Civil No. 2:12-cv-00903 (D. Utah Mar. 28, 2019)

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Bird v. W. Valley City

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

Mar 28, 2019

Civil No. 2:12-cv-00903 (D. Utah Mar. 28, 2019)

Opinion

Civil No. 2:12-cv-00903

03-28-2019

KAREN BIRD, an individual, Plaintiff, v. WEST VALLEY CITY, a political subdivision of the State of Utah, and KELLY DAVIS, in his official and individual capacities, Defendants.

Magistrate Judge Evelyn J. Furse

MEMORANDUM DECISION AND ORDER DENYING PLAINTIFF'S MOTION FOR NEW TRIAL (ECF NO. 169)

Before the Court is Plaintiff Karen Bird's Motion for New Trial (ECF No. 169) brought pursuant to Federal Rule of Civil Procedure 59. Ms. Bird seeks a new trial "due to the misconduct" of counsel for Defendants West Valley City and Kelly Davis (collectively, "West Valley Defendants") that she claims "unfairly prejudiced [Ms.] Bird's presentation of her case." (Pl.'s Mot. for New Trial ("Mot.") 1, ECF No. 169.) Specifically, Ms. Bird claims that West Valley's counsel improperly (1) questioned Layne Morris, Director of West Valley City's Community Preservation Department, regarding his military experience in an effort to "arouse sympathy" for Mr. Morris, (2) stopped the redirect/cross-examination of Mr. Morris "by falsely claiming he would otherwise not have time to put on Defendants' case," (3) relied on Mr. Morris's military experience during his closing argument to suggest that Mr. Morris would not lie, and in so doing, vouched for his credibility, and (4) suggested during his closing argument that Mr. Morris was the subject of a new movie and portrayed by a famous actor. (Id. at 2-3.) Ms. Bird asserts that "[t]his conduct as a whole was sufficiently egregious that it had the ability to influence the outcome of the case, and likely did, as the jury finding of no liability was against the weight of the evidence." (Id. at 1-2.)

The parties consented to proceed before a magistrate judge in accordance with 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. (ECF No. 11.)

Ms. Bird refers to the examination as a redirect, but given that both sides called many of the same witnesses, including Mr. Morris, the examination at issue constituted both a redirect and cross-examination.

Ms. Bird does not move for judgment as a matter of law under Federal Rule of Civil Procedure 50. (Id.; Reply in Supp. of Pl.'s Mot. for New Trial ("Reply") 3, ECF No. 173.)

The West Valley Defendants counter that courts highly disfavor motions for a new trial and only grant them "in the face of very serious and prejudicial misconduct." (Opp'n to Pl.'s Mot. for a New Trial ("Opp'n") i-ii, ECF No. 172.) As to the specific instances of alleged misconduct, the West Valley Defendants assert (1) that Mr. Morris's military experience "was admissible background information that bears on his reliability and credibility," and in any event, "provided only a small part of his trial testimony," (2) that counsel did not mislead the Court in arguing that the West Valley Defendants may not have time to put on their case because they only made the strategic decision not to call additional witnesses after Mr. Morris concluded his testimony, (3) that during closing argument, counsel confined his argument to the record and did not vouch for Mr. Morris's credibility, and (4) that counsel did not say during closing argument that Mr. Morris was the subject of a movie or portrayed by a famous actor but instead referred to the movie to make an analogy. (Id. at ii-iii.) The West Valley Defendants also claim that the alleged misconduct reflects "a minor part of the case" in any event and does warrant a new trial. (Id. at iii.)

The Court finds the alleged conduct does not warrant a new trial. Ms. Bird's complaints relating to the redirect/cross-examination of Mr. Morris and the introduction of testimony concerning his military service lack any basis and do not amount to misconduct by West Valley Defendants' counsel. However, some of the remarks of West Valley Defendants' counsel during closing argument qualify as improper. Nonetheless, that conduct does not support the extreme remedy of a new trial. The remarks lasted only a few minutes, the Court instructed the jury on multiple occasions that attorney arguments are not evidence, and nothing indicates that these arguments clearly influenced the verdict or obviously prejudiced Ms. Bird. Accordingly, as addressed in detail below, the Court DENIES Plaintiff's Motion for New Trial.

