrees do you hold, Dr. Goldstein?

01:26:46 25 A. I have an M.D. from Chicago Medical School. I

Goldstein - Direct Exam 01:26:50 1 also have a JD degree from Columbia University; that's a 01:26:54 2 law degree, but I don't practice law.

01:26:56 3 Q. And how long have you been a licensed physician?

01:26:58 4 A. Since 1967 in New York.

01:27:05 5 Q. All right. And when did you obtain your JD?

01:27:09 6 A. 1984.

01:27:12 7 Q. Did you ever practice law?

01:27:14 8 A. Technically for about eight months I worked for a 01:27:17 9 law firm part-time finishing up some projects for them 01:27:22 10 that I had started in law school. 01:27:25 11 Q. Are you board certified in any medical

01:27:29 12 specialties?

01:27:29 13 A. I am board certified in adult psychiatry. 01:27:34 14 Q. And would you explain for the jury what it means

01:27:37 15 to be board certified?

01:27:39 16 A. Basically all it means is that you've taken a 01:27:43 17 three-day grueling exam where you have an oral part and 01:27:51 18 a part where you examine two psychiatry patients and one 01:27:56 19 neurology patient. And if you pass it, which about 01:27:59 20 maybe 50 percent of psychiatrists in the country have 01:28:03 21 passed it, you're certified as a specialist in 01:28:07 22 psychiatry.

01:28:08 23 Q. And if you told us already, I apologize. For how

01:28:13 24 long have you been board certified?

01:28:15 25 A. Since 1976.

Goldstein - Direct Exam 01:28:18 1 Q. All right. And where do you -- do you currently

01:28:21 2 work?

01:28:21 3 A. Yes.

01:28:21 4 Q. And where do you work?

01:28:23 5 A. I'm a clinical professor of psychiatry at 01:28:27 6 Columbia University in New York City where I have run 01:28:31 7 programs for residents and teach residents and 01:28:36 8 postgraduate fellows in various psychiatric lectures, 01:28:42 9 seminars, colloquia. I do research and write articles 01:28:48 10 as part of my academic work there. And I'm in full-time 01:28:53 11 private practice in an office in New York City.

01:28:57 12 Q. Thank you. Do you have experience giving

01:28:59 13 lectures in the field of psychiatry?

01:29:02 14 A. Yes, quite often. 01:29:04 15 Q. Are you on the faculty of any school? Where do

01:29:08 16 you give lectures?

01:29:09 17 A. I'm a clinical professor of psychiatry at the 01:29:13 18 College of Physicians and Surgeons at Columbia 01:29:16 19 University. 01:29:16 20 Q. Are you a member of any other professional

01:29:19 21 associations?

01:29:20 22 A. I'm a member of the American Psychiatric 01:29:24 23 Association and an officer of the American Academy of 01:29:30 24 Psychiatry and the Law. 01:29:32 25 Q. And I'm going to show you for identification

Goldstein - Direct Exam 01:29:35 1 purposes what we've marked as Plaintiff's Exhibit 42. 01:29:40 2 And as soon as we can -- can you -- I don't know if you 01:29:46 3 can see the whole thing, but can you tell us what

01:29:51 4 Plaintiff's Exhibit 42 is?

01:29:53 5 A. This is -- I think it's page 1 of my resumé or 01:29:59 6 curriculum vitae. 01:30:01 7 MS. HOULDING: We would move for admission 01:30:03 8 of Exhibit 42. 01:30:04 9 THE COURT: All right. 04:38:21 10 (Whereupon Plaintiff's Exhibit 42 is 04:38:23 11 admitted into evidence.) 01:30:08 12 MS. HOULDING: And we would also like to 01:30:10 13 move to have Dr. Goldstein accepted as an expert in the 01:30:13 14 field of psychiatry.

01:30:17 15 MS. KERN: No objection. 01:30:18 16 THE COURT: All right. Ladies and 01:30:21 17 gentlemen, usually in trials a witness isn't allowed to 01:30:24 18 give his or her opinion, but there is an exception to 01:30:26 19 that rule, and that's with experts. I'm qualifying this 01:30:31 20 individual as an expert, and he will be asked in some 01:30:34 21 respects to give his opinions, and you would consider 01:30:37 22 his testimony just like you would any other witness.

01:30:39 23 I'll come back at the close of the trial and I'll give 01:30:42 24 you more directions at that point. But I thought that 01:30:45 25 might be helpful to you now.

Goldstein - Direct Exam 01:30:47 1 You may continue. 01:30:48 2 MS. HOULDING: Thank you.

01:30:50 3 By Ms. Houlding:

01:30:51 4 Q. Can you tell us just briefly what percentage, if 01:30:54 5 you can quantify, of your practice is dedicated to 01:30:58 6 giving expert opinions or expert testimony as opposed to 01:31:03 7 your private practice and some of the other things that

01:31:09 8 you do as part of your job?

01:31:11 9 A. Roughly ten percent or less. 01:31:14 10 Q. And can you quantify of the ten percent of your 01:31:21 11 practice that goes to testifying as an expert, what 01:31:26 12 percentage is for the plaintiff, what percentage is for

01:31:30 13 the defendant? Can you tell us that?

01:31:32 14 A. Over the years, roughly 50/50. Although I think 01:31:36 15 in recent years probably more frequently for defendants 01:31:41 16 in civil lawsuits. 01:31:43 17 Q. And before we get into your expert opinion in 01:31:47 18 this case, Dr. Goldstein, have you testified in court or 01:31:54 19 in a deposition for any of my firm's clients before Mr.

01:32:03 20 Ward?

01:32:03 21 A. Yes. 01:32:03 22 Q. Okay. And approximately how many times, if you 01:32:07 23 know, let's say in the last five years, have you been 01:32:12 24 designated as an expert in a case in which you've

01:32:15 25 testified for one of my firm's clients?

Goldstein - Direct Exam

01:32:18 1 A. In the last five years, you said?

01:32:21 2 Q. Yeah, approximately. 01:32:22 3 A. Roughly maybe half a dozen times. I've testified 01:32:27 4 at depositions, not at trials. 01:32:29 5 Q. And have you ever testified in cases in which 01:32:32 6 you've been the opposing expert; in other words, the 01:32:37 7 expert for the defendant in a case in which my firm was

01:32:40 8 involved?

01:32:41 9 A. Yes. I testified in a case on the other side 01:32:45 10 against your firm in one major case a few years ago. 01:32:50 11 Q. And has our firm consulted with you to see 01:32:56 12 whether there was a psychiatric condition present for 01:32:59 13 any of our clients in which we haven't designated you as

01:33:04 14 an expert to testify?

01:33:06 15 A. Over the years, yes. 01:33:09 16 Q. All right. So just, in other words, there have 01:33:13 17 been times where our firm has sought your opinion but 01:33:19 18 you haven't provided an opinion that there was a 01:33:22 19 psychiatric condition connected to what a client was

01:33:28 20 alleging; is that correct?

01:33:30 21 A. That's correct. 01:33:31 22 Q. Now, you've talked about a number of the cases 01:33:35 23 where our firm has retained you. Do you know the 01:33:39 24 outcome one way or the other of all of those cases in

01:33:43 25 which you've been retained?

Goldstein - Direct Exam 01:33:46 1 A. Actually, I rarely find out how a case turns out. 01:33:53 2 Q. And you're being paid here for your work,

01:33:56 3 correct?

01:33:56 4 A. I hope so, yes.

01:34:00 5 Q. Did you prepare an expert report in this case?

01:34:06 6 A. I actually prepared two separate expert reports. 01:34:10 7 Q. Okay. So we're going to show you Plaintiff's 01:34:23 8 Exhibit 39. And I'm going to ask you if you can 01:34:30 9 identify this for us. 01:34:31 10 A. This is the first expert report I prepared dated 01:34:37 11 April 25, 2016.

01:34:42 12 Q. And is that -- is April 25, 2016 around the time 01:34:47 13 that you -- withdrawn. 01:34:52 14 Did you subsequently prepare a supplemental

01:34:55 15 report?

01:34:56 16 A. Yes, I did.

01:34:58 17 Q. And when did you do that?

01:35:00 18 A. That was a supplemental report that was dated 01:35:05 19 April 9, 2018. 01:35:09 20 MS. HOULDING: Your Honor, we would move for 01:35:11 21 the admission of Plaintiff's Exhibit 39. 01:35:13 22 MS. KERN: Your Honor, Defendant objects on 01:35:15 23 hearsay grounds. 01:35:16 24 THE COURT: I'll take that under advisement.

01:35:18 25 MS. HOULDING: Sure.

Goldstein - Direct Exam

01:35:20 1 By Ms. Houlding:

01:35:20 2 Q. And I'm going to show you what we've marked as 01:35:24 3 Plaintiff's Exhibit 39A and just ask if you can identify 01:35:31 4 that for us. 01:35:33 5 A. Yes. This is the second, the supplemental report 01:35:39 6 that I prepared dated April 9, 2018. 01:35:45 7 Q. And just for the record, is that April 9 or April

01:35:48 8 17?

01:35:49 9 A. I'm sorry?

01:35:50 10 Q. Was the date on that April 9 or April 17?

01:35:55 11 A. I'm sorry. April 17, 2018. 01:35:58 12 MS. HOULDING: And, Your Honor, we would 01:35:59 13 also move for the admission of 39A. 01:36:04 14 MS. KERN: Same objection, Your Honor. 01:36:05 15 THE COURT: I'll take this under advisement.

01:36:07 16 By Ms. Houlding:

01:36:08 17 Q. So could you just briefly tell the jury generally 01:36:14 18 the materials that you considered in forming the 01:36:17 19 opinions that you are going to be testifying about here

01:36:24 20 today?

01:36:24 21 A. Yes. I reviewed and analyzed Mr. Ward's medical 01:36:31 22 records, voluminous medical records over the years. I 01:36:38 23 reviewed and analyzed the complaint in this case. I 01:36:43 24 reviewed and analyzed Mr. 's filing of a charge of 01:36:48 25 discrimination with the EEOC. And I reviewed and

Goldstein - Direct Exam 01:36:53 1 analyzed the sworn statement or declaration of a Mr. 01:36:59 2 Wayne Tarkington. 01:37:02 3 Q. All right. I'm not going to ask you right this 01:37:06 4 moment about every medical record that you reviewed. 01:37:10 5 We'll talk a little bit later on about some specifics.

01:37:13 6 But did you conduct an examination of Mr. at any

01:37:16 7 time?

01:37:18 8 A. Yes. I examined him on three occasions on May 01:37:23 9 28, 2014; again in April, 2016; and most recently in 01:37:31 10 April, 2018. 01:37:36 11 Q. Now, if you can recall, how long was each of

01:37:39 12 those exams approximately?

01:37:41 13 A. Approximately -- the first exam in 2014 was 01:37:46 14 roughly an hour and a half. The subsequent exams -- I'm 01:37:53 15 sorry, the first exam was May, 2014. The second exam in 01:37:57 16 April, 2016 was roughly a half hour. And the most 01:38:03 17 recent exam in April, 2018 was also roughly about a half 01:38:08 18 hour.

01:38:09 19 Q. And did you examine him face-to-face? How did

01:38:14 20 you conduct the exam since you're in New York?

01:38:16 21 A. Well, since I'm in New York and he's in North 01:38:19 22 Carolina, I conducted a -- what's called a video 01:38:21 23 conference or video call examination using Skype where I 01:38:27 24 had a very large desktop console screen where I could 01:38:35 25 see his image, upper half of his body and his face,

Goldstein - Direct Exam 01:38:42 1 fairly enlarged image, and conducted the examination 01:38:45 2 remotely that way. 01:38:49 3 Q. Why didn't you do it face-to-face? Was it

01:38:51 4 simply geographic limitations?

01:38:55 5 A. It was because it was more convenient and 01:38:59 6 feasible to do a long-distance exam rather than have him 01:39:02 7 come all the way up to New York or my travelling down to 01:39:06 8 North Carolina. 01:39:07 9 Q. And in providing an expert opinion or conducting 01:39:15 10 an examination of this nature, are there limitations 01:39:21 11 resulting from using video or Skype rather than doing an

01:39:25 12 in-person examination?

01:39:26 13 A. There are no limitations or drawbacks. This has 01:39:33 14 been going on for many years. And there's a fairly 01:39:36 15 large body of research that has established that these 01:39:42 16 kind of telepsychiatry evaluations or long-distance 01:39:48 17 evaluations are just as reliable and have excellent 01:39:55 18 accuracy and reliability compared to when a patient is 01:40:00 19 actually in your office face-to-face.

01:40:03 20 Q. What was the purpose of examining Mr. ?

01:40:07 21 A. Well, the initial purpose was to examine him like 01:40:13 22 I would any other new patient and find out if he's 01:40:17 23 suffering from any psychiatric disorder. If so, what 01:40:21 24 the nature and diagnosis is of that psychiatric 01:40:27 25 condition, what the prognosis or future prediction of

Goldstein - Direct Exam 01:40:32 1 the outcome of that condition is, if possible what the 01:40:37 2 causal factors are that led to that condition in the 01:40:42 3 patient, and what helpful treatment measures would be 01:40:48 4 indicated for that diagnosis in that patient. 01:40:51 5 Q. Can you explain to the jury, what does the 01:40:55 6 comprehensive psychiatric exam consist of, and otherwise

01:40:59 7 what do you do and what's the methodology?

01:41:02 8 A. Well, a comprehensive psychiatric exam for any 01:41:06 9 patient is a standard format psychiatric exam consisting 01:41:14 10 of two basic sections; the psychiatric history and the 01:41:20 11 mental status evaluation. 01:41:25 12 The psychiatric history, it's roughly analogous 01:41:29 13 to what your internist does when you go for a medical 01:41:33 14 checkup; gets a complete history from you, what brought 01:41:36 15 you there, gets some background that's relevant to you 01:41:41 16 and to your health problems and so forth.

01:41:47 17 What a psychiatrist does is get the presenting 01:41:50 18 problem, why the patient is there for the examination; 01:41:52 19 gets extensive past history; the patient's family 01:41:57 20 history; childhood; family history of psychiatric 01:42:03 21 illness, if any; the patient's educational history; 01:42:08 22 patient's work history; patient's social and marital and 01:42:13 23 sexual history; patient's past psychiatric history, if 01:42:18 24 any; alcohol and drug abuse history; and past medical 01:42:23 25 problems that the patient had. So this is the -- all of

Goldstein - Direct Exam 01:42:29 1 this data is gathered by the psychiatrist as part of the 01:42:33 2 psychiatric history. 01:42:36 3 The second part of the exam is called the mental 01:42:40 4 status. That's, again, analogous to what your 01:42:44 5 internist does when he examines your chest with a 01:42:47 6 stethoscope or presses on your abdomen or does other 01:42:51 7 physical examinations. For a psychiatrist the mental 01:42:55 8 status involves observing the demeanor of the patient; 01:43:00 9 the presentation -- physical presentation of the 01:43:05 10 patient; his emotional responses, emotional symptoms he 01:43:09 11 may or may not be having; psychiatric information such 01:43:16 12 as the presence of anxiety or depression, 01:43:21 13 hallucinations, delusions, suicidal ideations; other 01:43:29 14 psychiatric symptoms that are relevant to making a 01:43:33 15 diagnosis; what's called the sensorium, his orientation, 01:43:41 16 his memory, his general intelligence, his insight and 01:43:45 17 judgment. All of these go into the mental status.

01:43:50 18 The purpose of the exam is to put together the 01:43:52 19 history and the mental status and reach a diagnosis, if 01:43:57 20 any is present, of a psychiatric illness; the nature of 01:44:01 21 that illness; and what the prognosis, causation, and 01:44:06 22 optimal treatment would be for that patient's condition.

01:44:13 23 Q. Thank you. To be clear, this is the same form of

01:44:15 24 exam you conducted with Mr. Ward; is that correct?

01:44:17 25 A. Correct.

Goldstein - Direct Exam 01:44:21 1 Q. Did you come to a conclusion after conducting 01:44:24 2 that exam with Mr. as to whether he was suffering 01:44:27 3 from a diagnosable psychiatric illness within a

01:44:30 4 reasonable degree of psychiatric certainty?

01:44:32 5 A. Yes, I did.

01:44:33 6 Q. And what did you conclude?

01:44:35 7 A. I concluded that his psychiatric condition had -- 01:44:42 8 the diagnosis, what's called unspecified anxiety 01:44:46 9 disorder with panic attacks. 01:44:49 10 Q. And what findings are necessary -- what did you 01:44:54 11 need to find in order to diagnose unspecified anxiety

01:44:58 12 disorder with panic attacks?

01:45:00 13 A. Okay. Well, that's an official diagnosis in 01:45:05 14 what's called the DSM, the Diagnostic and Statistical 01:45:10 15 Manual, which is a book put out by the American 01:45:13 16 Psychiatric Association, which has every psychiatric 01:45:19 17 diagnosis and the diagnostic criteria that are required 01:45:25 18 to make that diagnosis.

01:45:26 19 And in this case -- well, in general and in this 01:45:29 20 case unspecified anxiety disorder is a condition in 01:45:37 21 which the patient has the usual symptoms of an anxiety 01:45:44 22 disorder, that is chronic anxiety, panic attacks, 01:45:50 23 insomnia, and so forth that predominate which cause 01:45:55 24 clinically significant emotional distress or some 01:46:00 25 impairment in the patient's functioning, in important

Goldstein - Direct Exam 01:46:05 1 areas of functioning, but the symptoms that are present 01:46:11 2 don't meet the full criteria to diagnose other anxiety 01:46:17 3 disorders. There are about eight or nine other anxiety 01:46:22 4 disorders. So this patient has symptoms of an anxiety 01:46:27 5 disorder, but they don't fit neatly into any of the 01:46:30 6 other diagnostic categories for the other anxiety 01:46:34 7 disorders. So this is a separate diagnostic category, 01:46:40 8 unspecified anxiety disorder.

01:46:43 9 "With panic attacks" means the patient has 01:46:48 10 intermittently or had recurrent attacks of panic, which 01:46:53 11 are extremely marked anxiety -- limited but extremely 01:46:58 12 marked anxiety. Plus a number of other physical and 01:47:04 13 psychiatric symptoms that go along with it such as -- 01:47:09 14 well, the physical ones are commonly something like 01:47:12 15 chest pain, palpitation, shortness of breath. The 01:47:17 16 psychological components are a fear of dying, fear of 01:47:21 17 losing control, sometimes a fear of going crazy. So the 01:47:26 18 patient has these attacks that accompany or 01:47:30 19 intermittently accompany the chronic anxiety.

01:47:35 20 Q. And is an unspecified anxiety disorder, is that

01:47:42 21 common or unusual in the population?

01:47:45 22 A. No, it's not uncommon; it's a fairly -- anxiety 01:47:51 23 disorders in general are a fairly common diagnosis that 01:47:55 24 patients suffer from. 01:47:57 25 Q. All right. And did you come to any conclusions

Goldstein - Direct Exam 01:48:01 1 in this case regarding the cause of the psychiatric

01:48:05 2 illness?

01:48:05 3 A. Yes. 01:48:06 4 Q. And what methods or information did you use to 01:48:10 5 come to your conclusion relating to causation in this

01:48:15 6 case?

01:48:15 7 A. Well, in general the methodology for assessing 01:48:21 8 causation is really two parts. One, did the patient 01:48:26 9 ever have this psychiatric condition in the past, or is 01:48:29 10 it something that has a new onset at some point? And 01:48:34 11 secondly, what triggered it? What caused the onset of 01:48:38 12 that? And in this case the onset in my opinion was 01:48:43 13 clearly the constant trauma of being exposed to what he 01:48:50 14 perceived as a course -- relentless course of sexual 01:49:00 15 harassment at the workplace.

01:49:01 16 Q. And specifically in connection with Mr. , did 01:49:04 17 you make any -- what information did you use to come to 01:49:08 18 your findings? You said there hadn't been a prior 01:49:11 19 history. Were there any other facts related to -- that

01:49:19 20 supported your conclusion about causation here?

01:49:24 21 A. There was no psychiatric history of this 01:49:29 22 psychiatric condition or, in fact, any other psychiatric 01:49:32 23 condition in Mr. 's past history. And the 01:49:37 24 development of the symptoms of unspecified anxiety 01:49:42 25 disorder began during the course of what he perceived as

Goldstein - Direct Exam 01:49:50 1 very threatening and very traumatic sexual harassment at 01:49:53 2 the workplace. And this set of symptoms had its onset 01:50:01 3 at that point in time, continued up through the last 01:50:06 4 time I saw him in April of 2018 or examined him in April 01:50:12 5 of 2018. And during that entire period he was under 01:50:17 6 treatment with medication that seemed to some extent to 01:50:23 7 alleviate or help the symptoms he was suffering from.

01:50:26 8 Q. And what medication are you referring to?

01:50:29 9 A. He was taking what's called a benzodiazapine 01:50:36 10 medication, which is an antianxiety medication, by the 01:50:41 11 name of -- the brand name is Valium; the chemical name 01:50:47 12 is diazepam. 01:50:50 13 Q. Now, Dr. Goldstein, have you ever heard of the

01:50:53 14 phrase "malingering" or the word "malingering"?

01:50:56 15 A. Yes, quite often. 01:50:57 16 Q. Would you explain to the jury what that means in

01:51:00 17 psychiatric terms?

01:51:01 18 A. Malingering is when an individual either 01:51:05 19 completely fakes or grossly exaggerates symptoms of a 01:51:12 20 psychiatric or a physical illness with the ulterior 01:51:20 21 motive of gaining some advantage like getting out of 01:51:23 22 being criminally responsible for something or getting 01:51:25 23 out of the military or getting some kind of compensation 01:51:28 24 in a lawsuit or an insurance matter, workman's comp 01:51:33 25 matter, and so forth. So basically malingering is

Goldstein - Direct Exam 01:51:37 1 something that a psychiatrist should consider in every 01:51:42 2 case, particularly where there's litigation involved and 01:51:47 3 it may come up. So that's why generally malingering is 01:51:53 4 an important part of evaluating these kind of cases. 01:51:57 5 Q. Did you do any assessment or evaluation in

01:51:59 6 connection with whether Mr. was malingering?

01:52:01 7 A. Yes, I did in my clinical evaluation of him. 01:52:05 8 Q. And could you describe what you did to make an 01:52:09 9 evaluation and what conclusion you came to. 01:52:10 10 A. Okay. Well, the first part of assessing 01:52:14 11 malingering is: Is the patient -- patients who malinger 01:52:19 12 often have no clear idea what genuine psychiatric 01:52:24 13 illness looks like, so they kind of put together a 01:52:27 14 Chinese menu of different symptoms that really don't go 01:52:31 15 together that don't seem like a real psychiatric 01:52:34 16 condition. So first you have to look for: Is the 01:52:37 17 clinical presentation consistent with an authentic 01:52:41 18 genuine psychiatric condition.

01:52:45 19 Secondly, is it the kind of psychiatric condition 01:52:49 20 you often see with the kind of stress that the patient's 01:52:53 21 been subjected to? Does the symptomatology kind of 01:52:58 22 match what you see in many patients who have been under 01:53:01 23 those -- in that condition under those circumstances, 01:53:04 24 and is it internally consistent with everything else 01:53:09 25 that's going on? In other words, does it affect the

Goldstein - Direct Exam 01:53:13 1 patient's functioning in some adverse way? Has the 01:53:17 2 patient sought treatment for it that is appropriate for 01:53:21 3 that particular condition? And is the patient

01:53:24 4 responding to that treatment in any way?