BACKGROUND

In September 2012, Ms. Bird filed this employment discrimination case against her former employer, West Valley City, and Kelly Davis, her former supervisor. (Compl., ECF No. 2.) Ms. Bird alleges that on November 29, 2011, West Valley City unlawfully terminated her from her position as the manager of the West Valley City Animal Shelter ("Animal Shelter"). (See id.) In February 2015, the Court granted the West Valley Defendants summary judgment on Ms. Bird's Title VII claims, § 1983 equal protection claim, contract claims, and § 1983 First Amendment retaliation claim. (Mem. Dec. & Order, ECF No. 44.) Ms. Bird appealed that decision, and the Tenth Circuit affirmed as to all the claims except her § 1983 First Amendment retaliation claim. Bird v. West Valley City, 832 F.3d 1188, 1213 (10th Cir. 2016). As to that claim, the Tenth Circuit reversed the grant of summary judgment based on an intervening Supreme Court case and remanded for further proceedings consistent with its opinion. Id. at 1211-13.

In September 2017, the Court denied West Valley Defendants' motion for summary judgment on Ms. Bird's § 1983 First Amendment retaliation claim. (Mem. Decision & Order Denying Defs.' Mot. for Summ. J., ECF No. 76.) The case then proceeded to trial from March 12 to March 16, 2018. (ECF Nos. 150, 151, 152, 154, & 161.) The preliminary instructions given to the jury described the case as follows:

To help you understand what you will see and hear, I will now explain the background of the case. Karen Bird worked as manager of the West Valley City Animal Shelter until her termination in November 2011. She worked directly for Defendant Kelly Davis, the shelter's Director of Operations, who worked for Layne Morris, the Director of West Valley City's Community Preservation Department. On November 29, 2011, Mr. Morris terminated Ms. Bird. Ms. Bird brought this lawsuit against West Valley City and Mr. Davis, alleging that her termination was motivated by their belief that she was the source of leaks to the media about the animal shelter, in violation of her First Amendment right to free speech. West Valley City and Mr. Davis claim that Ms. Bird was terminated for legitimate reasons, specifically, for being insubordinate, discourteous, and uncooperative.

(Preliminary Instructions, Instruction No. 1, ECF No. 143.) On October 17, 2011, several news outlets published articles about a cat named Andrea who twice survived West Valley City's attempts to euthanize her in the Animal Shelter's carbon monoxide chamber. (Mem. Decision & Order Denying Defs.' Mot. for Summ. J. 4, ECF No. 76.) Later that month, on October 26, 2011, a reporter contacted West Valley City about an anonymous tip he received that Mr. Davis was ordering a mass execution at the Animal Shelter. (Id.) The final instructions to the jury provided:

Ms. Bird claims the City and Mr. Davis deprived Ms. Bird of her rights under the First Amendment of the U.S. Constitution by terminating her because they believed she leaked information to the press regarding: (1) Andrea the cat, and/or (2) a mass execution at the animal shelter allegedly ordered by Mr. Davis, collectively referred to in these instructions as "the speech at issue." Section 1983 provides that Ms. Bird may recover an award of money damages against the City or Mr. Davis if either violated her First Amendment rights under the U.S. Constitution.

The City and Mr. Davis deny violating Ms. Bird's First Amendment rights in any way, and allege that they terminated Ms. Bird for legitimate reasons, specifically, for being insubordinate, discourteous, and uncooperative.

You will be asked to return a verdict on Ms. Bird's First Amendment claim with respect to both the City and Mr. Davis.

(Jury Instructions, Instruction No. 10, ECF No. 160.)

The jury returned a verdict in favor of the West Valley Defendants. (Special Verdict Form, ECF No. 166.) The jury found that Ms. Bird proved by a preponderance of the evidence that West Valley City's belief that she leaked information to the press regarding Andrea the cat was a substantial or motivating factor in the decision to terminate her employment. (Id., ¶¶ 2, 3.) However, the jury also found that West Valley City proved by a preponderance of the evidence that it would have terminated Ms. Bird's employment in the absence of any belief that she leaked information to the press regarding Andrea the cat, (id., ¶ 4), resulting in a verdict in the West Valley Defendants' favor.

LEGAL STANDARD

Pursuant to Federal Rule of Civil Procedure 59, a district court may, on the motion of a party, grant a new trial on all or some of the issues "after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court." Fed R. Civ. P. 59(a)(1)(A). District courts have "broad discretion" in ruling on motions for a new trial. McHargue v. Stokes Div. of Pennwalt Corp., 912 F.2d 394, 396 (10th Cir. 1990); Shugart v. Cent. Rural Elec. Co-op., 110 F.3d 1501, 1506 (10th Cir. 1997) ("A motion for new trial is addressed to the sound discretion of the trial court . . ." (quoting Canady v. J.B. Hunt Transp., Inc., 970 F.2d 710, 716 (10th Cir.1992))).

A district court is given "'wide latitude with respect to [a] motion for a new trial because [the trial judge] [is] uniquely able to assess the likelihood that the [evidence] was prejudicial.'" Henning v. Union Pac. R. Co., 530 F.3d 1206, 1217 (10th Cir. 2008) (1st, 3d, & 4th alterations in original) (quoting Mayhue v. St. Francis Hosp. of Wichita, Inc., 969 F.2d 919, 922 (10th Cir. 1992). Likewise, with respect to alleged improper conduct or argument by an attorney, "[t]he decision on whether counsel's misconduct at trial was so egregious as to require retrial is left largely to the discretion of the district court." Abuan v. Level 3 Commc'ns, Inc., 353 F.3d 1158, 1175 (10th Cir. 2003); see also Whittenburg v. Werner Enterprises Inc., 561 F.3d 1122, 1127 (10th Cir. 2009) (stating that "'[t]he trial judge is in the best position to determine' the prejudicial effect of improper arguments, and thus whether a new trial is warranted" (quoting Ketchum v. Nall, 425 F.2d 242, 244 (10th Cir. 1970))).

" 'A motion for a new trial is not regarded with favor and should only be granted with great caution.' " Franklin v. Thompson, 981 F.2d 1168, 1171 (10th Cir. 1992) (quoting United States v. Thornbrugh, 962 F.2d 1438, 1443 (10th Cir. 1992)); see also Moody v. Ford Motor Co., 506 F. Supp. 2d 823, 847 (N.D. Okla. 2007) (stating that granting a new trial and setting aside a jury's verdict "is rarely appropriate"). "Requiring a new trial is . . . a serious and costly remedy for all involved." Whittenburg, 561 F.3d at 1128.

DISCUSSION

Ms. Bird asserts that West Valley Defendants' counsel engaged in various instances of misconduct. The Court addresses each of her arguments below.

A. Ms. Bird's Argument that the West Valley Defendants' Counsel Cut Off the Redirect/Cross-Examination of Mr. Morris Without Legitimate Basis and for an Improper Purpose Lacks Merit

Ms. Bird argues that the West Valley Defendants' counsel improperly cut off her counsel's redirect examination of Mr. Morris "without legitimate basis." (Mot. 5, ECF No. 169.) She argues that "from early on in the trial" the West Valley Defendants' counsel "complained about how long [Ms.] Bird was taking to present her case," "demanded that the court put [Ms. Bird's] case on a timer, which ran out during [the] redirect of [Mr.] Morris," and "insisted that the court stop . . . further questioning of [Mr.] Morris, claiming [the West Valley] Defendants needed time to put on their case." (Id.) She claims that the West Valley Defendants' counsel improperly stopped further questioning of Mr. Morris because they "had no more case to put on" and rested after Mr. Morris's redirect. (Id.) Ms. Bird complains that this conduct violated the Utah and Model Rules of Professional Conduct requiring candor toward the tribunal and fairness to the opposing party and counsel and that "[t]his tactic was prejudicial" because it stopped counsel from impeaching Mr. Morris. (Id. at 5-6.) Ms. Bird claims "[t]his was undoubtedly [West Valley] Defendants' intention, as [they] would certainly have known at that point that they did not intend to put on any more witnesses." (Id. at 6.) Ms. Bird cites no case law in either her opening or her reply brief to support this claim of error. (Mot. 5-6, ECF No. 169; Reply 5-6, ECF No. 173.)