01:53:27 5 So all of these factors go into internal 01:53:31 6 consistency; what you examine, what you see in the 01:53:35 7 patient, and what medical records -- something like 01:53:38 8 that, medical records corroborate that the patient has 01:53:42 9 suffered from these symptoms and been given the 01:53:46 10 treatment for these particular symptoms.

01:53:50 11 Q. In terms of Mr. , did you draw any

01:53:52 12 conclusions specifically as it relates to malingering?

01:53:55 13 A. Yes. My impression was that there was no 01:53:58 14 malingering in this case.

01:54:00 15 Q. And specifically what was that based on?

01:54:03 16 A. Based on all the factors I said, that he had -- 01:54:09 17 my impression was it was a genuine psychiatric 01:54:14 18 condition. It met all the criteria; the symptoms he 01:54:18 19 had; the factors that led up to those symptoms, which 01:54:20 20 are pretty typical; the medical records that confirm 01:54:25 21 these symptoms; and the treatment that he's been under 01:54:29 22 for that particular condition.

01:54:34 23 Q. Are there medical records you've seen which are

01:54:37 24 inconsistent with malingering?

01:54:39 25 A. Inconsistent?

Goldstein - Direct Exam 01:54:41 1 Q. Yes. 01:54:42 2 A. Yeah, I would say definitely inconsistent.

01:54:46 3 Q. And why do you say that?

01:54:49 4 A. A malingerer is trying to build a case for why he 01:54:52 5 has this illness that doesn't really exist, but he's 01:54:55 6 trying to fake it or pretend he has this illness. So a 01:55:01 7 malingerer would, in this particular case, would -- 01:55:07 8 every doctor's appointment, every doctor the patient 01:55:10 9 saw, the patient would say: Doctor, I'm having this 01:55:14 10 horrible anxiety, panic attacks, insomnia because I was 01:55:19 11 sexually harassed at work and traumatized. In other 01:55:22 12 words, he'd try to build up a case for his ulterior 01:55:28 13 motive and malingering in the first place.

01:55:31 14 In contrast, Mr. 's medical records, he 01:55:36 15 didn't confide in most of the times he saw doctors about 01:55:42 16 the fact he was having these symptoms or why -- what had 01:55:46 17 caused these symptoms because of his feelings of shame 01:55:51 18 and feelings of reluctance to discuss what had happened 01:55:57 19 to him. It was kind of the opposite of malingering.

01:56:01 20 Q. And you mentioned a moment ago that one of the 01:56:05 21 ways that you assess malingering is to look at whether 01:56:11 22 the person presenting to you is responding in a sort of 01:56:16 23 typical way to the matter that they're alleging has 01:56:20 24 caused the stress, so in this case sexual harassment.

01:56:23 25 In your experience as an expert, or in your practice, do

Goldstein - Direct Exam 01:56:28 1 you generally have some experience with people who are 01:56:31 2 complaining about stress that they're attributing to

01:56:36 3 sexual harassment in the workplace?

01:56:39 4 A. Yes. I've treated/evaluated a number of patients 01:56:45 5 with sexual harassment. I've been involved in teaching 01:56:49 6 about the psychiatrist's experience of sexual harassment 01:56:55 7 cases. And my experience has been that anxiety 01:57:01 8 disorders, panic disorders, sometimes depression, 01:57:07 9 sometimes even post traumatic stress disorder are the 01:57:10 10 most common symptoms you see in patients who have been 01:57:15 11 sexually harassed.

01:57:17 12 Q. Switching gears for a minute, are you familiar

01:57:23 13 with psychological testing for malingering?

01:57:26 14 A. Yes. 01:57:27 15 Q. And before I get to that, can you just tell us 01:57:30 16 very briefly what's the difference between a

01:57:32 17 psychiatrist like yourself and a psychologist?

01:57:36 18 A. Briefly speaking, a psychiatrist is a medical 01:57:43 19 doctor; a psychiatrist has much more experience in 01:57:49 20 diagnosing medical -- psychiatric illnesses by examining 01:57:54 21 the patient, doing a psychiatric history, mental status 01:58:01 22 evaluation, and has a high level of confidence in the 01:58:05 23 accuracy and reliability of making diagnoses by doing 01:58:09 24 that. And also a medical doctor can treat patients with 01:58:15 25 medication when it's necessary.

Goldstein - Direct Exam 01:58:19 1 A psychologist is a Ph.D. or master's degree 01:58:24 2 professional who cannot prescribe medication, as you 01:58:29 3 probably know, and who have less experience doing 01:58:36 4 clinical examinations of the patient but rely more 01:58:41 5 frequently and heavily on paper and pencil tests, 01:58:45 6 psychological tests that they administer to the patient.

01:58:50 7 A patient gets the form, paper and pencil, completes 01:58:54 8 them, and the psychologist interprets the results. 01:58:58 9 So basically those are the differences. 01:59:01 10 Psychological testing has its place, but I personally 01:59:08 11 believe that psychiatric evaluation is the more 01:59:15 12 meaningful and accurate.

01:59:16 13 Q. Did you order any paper and pencil testing for

01:59:21 14 Mr. ?

01:59:22 15 A. I only order psychological paper and pencil tests 01:59:26 16 when I have a strong suspicion that there is malingering 01:59:31 17 going on in the case. In this case I didn't have such 01:59:36 18 a suspicion. Also I might order them, psychological 01:59:40 19 paper and pencil tests, occasionally when there's a -- 01:59:46 20 some meaningful uncertainty about what the diagnosis 01:59:50 21 should be. And I also order them in cases where there's 01:59:54 22 some brain damage or traumatic brain injury or some 01:59:57 23 impairment of intellect, cognitive problems where they 02:00:03 24 are most useful, I think, in measuring the degree of 02:00:07 25 impairment.

Goldstein - Direct Exam 02:00:09 1 Q. All right. And I think it's fair to say you have 02:00:12 2 ordered psychological testing for other clients or

02:00:16 3 patients, correct?

02:00:17 4 A. Yes, where it's appropriate. And in this case I 02:00:20 5 had no strong suspicion or even weak suspicion that 02:00:25 6 malingering was in the picture here. 02:00:29 7 Q. Aside from the malingering evaluation that you 02:00:32 8 perform to determine whether or not -- to assess whether 02:00:36 9 Mr. is faking symptom, did you attempt to determine 02:00:41 10 whether Mr. or do you generally attempt to

02:00:43 11 determine whether the patient is faking anything else?

02:00:47 12 A. Faking anything else?

02:00:49 13 Q. Yeah. Do you -- 02:00:51 14 A. Oh, I understand. 02:00:53 15 Q. Okay. 02:00:54 16 A. Whether a patient is faking his illness is 02:00:59 17 relevant to what I'm doing. I'm only here to testify 02:01:05 18 about my psychiatric determinations about whether he was 02:01:10 19 & malingering a psychiatric condition. Whether he was 02:01:14 20 faking anything else in terms of the workplace situation 02:01:18 21 or the sexual harassment would not be for me to 02:01:23 22 determine. That would be up to the jury to decide.

02:01:27 23 Q. So your expert opinion doesn't include a 02:01:32 24 determination as to whether, in fact, Mr.

02:01:37 25 experienced sexual harassment; is that correct?

Goldstein - Direct Exam 02:01:40 1 A. No, I have no basis -- it's beyond the scope of 02:01:44 2 what I can do. I'm here to assess the psychiatric 02:01:50 3 issues. Whether he was actually sexually harassed or 02:01:54 4 not, again, I have no personal knowledge of that. And 02:01:56 5 again, that's in the province of the jury to decide.

02:02:00 6 Q. So did you interview anyone in this case who 02:02:06 7 might have witnessed or been a witness to sexual

02:02:10 8 harassment of the plaintiff that he described to you?

02:02:15 9 A. No. Again, that would not be my role, or that 02:02:18 10 would be beyond my expertise to get involved in whether 02:02:24 11 or not sexual harassment actually occurred. I just gave 02:02:29 12 an opinion about the fact that Mr. had the 02:02:34 13 perception that this was going on, and that's what 02:02:37 14 triggered his psychiatric problems. Whether that's 02:02:41 15 factually correct is not up to me.

02:02:44 16 Q. You talked a little bit earlier about reviewing 02:02:47 17 medical records in connection with coming to a 02:02:52 18 conclusion in this case or forming an opinion in this 02:02:55 19 case. What role generally did these records play in

02:03:00 20 your evaluation?

02:03:01 21 A. Well, the medical records are reviewed as 02:03:09 22 collateral information that would supply a more 02:03:13 23 objective corroboration or lack of corroboration of 02:03:21 24 whether what the patient told you is factually accurate. 02:03:24 25 And the medical records I was reviewing, the purpose of

Goldstein - Direct Exam 02:03:30 1 my review was to see whether doctors who are 02:03:35 2 evaluating -- other doctors evaluating/treating him 02:03:38 3 found these same conditions and symptoms, whether they 02:03:42 4 provided treatment for these symptoms and conditions 02:03:46 5 which were appropriate for the diagnosis, and whether 02:03:50 6 they confirmed or didn't confirm what Mr. Ward had 02:03:55 7 related to me.

02:03:57 8 MS. HOULDING: Your Honor, may I approach

02:03:58 9 briefly?

02:03:58 10 THE COURT: Yes.

02:04:32 11 By Ms. Houlding:

02:04:33 12 Q. Dr. Goldstein, we've placed in front of you a 02:04:35 13 large binder of materials. I'm not going to go through 02:04:38 14 all of these. And before I ask you about any specific 02:04:43 15 exhibits, I'd like to move for the admission of 02:04:46 16 Plaintiff's Exhibit 25 through 30 to which I believe 02:04:51 17 there's no objection.

02:04:52 18 THE COURT: Let them be received. 04:38:21 19 (Whereupon Plaintiff's Exhibits 25-30 are 04:38:23 20 admitted into evidence.)

02:04:58 21 By Ms. Houlding:

02:05:08 22 Q. I wanted to ask you specifically whether there 02:05:11 23 were any records in particular which confirmed the 02:05:19 24 findings that you are offering in this case. If you 02:05:21 25 know offhand, you can let me know, or I can tell you

Goldstein - Direct Exam 02:05:25 1 where in the binder the records are. 02:05:30 2 A. This is one of them. This is a record -- this is 02:05:33 3 from the medical records. It's a letter from the 02:05:37 4 cardiologist who performed what's called a cardiac 02:05:41 5 catheterization. And this is a letter writing his 02:05:45 6 report to the -- to Mr. 's primary care provider, 02:05:51 7 his medical doctor, about the results of that cardiac 02:05:55 8 test.

02:05:57 9 Q. And is that Plaintiff's Exhibit 26? Is that what

02:06:02 10 you're looking at?

02:06:03 11 A. Correct. 02:06:06 12 MS. HOULDING: Publish that for the jury.

02:06:10 13 By Ms. Houlding:

02:06:11 14 Q. Just briefly, this is Plaintiff's Exhibit 11. 02:06:14 15 Can you tell us why this confirmed your diagnosis or

02:06:18 16 helped confirm your diagnosis and opinion?

02:06:24 17 A. Well, Dr. John S. Kelley, who was the 02:06:27 18 cardiologist, is reporting back to the general 02:06:33 19 practitioner, primary care physician of Mr. that a 02:06:39 20 cardiac catheterization test was carried out to find out 02:06:45 21 if the symptoms of chest pain were related to any 02:06:49 22 cardiac -- actual cardiac illness or pathology. And Dr.

02:06:55 23 Kelley reports he's happy to report that the test is 02:07:00 24 essentially normal, that the patient was reassured about 02:07:08 25 the fact there was no -- that the pain is not cardiac

Goldstein - Direct Exam 02:07:12 1 pain; in other words, it's not due to actual pathology 02:07:16 2 in the heart. And Dr. Kelley further says that some of 02:07:21 3 the chest pain is related to stress and responded quite 02:07:27 4 well to Valium. 02:07:31 5 Q. I'm going to have you flip one page forward and 02:07:34 6 see if you can -- I'm going to look at the next two 02:07:40 7 pages, but first of all, if you can just tell us briefly 02:07:43 8 what the next page is.

02:07:46 9 A. This is actually a summary of the procedure that 02:07:52 10 was done, the cardiac catheterization, something called 02:07:56 11 a left ventriculography and coronary arteriography, 02:08:06 12 which was carried out for the indication of chest pain 02:08:08 13 and hypertension. The findings, the most important one 02:08:18 14 was normal left ventricular function. And the 02:08:21 15 recommendation was the patient was reassured. He'll 02:08:27 16 follow up with his primary care physician, Dr. Henry 02:08:33 17 Traylor, in Whiteville, North Carolina for further 02:08:37 18 evaluation of noncardiac chest pain.

02:08:44 19 And the following page under a heading "Comment: 02:08:47 20 Patient's pain is not cardiac. This is a 02:08:51 21 musculoskeletal component. There may be some 02:08:55 22 superimposed anxiety and stress related. He'll follow 02:08:59 23 up with his primary care physician for ongoing care."

02:09:05 24 Q. And going forward in your exhibit binder but a 02:09:09 25 little -- let me just actually ask you: What was the

Goldstein - Direct Exam

02:09:13 1 date on this report that you just read?

02:09:15 2 A. The cardiac catheterization was performed on 02:09:21 3 10/25 -- October 25, 2013. 02:09:26 4 Q. Moving forward in your binder to Plaintiff's 02:09:32 5 Exhibit 27, if you go to the second page of that 02:09:40 6 exhibit. 02:09:43 7 A. Yes. 02:09:44 8 Q. If you can tell us whether there's anything in 02:09:46 9 there that related to or supports your findings in this 02:09:54 10 case.

02:09:55 11 A. Yes. This is a note from the Whiteville Medical 02:09:59 12 Associates dated 10/15 -- October 15, 2013, the notice 02:10:10 13 and records of his primary care provider. And the 02:10:14 14 important part is that it's a recheck of his chest pain, 02:10:17 15 symptoms include chest pain -- it says he was seen for 02:10:22 16 chest pain and pressure by the ER on September 25, 2013.

02:10:29 17 That would be the month before this note was made. 02:10:33 18 States he was told he's only having PVCs. States this 02:10:38 19 has been going on for several months with feelings like 02:10:42 20 his heart is doing flip-flops. Then it goes on to 02:10:48 21 say -- no, that's the end of the most relevant findings 02:10:58 22 in this note.

02:11:02 23 Q. And how did this support or relate to your

02:11:05 24 specific findings in this case?

02:11:10 25 A. Well, this indicates that the patient was

Goldstein - Direct Exam 02:11:13 1 evaluated at the emergency room, followed up with his 02:11:17 2 PCP, primary care physician. It documents a history of 02:11:23 3 several months on and off of these chest pains and PVCs, 02:11:28 4 which are premature ventricular contractions, which in 02:11:32 5 simple language means the heart skips a beat, irregular 02:11:38 6 heartbeat usually related to stress. And the bottom 02:11:41 7 line is the patient was told that this pain and 02:11:49 8 premature ventricular contractions are not due to actual 02:11:52 9 heart pathology but are due to anxiety and stress. That 02:11:57 10 was documented in the cardiac catheterization. And he 02:12:03 11 responded well to Valium, which is an antianxiety 02:12:08 12 medication.

02:12:09 13 Q. And if you can flip, I guess, backwards again to 02:12:13 14 Plaintiff's Exhibit 25. And I'm going to just ask you, 02:12:20 15 on the bottom of each page there's a number stamped; 02:12:24 16 it's a little bit hard to read, but if you can try to 02:12:27 17 skip forward to page 346 and 347, I'll ask you a couple 02:12:38 18 brief questions.

02:12:39 19 A. You said Exhibit 25?

02:12:43 20 Q. 25. I'll put them up on the screen. I think it 02:12:46 21 will be easier. So you don't have to worry about it. 02:12:50 22 A. Okay. 02:12:50 23 Q. So this is part of Plaintiff's Exhibit 25. And I 02:12:56 24 want to see if you're familiar with this. If you see on 02:13:04 25 here the date of treatment here. Do you see September

Goldstein - Direct Exam

02:13:12 1 15, 2013?

02:13:14 2 A. The date of treatment, yes. 02:13:15 3 Q. Okay. And is that the date of the ER visit to

02:13:19 4 your knowledge?

02:13:20 5 A. The date of what?

02:13:21 6 Q. The emergency room visit?

02:13:24 7 A. It's 9/15, 2013. 02:13:26 8 Q. Okay. 02:13:27 9 A. And this is from the emergency room, yes. 02:13:29 10 Q. All right. And in this middle section here do 02:13:34 11 you see anything that relates to or supports your

02:13:37 12 findings in this case?

02:13:41 13 A. Yes, it says the complaint was chest discomfort. 02:13:48 14 The onset was hours ago, that it's gone now. And the 02:13:57 15 onset was during rest; in other words, he wasn't 02:14:00 16 exerting himself when this happened. And the severity 02:14:04 17 was a 4 on a scale of -- 4 out of 10 in severity.

02:14:10 18 Q. All right. Then I'm going to put up the next 02:14:13 19 page of the exhibit, which is part of this same record. 02:14:17 20 And if you see here, are there any other -- is there any 02:14:24 21 other information in here that relates to or supports

02:14:27 22 your findings in this case?

02:14:31 23 A. It says that the quality of the pain is stabbing, 02:14:37 24 and that there are palpitations present.

02:14:42 25 Q. And how does that relate to your findings?

Goldstein - Direct Exam 02:14:45 1 A. Well, these are the symptoms that he had been 02:14:48 2 experiencing on and off for several months; that is, 02:14:53 3 chest pain, which could have been related to a heart 02:14:58 4 attack or an impending heart attack; and palpitations, 02:15:02 5 which are rapid beats where the patient feels his heart 02:15:07 6 is pounding in his chest and so forth. And that was 02:15:10 7 probably -- most probably related to the premature 02:15:14 8 ventricular contractions, which are also generally 02:15:18 9 stress related.

02:15:22 10 Q. I'm going to show you one or two other exhibits 02:15:29 11 from Plaintiff's Exhibit 26. And I'll just put it up on 02:15:35 12 the screen. We're just going to move on from that for a 02:15:46 13 moment. 02:15:47 14 Did you know in the medical records whether there

02:15:50 15 had been prescriptions for Valium subsequent to this?

02:16:00 16 A. Yes. He's been receiving Valium starting back in 02:16:06 17 2013 up until the present time. 02:16:11 18 Q. Are you aware of whether there are any other 02:16:15 19 indicators in his records reflecting symptoms that are 02:16:21 20 associated with the unspecified anxiety disorder with

02:16:26 21 panic attacks that you've discussed?

02:16:29 22 A. Well, there are some notations about the same 02:16:32 23 kind of somatic or physical manifestations of that, the 02:16:39 24 palpitations, heart pain, shortness of breath. And 02:16:44 25 there are some notations about anxiety associated with

Goldstein - Direct Exam 02:16:48 1 the Valium prescriptions. 02:16:54 2 Q. If we could, in part of Plaintiff's Exhibit 27 -- 02:16:57 3 I'll just show you -- if you can tell the jury what this 02:17:09 4 is. 02:17:11 5 A. This is a note from his medical records from 02:17:16 6 Whiteville Medical Associates, that's his primary care 02:17:20 7 physician, on an appointment December 14, 2015. And 02:17:32 8 among the conditions listed that are relevant here:

02:17:38 9 atypical chest pain, anxiety, and fatigue. 02:17:48 10 Q. All right. And then I'm going to show you the 02:17:50 11 next page of that exhibit, which appears to be from the 02:17:56 12 same record, if you see at the top, the same date,

02:17:59 13 12/14/15?

02:18:01 14 A. Correct. 02:18:01 15 Q. Is there anything in this record that relates to

02:18:04 16 or supports your findings in this case?

02:18:11 17 A. Again, he's given yet another prescription for 02:18:16 18 Valium, five milligrams, to take by mouth once daily. 02:18:23 19 Q. All right. And just looking back again at page 02:18:31 20 923, if you look at the date at the top here, what do

02:18:39 21 you see? Do you see the date there of May 12, 2016?

02:18:43 22 A. Yes. 02:18:43 23 Q. And is there anything in here that's consistent,

02:18:47 24 again, with your findings in this case?

02:18:51 25 A. Again, he's prescribed Valium, five milligram

Goldstein - Direct Exam 02:18:57 1 tablets, taken once daily. And it says it's an active 02:19:02 2 prescription; that would mean it's kind of an ongoing 02:19:07 3 regular prescription that he's getting. 02:19:29 4 Q. I wanted to show for identification purposes 02:19:32 5 only, if we can turn off the screen, I'm going to show 02:19:39 6 you what I've marked as Plaintiff's Exhibit 27A. And if 02:19:52 7 you could just tell me briefly what's noted on the first 02:19:58 8 page. We'll move the binder clip.

02:20:06 9 When is this record from, if you can tell?

02:20:08 10 A. This is a medical record dated December 8, 2014. 02:20:16 11 MS. HOULDING: And, Your Honor, if I may, 02:20:18 12 this is just an excerpt of a couple additional medical 02:20:22 13 records that were withdrawn from our original list, but 02:20:26 14 we'd like to add back in this response to some of the 02:20:29 15 questions that were asked of plaintiff. I'd like to 02:20:31 16 move for its admission.

02:20:32 17 I've just handed defendant a copy. 02:20:34 18 They were produced by the defendant in this 02:20:37 19 case, if there's any objection. 02:20:40 20 MS. KERN: That's fine, Your Honor.

02:20:41 21 THE COURT: What would you call these?

02:20:43 22 MS. HOULDING: These would be 27A.

02:20:46 23 THE COURT: What is 27A?

02:20:48 24 MS. HOULDING: 27 were medical records that 02:20:49 25 included records from Dr. Traylor. These are some

Goldstein - Direct Exam 02:20:53 1 additional records.

02:20:54 2 THE COURT: Additional Traylor records?

02:20:58 3 MS. HOULDING: Additional Traylor records. 04:38:21 4 (Whereupon Plaintiff's Exhibit 27A is 04:38:23 5 admitted into evidence.)

02:21:10 6 By Ms. Houlding:

02:21:10 7 Q. We're going to skip to 972. I'll show you this, 02:21:23 8 Dr. Goldstein. If you can see on here a date of

02:21:26 9 9/2/2014 at the top. Do you see that?

02:21:29 10 A. Yes. 02:21:30 11 Q. All right. And is there anything in here that

02:21:33 12 relates to or supports your finding in this case?

02:21:47 13 A. Well, here again there's a notation about 02:21:53 14 prescription for Valium, 5 milligrams, once a day by 02:21:59 15 mouth. Active. It says "active," meaning ongoing 02:22:04 16 medication. 02:22:05 17 Q. All right. And then turning -- we're going to 02:22:09 18 give you 959. I'm going to essentially ask you the same 02:22:14 19 question, which it should be from December 8, 2014, if 02:22:19 20 you see that right at the top.

02:22:22 21 A. Yes. 02:22:22 22 Q. And then again, is there anything in here that

02:22:25 23 relates to your findings or supports your findings?

02:22:31 24 A. Again, a prescription for Valium, 5 milligram, 02:22:36 25 once a day by mouth. And it says it's active, active

Goldstein - Direct Exam 02:22:40 1 prescription. 02:22:41 2 Q. Okay. Thank you. 02:22:54 3 One more here, Dr. Goldstein. I'm going to show 02:22:58 4 you what's been marked 958, the front page. And if you 02:23:09 5 can see when this record is from, this is from December 02:23:22 6 8, 2014. Is there anything in here that relates to or

02:23:26 7 supports your findings?