The West Valley Defendants respond that Ms. Bird's "telling of the subject events is misleading." (Opp'n 5, ECF No. 172.) They argue that Ms. Bird had ample time to put on her case and that by its calculations, Ms. Bird's counsel had over eleven hours with witnesses compared to under seven hours for the West Valley Defendants. (Id.) They further point out that the Court repeatedly addressed with the parties the amount of time Ms. Bird was taking to put on her case and that Ms. Bird's counsel went over the additional time the Court allowed for her redirect/cross-examination of Mr. Morris. (Id.) The West Valley Defendants further argue that Ms. Bird's assertions that they "misled the Court about the time that they needed to put on their case are unwarranted and without merit." (Id. at 6.) The West Valley Defendants point out that they intended to call additional witnesses after Mr. Morris but that after Ms. Bird rested they "evaluated where things stood" and made a "strategic decision" not to call any additional witnesses. (Id.) As addressed below, the Court finds the West Valley Defendants' counsel's conduct with respect to Mr. Morris's redirect/cross-examination and timing issues generally during trial do not provide a basis for a new trial.

First, the Court finds Ms. Bird's argument, made through her counsel, improper. The Utah Standards of Professionalism and Civility state that "[l]awyers shall not, without an adequate factual basis, attribute to other counsel . . . improper motives, purpose, or conduct." Utah R. Jud. Admin. 14-301(3). Ms. Bird and her counsel do not provide any factual basis for the assertions that West Valley Defendants' counsel knew they did not intend to call any additional witness after Mr. Morris's redirect/cross-examination and cut off Mr. Morris's redirect/cross-examination to prevent Ms. Bird's counsel from impeaching Mr. Morris. Ms. Bird's counsel's arguments make objective statements of fact without factual basis and are thus improper since they attribute improper motivations and conduct to West Valley Defendants' counsel without any factual support.

Second, Ms. Bird distorts the events that occurred with respect to time limits imposed in this case. From the outset of this case, both sides maintained that they needed four days for trial. (Stip. Attorneys' Planning Meeting Report 5, ECF No. 15.) The Court relied on these representations in scheduling the trial. (Scheduling Order 4, ECF No. 18 (setting four-day trial); Scheduling Order from Hr'g 2, ECF No. 58(setting four-day trial); Scheduling Order, ECF No. 72 (setting four-day trial); Am. Scheduling Order, ECF No. 77 (setting four-day trial).) The Court's Trial Order indicated that trial would run from 8:30 a.m. to 2:30 p.m. each day, from March 12 to March 15, 2018. (Am. Trial Order 1, 5, ECF No. 82.) At the final pretrial conference, Ms. Bird's counsel raised for the first time extending either the length of each trial day beyond 2:30 p.m. or extending trial into Friday, March 16. At that time, the Court kept the trial set at four days but left open the possibility to extend the trial days past 2:30 p.m. The Court indicated that it would later assess the need to extend the hours for trial but instructed the parties to make every effort narrow their cases, to exchange realistic estimates of time for each witness, and to contact the Court if they needed additional time.

Prior to trial commencing, the parties contacted the Court via e-mail and indicated that after conferring, they agreed to extend trial days to 4:00 p.m. (3/6/18 Preston E-mail, attached as Appendix ("App.") 1.) Despite this extension of trial days, on the second day of trial, West Valley Defendants' counsel expressed concerns about the amount of time Ms. Bird's counsel was taking and the time that would remain to present their case. (3/13/18 Trial Tr. 22:5-22:15, attached as App. 3.) The Court instructed the parties to make every effort to tighten up their examinations so that they could complete as much of the trial as possible the next day. (Id. at 21:12-25:15.)