02:23:33 8 A. It states on the list of conditions/treatments: 02:23:39 9 Atypical chest pain, fatigue, and anxiety. 02:23:47 10 Q. And how does that relate or support to your

02:23:50 11 opinion?

02:23:55 12 A. Well, that documents that he's having the same 02:24:00 13 constellation of symptoms, the chronic anxiety that he's 02:24:06 14 had for some time, associated with chest pain and 02:24:10 15 fatigue. 02:24:13 16 Q. Now, in general I note you reviewed a lot of 02:24:18 17 records in this case. Did you notice whether Mr.

02:24:25 18 Ward -- or whether the medical records indicated 02:24:29 19 specifically that Mr. had complained about sexual 02:24:32 20 harassment in the workplace or any of the conduct that

02:24:38 21 is being alleged in this lawsuit?

02:24:40 22 A. Based on my review there were no times that he 02:24:47 23 specifically mentioned the sexual harassment at work and 02:24:52 24 the experiences that he had in relation to the sexual 02:24:56 25 harassment.

Goldstein - Direct Exam 02:24:57 1 Q. And did that indicate to you anything one way or 02:25:01 2 another as it concerns your findings in this case? Did 02:25:05 3 it cause you concern that it wouldn't be in the medical

02:25:08 4 records, that he hadn't complained?

02:25:10 5 A. Well, my understanding is that it's not in the 02:25:17 6 medical records specifically because Mr. was too 02:25:24 7 self-conscious or ashamed or felt it was derogatory, 02:25:29 8 didn't want to talk about it, basically didn't want to 02:25:33 9 share it with anybody, and didn't specifically mention 02:25:37 10 it. And as I said earlier, that would be kind of the 02:25:41 11 opposite of what a malingerer would do who would try to 02:25:45 12 emphasize it on every possible occasion.

02:25:51 13 MS. HOULDING: Your Honor, might this be -- 02:25:53 14 I don't know what time the Court wanted to break for 02:25:56 15 lunch. 02:25:57 16 THE COURT: Yes, this is a good time. 02:25:59 17 Ladies and gentlemen, thank you for your 02:26:03 19 minutes for lunch. There are a couple of things I want 02:26:06 20 to talk to counsel about, so we'll keep working and let 02:26:09 21 you go. We'll start back at 1:15. Thank you very much.

02:26:16 22 (Jury exits the courtroom.) 02:26:47 23 THE COURT: You can take a break as well. 02:26:55 24 THE WITNESS: Thank you.

02:26:59 25 THE COURT: What did you want to talk about?

Goldstein - Direct Exam

02:27:01 1 Anything? Just a break?

02:27:05 2 MS. HOULDING: Just a lunch break, Your 02:27:07 3 Honor. I don't know if the Court wants to take up now

02:27:15 4 any issue relating to the tape or hold off on that?

02:27:20 5 THE COURT: I'm going to take up the expert 02:27:21 6 reports. Now, as an additional matter, I did not see on 02:27:25 7 your pretrial order 39A. So was that just an oversight 02:27:31 8 or -- 02:27:31 9 MS. HOULDING: I can't quite remember the 02:27:34 10 timing now, Your Honor, but we did obtain that after -- 02:27:37 11 we did finalize and produce that after the Court's 02:27:40 12 ruling that he would not be excluded on Daubert grounds.

02:27:45 13 I did give the Defendant a copy to at that time. So 02:27:49 14 it's more just -- 02:27:49 15 THE COURT: On the pretrial order, which is 02:27:51 16 my template, I've got 39, which is a Goldstein report 02:27:55 17 dated April 25 of 2016. 02:27:59 18 MS. HOULDING: That's right, Your Honor.

02:28:00 19 THE COURT: Did I write down correctly that

02:28:03 20 39A was April 17 of 2016?

02:28:07 21 MS. HOULDING: Of 2018. So it's just 02:28:11 22 recent. 02:28:11 23 THE COURT: So we need to be clear because 02:28:13 24 I'm not letting either one in. And I know that you 02:28:16 25 might like to put those in the record just to preserve

Goldstein - Direct Exam 02:28:19 1 your appeal rights. But those reports are hearsay. And 02:28:24 2 I'm not aware of any other avenue for you to get them 02:28:28 3 in. 02:28:29 4 MS. HOULDING: Understood, Your Honor. I 02:28:30 5 know sometimes courts let them in, sometimes they don't. 02:28:34 6 THE COURT: I've only done it once in my 02:28:36 7 recollection when both sides stipulated they both wanted 02:28:40 8 their experts' reports to go in to the jury. I'm 02:28:43 9 hearing an objection. So 39 and 39A don't come in.

02:28:47 10 I'm still pondering on the tape. 02:28:49 11 MS. HOULDING: Sure. 02:28:50 12 THE COURT: The cat's kind of out the bag 02:28:53 13 because they heard Mr. Ward, and I gave them a limiting 02:28:55 14 instruction. But let me just think through what might 02:29:01 15 be the best way for that to go back to the jury, whether 02:29:04 16 it's a redacted version or the whole version.

02:29:06 17 Now to help me make that decision, could you 02:29:08 18 give a copy or send a copy of that audio? Could you 02:29:12 19 send it to the clerk electronically, or do you need 02:29:15 20 to -- 02:29:15 21 MS. HOULDING: I can do either. I have an 02:29:18 22 extra copy on a DVD that I can give, or I can email it.

02:29:22 23 THE COURT: What's easiest for you?

02:29:24 24 MS. HOULDING: Either one is really fine. 02:29:25 25 THE COURT: Go ahead and email it then, and

Goldstein - Direct Exam 02:29:28 1 she'll email it to me. I'd like to listen to the whole 02:29:31 2 thing again. 02:29:31 3 MS. HOULDING: Sure. 02:29:32 4 THE COURT: Now, I have a one strike and 02:29:35 5 you're out rule on cell phones. And I think you already 02:29:38 6 are on your second strike. So was that your phone both

02:29:43 7 times, Ms. Riley?

02:29:45 8 MS. RILEY: Yes, Your Honor. 02:29:45 9 THE COURT: Okay. Your phone doesn't come 02:29:47 10 in the courtroom anymore. 02:29:48 11 MS. RILEY: Yes, Your Honor. 02:29:49 12 THE COURT: Everybody have a good lunch. 02:29:51 13 We'll see you at 1:15. 03:27:29 14 (Lunch recess taken.)

03:42:28 15 THE COURT: Are you ready to continue?

03:42:30 16 MS. HOULDING: We are Your Honor. 03:43:58 17 (Jury enters the courtroom.) 03:44:12 18 THE COURT: Good afternoon. Are we ready to

03:44:17 19 continue?

03:44:21 20 MS. HOULDING: Thank you, Your Honor.

03:44:23 21 By Ms. Houlding:

03:44:24 22 Q. Dr. Goldstein, I just have a couple of additional 03:44:27 23 questions for you. Earlier today you described that you 03:44:33 24 conducted interviews of Mr. Ward on three different 03:44:37 25 occasions. Can you briefly tell the jury what symptoms

Goldstein - Direct Exam 03:44:42 1 Mr. described to you that you found were relevant

03:44:47 2 to the conclusions that you've drawn in this case?

03:44:50 3 A. The relevant symptoms he described were the 03:44:59 4 presence of chronic anxiety or nervousness over a long 03:45:04 5 period of time; intrusive thoughts or recollections that 03:45:10 6 would pop into his head about the actual events of the 03:45:15 7 sexual assault, sexual harassment. And these would 03:45:22 8 trigger off the physical somatic symptoms of the 03:45:26 9 palpitation, the chest discomfort, the pain, shortness 03:45:30 10 of breath. And then he would take a Valium, and it 03:45:33 11 would kind of calm him down.

03:45:38 12 Feelings of shame and helplessness when he would 03:45:42 13 think about what had happened to him; sleep problems: 03:45:48 14 trouble falling asleep, trouble staying asleep, 03:45:51 15 sometimes with nightmares about the woman who had 03:45:56 16 harassed him. These had been improving over a period of 03:46:02 17 time, getting less severe, less frequent nightmares.

03:46:07 18 Some mild concentration problems that he encountered. 03:46:13 19 And kind of a problem with his self-esteem, feeling like 03:46:19 20 he'd been through the ringer, and he felt like he had 03:46:25 21 been damaged in some way. It was like a wound that 03:46:27 22 wouldn't heal; he couldn't get over it. Those were 03:46:31 23 basically the -- occasional depression and irritability, 03:46:36 24 moodiness. Those were basically the symptoms that were 03:46:41 25 significant.

Goldstein - Direct Exam 03:46:42 1 Q. And I'm not going to ask you to recount all of 03:46:46 2 what he told you, but did he describe for you what he 03:46:53 3 experienced at the workplace, the sexual harassment that

03:47:00 4 he experienced?

03:47:01 5 A. Yes, he did. 03:47:03 6 Q. And again, you don't form an opinion about

03:47:06 7 whether the sexual harassment actually occurred or not?

03:47:10 8 That's not your job?

03:47:12 9 A. Correct. 03:47:13 10 Q. And you said you had examined him -- excuse me -- 03:47:24 11 via Skype. How did he appear to you or how did he 03:47:27 12 present to you? And I know there were three different 03:47:30 13 sessions, so if there was a change, you can describe 03:47:32 14 that. 03:47:32 15 A. Basically there was very little change in the way 03:47:35 16 he appeared. He usually appeared kind of tense, sad 03:47:41 17 looking a lot. When he actually talked about the sexual 03:47:45 18 harassment incidents he would get kind of visibly 03:47:49 19 distressed looking and uptight. Basically he was pretty 03:47:56 20 cooperative and forthcoming, answered all my questions.

03:48:00 21 Q. All right. And you told us that you issued an 03:48:05 22 initial report in 2016 and then a supplemental one in 03:48:10 23 2018. Did your opinion change between the first report

03:48:17 24 and the second report?

03:48:19 25 A. Well, the second report was kind of an update.

Goldstein - Direct Exam 03:48:22 1 And what I learned from him was that some of his 03:48:26 2 problems had seemingly improved. He had -- his social 03:48:32 3 life had improved; he was more interested in going out, 03:48:36 4 seeing friends with his family, going to dinner with his 03:48:40 5 wife sometimes; getting interested again in hunting and 03:48:45 6 fishing, which he had kind of completely lost interest 03:48:49 7 in after the sexual harassment incidents. So his social 03:48:53 8 life seemed to be improving.

03:48:55 9 His relationship with his wife seemed to be 03:48:58 10 improving. He wasn't so uptight and irritable and moody 03:49:05 11 at home. 03:49:06 12 So there were some areas of improvement that he 03:49:09 13 recounted. 03:49:10 14 The symptoms of feeling uptight, anxious, panic 03:49:16 15 attack, episodes of chest pain and shortness of breath, 03:49:21 16 those had more or less stayed the same. And as the 03:49:27 17 lawsuit has progressed and he's had to rehash all this 03:49:31 18 stuff and talk about it with his lawyers and so forth, 03:49:35 19 his sleep and his nightmares seem to have come back a 03:49:38 20 little bit and be more frequent.

03:49:42 21 Q. Thank you, Dr. Goldstein. You already testified 03:49:47 22 to your conclusion that he's suffering from an 03:49:50 23 unspecified anxiety disorder with panic attacks. Is 03:49:55 24 there something that you're familiar with called a

03:49:57 25 differential diagnosis?

Goldstein - Direct Exam 03:49:58 1 A. Yes.

03:49:59 2 Q. And what is that?

03:50:00 3 A. That means comparing the diagnosis you make with 03:50:05 4 other possibilities that may be relevant and excluding 03:50:10 5 them so that you're more confident about the diagnosis 03:50:15 6 you made. 03:50:16 7 Q. And is that something that you did in connection

03:50:18 8 with Mr. ?

03:50:20 9 A. Yes. 03:50:21 10 Q. And did you rule out a medical condition or some

03:50:24 11 other cause of his psychiatric condition?

03:50:26 12 A. Well, I ruled out -- as I said earlier, I ruled 03:50:31 13 out malingering. I thought that was not in the picture. 03:50:35 14 I ruled out any medical conditions that could 03:50:39 15 have caused this anxiety picture. There are some 03:50:42 16 medical conditions like hyperthyroidism or some adrenal 03:50:48 17 gland tumors that can cause a lot of anxiety. He didn't 03:50:52 18 have that. And all of the other medical, psychiatric, 03:50:56 19 anxiety disorders which he didn't have either. So 03:51:00 20 that's why the only diagnosis left was unspecified 03:51:06 21 anxiety disorder.

03:51:07 22 Q. And I apologize if you testified to this earlier, 03:51:12 23 but did you come to a conclusion within a reasonable 03:51:15 24 degree of psychiatric certainty as to whether his 03:51:20 25 perceptions of sexual harassment at AutoZone were

Goldstein - Direct Exam

03:51:24 1 related to the onset of his psychiatric condition?

03:51:29 2 A. Yes, I testified that I believe they were. 03:51:33 3 Q. Okay. Do you have any recommendations as to what 03:51:40 4 would assist Mr. in connection with potentially

03:51:45 5 improving -- having is his condition improve?

03:51:51 6 A. Yes.

03:51:52 7 Q. And what were your recommendations?

03:51:54 8 A. Ideally he should be on medication that would 03:51:59 9 alleviate some of his symptoms that are more 03:52:03 10 troublesome. And he is on Valium, which seems to help 03:52:07 11 to some extent. I also recommended psychotherapy for a 03:52:13 12 period of time, but that doesn't seem to be something 03:52:18 13 that he's able or has been able to do.

03:52:21 14 Q. And is that something that you spoke with him

03:52:24 15 about prior to doing your supplemental report?

03:52:29 16 A. I mentioned it to him, yes. 03:52:31 17 Q. And has his prognosis changed at all between --

03:52:37 18 well, let me back up. What is his prognosis?

03:52:40 19 A. The prognosis I put in my reports is guarded.

03:52:44 20 Q. And what does that mean?

03:52:45 21 A. And guarded is a medical term of art. It just 03:52:49 22 means the outlook for the future is uncertain 03:52:53 23 compared -- dependent on a number of factors that are 03:52:58 24 hard to predict at this time. 03:53:01 25 Q. And so from your expert perspective, what's your

Goldstein - Cross-Exam 03:53:05 1 prognosis for Mr. Ward improving in areas of functioning

03:53:11 2 in his life?

03:53:12 3 A. Well, it's -- you know, it's a very debilitating 03:53:16 4 condition, and the longer it goes on, the more difficult 03:53:19 5 it is to treat successfully. It becomes engrained. But 03:53:25 6 we don't like to think anything is hopeless. So I'd say 03:53:28 7 the prognosis is still guarded.

03:53:30 8 Q. Is there anything else specifically that you 03:53:36 9 considered to be relevant to your opinion here today

03:53:41 10 that you haven't already generally described?

03:53:44 11 A. No, I don't think so. 03:53:47 12 MS. HOULDING: I have nothing further at 03:53:49 13 this time, Your Honor. 03:53:51 14 - - -

03:53:51 15 Robert L. Goldstein, M.D., Cross-Examination

03:53:51 16 By Ms. Kern:

03:53:51 17 Q. Thank you, Your Honor. 03:53:53 18 Good afternoon, Dr. Goldstein. How are you

03:53:57 19 today?

03:53:57 20 A. Good afternoon. 03:53:59 21 Q. I believe the last time you and I saw each other 03:54:04 22 is when I travelled up to New York to take your

03:54:06 23 deposition; is that right?

03:54:07 24 A. Yes.

03:54:08 25 Q. And I believe that was back in July of 2016?

Goldstein - Cross-Exam 03:54:10 1 A. Sounds right.

03:54:12 2 Q. So almost two years ago?

03:54:14 3 A. I'm sorry?

03:54:14 4 Q. It was almost two years ago?

03:54:16 5 A. Yes. 03:54:17 6 Q. Now, you and I have not spoken or exchanged any 03:54:20 7 type of emails or communications since your deposition;

03:54:24 8 is that right?

03:54:24 9 A. Correct. 03:54:25 10 Q. But you have been in contact with Mr. 's 03:54:29 11 attorneys about this case for at least the last four

03:54:33 12 years?

03:54:34 13 A. Yes. 03:54:35 14 Q. And you met with Mr. 's attorneys over the

03:54:38 15 weekend?

03:54:40 16 A. Yes. 03:54:42 17 Q. I'm going to talk a little bit more about the 03:54:45 18 relationship that you have with Mr. Ward's counsel. Do 03:54:49 19 you recall that Ms. Houlding called you back in April of

03:54:54 20 2014 to hire you for this case?

03:54:57 21 A. Yeah, April or May of 2014.

03:55:00 22 Q. Okay. Mr. did not hire you; is that right?

03:55:03 23 A. That's correct. 03:55:05 24 Q. And you're here today to give testimony on behalf

03:55:08 25 of Mr. ?

Goldstein - Cross-Exam 03:55:09 1 A. Yes. 03:55:10 2 Q. Now, you testified that this isn't the first time 03:55:15 3 that you've been hired by Ms. Houlding's firm to testify

03:55:22 4 as an expert?

03:55:23 5 A. Yes. 03:55:23 6 Q. You've had a relationship with her law firm for

03:55:25 7 at least the past ten years, haven't you?

03:55:27 8 A. Approximately -- yeah, approximately over a 03:55:30 9 ten-year period. 03:55:37 10 Q. In that ten-year period you've been retained for 03:55:39 11 litigation purposes between 12 and 24 times; is that

03:55:43 12 fair?

03:55:44 13 A. Roughly about -- on the average perhaps maybe 03:55:47 14 once or twice a year. 03:55:48 15 Q. And in all of these cases where you've been 03:55:50 16 retained or hired by Ms. Houlding's law firm, you were 03:55:54 17 testifying on behalf of the plaintiff, the person

03:55:56 18 bringing the lawsuit?

03:55:58 19 A. I didn't testify in all of the cases. Sometimes 03:56:03 20 I was just the consultant. But it was always on behalf 03:56:06 21 of their clients, who were plaintiffs. 03:56:08 22 Q. Who were plaintiffs, okay.

03:56:10 23 Now, you live in New York, Dr. Goldstein?

03:56:13 24 A. Yes. 03:56:14 25 Q. And that is also where Ms. Houlding's law firm is

Goldstein - Cross-Exam

03:56:18 1 located?

03:56:18 2 A. I think they're in Westchester, which is a suburb 03:56:23 3 of New York. 03:56:24 4 Q. Now, you are being paid directly by Mr. 's 03:56:30 5 counsel for the time that you spend on this case; is

03:56:33 6 that right?

03:56:33 7 A. Correct. 03:56:33 8 Q. I'd like to show you what we've previously marked 03:56:37 9 as Defendant's Exhibit -- I'm sorry, Plaintiff's Exhibit 03:56:41 10 41. And I'm going to ask if you recognize this 03:56:45 11 particular document. 03:56:49 12 A. Yes. This is the fee schedule in this particular 03:56:53 13 case.

03:56:54 14 MS. KERN: Your Honor, I'd move to introduce 03:56:56 15 Plaintiff's 41. 03:56:58 16 THE COURT: All right. 04:38:21 17 (Whereupon Plaintiff's Exhibit 41 is 04:38:23 18 admitted into evidence.)

03:57:02 19 By Ms. Kern:

03:57:03 20 Q. So according to this particular document, Dr. 03:57:08 21 Goldstein, you were paid $3,000 to review written 03:57:11 22 materials and conduct your psychiatric examination of

03:57:16 23 Mr. Ward?

03:57:16 24 A. And prepare the report. 03:57:18 25 Q. And prepare the reports. And in total I believe

Goldstein - Cross-Exam 03:57:20 1 you told me that you'd spent approximately six hours

03:57:24 2 doing those things?

03:57:25 3 A. Yes, I did. 03:57:27 4 Q. Now, in addition to the $3,000 that you've 03:57:30 5 already received from Mr. 's counsel, you're also

03:57:34 6 being paid $5,000 just to testify here today, correct?

03:57:38 7 A. Yes. 03:57:39 8 Q. Okay. And you're not here pursuant to any type

03:57:43 9 of subpoena?

03:57:44 10 A. No. 03:57:45 11 Q. You willingly travelled down here from New York

03:57:48 12 to testify today; is that correct?

03:57:51 13 A. Yes, I did.

03:57:52 14 Q. I assume you're staying at a hotel?

03:57:55 15 A. I'm sorry?

03:57:56 16 Q. I assume you're staying at a hotel?

03:57:59 17 A. I think it's a motel. 03:58:00 18 Q. All right. And all of your travel costs, your 03:58:03 19 airline ticket, hotel, food, cabs, those have all been

03:58:07 20 paid by Mr. 's counsel?

03:58:08 21 A. Yes. 03:58:09 22 Q. And I see that you require in this particular 03:58:12 23 document, in fact, that these extra fees be paid to you

03:58:15 24 in advance?

03:58:16 25 A. Usually I do, yes.

Goldstein - Cross-Exam 03:58:18 1 Q. How much have you been paid for these additional

03:58:20 2 expenses?

03:58:22 3 A. Actually, I'm very lazy; I haven't gotten around 03:58:26 4 to submitting a bill for that yet.

03:58:28 5 Q. But you certainly intend to do so; is that right?

03:58:30 6 A. I will, yes. 03:58:31 7 Q. And you also -- what is not on this fee schedule 03:58:36 8 is you also charged AutoZone $3,450 so that I could talk 03:58:41 9 to you back in July and take your deposition in 2016,

03:58:45 10 correct?

03:58:45 11 A. Correct. 03:58:46 12 Q. How many cases -- how many other cases currently

03:58:50 13 are you working on with Mr. 's counsel?

03:58:52 14 A. Currently working on?

03:58:54 15 Q. Yes. 03:58:55 16 A. I really don't know because I -- I'm very rarely 03:59:02 17 informed when older cases have been settled or are still 03:59:06 18 pending, so I have no idea. 03:59:08 19 Q. Okay. Is it fair to say that you have a

03:59:11 20 continuing relationship with Ms. Houlding's firm?

03:59:15 21 A. I don't have any, you know, formal relationship 03:59:18 22 with them. If they want to contact me to review or 03:59:22 23 consult on a case, if I have the time, I would, yes.

03:59:26 24 Q. Which they have done over the past ten years?

03:59:29 25 A. Yes. As I said, once or twice a year.

Goldstein - Cross-Exam 03:59:32 1 Q. And you get your legal work from referrals; do

03:59:37 2 you not?

03:59:37 3 A. Occasionally they're court referred by a court, 03:59:43 4 but mostly by referrals, yes. 03:59:46 5 Q. Referrals by counsel that you've been retained

03:59:49 6 by?

03:59:49 7 A. Either by lawyers or by ex-clients or by other 03:59:55 8 colleagues, psychiatrists. 03:59:56 9 Q. Now, you testified on direct examination that you

04:00:00 10 obtained your medical degree, I believe, back in 1965?

04:00:05 11 A. Yes. 04:00:06 12 Q. And you also testified that currently today you

04:00:11 13 do treat some patients?

04:00:12 14 A. Yes. 04:00:15 15 Q. Mr. , to be clear, he's not a patient of

04:00:18 16 yours, was he?

04:00:19 17 A. No, he was never a patient that I treated. 04:00:21 18 Q. In fact, he's a client for the law firm that

04:00:24 19 hired you?

04:00:24 20 A. Correct. 04:00:29 21 Q. Now, 19 years after receiving your medical

04:00:32 22 degree, you decided to go to law school?

04:00:34 23 A. Correct. 04:00:35 24 Q. And after obtaining your law degree, you did

04:00:38 25 practice briefly at a Manhattan law firm, didn't you?