Neither of the parties requested a complete version of the trial transcript in this matter so the court reporter has not prepared or finalized a complete transcript. The Court requested that the court reporter prepare additional, relevant portions of the transcript for purposes of this Order and attaches those portions of the transcript to this Order as Appendices.

Halfway through the third day of trial, the Court indicated its concern with timing and West Valley Defendants' ability to present their case. Ultimately, the Court divided the remaining eight hours of trial time between the parties, allocating three of the remaining hours to Ms. Bird's counsel and the other five to the West Valley Defendants. (3/14/18 Trial Tr. 3:8-6:22, attached as App. 4). By the end of the third day of trial, Ms. Bird's counsel had only thirty-eight minutes left to present the remainder of her case. (Id. at 62:6-17.) The next morning Ms. Bird's counsel asked for an additional half hour and for the Court to extend the trial into Friday. (3/15/18 Trial Tr. 3:6-11:8, attached as App. 5.) She indicated that the Court could inform the jury that it was "[her] fault" that trial would continue an extra day. (Id.) The Court ultimately extended trial into Friday and allowed Ms. Bird an additional half hour, on top of the remaining thirty-eight minutes, to complete her case. (Id.) Again, Ms. Bird's counsel used up all her time, leaving no additional time for her redirect/cross-examination of Layne Morris. (Id. at 59:17-61:1.) Nevertheless, the Court gave Ms. Bird's counsel an additional half hour for the cross examination. (Id.) This extension occurred following a discussion at the bench. (Id.) During this discussion, West Valley Defendants' counsel indicated he had three witnesses to call. (Id. at 60:25-61:4.) Once Ms. Bird's counsel again went over the time limit, West Valley Defendants' counsel objected. (Id. at 62:6-63:11.) Nonetheless, the Court allowed Ms. Bird's attorney to ask an additional question. (Id.) Following Ms. Bird's counsel's questioning, West Valley Defendants' counsel conducted a short redirect examination. (Id. at 63:20-64:21.)

After Ms. Bird rested, West Valley Defendants' counsel then made a motion for judgment as a matter of law, which he argued briefly. (3/15/18 Trial Tr. 64:24-69:15, App. 5.) After a minimal recess, West Valley Defendants' counsel returned and informed the Court that after discussing things with his clients they decided to rest their case and not call any additional witnesses:

Your Honor, I had not anticipated this at all but we feel very good how this ended. I've talked to my client at length and I don't think -- I think to take another couple of hours to put these last three witnesses on will be, if anything, cumulative. So we're willing -- we are going to rest when the jury comes in without calling any more witnesses.

(Id. at 70:1-10.)

"A trial court necessarily possesses considerable discretion in determining the conduct of a trial, including the orderly presentation of evidence." Thweatt v. Ontko, 814 F.2d 1466, 1470 (10th Cir. 1987). As outlined above, West Valley Defendants' counsel did not cut off the redirect/cross-examination of Mr. Morris, as Ms. Bird claims. Ms. Bird's counsel exceeded the time that the Court provided for the examination, which the Court already extended multiple times. Further, West Valley Defendants' counsel was well within his rights to point out that Ms. Bird's counsel was consuming the majority of trial time presenting her client's case and that she repeatedly exceeded the time limits imposed by the Court to present her case at trial. Ms. Bird's counsel showed a complete disregard for the time she took to present her case forcing the Court to impose time limits that she then exceeded. To the extent Ms. Bird's counsel felt she did not have adequate time to impeach Mr. Morris, this problem arose from her own strategic choices about how to use her trial time.

Certainly one could question whether an attorney had not anticipated the possibility of not putting on a defense one hour prior to making that decision when fairly predictable testimony by that attorney's own witness came out over that time. However, the Court has no reason to doubt the representation of West Valley Defendants' counsel that he did not make his decision not to call any additional witnesses until after Mr. Morris's testimony finished, and he consulted with his client. See Selsor v. Kaiser, 81 F.3d 1492, 1501 (10th Cir. 1996) (indicating that the court is entitled to rely on representations to the court by the attorneys, because they are officers of the court). After a break, West Valley Defendants' counsel represented that he discussed the matter with his clients, they were happy with how things went with Mr. Morris's testimony and therefore decided not to call any additional witnesses. The decision of a defendant to rest immediately following the plaintiff's resting is a big decision that a party would not likely, and does not have to make, until right before the court asks it to proceed with its case. In the civil realm, counsel, in consultation with their clients, rarely forgo to opportunity to put on evidence in their case in chief. Ms. Bird argues that West Valley Defendants' counsel knew he did not intend to call additional witnesses before that time but offers no support for that accusation.

In sum, the moving party bears the burden to show that a reason for a new trial exists based on prior federal law. Fed. R. Civ. P. 59. Ms. Bird fails to meet that burden given the complete lack of citation to any case law on the point. The Court further finds that West Valley Defendants' counsel did not engage in any misconduct relating to the redirect/cross-examination of Mr. Morris or, more generally, with respect to the arguments he made during trial concerning Ms. Bird's disproportionate use of trial time and concerns about his ability to present his clients' case. Given the lack of misconduct, Ms. Bird's argument fails to support the need for a new trial.

B. The Court Properly Admitted Mr. Morris's Testimony Concerning His Military Experience as Background Evidence

Ms. Bird argues that West Valley Defendants' counsel improperly introduced Mr. Morris' military experience and consequent recognition for that service during his examination of Mr. Morris. (Mot. 4, ECF No. 169.) She claims that evidence concerning his military experience bore no relevance and that counsel introduced it "to paint [Mr.] Morris as a patriot and a war hero, for the purpose of influencing the jury to side with him." (Id. at 5.) The West Valley Defendants counter that they properly introduced background information such as military experience at trial because it bears on the credibility and reliability of the witness. (Opp'n at 4, ECF No. 172.) They further argue that the Court already overruled Ms. Bird's objection to the introduction of this evidence during trial and that an appeals court will not disturb such decisions absent a clear abuse of discretion. (Id.) Finally, the West Valley Defendants argue that testimony concerning Mr. Morris's military background occupied only a small portion of his examination, which lasted over two hours, and that the introduction of such testimony at worst constitutes harmless error and certainly does not justify ordering a new trial. (Id. at 4-5.) The Court agrees with the West Valley Defendants.

District courts enjoy "broad discretion in ruling on the relevancy of evidence." United States v. Alexander, 849 F.2d 1293, 1301 (10th Cir. 1988); see also United States v. Blackwell, 853 F.2d 86, 88 (2d Cir. 1988) (stating that "the trial court is entitled to wide discretion concerning the admissibility of background evidence"). The Advisory Committee Notes to Federal Rule of Evidence 401 state that "[e]vidence which is essentially background in nature can scarcely be said to involve disputed matter, yet it is universally offered and admitted as an aid to understanding." Fed. R. Evid. 401, Advisory Committee Note; see also Roger Park & Tom Lininger, The New Wigmore, § 9.1(3) ("[T]he proponent of a witness is allowed to put the witness at ease and to let the jury 'get to know' the witness by bringing out facts such as residence, employment, and military service.") Further, various courts have found background evidence, including military service, relevant to assessing the credibility of witnesses. See Blackwell, 853 F.2d at 88 (indicating that courts should admit background evidence to assist the jury "in gauging the credibility of a witness"); Gov't of Virgin Is. v. Grant, 775 F.2d 508, 513 (3d Cir. 1985) (stating that background evidence "bear[s] on the credibility of the witness by showing the witness to be a stable person"); Wells v. Davis, No. 05-CV-0811-DRH, 2009 WL 3352642, at *2 (S.D. Ill. Oct. 16, 2009) (unpublished) (finding evidence concerning a party's military service relevant and admissible as "[t]he credibility and the reliability of all the witnesses are crucial, relevant and reasonable"); United States v. Deel, No. 1:09CR00022, 2010 WL 519836, at *1 (W.D. Va. Feb. 11, 2010) (unpublished) (finding background evidence, including military service, admissible "for the jury's benefit to judge [a defendant's] credibility").