Goldstein - Cross-Exam 04:00:42 1 A. Yes, technically. 04:00:43 2 Q. And that law firm that you briefly worked for 04:00:45 3 after you obtained your law degree did primarily

04:00:50 4 plaintiff's work as well?

04:00:51 5 A. They did both, but mainly plaintiff's work. 04:00:55 6 Q. And even though your time practicing law was 04:01:00 7 fairly brief, you, for lack of a better term, you're not

04:01:05 8 a stranger to the courtroom, are you?

04:01:07 9 A. I'm not a what?

04:01:08 10 Q. You're not a stranger to the courtroom?

04:01:10 11 A. A stranger?

04:01:11 12 Q. Yes. You testified in many cases?

04:01:13 13 A. No, I've testified in cases over quite a long 04:01:16 14 period of time. 04:01:17 15 Q. And you've also published some articles in your

04:01:21 16 capacity as an expert?

04:01:23 17 A. Well, I published, you know, many articles. 04:01:28 18 Q. Now, you wrote an article, or do you recall 04:01:31 19 writing an article entitled "Hiring the Hired Gun:

04:01:35 20 Lawyers and their Psychiatric Experts"?

04:01:38 21 A. Yes. 04:01:38 22 Q. And in that article you defined a hired gun as 04:01:42 23 someone who only works for one side, the plaintiff or 04:01:45 24 defendant, and shows obvious bias in that direction. Do

04:01:49 25 you recall defining it that way?

Goldstein - Cross-Exam 04:01:50 1 A. That's one of the criteria. There were many 04:01:55 2 others in that article. 04:01:56 3 Q. Now, you have given numerous depositions as an

04:02:00 4 expert consultant?

04:02:01 5 A. Yes. 04:02:01 6 Q. And much like -- and you've also testified in

04:02:04 7 court?

04:02:04 8 A. Correct.

04:02:05 9 Q. Much like you're doing here today?

04:02:08 10 A. Correct. 04:02:09 11 Q. So let's talk about that for a minute. Over the 04:02:12 12 past four years, I believe when I took your deposition 04:02:15 13 you told me that you had testified in eight trials in 04:02:20 14 the same role that you're doing here today. Do you

04:02:23 15 recall telling me that?

04:02:24 16 A. I don't recall specifically, but if that's what 04:02:29 17 you have, I agree. Sure. 04:02:31 18 Q. And in seven of those eight cases, you were

04:02:36 19 testifying for the plaintiff's side, weren't you?

04:02:38 20 A. I don't recall, but if you represent that, I'll 04:02:41 21 accept it. 04:02:42 22 Q. Which would mean that of these seven trials that 04:02:45 23 you -- I'm sorry, of the eight trials that you testified 04:02:49 24 to -- or testified in over the last few years, you've

04:02:53 25 only testified once for the defendants, correct?

Goldstein - Cross-Exam 04:02:56 1 A. If you say so, yes. 04:02:58 2 Q. All right. And then you've -- I believe you told 04:03:03 3 me when we were talking at your deposition that you also

04:03:09 5 depositions. Do you recall telling me that?

04:03:11 6 A. No, but I'll accept your -- 04:03:15 7 Q. And out of those 14 depositions, only three were 04:03:20 8 in cases that you were hired by the defendant; is that

04:03:23 9 right?

04:03:23 10 A. If you say so, yes. 04:03:25 11 Q. The other 11 depositions you gave because you

04:03:27 12 were hired by the plaintiff's attorney?

04:03:29 13 A. Yes. 04:03:31 14 Q. I want to talk to you -- we discussed this back 04:03:34 15 in 2016, but I want to revisit the issue. You have 04:03:38 16 given testimony on behalf of a defendant in the Whitten

04:03:41 17 case; do you recall talking to me about that?

04:03:43 18 A. Yes, I have. 04:03:44 19 Q. You've reviewed your deposition testimony 04:03:48 20 obviously before and in anticipation of talking with me

04:03:51 21 today, right?

04:03:52 22 A. My deposition?

04:03:53 23 Q. Yes. 04:03:53 24 A. Yes.

04:03:54 25 Q. You've reviewed it recently?

Goldstein - Cross-Exam 04:03:55 1 A. Not that recently, but I did review it.

04:03:57 2 Q. When is the last time you've reviewed it?

04:04:00 3 A. I don't recall exactly. 04:04:02 4 Q. Okay. Now, we were talking in your deposition 04:04:05 5 about the Whitten case, and that case dealt with sexual

04:04:11 6 misconduct, didn't it?

04:04:16 7 A. It dealt with premises liability. 04:04:18 8 Q. And I believe that you were retained in that case 04:04:21 9 to testify on behalf of an apartment complex that was

04:04:26 10 being sued by a minor child, right?

04:04:30 11 A. By the minor children's parents, yes. 04:04:33 12 Q. And it was alleged in that case that the landlord 04:04:37 13 for the apartment complex had unlawfully climbed into 04:04:41 14 the room of a 14-year-old girl, fondled her, masturbated 04:04:46 15 in front of her, and then fled. Do you recall those

04:04:50 16 being the allegations?

04:04:51 17 A. Vaguely, yes. 04:04:52 18 Q. And in your expert opinion that you gave in that 04:04:54 19 case, you found the sexual assault that I just described 04:04:58 20 did not have a significant or lasting impact on the

04:05:03 21 13-year-old victim; wasn't that your finding?

04:05:06 22 A. It didn't have a -- it didn't have a lasting 04:05:10 23 impact on her psychiatric condition or functioning, 04:05:14 24 correct. 04:05:14 25 Q. Despite the fact that she had been fondled and

Goldstein - Cross-Exam

04:05:17 1 masturbated in front of when she was a minor?

04:05:20 2 A. Yes. 04:05:20 3 Q. But yet your expert opinion in this case is that 04:05:23 4 Mr. has suffered and continues to suffer severe 04:05:28 5 psychological trauma as a result of allegedly being

04:05:32 6 touched by a female coworker over five years ago?

04:05:36 7 That's your finding?

04:05:38 8 A. Yes. 04:05:40 9 Q. Now, it's true that you, yourself, have also been

04:05:43 10 referred to as a hired gun; is that right?

04:05:46 11 A. Only by the opposing lawyers like yourself. 04:05:50 12 Q. I haven't called you a hired gun yet. 04:05:54 13 Just kidding. 04:05:55 14 Let's talk about the article or presentation that 04:05:58 15 you were involved in, and that article was entitled 04:06:01 16 "Expertise in Psychiatric and Sexual Harassment Cases."

04:06:05 17 Do you recall being involved in the presentation of that

04:06:08 18 particular article?

04:06:09 19 A. I don't know if it was a presentation or a -- it 04:06:15 20 was a classroom setting discussion. 04:06:17 21 Q. I believe you told me that it was a presentation 04:06:20 22 that was held at a New York law school, and you were 04:06:22 23 there to give your input about the role of a 04:06:25 24 psychiatrist in sexual harassment cases.

04:06:27 25 A. Yes, I was assisting the law professor in

Goldstein - Cross-Exam 04:06:30 1 discussing the psychiatric perspectives on it. 04:06:33 2 Q. And then you subsequently after that particular 04:06:37 3 presentation you participated in another presentation at 04:06:40 4 the law school which was entitled "Preparation of a 04:06:43 5 Psychiatric Witness in Sexual Harassment Cases." Do you

04:06:47 6 recall being involved in that?

04:06:48 7 A. Yes. 04:06:49 8 Q. And that is the very role that you're in today,

04:06:53 9 correct, a psychiatric witness?

04:06:56 10 A. I am a psychiatric witness, yes. 04:06:59 11 Q. Now, in these presentations that you participated 04:07:02 12 in, do you recall that you specifically discussed what a 04:07:06 13 psychiatric expert or consultant like yourself would 04:07:11 14 most want to have available in terms of collateral

04:07:14 15 information to evaluate sexual harassment cases?

04:07:18 16 A. You mean from the lecture itself?

04:07:22 17 Q. Yes. 04:07:22 18 A. I don't recall the details. 04:07:23 19 Q. Okay. Well, you would agree that collateral 04:07:28 20 information is -- consists of more objective data other 04:07:35 21 than just the discussion or talk that you have with the

04:07:38 22 person that you're evaluating?

04:07:39 23 A. Yes. There should be more objective information 04:07:44 24 besides just what the patient tells you, sure. 04:07:47 25 Q. And in these presentations you specifically

Goldstein - Cross-Exam 04:07:50 1 discussed the fact that a consultant would most like to 04:07:54 2 have these types of collateral information in making

04:08:00 3 their evaluations, correct?

04:08:01 4 A. Yes. 04:08:02 5 Q. And this collateral information would include

04:08:09 6 third-party observations?

04:08:11 7 A. Sometimes, yes. 04:08:14 8 Q. And, in fact, Dr. Goldstein, in formulating your 04:08:21 9 own expert opinion, you would prefer to have all the 04:08:24 10 data that you could analyze in terms of collateral

04:08:28 11 information in any form to be available for your review?

04:08:32 12 A. Well, it could come in many forms. It could 04:08:35 13 come in medical records forms; it could come in 04:08:38 14 observations by friends and family; it could come in 04:08:41 15 observations by coworkers. 04:08:45 16 Q. Okay. We'll talk about that. So you would use 04:08:49 17 this collateral information to provide context to what

04:08:52 18 you learned from the person that you're evaluating?

04:08:55 19 A. Correct. 04:08:56 20 Q. In fact, I believe that you previously testified 04:08:59 21 that one of the keystone requirements for a good 04:09:03 22 forensic evaluation is, number one, conducting a

04:09:06 23 psychiatric examination?

04:09:07 24 A. Right. 04:09:08 25 Q. And number two, obtaining collateral sources of

Goldstein - Cross-Exam 04:09:12 1 information to corroborate your findings of your

04:09:16 2 psychiatric examination?

04:09:17 3 A. Yes. There should always be some corroboration 04:09:20 4 because you can't just take at face value what the 04:09:24 5 patient tells you. You should always take it with a 04:09:27 6 grain of salt. 04:09:28 7 Q. Now, the collateral sources would include

04:09:30 8 reviewing depositions?

04:09:31 9 A. Yes.

04:09:32 10 Q. Obtaining third-party observations?

04:09:36 11 A. Yes. 04:09:36 12 Q. In other words, speaking with people that have 04:09:38 13 worked with the person who you've been hired to evaluate

04:09:43 14 for litigation purposes, correct?

04:09:44 15 A. Not always, but sometimes. 04:09:46 16 Q. Well, let's talk about the collateral sources 04:09:48 17 that you looked at and didn't look at in Mr. Ward's 04:09:53 18 case. We're going to start with the deposition aspect. 04:09:56 19 You just told the jury that one of the things you would 04:09:58 20 consider to be a good collateral source was reading

04:10:01 21 depositions given in a case, correct?

04:10:03 22 A. Yes. 04:10:03 23 Q. Okay. Now, sir, are you aware that over ten

04:10:07 24 depositions have been taken in this particular case?

04:10:11 25 MS. HOULDING: Objection. Lacks foundation.

Goldstein - Cross-Exam 04:10:13 1 A. I am not aware specifically. 04:10:17 2 THE COURT: Sustained.

04:10:20 3 By Ms. Kern:

04:10:21 4 Q. Dr. Goldstein, are you aware of any depositions

04:10:24 5 that have been taken in this matter?

04:10:26 6 A. I'm aware of my own and of Mr. Ward's, yes, 04:10:30 7 specifically. 04:10:31 8 Q. Did plaintiff's counsel tell you that ten other

04:10:34 9 people had given depositions in this case?

04:10:36 10 MS. HOULDING: I'm going to object to 04:10:40 11 discussion of our -- our conversations with Dr. 04:10:45 12 Goldstein. 04:10:45 13 THE COURT: Sustained.

04:10:45 14 By Ms. Kern:

04:10:46 15 Q. Would it surprise you to learn, Dr. Goldstein, 04:10:48 16 that over 13 individuals have given depositions in this

04:10:51 17 case?

04:10:52 18 MS. HOULDING: Objection. Lacks foundation. 04:10:54 19 THE COURT: Sustained.

04:10:56 20 By Ms. Kern:

04:10:56 21 Q. Did you review any depositions before providing

04:10:59 22 your opinion in this case?

04:11:03 23 A. My opinion or my report?

04:11:06 24 Q. Either or. 04:11:07 25 A. I did review Mr. 's deposition before I came

Goldstein - Cross-Exam 04:11:11 1 to testify today. 04:11:12 2 Q. But you hadn't -- you weren't given a copy of his

04:11:15 3 deposition before you issued your reports, had you?

04:11:18 4 A. Correct. 04:11:24 5 Q. So it's fair to say you have not reviewed -- you 04:11:28 6 did not review any depositions before issuing the two

04:11:32 7 reports that you provided in this case?

04:11:33 8 A. Correct. 04:11:36 9 Q. And in preparing your expert reports for 04:11:43 10 plaintiff's counsel, you had, in fact, only reviewed 04:11:48 11 some isolated handwritten notes from Mr. Ward's 04:11:52 12 deposition and not the actual deposition transcript

04:11:56 13 itself, correct?

04:11:56 14 A. That's correct. 04:11:57 15 Q. Now, we talked a little bit earlier about 04:12:00 16 third-party observations which, as you've told us, is 04:12:04 17 one of the things that a psychiatrist consultant such as 04:12:07 18 yourself would like to -- most like to have available as

04:12:11 19 collateral information. Do you recall that testimony?

04:12:14 20 A. Correct. Yes. 04:12:15 21 Q. And you have defined third-party observations as 04:12:18 22 observations made by people who actually worked with the

04:12:21 23 person you're evaluating; do you recall telling me that?

04:12:25 24 A. Those are some of the possibilities, yes. 04:12:27 25 Q. And one of the purposes of interviewing, for

Goldstein - Cross-Exam 04:12:32 1 example, coworkers or former coworkers is to gauge or 04:12:36 2 test the consistency or inconsistencies of the 04:12:40 3 information provided to you by the person you're

04:12:42 4 evaluating?

04:12:44 5 A. Some aspects of it. 04:12:46 6 Q. Okay. Well, in fact, Dr. Goldstein, for other 04:12:49 7 cases in the past you have actually interviewed people 04:12:53 8 that were in the workplace before forming your expert

04:12:56 9 opinion, correct?

04:12:56 10 A. In some cases, yes. I thought it was necessary 04:12:59 11 in those cases. 04:13:00 12 Q. In this particular case, however, you didn't 04:13:05 13 bother to interview anyone before reaching your

04:13:07 14 conclusions regarding Mr. Ward, did you?

04:13:09 15 A. Face-to-face interviews, no. 04:13:12 16 Q. You didn't conduct any interviews, whether they 04:13:15 17 were face-to-face or not, with any of Mr. 's

04:13:19 18 coworkers, did you?

04:13:20 19 A. No, I didn't have any interviews.

04:13:30 21 years, did you?

04:13:31 22 A. Correct.

04:13:31 23 Q. And you didn't think that was necessary?

04:13:33 24 A. No, I didn't. 04:13:34 25 Q. You didn't speak to either of Mr. Ward's

Goldstein - Cross-Exam 04:13:37 1 daughters who were living with Mr. Ward at the time that 04:13:40 2 these alleged sexual assaults were taking place, did

04:13:43 3 you?

04:13:43 4 A. Correct. 04:13:43 5 Q. And you didn't interview any of Mr. Ward's

04:13:46 6 neighbors or close family friends?

04:13:48 7 A. Correct. 04:13:49 8 Q. You didn't speak to any of his coworkers at

04:13:52 9 AutoZone?

04:13:53 10 A. I didn't speak to them, no. 04:13:55 11 Q. You didn't try to speak with Ms. Atkinson, the

04:14:00 12 person that Mr. accuses of sexually harassing him?

04:14:03 13 A. Ms. Atkinson?

04:14:04 14 Q. Correct. 04:14:05 15 A. No. 04:14:05 16 Q. Okay. And your reason for not bothering to talk 04:14:09 17 to any of these folks was because, quote, it would have 04:14:12 18 been very time consuming to obtain a list about who 04:14:15 19 would be available to speak with you. Do you recall

04:14:18 20 telling me that?

04:14:19 21 MS. HOULDING: Objection, Your Honor. I 04:14:21 22 mean, she's asking for hearsay from his deposition, and 04:14:25 23 it's an attempt at improper impeachment, I guess. 04:14:30 24 Objection. 04:14:31 25 THE COURT: Overruled.

Goldstein - Cross-Exam 04:14:36 1 A. I think I gave a number of reasons for not 04:14:40 2 bothering to try to interview the coworkers, time 04:14:46 3 constraints for one of them. The others were -- most of 04:14:50 4 them were still working at AutoZone, which was being 04:14:53 5 sued, and I didn't think their comments would be that 04:14:57 6 reliable or accurate. But I did have a written -- a 04:15:01 7 written declaration from one of the coworkers.

04:15:04 8 Q. Isn't it true, Dr. Goldstein, that you didn't 04:15:08 9 even bother to ask Mr. 's counsel for a list of

04:15:10 10 witnesses?

04:15:13 11 A. I only asked them for what I thought was 04:15:16 12 necessary. 04:15:17 13 Q. All right. And I think that you just testified 04:15:20 14 that you didn't talk to any of -- 04:15:22 15 THE COURT: Counsel, we're way past the 04:15:24 16 exhibit that's on the screen.

04:15:44 17 By Ms. Kern:

04:15:44 18 Q. I believe you just testified that you didn't talk 04:15:46 19 to any of the coworkers because there was a fear that 04:15:50 20 that might not be a reliable source of information since

04:15:53 21 they were still currently employed by the company?

04:15:56 22 A. Yes, I thought it would not be -- it wouldn't -- 04:16:00 23 they wouldn't be the best source of accurate 04:16:02 24 information, yes. 04:16:04 25 Q. Yet you believe that Mr. Ward alone, who has a

Goldstein - Cross-Exam 04:16:07 1 strong financial interest in the outcome of this case,

04:16:10 2 is a reliable source?

04:16:13 3 A. Well, he was one source. My examination of him 04:16:19 4 was one reliable source of information. 04:16:21 5 Q. You didn't bother to ask whether any of his 04:16:24 6 coworkers were still employed by AutoZone to ease your

04:16:28 7 concerns of unreliability, did you?

04:16:32 8 A. The one that was not still employed, Mr. 04:16:36 9 Tarkington, I had his written sworn statement; I didn't 04:16:40 10 have to talk to him. 04:16:40 11 Q. That was a written statement that he had given to

04:16:44 12 Mr. 's counsel?

04:16:46 13 A. I don't know who he gave it to, but he made a 04:16:50 14 sworn statement. 04:16:51 15 Q. Now, you haven't made any attempt over the past 04:16:55 16 four years since you've been retained by counsel to talk

04:17:00 17 to Mr. Ward's family members or friends, have you?

04:17:05 18 A. No, I haven't. 04:17:11 19 Q. Now, you don't have any firsthand knowledge about 04:17:14 20 what happened or didn't happen at AutoZone with Mr.

04:17:16 21 Ward; is that right?

04:17:17 22 A. That's correct. 04:17:21 23 Q. You've never visited the AutoZone store where Mr.

04:17:24 24 Ward claims he was sexually assaulted?

04:17:26 25 A. No, I haven't.

Goldstein - Cross-Exam 04:17:26 1 Q. In fact, you haven't sought any corroboration to 04:17:30 2 Mr. 's story that he was, indeed, sexually

04:17:33 3 assaulted, have you?

04:17:34 4 A. That he was, in fact, sexually assaulted?

04:17:36 5 Q. Yes. 04:17:37 6 A. I have no knowledge about that. It's not my role 04:17:39 7 to determine that. 04:17:40 8 Q. Now, to be clear, you were hired by Mr. 's 04:17:47 9 counsel to perform a complete psychiatric evaluation to 04:17:51 10 determine, number one, if there was or was not a 04:17:55 11 psychiatric disorder or condition present; and number 04:18:00 12 two, to then determine whether this condition or 04:18:02 13 disorder was related to the alleged sexual harassment;

04:18:09 14 is that right?

04:18:09 15 A. Well, was related to the way he saw it or his 04:18:14 16 perceptions of what happened, not to the factual 04:18:17 17 accuracy of it. 04:18:19 18 Q. Okay. All right. And it's your testimony that 04:18:21 19 based on your psychiatric examination, which we'll talk 04:18:25 20 about in a minute, that, indeed, Mr. does suffer

04:18:27 21 from a severe psychiatric condition?

04:18:30 22 A. Correct. 04:18:34 23 Q. And that this condition is, in fact, caused by 04:18:40 24 the alleged sexual harassment that he claims he endured

04:18:46 25 at AutoZone?

Goldstein - Cross-Exam 04:18:46 1 A. Again, caused by how he viewed the situation or 04:18:53 2 his perceptions of what was going on. 04:18:55 3 Q. So your opinion is based on Mr. 's perception 04:18:59 4 of sexual harassment and not whether or not he was

04:19:03 5 actually harassed; is that right?

04:19:05 6 A. Correct. Yes. 04:19:07 7 Q. And you reached this diagnosis after Mr. 04:19:10 8 told you that the alleged harassment had made him feel 04:19:15 9 apprehensive, panicky, depressed, and helpless; is that

04:19:20 10 right?

04:19:21 11 A. Among other symptoms, yes. 04:19:23 12 Q. And that he had already told you he had multiple 04:19:26 13 awakenings and nightmares of being attacked by his

04:19:30 14 female coworker?

04:19:31 15 A. Yes. 04:19:32 16 Q. And you also based your opinion on the fact that 04:19:35 17 he told you that he lost 15 pounds and that his 04:19:38 18 concentration and memory had been impaired due to what 04:19:43 19 you characterize in your report as attacks by a female

04:19:49 20 assailant at AutoZone; is that right?

04:19:51 21 A. I never said in my report that his weight loss 04:19:56 22 was in any way related to his psychiatric diagnosis. 04:19:59 23 Q. You certainly noted the fact that Mr. had 04:20:02 24 related to you in the context of his allegations that he

04:20:07 25 lost 15 pounds?

Goldstein - Cross-Exam 04:20:08 1 A. Yes. 04:20:11 2 Q. Just so I can try to understand, because this is 04:20:13 3 all based -- on your opinion is based on perception,

04:20:17 4 what if I told you that I had been attacked by a bear?

04:20:23 5 A. By a bear?

04:20:23 6 Q. A bear, uh-huh. 04:20:25 7 And that this bear attack made me apprehensive, 04:20:29 8 panicky, depressed, and helpless. And that I also told 04:20:36 9 you that based on this bear attack I had multiple 04:20:41 10 awakenings, nightmares about being attacked by the bear 04:20:46 11 and, in fact, that I had lost 15 pounds as a result, and 04:20:50 12 my memory was not good or my memory/concentration was 04:20:53 13 not good because I had been attacked by this bear.

04:20:58 14 If I told you that in consultation, much like Mr. 04:21:03 15 Ward did with the sexual assaults, you could conclude 04:21:06 16 that I, in fact, also suffer from a severe psychiatric

04:21:10 17 condition due to the bear attack, correct?

04:21:12 18 A. Well, again, I wouldn't draw that conclusion 04:21:15 19 without some corroboration from other sources. 04:21:19 20 Q. Well, the corroboration that you drew from other 04:21:23 21 sources in this case were the three sessions that you

04:21:26 22 had with Mr. by video, correct?

04:21:30 23 A. No, those were not the other sources. The other 04:21:32 24 sources were his medical records and the sworn -- his 04:21:40 25 EEOC filing and the sworn statements of his coworker,

Goldstein - Cross-Exam 04:21:45 1 Mr. Tarkington. 04:21:46 2 Q. Okay. But you never concluded that his -- that

04:21:49 3 the sexual harassment ever occurred, correct?

04:21:53 4 A. Yes. I said that's not my -- that's beyond my 04:21:57 5 knowledge, yes. 04:21:58 6 Q. And if after you met with me and I had relayed 04:22:02 7 these feelings that I had from a bear attack, and you 04:22:05 8 found out later on that, in fact, I had no such 04:22:09 9 encounter with a bear, that I just thought that one of 04:22:12 10 the ceramic bears here in New Bern had attacked me, that 04:22:15 11 would certainly change your opinion as to whether I

04:22:18 12 suffered a psychiatric condition, correct?

04:22:20 13 A. Well, those are really two questions in one 04:22:24 14 there. 04:22:25 15 Q. Your testimony is that you have no idea whether 04:22:32 16 or not Mr. was sexually assaulted at AutoZone,

04:22:35 17 correct?

04:22:35 18 A. Yes. I've already testified to that. 04:22:37 19 Q. Yet you make the leap that Mr. suffers from 04:22:41 20 a severe psychiatric condition as a result of this

04:22:47 21 perception of alleged sexual harassment?

04:22:50 22 A. Yes. 04:22:51 23 Q. Now, you would agree that it's possible that your 04:22:57 24 opinion or diagnosis that you've given in this lawsuit 04:23:03 25 would change if you knew that Mr. tried to stick

Goldstein - Cross-Exam

04:23:07 1 his hands down Ms. Atkinson's front pants?

04:23:11 2 A. Well, I wouldn't say that it definitely would 04:23:16 3 change. I'd like to know more about that allegation, 04:23:19 4 certainly. 04:23:20 5 Q. Sure. Because it's possible that by knowing that 04:23:23 6 piece of information, your opinion in this case could

04:23:27 7 possibly be changed, right?

04:23:28 8 A. Possible. 04:23:29 9 Q. Okay. And we've already discussed the fact that 04:23:32 10 you never bothered to talk with Ms. Atkinson. 04:23:35 11 MS. HOULDING: Objection. Asked and 04:23:37 12 answered. 04:23:37 13 THE COURT: Sustained. You don't have to 04:23:39 14 answer it.

04:23:42 15 By Ms. Kern:

04:23:44 16 Q. Dr. Goldstein, in all the documentation that you 04:23:46 17 were provided to review to prepare your reports, were 04:23:52 18 you ever made aware that Mr. had informed AutoZone 04:23:57 19 that Wanda Smith had treated him with dignity and

04:24:02 20 respect?

04:24:03 21 A. I did learn that, yes.

04:24:04 22 Q. I'm sorry?

04:24:05 23 A. Did I know that? Yes, I did. 04:24:09 24 Q. You knew that before you made your -- gave your

04:24:12 25 expert opinion in this case?

Goldstein - Cross-Exam 04:24:14 1 A. No, I learned that from his deposition, I 04:24:17 2 believe.

04:24:18 3 Q. So that was just very recently?

04:24:22 4 A. That was more recently, yes. 04:24:23 5 Q. And certainly the fact that Mr. Ward has now 04:24:27 6 characterized his immediate supervisor as one that 04:24:30 7 treated him with dignity and respect, that might also 04:24:37 8 have an impact on your opinion this in case; isn't that

04:24:40 9 true?

04:24:40 10 A. Not really. 04:24:41 11 Q. Well, you're aware, sir, based on reading his 04:24:43 12 deposition that this supervisor that Mr. so nicely 04:24:49 13 refers to in his exit interview is the same person who 04:24:53 14 he claims and has told this jury laughed at him when he

04:24:57 15 reported this alleged sexual harassment?

04:25:00 16 MS. HOULDING: I'm going to object. If 04:25:03 17 she's asking about his deposition testimony, it calls 04:25:05 18 for hearsay. But I think it was also compound. 04:25:15 19 THE COURT: As to the way the question is 04:25:16 20 worded, the Court sustains the objection. 04:25:25 21 MS. KERN: Thank you, Your Honor.

04:25:25 22 By Ms. Kern:

04:25:25 23 Q. You indicated you reviewed Mr. 's deposition

04:25:28 24 before coming here today?

04:25:29 25 A. Yes, correct.

Goldstein - Cross-Exam 04:25:31 1 Q. Based on his deposition testimony you are aware 04:25:33 2 that he accuses Wanda Smith of laughing at him when he

04:25:37 3 reported the allegations of sexual harassment?

04:25:40 4 A. I don't recall that she laughed at him. She just 04:25:43 5 didn't do anything about it. 04:25:45 6 Q. You're aware in reviewing his deposition that he 04:25:48 7 claims that Wanda Smith told him, quote: Just give

04:25:52 8 Christina what she wants?

04:25:54 9 A. I don't recall that either. I recall that she 04:25:57 10 said she'd look into it, or something of that nature, 04:26:00 11 and never did. 04:26:01 12 Q. Are you aware that this is the same supervisor, 04:26:05 13 Wanda Smith, that Mr. claims retaliated against him

04:26:09 14 and said he complained too much?

04:26:13 15 A. She did tell him he complained too much, yes. 04:26:16 16 Q. Does it surprise you, Dr. Goldstein, that he 04:26:19 17 would characterize, after he left AutoZone, in a 04:26:22 18 document that Ms. Smith treated him with dignity and

04:26:27 19 respect, and he was very satisfied with her supervision?

04:26:31 20 MS. HOULDING: Object to relevance.

04:26:33 21 By Ms. Kern:

04:26:34 22 Q. Does that change your opinion at all?

04:26:35 23 A. Not really. 04:26:39 24 Q. Now, you were retained, Dr. Goldstein, to 04:26:44 25 determine whether or not Mr. was credible, at least

Goldstein - Cross-Exam

04:26:48 1 in relation to his own situation, right?

04:26:51 2 A. I wouldn't use -- I mean, I wouldn't use the word 04:26:55 3 credible because that's more of a legal term. I just 04:26:58 4 said that he was internally consistent, and his 04:27:03 5 presentation was authentic. 04:27:06 6 Q. In other words, you were retained to determine 04:27:08 7 whether or not he was credible with regard to the

04:27:10 8 statements he was making to you?

04:27:12 9 MS. HOULDING: Objection. Asked and 04:27:14 10 answered. 04:27:14 11 THE COURT: Sustained.

04:27:15 12 By Ms. Kern:

04:27:16 13 Q. Do you recall, Dr. Goldstein, when I took your

04:27:18 14 deposition back in 2016 I asked you that same question?

04:27:22 15 A. I think "credible" was your term. 04:27:43 16 Q. I'm looking at page 51, line 22 to 24. Can you

04:27:57 17 see it on the screen, Dr. Goldstein?

04:28:00 18 A. Yes. 04:28:01 19 Q. Okay. And I asked you on page 51, line 23: 04:28:09 20 "You were retained to determine whether Mr. Ward 04:28:12 21 was credible, correct?" 04:28:16 22 A. Yes.

04:28:18 23 Q. And your answer was what?

04:28:20 24 A. "In relation to his own situation." 04:28:38 25 Q. Now, in assessing credibility from a psychiatric

Goldstein - Cross-Exam 04:28:40 1 standpoint, you would agree with me that body language, 04:28:44 2 eye contact, posture, and other factors may come into

04:28:50 3 play?

04:28:50 4 A. They may come into play at some level, yes. 04:28:56 5 Q. And that what is really important in determining 04:28:58 6 a person's credibility would be the consistency of the

04:29:03 7 person's statements that had been made by them to you?

04:29:08 8 A. Without accepting your use of the word 04:29:13 9 "credibility," I'd say the consistency of the statements 04:29:16 10 would be important from a psychiatric perspective, yes. 04:29:21 11 Q. And the consistency of statements include the

04:29:26 12 history that the person provides to you, their history?

04:29:31 13 A. The history they provide to me and what they said 04:29:34 14 in other places, other contexts. 04:29:37 15 Q. As well as the statements that the person makes 04:29:39 16 to you during these individual sessions that you have

04:29:41 17 with them?

04:29:42 18 A. Yes. 04:29:42 19 Q. Okay. And you would agree that the longer that 04:29:45 20 you see someone, the better you get to know them,

04:29:48 21 correct?

04:29:50 22 A. Obviously, yes.

04:29:52 23 Q. And the more reliable your opinion will be?

04:29:54 24 A. Well, not necessarily. But the more you get to 04:29:58 25 know them, the more perhaps you're accepting of their

Goldstein - Cross-Exam 04:30:03 1 overall consistency. 04:30:06 2 Q. And you would also agree that the more sessions 04:30:08 3 that you have and the longer the sessions are, the

04:30:12 4 better it is to determine credibility, correct?

04:30:16 5 A. Again, I don't determine credibility. 04:30:35 6 Q. I'm going to show you what I'm going to put on 04:30:38 7 the screen. It's page 14 from your deposition. And you 04:30:44 8 recall, sir, we were discussing credibility. And I'm 04:30:49 9 going to direct you to line 20 of page 14. 04:30:53 10 A. 14. Okay.

04:30:55 11 Q. Page 14, line 20.

04:31:01 12 A. Line what?

04:31:02 13 Q. Line 20. 04:31:06 14 And I asked you, sir: 04:31:07 15 "So the more sessions and the longer the sessions 04:31:10 16 are, the better you are to gauge credibility; is that a 04:31:15 17 fair statement?"

04:31:16 18 And what was your answer?

04:31:17 19 A. "Correct. Yes." 04:31:29 20 Q. All right. Now, you've never met Mr. Ward in

04:31:32 21 person until today; is that right?

04:31:36 22 A. That's correct. 04:31:37 23 Q. And when you were conducting your, as you've 04:31:42 24 described, comprehensive psychiatric examinations, you 04:31:46 25 didn't bother to come down to North Carolina and speak

Goldstein - Cross-Exam

04:31:48 1 with Mr. Ward face-to-face?

04:31:50 2 A. I didn't come to North Carolina, no. 04:31:53 3 Q. And you didn't ask him to travel to New York, did

04:31:56 4 you?

04:31:56 5 A. No. 04:31:56 6 Q. And so you chose -- so you didn't observe his

04:32:02 7 posture in person face-to-face; is that fair?

04:32:05 8 A. I observed his posture over the video 04:32:09 9 conferencing. I had a huge desktop console with a giant 04:32:16 10 picture of his upper body, his arms, legs -- his arms, 04:32:21 11 hands, face, expressions, posture, and so forth. 04:32:25 12 Q. So was he sitting down when you were speaking

04:32:28 13 with him?

04:32:28 14 A. I'm sorry?

04:32:29 15 Q. Was he sitting down when you were speaking with

04:32:32 16 him?

04:32:32 17 A. Yes. 04:32:33 18 Q. You would agree with me that observing someone's 04:32:35 19 body language and posture in person would be more ideal 04:32:40 20 than observing somebody's posture and demeanor on a

04:32:45 21 video; do you agree with that?

04:32:47 22 A. No. I had a very good view of his posture and 04:32:52 23 his expressions and his emotional reactions and so 04:32:56 24 forth. 04:32:56 25 Q. Okay. Well, your assessment of Mr. Ward, what he

Goldstein - Cross-Exam 04:33:04 1 was telling you in the examinations, was essentially 04:33:06 2 based on three video sessions that you had with him over

04:33:09 3 a four-year period?

04:33:12 4 A. Yeah. Approximately two and a half, three hours. 04:33:18 5 Q. And I believe you told the jury that you first

04:33:20 6 Skyped with Mr. in May of 2014?

04:33:24 7 A. Yes. 04:33:24 8 Q. And that would have been over nine months after

04:33:27 9 he had left AutoZone, correct?

04:33:29 10 A. Yes. 04:33:29 11 Q. And that Skype session lasted less than two

04:33:32 12 hours, didn't it?

04:33:34 13 A. An hour and a half. 04:33:35 14 Q. And then you next Skyped with Mr. almost two

04:33:39 15 years later in April of 2016?

04:33:43 16 A. April 2016, yes. 04:33:45 17 Q. And that video session lasted only about a half

04:33:48 18 an hour; is that right?

04:33:49 19 A. Correct. 04:33:49 20 Q. Now, you testified that you chose not to perform 04:33:54 21 any separate psychological testing of Mr. such as

04:33:59 22 submitting him to a written examination, correct?

04:34:03 23 A. I didn't request any psychological testing, 04:34:07 24 correct. 04:34:07 25 Q. So we don't have any tests or anything that we

Goldstein - Cross-Exam 04:34:11 1 can review to determine his consistency in that regard;

04:34:16 2 is that right?

04:34:16 3 A. We don't have any tests, no. They don't measure 04:34:19 4 consistency. 04:34:20 5 Q. Well, what we have here or your opinion is based 04:34:25 6 in large part on these three sessions that you had with

04:34:30 7 Mr. , correct?

04:34:31 8 A. And his medical records and his EEOC submission 04:34:36 9 and the declaration of his coworker. 04:34:39 10 Q. And we will talk about the medical records in a 04:34:45 11 moment. But is it your testimony that you are able to 04:34:53 12 speak with someone for a little over two hours by video 04:34:59 13 and that that would constitute a comprehensive 04:35:03 14 examination of an individual -- 04:35:04 15 A. Yes.

04:35:04 16 Q. -- upon which you can base your diagnosis?

04:35:07 17 A. Correct. 04:35:08 18 Q. Okay. And your diagnosis was formed in large 04:35:12 19 part on accepting only Mr. 's version of events,

04:35:17 20 correct?

04:35:17 21 A. Well, it had to wait for corroboration from the 04:35:22 22 medical records. 04:35:23 23 Q. We'll talk about those in a minute. But you 04:35:25 24 would agree that Mr. has a very strong financial

04:35:30 25 interest in this litigation?

Goldstein - Cross-Exam 04:35:32 1 A. I don't know how strong it is, but that wasn't 04:35:34 2 what my psychiatric exam was focused on. 04:35:37 3 Q. You would agree, though, in all of your years of 04:35:42 4 treating -- I'm sorry, of being an expert witness in 04:35:46 5 trial that typically what -- the reason a person brings

04:35:49 6 a lawsuit is to get money?

04:35:52 7 A. Well, that's part of it. Some people bring 04:35:55 8 lawsuits to try to get -- assert their rights or get 04:36:00 9 justice or get some kind of closure about an injury that 04:36:05 10 they feel was inflicted on them. And money is a 04:36:08 11 consideration as well, sure. 04:36:10 12 Q. And it's typically the primary consideration,

04:36:13 13 isn't it?

04:36:14 14 MS. HOULDING: Objection. Lacks -- 04:36:17 15 THE COURT: Sustained.

04:36:18 16 By Ms. Kern:

04:36:18 17 Q. You would agree that at least in your experience 04:36:20 18 you've found cases where people who have pending 04:36:23 19 lawsuits are more prone to exaggerating their symptoms 04:36:26 20 than someone who does not have a financial interest in

04:36:29 21 the litigation?

04:36:30 22 A. I've seen that, yes. 04:36:31 23 Q. Okay. And speaking of exaggerating symptoms, 04:36:38 24 you're aware Mr. has given testimony in the trial 04:36:42 25 that being sexually assaulted by Ms. Atkinson was worse

Goldstein - Cross-Exam

04:36:45 1 than being shot at?

04:36:46 2 MS. HOULDING: I'm going to object to the 04:36:48 3 argumentative nature of that question, the initial part 04:36:52 4 of the question. 04:36:54 5 THE COURT: Yes, that's sustained.

04:36:57 6 By Ms. Kern:

04:36:57 7 Q. Are you aware, Dr. Goldstein, that Mr. has 04:37:00 8 given sworn testimony to this jury that he believed or 04:37:04 9 he described the sexual -- alleged sexual assault of Ms.

04:37:09 10 Atkinson to be worse than being shot at?

04:37:13 11 A. The question, am I aware of it?

04:37:15 12 Q. Yes. 04:37:16 13 A. Not until you mentioned it, no.

04:37:17 14 Q. Would you consider that to be an exaggeration?

04:37:22 15 A. Well, sometimes psychological injuries are worse 04:37:24 16 than physical injuries and more lasting. 04:37:28 17 Q. Would you agree, Dr. Goldstein, that if a person 04:37:33 18 withholds critical information that that may make your

04:37:37 19 opinion or diagnosis less reliable?

04:37:40 20 A. If they withhold information?

04:37:42 21 Q. Yes.

04:37:42 22 A. Withhold it from you?

04:37:44 23 Q. From you. 04:37:45 24 A. It might, or it might depend on the facts that 04:37:50 25 underlie their withholding it.

Goldstein - Cross-Exam 04:37:52 1 Q. Did Mr. ever tell you that he taught

04:37:57 2 self-defense classes?

04:37:58 3 A. No. 04:37:59 4 Q. Did he ever tell you that he taught classes in

04:38:01 5 the use of firearms?

04:38:02 6 A. No. 04:38:02 7 Q. Now, did Mr. ever tell you that he was

04:38:06 8 diagnosed with cancer?

04:38:09 9 MS. HOULDING: Objection. 04:38:10 10 A. He never was, no. 04:38:13 11 THE COURT: Objection overruled. You can 04:38:17 12 answer that question. 04:38:18 13 A. As far as I know, he never told me that. And as 04:38:22 14 far as I know, he never was. 04:38:24 15 Q. And if you learned that Mr. told his 04:38:26 16 coworkers that he had been diagnosed with cancer, that 04:38:30 17 would certainly be something you'd need to learn more

04:38:32 18 about, correct?

04:38:33 19 A. If he did, it might. Although I believe he 04:38:36 20 denied that. 04:38:39 21 Q. Were you aware, Dr. Goldstein, that Mr. 04:38:46 22 never reported any of this alleged sexual harassment to

04:38:49 23 the human resources manager at AutoZone?

04:38:52 24 A. I -- you mean directly?

Goldstein - Cross-Exam 04:38:55 1 A. As far as I know, I don't believe he did, no. 04:38:58 2 Q. Did you also know that since 2011 Mr. has

04:39:03 3 been a certified trainer of sexual harassment classes?

04:39:09 4 A. I have no knowledge of that, no.

04:39:12 5 Q. He didn't tell you that?

04:39:13 6 A. No. 04:39:13 7 Q. And that in connection with his teachings that 04:39:19 8 Mr. instructs his students to contact human 04:39:22 9 resources to report sexual harassment; were you aware of

04:39:28 10 that?

04:39:29 11 A. No. 04:39:29 12 Q. Knowing that Mr. has trained people to 04:39:32 13 report alleged sexual harassment to human resources,

04:39:35 14 don't you find it odd that he never did that here?

04:39:39 15 A. Again, I'm not concerned with and I never really 04:39:42 16 was that focused on the details about whether or not he 04:39:49 17 was sexually harassed or was not. 04:39:52 18 Q. Part of the data that you have relied on, and you 04:39:56 19 talked a little bit about it in direct examination, part 04:39:59 20 of the data that you relied on in concluding your 04:40:05 21 diagnosis was that you reviewed Mr. 's medical

04:40:08 22 records?

04:40:08 23 A. Yes. 04:40:10 24 Q. And the reason that you reviewed Mr. Ward's 04:40:13 25 medical records was because in forming your opinion, you

Goldstein - Cross-Exam 04:40:17 1 try to get as much objective information as possible,

04:40:22 2 and medical records are certainly a piece of that?

04:40:26 3 A. Yes, they are. 04:40:27 4 Q. And also one of the reasons that you review Mr. 04:40:31 5 Ward's medical records and rely on them was to gauge how 04:40:34 6 consistent or inconsistent Mr. was in relaying

04:40:38 7 information to you?

04:40:42 8 A. No, I just wanted to find out what he had told 04:40:45 9 his doctors who are actually treating him. 04:40:47 10 Q. You would agree that his medical records were 04:40:50 11 another good collateral source of information you should

04:40:54 12 use in forming your diagnosis or opinion?

04:40:56 13 A. Yes. 04:40:57 14 Q. And that these medical records could, in fact, 04:41:00 15 corroborate or contradict the statements that Mr. Ward

04:41:04 16 made to you?

04:41:04 17 A. Correct. 04:41:10 18 Q. Now, if it came to your attention that Mr. 04:41:12 19 had lied to any of his medical providers, that might 04:41:15 20 also change your opinion that you've rendered in this

04:41:18 21 case, wouldn't it?

04:41:19 22 A. If he had lied?

04:41:21 23 Q. Yes. 04:41:21 24 A. Well, it might if he had deliberately lied, yes. 04:41:24 25 Q. And as part of rendering your diagnosis or

Goldstein - Cross-Exam 04:41:28 1 opinion that you've given in this case, you did review 04:41:31 2 the medical records of Mr. Ward by Dr. Traylor and Dr.

04:41:41 3 Nichols?

04:41:41 4 A. Yes. 04:41:42 5 Q. In fact, there were inconsistencies with what Mr. 04:41:46 6 Ward told Dr. Traylor compared to what he told Dr.

04:41:51 7 Nichols?

04:41:53 8 MS. HOULDING: Objection. 04:41:54 9 A. I don't recall exactly. I -- 04:41:54 10 THE COURT: Sir, when there's an objection, 04:41:58 11 allow me to make a decision before you answer. 04:42:00 12 Sustained.

04:42:04 13 By Ms. Kern:

04:42:04 14 Q. When you reviewed the medical records of Dr. 04:42:07 15 Traylor and Dr. Nichols, did you see any inconsistencies

04:42:11 16 in what Mr. had told either doctor?

04:42:15 17 A. I don't recall. 04:42:16 18 Q. I'd like to show you what has been previously 04:42:19 19 marked as Defendant's Exhibit 59. Do you recognize this 04:42:33 20 as being one of the medical records of Mr. that you

04:42:35 21 reviewed in forming your opinions in this case?

04:42:37 22 A. I don't recall it, but I definitely reviewed it 04:42:41 23 at some point. 04:42:43 24 MS. KERN: I'd like to move for admission, 04:42:45 25 Your Honor, of Defendant Exhibit 59. I don't believe

Goldstein - Cross-Exam 04:42:48 1 it's objected to. 04:42:49 2 MS. HOULDING: There's no objection. 04:42:51 3 THE COURT: All right. You may. 04:43:10 4 (Whereupon Defendant's Exhibit 59 is 04:38:23 5 admitted into evidence.)

04:38:23 6 By Ms. Kern:

04:43:11 7 Q. You see here, Mr. , that it's reported -- I'm 04:43:14 8 sorry, Dr. Goldstein, that it's reported that Mr. Ward 04:43:18 9 told this particular doctor that he had been a former

04:43:21 10 smoker and had quit back in 2008?

04:43:24 11 A. Yes. 04:43:24 12 MS. HOULDING: Objection to the extent that 04:43:27 13 a report -- 04:43:28 14 THE COURT: One moment. 04:43:38 15 Overruled.

04:43:41 16 By Ms. Kern:

04:43:42 17 Q. Is that what the record states, Dr. Goldstein?

04:43:43 18 A. Yes. It says, "Former smoker. Quit 2008." 04:43:47 19 Q. And if we go to Defendant's Exhibit 60, which 04:43:54 20 I'll show you, it's a medical record of Dr. Nichols 04:43:59 21 dated August 27, 2013. 04:44:05 22 A. Okay. 04:44:06 23 MS. KERN: And I'll move to introduce that 04:44:08 24 too, Your Honor. I don't believe there's an objection.

04:44:10 25 MS. HOULDING: There's no objection.

Goldstein - Cross-Exam 04:44:11 1 THE COURT: All right. 04:38:21 2 (Whereupon Defendant's Exhibit 60 is 04:38:23 3 admitted into evidence.)

04:44:16 4 By Ms. Kern:

04:44:16 5 Q. And you see in that particular medical record, 04:44:19 6 Dr. Goldstein, that Mr. was asked the same question 04:44:23 7 as he was asked by Dr. Traylor regarding his tobacco

04:44:29 8 use, and his response was different; was it not?

04:44:32 9 A. Yes. 04:44:32 10 MS. HOULDING: Objection. Assumes facts not 04:44:35 11 in evidence. 04:44:35 12 THE COURT: Sustained.

04:44:36 13 By Ms. Kern:

04:44:36 14 Q. Does the record state that Mr. Ward was never a

04:44:39 15 smoker?

04:44:40 16 A. Yes. 04:44:40 17 Q. Which is in contradiction to what Dr. Traylor's

04:44:46 18 record reflected that we talked about just a minute ago?

04:44:48 19 A. It's an apparent contradiction or 04:44:51 20 misunderstanding, yes. 04:44:55 21 Q. Would you agree with me that it's an

04:44:58 22 inconsistency?

04:45:00 23 A. It might be. Or it might be a misunderstanding. 04:45:03 24 Q. Did you ever bother to ask for more information

04:45:06 25 to get to the bottom of this inconsistency?

Goldstein - Cross-Exam 04:45:08 1 A. In my most recent exam I asked him about whether 04:45:13 2 he was ever a smoker; and he said, no, he chewed 04:45:16 3 tobacco. So somebody may have misunderstood what use of 04:45:19 4 tobacco is referring to. If he was never a smoker and 04:45:24 5 chewed tobacco, then it probably would be consistent.

04:45:28 6 Q. Do you expect medical providers, when they're

04:45:31 7 seeing their patients, to record information accurately?

04:45:35 8 MS. HOULDING: Objection. Beyond the scope. 04:45:38 9 THE COURT: Sustained.

04:45:40 10 By Ms. Kern:

04:45:40 11 Q. You didn't bother to ask Mr. Ward about why these

04:45:43 12 two records are different; is that fair?

04:45:46 13 A. I have absolutely no recollection of the issue, 04:45:53 14 no. 04:45:53 15 Q. Now, in your video sessions with Mr. in 2014 04:45:57 16 and 2016, he told you that he couldn't sleep and that he 04:46:01 17 had lost 15 pounds as a result of the alleged

04:46:05 18 harassment. Do you recall him telling you that?

04:46:07 19 MS. HOULDING: Objection, compound.

04:46:11 20 By Ms. Kern:

04:46:11 21 Q. I'll break it up. In your Skype sessions with 04:46:14 22 Mr. in 2014 and '16, he told you, number one, that

04:46:17 23 he had trouble sleeping?

04:46:18 24 A. Yes. 04:46:19 25 Q. And number two that he had lost 15 pounds as a

Goldstein - Cross-Exam

04:46:24 1 result of the alleged sexual harassment?

04:46:25 2 A. I don't believe he ever told me he lost 15 pounds 04:46:31 4 pounds. 04:46:32 5 Q. In the context of him complaining about sexual

04:46:34 6 harassment, correct?

04:46:35 7 A. No. During my history taking, one of my 04:46:38 8 questions I usually ask is: Have you gained or lost any 04:46:42 9 weight? He said he lost 15 pounds. 04:46:44 10 Q. And you simply accepted these statements by him

04:46:46 11 as true?

04:46:47 12 A. No, I just reported it in my report that he lost 04:46:51 13 15 pounds. 04:46:51 14 Q. Well, you had the medical records at your 04:46:54 15 disposal to check to see whether or not, in fact, his 04:46:57 16 statements to you regarding his weight loss were

04:47:00 17 consistent with his medical records, correct?

04:47:03 18 A. Yes. 04:47:04 19 Q. And did you bother to review the medical records 04:47:15 20 to determine whether or not Mr. was being honest

04:47:17 21 with you when he said that he had loss the 15 pounds?

04:47:20 22 A. I didn't because it was a non-issue. It was of 04:47:24 23 no importance to my diagnosis. 04:47:26 24 Q. If it wasn't important to your diagnosis, Dr. 04:47:29 25 Goldstein, why did you discuss his weight at all in your

Goldstein - Cross-Exam

04:47:32 1 report?

04:47:32 2 A. As I already said, it's kind of a routine 04:47:35 3 question when you get a history from a patient. 04:47:39 4 Q. Would it concern you, Dr. Goldstein, if Mr. Ward 04:47:45 5 had made misrepresentations to you about his weight loss

04:47:49 6 in the sessions that you had with him?

04:47:51 7 A. Well, you keep calling them lies or 04:47:54 8 misrepresentations. I don't agree with it the way you 04:47:57 9 characterize it. 04:47:58 10 Q. Would you expect that Mr. would be honest 04:48:02 11 with his doctors when he's reporting weight loss or

04:48:06 12 weight gain?

04:48:07 13 A. Yeah, I think he would not be dishonest about it.

04:48:10 14 What reason could he possibly have?

04:48:13 15 Q. Well, let's look at Defendant's Exhibit 62. 04:48:25 16 MS. KERN: Your Honor, this exhibit has 04:48:28 17 already been published to the jury.

04:48:31 18 By Ms. Kern:

04:48:31 19 Q. Now, in this particular exhibit, Dr. Goldstein,

04:48:36 20 you see where it talks about weight gain or weight loss?

04:48:44 21 A. Where is that? I'm sorry. 04:49:09 22 Q. And you see where it talks about his weight, and

04:49:12 23 it said he weighed 234 pounds?

04:49:15 24 A. I'm sorry. What date is this?

04:49:17 25 Q. 10/15 of '13. And he weighed in at 234 pounds?

Goldstein - Cross-Exam 04:49:24 1 A. That's correct. 04:49:25 2 Q. Okay. Now, if you look at Defendant's Exhibit 04:49:46 3 67, which was another medical record of his that you had 04:49:53 4 to review -- 04:49:55 5 MS. KERN: And this is already in, Your 04:49:55 6 Honor.

04:49:57 7 By Ms. Kern:

04:49:57 8 Q. This particular exhibit also reflects Mr. 's

04:50:01 9 weight. Do you see that?

04:50:02 10 A. Yes. 04:50:03 11 Q. And, in fact, Mr. had not lost any weight. 04:50:07 12 In fact, he had gained approximately seven pounds

04:50:11 13 because here he weighed 241 pounds?

04:50:14 14 A. Yes. Correct. 04:50:15 15 Q. Now, you didn't bother to look at any of the 04:50:20 16 weigh-in information that Mr. had in his medical 04:50:25 17 records despite the fact that he represented to you that

04:50:27 18 he had lost 15 pounds?

04:50:29 19 MS. HOULDING: I'm just going to object as 04:50:31 20 asked and answered. 04:50:33 21 THE COURT: Overruled. 04:50:38 22 A. The question that's pending? I'm sorry. 04:50:43 23 Q. You didn't bother to check to see whether Mr. 04:50:48 24 Ward was being honest with you when he told you he had

04:50:50 25 lost 15 pounds?

Goldstein - Cross-Exam 04:50:51 1 A. Again, I don't accept your characterization that 04:50:55 2 he was being dishonest. He provided information that 04:50:57 3 may have been mistaken on a non-issue that I wasn't 04:51:01 4 concerned about investigating in detail. 04:51:07 5 Q. The medical records that we just reviewed are 04:51:10 6 contrary to what Mr. told you during his

04:51:13 7 examination, correct?

04:51:14 8 A. That's correct. 04:51:14 9 MS. HOULDING: Objection, Your Honor. 04:51:19 10 Q. Now -- 04:51:20 11 THE COURT: One moment. 04:51:23 12 The answer can stand.

04:51:26 13 By Ms. Kern:

04:51:27 14 Q. Unlike your video examinations with Mr. , Dr. 04:51:33 15 Nichols and Dr. Traylor were actually physically present 04:51:38 16 when they conducted their examinations of him as far as

04:51:40 17 you know?

04:51:41 18 A. Since they did physicals, I would assume that's 04:51:45 19 correct. 04:51:48 20 Q. Did you understand that Dr. Traylor was Mr.

04:51:51 21 Ward's primary care physician?

04:51:52 22 A. Yes.

04:51:55 23 Q. Which are also referred to as PCPs?

04:51:58 24 A. PCP, right. 04:52:00 25 Q. Now, Mr. Ward reported to you during your

Goldstein - Cross-Exam 04:52:05 1 evaluations that during the time period of June 2013 he 04:52:10 2 was the ongoing victim of sexual assaults by Ms.

04:52:15 3 Atkinson, correct?

04:52:16 4 A. Did you say starting in June?

04:52:22 5 Q. No, sir. It was ongoing in June?

04:52:24 6 A. Yes, it was ongoing in June. 04:52:26 7 Q. So let's look at Defendant's Exhibit 59, which is 04:52:32 8 a medical record reflecting Mr. 's visit with Dr. 04:52:48 9 Traylor. 04:52:48 10 This reflects a visit that Mr. Ward had with his 04:53:08 11 primary care physician on June 24, 2013. Do you see

04:53:13 12 that?

04:53:13 13 A. Uh-huh. 04:53:14 14 Q. And this would have been during or right in the

04:53:18 15 midst of these alleged sexual assaults, correct?

04:53:21 16 A. Yes. 04:53:21 17 Q. And it states here under anxiety -- under 04:53:41 18 "Psychiatric" -- do you see that in the top part of page

04:53:44 19 2?

04:53:45 20 A. Yes. 04:53:45 21 Q. It says, "Psychiatric not present: Anxiety and

04:53:52 22 depression"?

04:53:53 23 A. Yes. 04:53:54 24 Q. Now, when you reviewed Mr. 's medical records 04:54:00 25 before issuing your opinion, you didn't ask Mr. Ward for

Goldstein - Cross-Exam 04:54:06 1 any further information as to why he communicated this

04:54:09 2 to his PCP; is that right?

04:54:11 3 A. I think -- 04:54:12 4 MS. HOULDING: Objection. 04:54:13 5 A. This was his urologist, I think. 04:54:16 6 THE COURT: One moment.

04:54:26 7 The basis for your objection?

04:54:28 8 MS. HOULDING: Well, if I understood the 04:54:30 9 question correctly, that it assumes facts not in 04:54:33 10 evidence, that he communicated something to the doctor. 04:54:36 11 THE COURT: Yes, sustained.

04:54:41 12 By Ms. Kern:

04:54:41 13 Q. When you -- is it fair to say that this medical 04:54:44 14 record reflects that no anxiety or depression were

04:54:49 15 present during this particular visit with his doctor?

04:54:52 16 A. That's what the note says, yes. 04:54:59 17 Q. In fact, Dr. Goldstein, in the medical records 04:55:03 18 that you reviewed of Mr. 's office visits to his 04:55:08 19 doctors in March, April, May, and June of 2013, the same 04:55:14 20 was recorded, that there was no anxiety or depression

04:55:17 21 present; do you recall that?

04:55:19 22 A. Yes. He never told any of his doctors about it. 04:55:22 23 Yes. 04:55:23 24 Q. And again, this would have been during the time 04:55:25 25 that Mr. claims that he was being subjected to

Goldstein - Cross-Exam

04:55:28 1 daily sexual assaults?

04:55:30 2 A. Yes. 04:55:32 3 Q. All right. Let's look also at Defendant's 04:55:35 4 Exhibit 60. And this was a visit that Mr. had with 04:55:38 5 his doctor on August 27 of 2013. And you'll see, Dr. 04:55:59 6 Goldstein, that it's also reported in this particular 04:56:01 7 medical record under "Psychiatric not present: Anxiety

04:56:07 8 and depression"?

04:56:09 9 A. Correct.

04:56:10 10 Q. Where the red arrow is?

04:56:12 11 A. Yes. 04:56:13 12 Q. And this office visit with Dr. Nichols was only 04:56:22 13 about ten days after his last alleged sexual assault by

04:56:27 14 Ms. Atkinson, correct?

04:56:28 15 A. Yes. Correct. 04:56:30 16 MS. HOULDING: I'm sorry -- withdrawn.

04:56:34 17 By Ms. Kern:

04:56:35 18 Q. Let's look also then at a medical record of Mr. 04:56:39 19 Ward when he went and saw his PCP on October 15 of 2013. 04:56:46 20 That's Defendant's Exhibit 62. And this was a visit 04:56:55 21 that -- I'm sorry, October 15, 2013. And you'll also 04:57:00 22 see in this particular record, Dr. Goldstein, that under 04:57:09 23 "Psychiatric," that not present was "anxiety, change in

04:57:14 24 sleep pattern, and mood changes"?

04:57:15 25 A. Correct.

Goldstein - Cross-Exam 04:57:17 1 Q. And that would mean that Mr. Ward, once again, 04:57:21 2 didn't report any anxiety or change in sleep patterns to

04:57:27 3 his PCP, Dr. Traylor, during that time period?

04:57:32 4 MS. HOULDING: Objection. Lack of 04:57:32 5 foundation.

04:57:32 6 By Ms. Kern:

04:57:35 7 Q. At least according to the medical records, he did

04:57:38 8 not make such a record?

04:57:39 9 THE COURT: Sustained.

04:57:40 10 By Ms. Kern:

04:57:40 11 Q. According to the medical record -- strike that. 04:57:48 12 Now, this particular visit with Dr. Traylor that 04:57:53 13 we just talked about, this occurred just shortly before

04:57:57 14 he saw Dr. Kelley; is that right?

04:58:03 15 A. That's correct. 04:58:05 16 Q. Okay. Now, you reviewed on direct examination 04:58:09 17 there was an ER visit that Mr. had made on 04:58:15 18 September 15 of 2013. Do you recall talking about that 04:58:19 19 ER visit? I believe it was Plaintiff's Exhibit 25. 04:58:23 20 A. Yes, I do.

04:58:27 21 Q. Now, as far as you're concerned and your review 04:58:32 22 of the medical records, you're not aware that Mr. Ward

04:58:35 23 ever visited an ER in March of 2013?

04:58:41 24 A. Not to my knowledge, no.

04:58:43 25 Q. Or April of 2013?

Goldstein - Cross-Exam 04:58:46 1 A. I'm not aware of that, no.

04:58:48 2 Q. Or May or June of 2013?

04:58:51 3 A. Correct.

04:58:52 4 Q. Or even July or August of 2013, correct?

04:58:55 5 A. Yes. 04:58:56 6 Q. And that was the time period that he claimed that

04:58:58 7 he had been sexually assaulted by Ms. Atkinson?

04:59:03 8 A. Yes. 04:59:04 9 Q. Now, we do have a record that indicates, and I 04:59:07 10 think we can put on the screen, that he was, in fact, 04:59:10 11 admitted to the ER on -- in September of 2013, and this

04:59:15 12 would have been after he left AutoZone, correct?

04:59:17 13 A. That would have been afterwards, yes. 04:59:22 14 Q. And -- strike that. 04:59:24 15 Okay. So I want to talk some more about this 04:59:27 16 particular ER visit because you talked about it on 04:59:30 17 direct examination. 04:59:42 18 Let me ask you, Dr. Goldstein, would you agree

04:59:52 19 with me that symptoms of sleep apnea include fatigue?

04:59:59 20 A. I didn't hear the last word. 05:00:00 21 Q. I'm sorry. Would you agree with me that symptoms

05:00:03 22 of sleep apnea include fatigue?

05:00:07 23 A. Yes, they often do.

05:00:11 24 Q. Insomnia?

05:00:13 25 A. They include -- they're separate sleep

Goldstein - Cross-Exam 05:00:17 1 conditions, but about 25 to 30 percent of sleep apnea 05:00:22 2 patients have insomnia also.

05:00:24 3 Q. It might also include nightmares?

05:00:27 4 A. Occasionally.

05:00:28 5 Q. Trouble falling asleep?

05:00:30 6 A. It's usually awakening from sleep.

05:00:34 7 Q. Depression?

05:00:35 8 A. Sometimes, yes.

05:00:36 9 Q. Irritability?

05:00:38 10 A. Sometimes.

05:00:40 11 Q. Mood swings?

05:00:42 12 A. Sometimes. 05:00:46 13 Q. And you're aware, Dr. Goldstein, that, in fact,

05:00:49 14 Mr. suffered from sleep apnea?

05:00:52 15 A. He was diagnosed with sleep apnea at some point, 05:00:55 16 yes. 05:00:55 17 Q. And that he was told to wear a CPAP and did not

05:00:59 18 do so?

05:01:00 19 A. I believe he used it for a while but stopped 05:01:04 20 using it. 05:01:04 21 Q. Well, according to this medical record that you 05:01:08 22 reviewed, he had not used his CPAP even though he was

05:01:11 23 told to do so, correct?

05:01:14 24 A. He told me he stopped using it, which I assume 05:01:17 25 meant he used it for a while.

Goldstein - Cross-Exam 05:01:19 1 Q. And a lot of the symptoms that we just talked 05:01:22 2 about that come along with sleep apnea are some of the 05:01:25 3 symptoms he was relating to you such as irritability,

05:01:29 4 mood swings, trouble falling asleep, correct?

05:01:32 5 A. Well, trouble falling asleep is not usually part 05:01:35 6 of sleep apnea. You wake up in the middle of the night. 05:01:39 7 Q. Sir, Mr. complained to you that he was

05:01:42 8 suffering from irritability, depression, nightmares?

05:01:49 9 A. Yes. 05:01:50 10 Q. And these are all things that could be caused by

05:01:52 11 sleep apnea as well, correct?

05:01:55 12 A. It's possible. 05:01:56 13 Q. Now, you talked a little bit about the 05:01:58 14 cardiologist, Dr. Kelley. And he saw Dr. Kelley, I 05:02:02 15 believe, about a month after this ER visit, and that was 05:02:06 16 Plaintiff's Exhibit 26. And Dr. Kelley indicated that 05:02:14 17 there was a musculoskeletal component to Mr. 's

05:02:21 18 situation; is that right?

05:02:22 19 A. Yes. 05:02:22 20 Q. And a musculoskeletal issues refers to a strained

05:02:27 21 muscle?

05:02:28 22 A. To a what muscle?

05:02:29 23 Q. A strained or pulled muscle?

05:02:31 24 A. It usually refers to muscle spasm or tension. 05:02:34 25 Q. Okay. And Valium is used to treat muscle spasms;

Goldstein - Cross-Exam

05:02:38 1 is that right?

05:02:39 2 A. Valium can be used to treat muscle spasms, right. 05:02:43 3 Q. And you're aware that Mr. was not prescribed 05:02:46 4 Valium until over a month after he left AutoZone; is

05:02:50 5 that your recollection of the records?

05:02:52 6 A. Correct. 05:02:52 7 Q. And you're also aware, Dr. Goldstein, that if a 05:02:58 8 person is on Valium, they're not supposed to be driving

05:03:02 9 or operating heavy machinery?

05:03:05 10 A. That's not true. Otherwise there would be -- 05:03:08 11 half the cars on the road wouldn't be driving. 05:03:10 12 Q. Were you aware that Mr. was operating a tow

05:03:13 13 truck at the time that he was taking Valium?

05:03:15 14 A. Yes. Valium is not as widely prescribed, and 05:03:20 15 there's no prohibition about driving on Valium unless 05:03:25 16 you're on very high doses. 05:03:27 17 Q. And you're also aware in reviewing Mr. 's 05:03:30 18 medical records that he began taking Cialis back in

05:03:33 19 January of 2012?

05:03:34 20 A. He began what?

05:03:35 21 Q. He began taking Cialis back in January of 2012?

05:03:40 22 A. I know he took it at various times. 05:03:42 23 Q. And Cialis is often prescribed for erectile

05:03:46 24 dysfunction; is that correct?

Goldstein - Cross-Exam 05:03:48 1 Q. And you're also aware that he quit taking his

05:03:51 2 testosterone shots in July of 2013?

05:03:55 3 A. I don't recall when he stopped taking them. 05:03:57 4 Q. Well, you would agree that the fact that he 05:04:01 5 stopped taking his testosterone shots could be

05:04:05 6 attributed to a lack of libido, correct?

05:04:09 7 MS. HOULDING: Objection. Vague. 05:04:13 8 THE COURT: Overruled. 05:04:15 9 A. I don't see the relationship. 05:04:18 10 Q. So your testimony is that testosterone does not

05:04:24 11 contribute to one's libido?

05:04:27 12 A. It usually boosts one's libido. 05:04:31 13 Q. So if one stops taking testosterone, they could

05:04:35 14 lose libido?

05:04:36 15 A. It depends what the starting point was. 05:04:39 16 Q. Now, in the records that we've talked about, 05:04:43 17 which were Defendant's Exhibit 59, 60, 62, where they 05:04:49 18 reflect that no psychiatric -- under "Psychiatric" that 05:04:53 19 there was no anxiety or depression present, you would 05:04:56 20 agree with me that these records are in direct 05:05:01 21 contradiction to what Mr. reported to you when you

05:05:06 22 conducted your psychiatric examination, correct?

05:05:09 23 A. Not at all. He reported to me that he didn't 05:05:12 24 want to discuss it with his doctors, so he didn't tell 05:05:15 25 them about it because he was too ashamed and felt too

Goldstein - Cross-Exam 05:05:19 1 embarrassed to get into the subject and discuss it with 05:05:23 2 his doctors. That's exactly what he told me. 05:05:30 3 Q. Do you recall we discussed this same topic in 05:05:35 4 your deposition given back two years ago? I'm going to 05:05:43 5 direct your attention to page 105, line 9.

05:05:46 6 A. Okay. 05:05:50 7 Q. Just let me know when you're there, Dr. 05:05:53 8 Goldstein. 05:05:53 9 A. Yes. 05:05:53 10 Q. I'll read the question: 05:05:55 11 "Did he tell you that he, in fact, was anxious 05:05:58 12 and depressed in June of 2013?" 05:06:01 13 A. Yes. 05:06:02 14 Q. And your answer was, "In June?"

05:06:05 15 And I responded, "Correct."

05:06:06 16 What was your answer, line 13?

05:06:08 17 A. Line 13, "Yes, he told me that during that whole 05:06:12 18 period he was in distress and emotionally upset." 05:06:18 19 Q. And my question to you then was, "Which is at 05:06:21 20 odds with what he reported to his doctors in June of 05:06:24 21 2013, correct?" 05:06:25 22 A. "Yes."

05:06:26 23 Q. And your response was what?

05:06:35 24 Line 17. 05:06:35 25 A. "Yes".

Goldstein - Cross-Exam 05:06:39 1 Q. I went on to ask you, "And it's also at odds with 05:06:43 2 what he reported to his doctor in August of 2013?"

05:06:46 3 And your response?

05:06:47 4 A. "Yes." 05:06:47 5 Q. And my next question: "And it's at odds with 05:06:50 6 what he reported to his doctor in October of 2013?"

05:06:52 7 And your response was?

05:06:53 8 A. "Yes." 05:06:57 9 Q. And you would agree, Dr. Goldstein, wouldn't you, 05:07:08 10 that Mr. 's in-office visits with Dr. Traylor and 05:07:14 11 Dr. Nichols were much closer to the events at issue than

05:07:20 12 your first Skype session with him?

05:07:22 13 A. Correct. 05:07:23 14 Q. All right. Let's take a look at Mr. Ward's 05:07:26 15 medical records from his office visit with Dr. Nichols 05:07:30 16 in March of 2014. This is Exhibit 66. And this also, 05:07:42 17 Dr. Goldstein, was part of the records that you had on

05:07:44 18 hand and reviewed before rendering your diagnosis?

05:07:47 19 A. Yes. 05:07:47 20 Q. And in Defendant's Exhibit 66 it is also recorded 05:07:58 21 under psychiatric that anxiety and depression were not

05:08:02 22 present; is that right?

05:08:07 23 A. That's correct. Yes. 05:08:08 24 Q. And this office visit would have taken place 05:08:11 25 approximately just a couple of months before you had

Goldstein - Cross-Exam 05:08:18 1 your first psychiatric examination of him by video,

05:08:21 2 right?

05:08:21 3 A. Yes. Correct. 05:08:23 4 Q. And then if we look -- well, so let's talk about 05:08:32 5 the first psychiatric examination that you had of Mr. 05:08:38 6 Ward. And again, that was back in 2014. You would 05:08:44 7 agree even that Mr. was not anxious or depressed 05:08:50 8 the day that you conducted your psychiatric examination

05:08:53 9 of him, was he?

05:08:54 10 A. On that particular date?

05:08:55 11 Q. Yes. 05:08:56 12 A. Not that I noticed at that time, no. 05:08:59 13 Q. Now, you testified that Mr. would be -- was 05:09:08 14 too ashamed to talk about his allegations of sexual 05:09:11 15 harassment and was very self-conscious, which is why he 05:09:17 16 didn't tell his treating physicians. Do you recall that

05:09:20 17 testimony?

05:09:21 18 A. Yes. 05:09:21 19 Q. Now, it's fair to say that Mr. certainly 05:09:27 20 didn't have any problems telling you about the alleged

05:09:30 21 sexual harassment, did he?

05:09:32 22 A. Well, I'm the first psychiatrist that he'd ever 05:09:36 23 seen, and I assumed that he knew that it was something 05:09:39 24 that I might be more inclined to understand than his 05:09:43 25 urologist or his surgeon or his cardiologist or his

Goldstein - Cross-Exam 05:09:48 1 primary care doctor. 05:09:50 2 MS. KERN: Your Honor, I would like to 05:09:52 3 strike as his answer being non-responsive and re-ask the 05:09:56 4 question.

05:09:56 5 By Ms. Kern:

05:09:56 6 Q. The question is: According to you, Mr. Ward did 05:09:59 7 not have a problem telling you about the alleged sexual

05:10:02 8 harassment, did he?

05:10:03 9 A. I answered. And I answered why I thought he did 05:10:07 10 not have a problem telling me about it. 05:10:08 11 Q. So he did not have a problem telling you; is that

05:10:11 12 your testimony?

05:10:12 13 A. I assumed that it was difficult, but he did tell 05:10:15 14 me about it. 05:10:16 15 Q. Were you aware, Dr. Goldstein, that after Mr. 05:10:20 16 Ward left AutoZone that he approached various male

05:10:30 17 coworkers to talk about the alleged sexual harassment?

05:10:36 18 A. People who were witnesses or Knew what was going 05:10:40 19 on? I know about some of that, yes. 05:10:42 20 Q. Okay. So you just told us that he was too 05:10:47 21 ashamed and became very self-conscious when he would 05:10:50 22 talk about these allegations. Don't you find that 05:10:53 23 contradictory to his seeking out people to talk to about

05:10:57 24 it?

05:10:58 25 A. He was already talking to people that knew what

Goldstein - Cross-Exam 05:11:01 1 had been going on. He wasn't telling it to new people. 05:11:04 2 Q. Okay. So certainly if he was ashamed or 05:11:08 3 self-conscious about these allegations, he would not

05:11:11 4 have done that, correct?

05:11:13 5 MS. HOULDING: Objection. Lacks foundation. 05:11:16 6 THE COURT: Sustained.

05:11:18 7 By Ms. Kern:

05:11:18 8 Q. Were you aware that -- strike that question. 05:11:22 9 Now, three months after your first video session 05:11:31 10 with Mr. conducted in May of 2014, Mr. visited 05:11:38 11 Dr. Nichols again. And if we could look at Defendant 05:11:41 12 Exhibit 67. And this, again, Dr. Goldstein, was part of 05:11:48 13 the records that you reviewed before rendering your

05:11:50 14 diagnosis?

05:11:50 15 A. Yes. 05:11:54 16 Q. And this is already in evidence as well. But if 05:11:57 17 I could turn your attention to the first part of the 05:12:00 18 document, you'll see there once again it's reflected 05:12:03 19 that there was no anxiety or depression noted during

05:12:06 20 that particular visit as well, correct?

05:12:08 21 A. Yes. Correct. 05:12:13 22 Q. And you did review this particular document

05:12:15 23 before you gave your diagnosis in this case?

05:12:17 24 A. Yes. 05:12:18 25 Q. Let's look at Defendant's Exhibit 68. And this

Goldstein - Cross-Exam 05:12:22 1 is a medical record of Mr. 's office visit to his 05:12:25 2 PCP, his primary care physician, Dr. Traylor, dated 05:12:29 3 September 2, 2014. Was this particular --

05:12:34 4 MS. HOULDING: What page is this?

05:12:37 5 MS. KERN: Defendant's Exhibit 68.

05:12:40 6 By Ms. Kern:

05:12:40 7 Q. And you recognize this, Dr. Goldstein, as being 05:12:42 8 another medical record that you were provided and

05:12:45 9 reviewed before issuing your diagnosis in this case?

05:12:48 10 A. Yes. 05:12:49 11 Q. And here again, it's reflected that no anxiety or 05:12:58 12 depression or even change in sleep or mood patterns was

05:13:02 13 present on that particular day as well?

05:13:05 14 A. That's what it says, yes. 05:13:07 15 Q. All right. And then if we look at another 05:13:12 16 medical record, which I believe plaintiff's counsel has 05:13:15 17 also shown you on direct examination, Exhibit 70, which 05:13:19 18 is a medical record of Mr. 's in-person visit to his 05:13:22 19 primary care physician again, which was dated December 05:13:25 20 8, 2014. And you'll see that it's also noted in this 05:13:45 21 particular document that there was -- that anxiety, 05:13:50 22 change in sleep patterns and mood changes was not

05:13:53 23 present, correct?

05:13:54 24 A. Correct. 05:13:57 25 Q. Now, despite the medical records that we've

Goldstein - Cross-Exam 05:14:02 1 looked at where it indicates that no anxiety or 05:14:06 2 depression was present during these numerous visits, you 05:14:10 3 nevertheless concluded the exact diagnosis two years

05:14:14 4 after the fact, correct?

05:14:15 5 A. After the fact?

05:14:17 6 Q. You didn't render your diagnosis until 2016,

05:14:22 7 right?

05:14:24 8 A. I actually examined him in 2014. 05:14:29 9 Q. I thought that you issued your opinion on April 05:14:33 10 25 of 2016. 05:14:34 11 A. Yes. But that doesn't mean I didn't reach a 05:14:38 12 tentative diagnosis after my first exam. 05:14:40 13 Q. And you concluded in 2016 that despite the 05:14:45 14 medical records we've reviewed, that Mr. indeed

05:14:49 15 suffered from anxiety and depression?

05:14:51 16 A. Definitely, yes. 05:14:53 17 Q. All right. And your conclusions that you reached 05:14:59 18 after you Skyped with Mr. in 2014 and then two and

05:15:05 19 a half years later in 2016 were exactly the same?

05:15:10 20 A. Basically they were, yes. 05:15:12 21 Q. You didn't believe that -- in your expert opinion 05:15:17 22 it was -- you believed that his diagnosis had remained 05:15:22 23 completely unchanged during the two-and-a-half-year

05:15:25 24 period when you first examined him and the second?

05:15:28 25 A. There hadn't been any significant change, no.

Goldstein - Cross-Exam 05:15:32 1 Q. Now, you recently provided a supplemental report 05:15:36 2 to Mr. 's attorney based on a half-hour video 05:15:40 3 session that you held with Mr. Ward on April 8 of this

05:15:44 4 year; is that right?

05:15:45 5 A. Yes. Correct. 05:15:46 6 Q. And during this most recent video session of Mr. 05:15:53 7 Ward, you had not had any interaction with him for about

05:15:57 8 two years; is that fair?

05:15:59 9 A. That's correct. Yes. 05:16:02 10 Q. But you did note over the past two years he has 05:16:07 11 had some improvement in his marriage and that he's

05:16:10 12 become more social?

05:16:11 13 A. Yes. He had improvement in those two areas. 05:16:14 14 Q. But nevertheless, your diagnosis in 2018 remains

05:16:20 15 unchanged?

05:16:21 16 A. Correct. 05:16:23 17 Q. Now, you believe that Mr. continues to 05:16:27 18 suffer from a severe psychological condition five years

05:16:31 19 after he quit AutoZone?

05:16:33 20 A. Correct. 05:16:36 21 Q. Now, something has changed in your latest report, 05:16:41 22 though, isn't that right, with regard to your opinion of

05:16:46 23 Mr. 's primary care physician?

05:16:51 24 A. His primary care physician?

Goldstein - Cross-Exam 05:16:55 1 A. I'm not sure what you're referring to. 05:16:58 2 Q. Well, in your latest report, which is dated April 05:17:01 3 17 of 2018, you make a note about Mr. 's primary 05:17:09 4 care physician in the footnote 2. And you indicate that 05:17:17 5 primary care physicians have become the primary 05:17:21 6 psychiatric care physicians for a considerable number of 05:17:24 7 their patients. They provide mental health care and 05:17:28 8 treat a wide range of psychiatric conditions. Do you

05:17:30 9 see that?

05:17:31 10 A. Yes. That's definitely true. 05:17:33 11 Q. And do you recall, Dr. Goldstein, when we were 05:17:35 12 discussing Mr. 's medical records from Dr. Traylor 05:17:41 13 and Dr. Nichols, that it was your opinion that these 05:17:47 14 particular doctors were not competent to provide any

05:17:54 15 type of mental health care?

05:17:58 16 A. I never said that. I said that they were not -- 05:18:03 17 that Dr. Nichols -- Dr. Traylor, rather, was prescribing 05:18:09 18 Valium, which had been helpful for Mr. 's 05:18:13 19 psychiatric symptoms. 05:18:15 20 Q. Wasn't it your opinion when we discussed Dr. 05:18:18 21 Nichols and Dr. Traylor's treatment of Mr. that the 05:18:23 22 medical records showed that they didn't give a damn 05:18:26 23 about his psychiatric symptoms; and therefore, that

05:18:29 24 should be disregarded in the records?

05:18:31 25 A. I think I testified to that in relation to his

Goldstein - Cross-Exam 05:18:34 1 urologist. I said that they weren't -- you know, 05:18:39 2 urologists are not really that concerned about their 05:18:42 3 patient's emotional problems. They're more concerned 05:18:47 4 with their patient's prostatic problems. 05:18:51 5 Q. So it's still your belief that Mr. Ward's 05:18:56 6 urologist didn't give a damn about his psychiatric or

05:19:01 7 psychological condition?

05:19:02 8 A. I don't remember my exact words. I may have said 05:19:06 9 they don't give a damn about the psychiatric problems of 05:19:08 10 their patients. 05:19:10 11 Q. Well, you also didn't believe that Dr. Traylor 05:19:15 12 was in a position to assess his psychiatric or

05:19:23 13 psychological condition either; is that right?

05:19:25 14 MS. HOULDING: Objection. Lacks foundation. 05:19:27 15 THE COURT: Sustained.

05:19:31 16 THE WITNESS: May I answer?

05:19:32 17 THE COURT: No.

05:19:34 18 By Ms. Kern:

05:19:34 19 Q. Did you consider Dr. Traylor competent to

05:19:36 20 evaluate Mr. 's psychological condition?

05:19:41 21 A. I don't want to comment on his competency. I 05:19:44 22 just know that he gave him medication that was affording 05:19:49 23 him symptomatic relief. Dr. Traylor may not have been 05:19:53 24 aware what he was actually diagnosing or treating, but 05:19:58 25 he did give him medication that was helpful.

Goldstein - Cross-Exam 05:20:01 1 Q. Now, during your examination of Mr. you 05:20:03 2 specifically ruled out certain traumatic events that 05:20:06 3 occurred in his life as causing or even contributing to

05:20:11 4 your diagnosis; is that right?

05:20:13 5 A. In my deposition?

05:20:15 6 Q. In your report. 05:20:17 7 A. I don't remember if I ruled out traumatic events 05:20:21 8 in my report, but in my deposition I did. 05:20:24 9 Q. Okay. Well, you're aware that Mr. 's father 05:20:29 10 had passed away from cancer and that he had had an

05:20:32 11 intense brief reaction to that?

05:20:34 12 A. In 2003, yes. 05:20:37 13 Q. And that his mother had subsequently passed away

05:20:44 14 five years later in 2008 from a stroke?

05:20:46 15 A. Yes. 05:20:46 16 Q. And despite these events, your expert conclusion 05:20:50 17 was that his parents' passings had nothing to do with 05:20:54 18 the alleged psychiatric condition you claim he suffers

05:20:57 19 from today?

05:20:59 20 A. Yes. They had no relationship to the onset of 05:21:03 21 his psychiatric condition in 2013. Correct. 05:21:07 22 Q. Okay. And did Mr. relay to you the fact 05:21:13 23 that he had a brother-in-law who was killed unexpectedly

05:21:18 24 in 2013 when he was working for AutoZone?

05:21:26 25 I didn't see it noted in your report, which is

Goldstein - Cross-Exam 05:21:29 1 why I'm asking. 05:21:29 2 A. No, I don't think he mentioned his 05:21:32 3 brother-in-law's death. 05:21:34 4 Q. Would you agree with me that knowing that now 05:21:38 5 might have an impact on your diagnosis, the fact that he

05:21:42 6 lost someone unexpectedly in a very traumatic way?

05:21:45 7 A. It's possible. I don't know that it was a major 05:21:50 8 trauma in his life, but it's possible. 05:21:52 9 Q. Well, you all discussed the passing of his mother

05:21:56 10 and his father, correct?

05:21:58 11 A. The passing of his mother and father several 05:22:03 12 years previously I don't believe had any relationship to 05:22:08 13 his illness in 2013. 05:22:10 14 Q. Yes, sir. And he didn't bother to tell you that 05:22:14 15 in 2013 during the relevant time period that he had just

05:22:18 16 lost another relative unexpectedly?

05:22:21 17 A. He didn't mention it as a traumatic event in his 05:22:25 18 life, no. 05:22:25 19 Q. Wouldn't you consider this to be a critical piece 05:22:28 20 of information that you'd want to know before you gave

05:22:31 21 your diagnosis?

05:22:32 22 A. I had no way of knowing it, and he didn't mention 05:22:35 23 it as a significant traumatic event in his life. 05:22:38 24 Q. You had no way of knowing it because he never

05:22:40 25 told you, correct?

Goldstein - Cross-Exam 05:22:41 1 A. I couldn't know -- I couldn't know about it if he 05:22:44 2 didn't mention it, no. 05:22:46 3 Q. I want to talk to you, Dr. Goldstein -- and I'm 05:22:52 4 just about done, I promise -- about the recommendations 05:22:55 5 that you made to Mr. following your examinations of 05:23:00 6 him in May of 2016 -- I'm sorry, April 2016. You 05:23:10 7 recommended that Mr. see a social worker or a 05:23:14 8 psychologist once a week for a period of at least two

05:23:18 9 years; is that right?

05:23:19 10 A. That's in my report. That's not what I said to 05:23:23 11 him. 05:23:24 12 Q. What did you say to him? What did you say to 05:23:28 13 him? You told him something different from your

05:23:30 14 report?

05:23:30 15 A. I hadn't prepared my report yet. I just told him 05:23:33 16 I thought he could benefit from some kind of psychiatric 05:23:36 17 treatment. 05:23:39 18 Q. In your report you state that Mr. needs 05:23:49 19 long-term psychiatric treatment, and his treatment 05:23:55 20 should have two components, psychotherapy with a social 05:23:58 21 worker or psychologist once a week for a minimum of two

05:24:02 22 years. Is that what you reported?

05:24:05 23 A. Yes. 05:24:06 24 Q. Okay. And are you telling us now that even 05:24:09 25 though that's in the report, that's not something that

Goldstein - Cross-Exam

05:24:11 1 you ever communicated with Mr. Ward?

05:24:13 2 A. No, I hadn't prepared my report yet. I just told 05:24:17 3 him in general terms that I thought he should undergo 05:24:20 4 some psychiatric care. 05:24:21 5 Q. Okay. And this was back in 2014 when you first

05:24:24 6 evaluated him?

05:24:25 7 A. Correct. 05:24:25 8 Q. Then when you reevaluated him in 2016, two years 05:24:30 9 later, you made the same recommendation, correct, that 05:24:33 10 he see a social worker or a psychologist once a week for

05:24:37 11 a period of two years?

05:24:39 12 A. I don't recall if I told that to him again, but 05:24:41 13 that was in my report, yes. 05:24:44 14 Q. Well, you said that you discussed with him after 05:24:47 15 your first visit with him in 2014 that you recommended

05:24:50 16 that he get some additional counseling, correct?

05:24:54 17 A. Yes. 05:24:54 18 Q. Okay. And when you met with him in 2016, he made 05:24:59 19 you aware that he had not followed your recommendation

05:25:01 20 and sought out any type of treatment; is that fair?

05:25:06 21 A. He said he never got psychiatric care, yes. 05:25:08 22 Q. And when you saw him in 2016, did you again tell 05:25:12 23 him: I still think that you need to go see a

05:25:15 24 psychologist or social worker?

05:25:16 25 A. No, I didn't push it. No.

Goldstein - Cross-Exam

05:25:19 1 Q. Were you concerned about his wellbeing, sir?

05:25:22 2 A. I was concerned about his wellbeing, but my role 05:25:25 3 is not to be treating him. 05:25:27 4 Q. So you communicated to his attorneys that you 05:25:31 5 felt like he needed to see a social worker, and you 05:25:34 6 didn't bother to tell Mr. Ward that it was still your

05:25:37 7 opinion that he needed to see a social worker?

05:25:40 8 MS. HOULDING: Objection. Argumentative. 05:25:42 9 THE COURT: Sustained. You don't have to 05:25:43 10 answer. 05:25:44 11 A. In my report -- 05:25:45 12 THE COURT: Sustained. You don't have to 05:25:47 13 answer. 05:25:48 14 THE WITNESS: I'm sorry.

05:25:49 15 By Ms. Kern:

05:25:49 16 Q. And I certainly don't mean to be argumentative, 05:25:53 17 Dr. Goldstein. I'm trying to understand. In 2016 is it 05:25:56 18 your testimony that after you evaluated him, you made no 05:26:00 19 recommendation to him as far as getting any type of

05:26:05 20 further help from a social worker?

05:26:08 21 A. I asked him if he had sought psychiatric care, 05:26:11 22 and he said he couldn't afford it. So that was -- he 05:26:14 23 said his health coverage didn't cover it and he couldn't 05:26:18 24 afford to pay it out of pocket. That's where we left 05:26:22 25 it.

Goldstein - Cross-Exam 05:26:22 1 Q. Are you aware -- okay. Well, so he told you that 05:26:29 2 his health insurance didn't cover this type of

05:26:37 3 treatment?

05:26:37 4 A. That it wouldn't cover, you know, more than a -- 05:26:41 5 maybe more than one or two sessions, something like 05:26:43 6 that. 05:26:43 7 Q. Would you be surprised to learn that Mr. 05:26:47 8 told the jury last week that he did, in fact, have 05:26:51 9 medical insurance during the time that he was employed

05:26:53 10 at AutoZone through the sheriff's department?

05:26:56 11 A. He told me it wouldn't cover psychiatric 05:27:00 12 treatment. 05:27:00 13 Q. Would you also be surprised to learn that Mr. 05:27:06 14 Ward has testified that he had additional medical 05:27:09 15 insurance when he worked at the correctional facility in

05:27:13 16 2014?

05:27:14 17 A. Would I be surprised?

05:27:16 18 Q. Yes. 05:27:17 19 A. I have no idea. 05:27:18 20 Q. Okay. In fact, his attorneys gave us a copy of

05:27:23 21 his insurance information. Have you seen that before?

05:27:27 22 A. No. 05:27:28 23 Q. And are you aware, Dr. Goldstein, that Mr. 05:27:34 24 has testified under oath that he never even bothered to 05:27:38 25 see whether or not psychological care was covered by any

Goldstein - Redirect Exam

05:27:41 1 of his insurance?

05:27:42 2 A. I'm not aware of that, no. 05:27:52 3 MS. KERN: I tender the witness, Your Honor. 05:27:55 4 THE COURT: Let's go ahead and take our 05:27:56 5 afternoon recess. Everybody stay seated as our jurors 05:28:00 6 leave the room for 15 minutes. 05:28:04 7 (Jury exits the courtroom.) 05:28:39 8 THE COURT: Enjoy your break.

05:45:44 9 (Jury enters the courtroom.) 05:46:11 10 THE COURT: Now the plaintiff's attorney has 05:46:13 11 the opportunity to ask the witness some more questions. 05:46:16 12 MS. HOULDING: Thank you, Your Honor. I 05:46:18 13 just have a few additional questions for you, Dr. 05:46:22 14 Goldstein. 05:46:23 15 - - -

05:46:23 16 Robert L. Goldstein, M.D., Redirect Examination

05:46:24 17 By Ms. Houlding:

05:46:24 18 Q. Counsel for AutoZone asked you a lot of questions 05:46:27 19 about how much you've been paid or will be paid in 05:46:29 20 connection with your testimony. You work to get paid,

05:46:34 21 right?

05:46:34 22 A. Yeah, I hope to, yes. 05:46:38 23 Q. And you also talked a little bit earlier about 05:46:43 24 objective data and what you would like to have as 05:46:48 25 objective data. Were there -- were you prevented from

Goldstein - Redirect Exam 05:46:54 1 getting objective data that you felt you needed in

05:46:57 2 connection with providing your opinion in this case?

05:47:00 3 A. No. I had full access to your firm's drop box. 05:47:05 4 All the records that you had were the ones that I 05:47:11 5 received. 05:47:11 6 Q. And what reason, if any, did you have for not

05:47:16 7 interviewing Mrs. or Mr. 's children?

05:47:22 8 A. Well, there were two considerations. One, I felt 05:47:25 9 that I had more than enough information from my 05:47:30 10 examination, the medical records, and the other 05:47:32 11 documents I mentioned. And I felt a little 05:47:39 12 uncomfortable interviewing Mr. 's wife since he had 05:47:43 13 mentioned to me how upset she was about the whole 05:47:47 14 situation. So I didn't think it would add much, and I 05:47:50 15 thought it would be unnecessarily upsetting for her.

05:47:52 16 Q. All right. And earlier counsel for AutoZone 05:47:55 17 asked you some questions about expert opinions you've 05:47:59 18 given in other cases and specifically described to you 05:48:04 19 very briefly some facts from a case titled the Whitten

05:48:08 20 case; do you recall that testimony?

05:48:09 21 A. Yes. 05:48:10 22 Q. And is it fair to say that there are a lot of 05:48:14 23 facts and information in connection with that case that

05:48:17 24 you haven't shared with the jury here today?

05:48:19 25 A. Yeah. I haven't even begun to tell the whole

Goldstein - Redirect Exam 05:48:22 1 story about what happened in that case. 05:48:24 2 Q. And is it an apples-to-apples comparison between 05:48:29 3 the Whitten facts and what you know about the situation

05:48:32 4 here?

05:48:33 5 A. Oh, definitely, yes. 05:48:43 6 Q. Do you know whether Mr. was deposed before

05:48:49 7 you first interviewed him?

05:48:55 8 A. You mean in 2014?

05:48:58 9 Q. Well, certainly 2014, but in 2016, do you know 05:49:02 10 whether when you interviewed him and issued your first 05:49:07 11 opinion, do you know whether his deposition was

05:49:09 12 complete?

05:49:11 13 A. I think it may have been. I didn't receive it. 05:49:15 14 I wasn't advised that the copy had been received. But I 05:49:18 15 think I saw some excerpts. 05:49:21 16 Q. And so you've testified that since issuing your 05:49:26 17 reports in this case you have reviewed his deposition

05:49:29 18 testimony, right?

05:49:30 19 A. After I issued my reports, yes. 05:49:33 20 Q. And did your opinion change in any way after you

05:49:36 21 had read his deposition?

05:49:37 22 A. No, not at all. 05:49:38 23 Q. All right. We talked a little bit earlier about 05:49:49 24 credibility and whether something was internally 05:49:51 25 consistent and authentic. And I believe you testified a

Goldstein - Redirect Exam 05:49:57 1 little bit ago about whether you would assess 05:50:00 2 credibility from a psychiatric standpoint. As an 05:50:04 3 expert, what is your role, if any, in accessing

05:50:08 4 credibility? Is that a determination that you make?

05:50:11 5 A. Well, the credibility of a party in a lawsuit is 05:50:15 6 really up to the jury to decide, not a psychiatrist. 05:50:20 7 I'm only concerned with the internal consistency of what 05:50:26 8 information I receive from a psychiatric perspective. 05:50:30 9 Q. All right. And earlier counsel was asking you 05:50:34 10 some questions about Skyping with Mr. and whether 05:50:40 11 that was as good as interviewing him in person. Do you

05:50:44 12 recall that?

05:50:44 13 A. Yes. 05:50:45 14 Q. Are there any guidelines or ethical rules that 05:50:49 15 govern the propriety of a psychiatrist or someone in 05:50:53 16 your position conducting an examination by Skype or

05:50:57 17 video conference?

05:50:58 18 A. Video conferencing is very well accepted in 05:51:02 19 psychiatry, not only for evaluations, but also for 05:51:06 20 treatment of patients. Patients who live somewhere 05:51:10 21 where there are not psychiatrists available for 05:51:13 22 treatment can get treatment fortunately from a remote 05:51:18 23 location. So it's been around for 25 years or more.

05:51:24 24 And it's extremely reliable and well accepted. 05:51:28 25 Q. And we were -- you were answering some questions

Goldstein - Redirect Exam 05:51:31 1 earlier about the length of psychiatric exam of Mr. 05:51:38 2 Ward. Over the course of your career, could you 05:51:41 3 estimate how many comprehensive psychological exams

05:51:46 4 you've conducted?

05:51:47 5 A. Not really. Many, many hundreds over the years. 05:51:52 6 Q. And is there an average length that these take, 05:51:55 7 or is the time that you spent with Mr. consistent 05:51:58 8 with the comprehensive psych exams that you've taken

05:52:04 9 over your career?

05:52:05 10 A. Yeah, definitely. I just keep going until I'm 05:52:09 11 finished. So there's no time limit; if I finish in an 05:52:13 12 hour, finish in two hours -- two hours maybe is an 05:52:16 13 average. But if I have to go three or four hours, I 05:52:20 14 will. But usually about -- between one and two hours is 05:52:26 15 basically an average, I would say.

05:52:28 16 Q. And do you think over the course of your career 05:52:30 17 you have gotten more efficient in the way that you 05:52:33 18 conduct these? In other words, when you started out 05:52:37 19 were they about the same length of time? Were they

05:52:39 20 longer? Were they shorter?

05:52:41 21 A. Well, I think hopefully you gain some expertise 05:52:44 22 as you go along so you're more efficient, hopefully. 05:52:47 23 Q. We were speaking -- you were answering some 05:52:50 24 questions earlier about psychological testing, written

05:52:54 25 testing. Do you recall that testimony?

Goldstein - Redirect Exam 05:52:56 1 A. Yes. 05:52:56 2 Q. And are there written psychological -- sort of 05:53:01 3 those pen and pencil tests that you were discussing, are 05:53:04 4 there written tests that measure a person's consistency

05:53:09 5 that you're aware of?

05:53:10 6 A. Consistency? Not really. Not specifically. 05:53:22 7 Q. Now, just very briefly on this weight issue, do 05:53:30 8 you recall whether Mr. told you over what period of

05:53:35 9 time there was some weight loss?

05:53:39 10 A. I don't remember if there was a specific 05:53:45 11 timeframe that he gave me. 05:53:47 12 Q. All right. And we looked at a number of medical 05:53:51 13 records with defense counsel. I'm not going to show you 05:53:53 14 all of them. We'll probably just go back to one or two. 05:53:56 15 But some of the records that counsel showed you, those

05:54:01 16 were medical visits with Mr. Ward's urologist, right?

05:54:05 17 A. Yes. 05:54:06 18 Q. And I'm going to look at Defense Exhibit 62, 05:54:13 19 which you looked at earlier. And just first looking at 05:54:17 20 the first page, do you see there's a reference here in

05:54:26 21 the Past Medical section, "atypical chest pain"?

05:54:32 22 A. In the past medical section?

05:54:35 23 Q. In the "History" section?

05:54:37 24 A. Yes. 05:54:38 25 Q. Okay. And also if you look up to the "History of

Goldstein - Redirect Exam 05:54:41 1 Present Illness," we discussed this record earlier in 05:54:47 2 connection with the description of the heart doing 05:54:50 3 flip-flops and things like that. And I believe you 05:54:53 4 testified that that related to and supported your

05:54:56 5 opinion in this case; is that correct?

05:54:58 6 A. Yes. 05:54:59 7 Q. And so if you compare page 1 where there's a 05:55:03 8 description of conduct, that is consistent at least with 05:55:07 9 the anxiety that you've described earlier and the sort

05:55:11 10 of panic feelings if we turn to page 2 of that exhibit?

05:55:15 11 A. Before you change the page, can I comment on some

05:55:18 12 other note here?

05:55:19 13 Q. Okay. Go ahead. 05:55:21 14 A. On this particular page under "Social," it says 05:55:26 15 "Tobacco use: Uses chewing tobacco, never a smoker."

05:55:30 16 Q. So that's consistent with both those records?

05:55:34 17 A. I didn't recall that entry, but there it is. 05:55:37 18 Q. So then comparing page 1 where there is 05:55:39 19 discussion of symptoms that do relate to -- at least are 05:55:42 20 consistent with the anxiety, I think counsel was showing 05:55:46 21 you page 2 where there was no report or it didn't 05:55:54 22 indicate report of -- I think it was anxiety on this

05:56:02 23 page. So do you note that?

05:56:03 24 A. Yeah. 05:56:04 25 Q. So even in this same record, this is one record,

Goldstein - Redirect Exam 05:56:07 1 does its appear to you that there is some inconsistency

05:56:10 2 between what's on page 1 and what's on page 2?

05:56:14 3 A. Yeah, unfortunately medical records often contain 05:56:16 4 inconsistencies in the same medical facility. 05:56:21 5 Q. And would you agree with me that on page 1 the 05:56:24 6 heart doing flip-flops and other commentary there is 05:56:28 7 consistent with your diagnosis of unspecified anxiety

05:56:33 8 disorder?

05:56:34 9 A. Yes. 05:56:48 10 Q. Earlier counsel was asking you a little bit about 05:56:54 11 Mr. speaking to you and whether he had any problems 05:56:57 12 talking to you about the sexual harassment that he 05:57:00 13 experienced at AutoZone. 05:57:05 14 When he spoke with you in any and all of your 05:57:09 15 interviews and examinations, did he appear tearful? Did 05:57:12 16 his manner change at all in discussing the sexual

05:57:16 17 harassment?

05:57:16 18 A. He was definitely uncomfortable. And at times, 05:57:22 19 as I said -- I think I said "visibly distressed." He 05:57:25 20 was grimacing. He wasn't tearful, but he was obviously 05:57:29 21 very uncomfortable even talking to me about it. 05:57:33 22 Q. All right. And let's turn to another medical 05:57:37 23 record. This is also Defense Exhibit 68. And I want to 05:57:40 24 look at again the -- I'm going to show you the second 05:57:57 25 page of Defense Exhibit 68. And see if you note

Goldstein - Redirect Exam 05:58:05 1 anxiety, atypical chest pain and fatigue on this first

05:58:09 2 page. Do you see that?

05:58:10 3 A. Yes. 05:58:11 4 Q. And is that consistent -- this was on September 05:58:14 5 2, 2014. Is that consistent with your diagnosis in this

05:58:19 6 matter?

05:58:19 7 A. Yes. 05:58:20 8 Q. All right. And then if we turn to the second 05:58:22 9 page, which I think -- or I guess it's the third page 05:58:25 10 that defense counsel showed you. Again, there was no 05:58:29 11 indication of anxiety or other issues on the second 05:58:37 12 page. So again, is this an example where the reporting

05:58:43 13 in one single medical record was somewhat inconsistent?

05:58:47 14 A. Contradictory, yes. 05:58:57 15 Q. Is there any conclusion that you draw from a

05:59:00 16 medical record being internally inconsistent?

05:59:03 17 A. Well, with these electronic records sometimes 05:59:06 18 things are like automatically reproduced time after time 05:59:11 19 after time when they're dating back several visits. So 05:59:17 20 it may not be reflecting what was ascertained on that 05:59:22 21 particular visit. It may reflect something from weeks 05:59:26 22 or months before.

05:59:27 23 Q. So I would imagine that over the course of your 05:59:30 24 career you've reviewed a number of medical records; is

05:59:33 25 that fair to say?

Goldstein - Redirect Exam 05:59:34 1 A. Yes. Often. 05:59:36 2 Q. All right. And in your experience is there 05:59:45 3 information that's contained in the medical record that 05:59:49 4 hasn't been asked of a patient on any given date that 05:59:51 5 the medical record is dated? In other words, do you 05:59:54 6 know whether every doctor goes through every single 05:59:57 7 question that's on the medical record every time they

06:00:01 8 see a patient?

06:00:01 9 A. No, often now it's just kind of, you know, put in 06:00:06 10 there. And it may reflect something from a very distant 06:00:10 11 past information that was received way before this 06:00:15 12 particular appointment. 06:00:18 13 Q. All right. Earlier you were asked a little bit 06:00:21 14 about Mr. 's doctor prescribing Valium and whether 06:00:27 15 he was a good doctor or not. And counsel read you part 06:00:30 16 of a footnote from your supplemental report.

06:00:34 17 MS. HOULDING: And I would just request the 06:00:36 18 Court's permission -- there was a sentence of that 06:00:39 19 footnote that counsel didn't read, and I just, for 06:00:42 20 completeness, would ask permission to read it.

06:00:42 21 By Ms. Houlding:

06:00:46 22 Q. So counsel had read you or you had read two 06:00:50 23 sentences of a footnote regarding primary care 06:00:53 24 physicians. And I just wanted to read the rest of it 06:00:56 25 which states, "The percentage of patients prescribed

Goldstein - Redirect Exam 06:00:59 1 psychiatric medications by their PCPs is reported to be 06:01:03 2 as high as 74.6 percent."

06:01:07 3 And to your knowledge is that accurate?

06:01:10 4 A. Yeah. Most patients in the United States will 06:01:13 5 have -- who have mental health problems are medicated by 06:01:17 6 their general practitioners. In other words, they never 06:01:21 7 get to a psychiatrist, as in this case. 06:01:26 8 Q. And earlier counsel was asking you a little bit 06:01:29 9 about Mr. 's parents having passed away. When you 06:01:34 10 do your initial psychiatric exam, IS IT correct that you 06:01:40 11 take a family history, right? You ask about a 06:01:44 12 patient's parents and family members, things of that

06:01:47 13 nature, right?

06:01:48 14 A. Always. Yeah. 06:01:49 15 Q. So the fact that Mr. told you that his 06:01:53 16 parents had passed away and the years they passed away, 06:01:58 17 was that in response to those questions, or was that

06:02:01 18 some response to a general question about trauma?

06:02:04 19 A. No, I asked him specific questions about his 06:02:08 20 parents, what they did, when they passed away, his 06:02:13 21 family life, any family psychiatric history, and so 06:02:17 22 forth. 06:02:18 23 Q. And I believe you testified that you weren't sure 06:02:21 24 whether you were aware of his brother-in-law passing 06:02:25 25 away. Do you have a recollection about him talking

Goldstein - Recross-Exam

06:02:28 1 about a road rage incident in which someone passed away?

06:02:32 2 A. Not when I examined him initially, no. 06:02:37 3 Q. Do you know one way or another whether Mr. Ward 06:02:40 4 was given copies of either your initial report or your

06:02:44 5 supplemental report?

06:02:46 6 A. I don't know what your firm's practice is about 06:02:51 7 showing my reports to your client. I don't know if you 06:02:54 8 do or not. 06:02:54 9 Q. All right. 06:02:56 10 A. I didn't give him a copy of the report; I know 06:02:59 11 that. 06:03:02 12 MS. HOULDING: I have nothing further right 06:03:04 13 now.

06:03:06 14 MS. KERN: Your Honor, just a couple 06:03:10 15 recross. 06:03:14 16 - - -

06:03:14 17 Robert L. Goldstein, M.D., Recross-Examination

06:03:17 18 By Ms. Kern:

06:03:17 19 Q. Dr. Goldstein, you testified when shown the 06:03:20 20 records under "Psychiatric," being anxious or depressed 06:03:24 21 not present, you stated that sometimes those records are

06:03:27 22 automatically reproduced. Do you recall that testimony?

06:03:29 23 A. Yeah. It's like, you know, it's the same exact 06:03:33 24 wording, the same exact list or checklist. And you see 06:03:36 25 it in note after note after note.

Goldstein - Recross-Exam 06:03:38 1 Q. Okay. You don't have any -- I mean, you're 06:03:41 2 speculating, though, as far as what Mr. told his 06:03:46 3 own doctors, correct, because you were not there during

06:03:49 4 those visits?

06:03:50 5 A. Exactly. I don't know what he was asked. 06:03:53 6 Q. And you're speculating as to whether or not those 06:03:55 7 answers that were populated were automatically populated 06:03:58 8 or whether or not they were based on reports that Mr. 06:04:01 9 Ward had made that he, in fact, was not anxious or

06:04:04 10 depressed?

06:04:05 11 A. Yeah. I was just commenting on what I see very 06:04:08 12 often in these kind of records. 06:04:09 13 Q. And you would certainly expect his PCP, Dr. 06:04:13 14 Traylor, primary care physician, to be careful in 06:04:18 15 keeping his medical records, especially with regard to 06:04:21 16 the psychiatric aspect of it because he was the person

06:04:25 17 prescribing Valium for Mr. , correct?

06:04:27 18 MS. HOULDING: Objection. Lacks personal 06:04:29 19 knowledge. 06:04:30 20 THE COURT: Sustained. 06:04:32 21 MS. HOULDING: Hold on a second.

06:04:38 22 By Ms. Kern:

06:04:39 23 Q. You testified just a minute ago that Mr. Ward was 06:04:42 24 uncomfortable talking to you about the allegations of

06:04:46 25 sexual harassment, correct?

Goldstein - Recross-Exam 06:04:48 1 A. Yeah. That was pretty obvious. 06:04:50 2 Q. Isn't it true, Dr. Goldstein, that, in fact, Mr. 06:04:57 3 Ward had no problem telling you about his allegations of

06:05:00 4 sexual harassment?

06:05:02 5 A. No, he did -- well, he had a problem in the sense 06:05:07 6 that it was very -- he was uncomfortable, and he was 06:05:11 7 distressed when he had to rehash it all. 06:05:13 8 Q. You were aware that he had two other individuals 06:05:16 9 in the house living with him besides his wife when he 06:05:20 10 claimed he was being sexually harassed, is that right,

06:05:23 11 his daughters?

06:05:25 12 MS. HOULDING: Objection. 06:05:25 13 A. His two daughters. 06:05:28 14 Q. You didn't bother to interview either Kayla or 06:05:32 15 Emily in the four years you've been working on this

06:05:34 16 case?

06:05:34 17 A. Correct. 06:05:35 18 Q. You also just testified you had full access to

06:05:39 19 Ms. Houlding's drop box in this case?

06:05:42 20 A. Yes. 06:05:42 21 Q. And it was your understanding that in this drop 06:05:46 22 box contained all the information that was generated

06:05:49 23 during the course of this litigation?

06:05:51 24 MS. HOULDING: Objection. 06:05:51 25 A. Well, some of it was --

Goldstein - Recross-Exam 06:05:53 1 THE COURT: Sustained.

06:05:55 2 By Ms. Kern:

06:05:57 3 Q. Dr. Goldstein, did you ever bother to look to see

06:05:59 4 what was in this drop box?

06:06:00 5 A. I ascertained that all the records that I 06:06:04 6 reviewed were available to me. All the records that the 06:06:07 7 lawyers had, I had access to. 06:06:09 8 Q. Okay. So you would have had access to all the

06:06:12 9 depositions that were taken in this case?

06:06:14 10 A. I did not access the depositions directly, no.

06:06:20 11 Q. Why not?

06:06:20 12 A. I could have, but I didn't. 06:06:22 13 Q. Did you ever ask Ms. Houlding if you could have

06:06:25 14 copies of the depositions?

06:06:26 15 A. The only deposition I was concerned with was Mr. 06:06:31 16 Ward's deposition. 06:06:33 17 Q. Okay. Now, we talked about gauging consistency 06:06:41 18 and inconsistency with what Mr. was telling you, 06:06:44 19 and part of what you'd look at were, again, collateral 06:06:49 20 sources to determine whether Mr. is being

06:06:51 21 consistent in what he's relaying to you?

06:06:54 22 A. Generally, yes. 06:06:55 23 Q. The collateral sources include these medical

06:06:58 24 records that we've discussed?

Goldstein - Recross-Exam 06:07:03 2 by counsel, making a point that the record itself was 06:07:09 3 inconsistent because it reported that Mr. had

06:07:15 4 atypical chest pain. Do you see that on page 1?

06:07:19 5 A. Yes. 06:07:19 6 Q. And your testimony was that it was inconsistent 06:07:23 7 with page 2 which indicates that no anxiety, change in

06:07:27 8 sleep patterns, or mood changes were present?

06:07:30 9 A. Right. 06:07:31 10 Q. Correct? But isn't it true, Dr. Goldstein, in 06:07:34 11 looking at this medical record that the atypical chest 06:07:38 12 pain is referenced under the patient's history and not

06:07:42 13 the presenting symptoms at the time?

06:07:48 14 A. Yes. It says he had these symptoms on and off 06:07:52 15 for a number of months. 06:07:54 16 Q. But this record indicates that he had this in the

06:07:56 17 past and not currently, correct?

06:07:58 18 A. It's not clear. 06:08:04 20 of the record that says no anxiety, change in sleep

06:08:07 21 pattern, or mood changes were present, correct?

06:08:10 22 A. Well, it's inconsistent in the sense that any 06:08:14 23 doctor should know that these PCC, these skipped beats 06:08:21 24 and possibly chest pains as well could be very well be 06:08:25 25 manifestations of stress and anxiety.

Goldstein - Recross-Exam 06:08:28 1 Q. But again, the atypical chest pain that you're 06:08:30 2 referencing on redirect examination was something that 06:08:33 3 was part of Mr. Ward's past and not presenting in the

06:08:38 4 evaluation that he had on 10/15/13, correct?

06:08:41 5 A. Well, it's the history of his present illness. 06:08:45 6 So it's a present -- it's referring to what's going on 06:08:49 7 with him now.

06:08:49 8 Q. Even though it's under "Past Medical History"?

06:08:52 9 A. No, it's under "History of Present Illness." See 06:08:57 10 "History of Present Illness: Chest pain, pressure. Has 06:09:02 11 been going on for several months," et cetera. That's 06:09:04 12 the present. 06:09:06 13 Q. In looking at this medical record at the top, it 06:09:09 14 states that most recently Mr. had an episode that

06:09:14 15 seemed to be relieved by omeprazole?

06:09:20 16 A. Yes. 06:09:21 17 Q. Omeprazole is a medication taken when an

06:09:25 18 individual suffered from GERD, correct?

06:09:28 19 A. Yes, it's Prilosec. 06:09:29 20 Q. Mr. had been suffering from GERD for a 06:09:33 21 number of years before he even came to AutoZone; is that

06:09:35 22 right?

06:09:35 23 A. Yes. 06:09:37 24 MS. KERN: Your Honor, at this time I'd like 06:09:38 25 to also move for the admission of additional medical

Goldstein - Recross-Exam 06:09:41 1 records that Mr. -- I'm sorry, that Dr. Goldstein 06:09:45 2 has relied on that are not objected to by the plaintiff. 06:09:49 3 MS. HOULDING: That's fine. If we could 06:09:50 4 just get the list of what they are. 06:09:53 5 MS. KERN: Would be Defendant's Exhibits 41, 06:09:56 6 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 06:10:12 7 56, 57, 58, 63, 64, and 71 through 89.

04:38:21 8 (Whereupon Defendant's Exhibits 41 through 06:10:14 9 58, 63, 64, and 71 through 89 are admitted into 04:38:24 10 evidence.)

06:10:27 11 By Ms. Kern:

06:10:27 12 Q. And just one final question for you, Dr. 06:10:30 13 Goldstein. If you felt or thought that Dr. Traylor's 06:10:34 14 medical records were indeed inconsistent, did you reach 06:10:37 15 out to Dr. Traylor and try to understand the

06:10:40 16 inconsistency or get to the bottom of the inconsistency?

06:10:44 17 A. I don't think that was the main point. 06:10:50 18 Q. So you didn't bother to contact Dr. Traylor and

06:10:52 19 ask why you thought these records were inconsistent?

06:10:55 20 A. The only inconsistency was he said there's no 06:10:58 21 anxiety, and Mr. Ward told me repeatedly that the reason 06:11:04 22 the notes didn't reflect what he was experiencing was he 06:11:08 23 was too ashamed to get into talking about it with his 06:11:12 24 doctor. So that applies to all of those entries.

06:11:16 25 Q. And you understand that Mr. Ward has been talking

Nobles - Direct Exam

06:11:19 1 about these allegations all week to the jury?

06:11:22 2 A. Well, yes. That's why we're here. 06:11:26 3 MS. KERN: I don't have any further 06:11:28 4 questions. 06:11:28 5 MS. HOULDING: Nothing further, Your Honor. 06:11:30 6 THE COURT: Thank you. 06:11:42 7 Would you like to come up and collect the

06:11:44 8 exhibits?

06:11:45 9 And your next witness will be?

06:12:05 10 MS. NARAYAN: Plaintiffs are going to call 06:12:08 11 Kayla Nobles. 06:13:06 12 THE CLERK: Please watch your step. Please 06:13:10 13 come forward and stand in front of the clerk's bench. 06:13:14 14 Please place your left hand on the Bible and raise your 06:13:17 15 right hand. State your name for the Court.

06:13:22 16 THE WITNESS: Kayla Nobles, K-a-y-l-a 06:13:29 17 W-a-r-d N-o-b-l-e-s. 06:13:29 18 (Whereupon the witness was sworn by the 06:13:43 19 clerk.) 06:13:43 20 THE CLERK: Thank you. Please be seated. 06:13:46 21 - - -

06:13:46 22 Kayla Nobles, Direct Examination

06:13:49 23 By Ms. Narayan:

06:13:49 24 Q. Good afternoon, Ms. Nobles. 06:13:52 25 A. Good afternoon.