Mr. Morris's testimony concerning his military experience was relevant and admissible as background evidence. Such evidence helped the jury to get to know the witness and assess his credibility. Notably, Ms. Bird does not cite any cases to the contrary, simply arguing without support that evidence concerning Mr. Morris's military experience is irrelevant, and West Valley Defendants' counsel should not have introduced it. Accordingly, the Court finds West Valley Defendants' counsel did not improperly introduce evidence concerning Mr. Morris's military background. Again Ms. Bird fails to meet her burden in showing the need for the drastic remedy of a new trial.

C. While Portions of West Valley Defendants' Closing Argument Were Improper, Any Errors Do Not Warrant the Extreme Remedy of a New Trial

Ms. Bird asserts that West Valley Defendants' counsel engaged in improper conduct during his closing argument. She claims that counsel improperly implied that a movie, 12 Strong, had Mr. Morris, portrayed by Chris Hemsworth, as its subject. (Mot. at 10-11, ECF No. 169.) Ms. Bird also argues that counsel vouched for Mr. Morris's credibility and improperly based his argument that Mr. Morris would not lie on his military service. (Id. at 6-10.) She further asserts the outcome of the case is a "close case" and that "[i]mproper vouching and reliance on improper evidence has the most potential to be damaging in close cases that turn on credibility of witnesses," which weighs in favor of granting a new trial. (Id. at 4, 9.)

"In the Tenth Circuit, vacating a jury award and ordering a new trial on the basis of an inappropriate closing argument is an extreme remedy only to be granted in unusual cases." Spahr v. Ferber Resorts, LLC, 686 F. Supp. 2d 1214, 1223 (D. Utah 2010), aff'd, 419 F. App'x 796 (10th Cir. 2011) (unpublished); see also Ramsey v. Culpepper, 738 F.2d 1092, 1100 (10th Cir. 1984) (stating that even with an improper closing argument, " 'judgment should not be disturbed unless it clearly appears that the remarks in question unduly aroused the sympathy of the jury and thereby influenced the verdict.' " (quoting Julander v. Ford Motor Co., 488 F.2d 839, 842 (10th Cir. 1973))). In Whittenburg, the Tenth Circuit identified a number of factors that district courts should consider in determining whether improper closing arguments warrant a new trial: (1) the extensiveness of the improper remarks, (2) whether the Court gave curative instructions after the remarks, and (3) the size of the verdict. 561 F.3d at 1131-33. The court also emphasized that

closing argument need not, nor should, be a sterile exercise devoid of passion. Parties are entitled to have someone speak with eloquence and compassion for their cause. [] Arguments may be forceful, colorful, or dramatic, without constituting reversible error. [] Counsel may resort to poetry, cite history, fiction, personal experiences, anecdotes, biblical stories, or tell jokes. []

Id. at 1133 (internal citations and quotations omitted).

1. 12 Strong

Ms. Bird argues that during closing argument West Valley Defendants' counsel "suggest[ed] that [Mr.] Morris was the subject of a new movie out, 12 Strong, and his character was being played by Chris Hemsworth." (Mot. at 10, ECF No. 169.) She claims that "counsel put the jurors in the position of having to find against [Ms.] Bird, or against a war hero who was the subject of a new movie played by Chris Hemsworth." (Id.) The West Valley Defendants counter that counsel stated the movie is about "one group" of first responders, not Mr. Morris's group; so he "never suggested that Mr. Morris was the subject of 12 Strong or that he was played by Chris Hemsworth." (Opp'n at 10, ECF No. 172.) They further assert that the closing argument falls within the permissible parameters of a closing argument, as outlined in the Tenth Circuit's decision in Whittenburg. (Id.)

During the portion of the closing argument at issue, West Valley Defendants' counsel stated:

There is a movie out called 12 Strong. It's about one group of the first special forces responders that was sent to Afghanistan right after 9-11. . . . Layne Morris was one of the first responders in the Green Berets to go out there as a special forces man to go to Afghanistan. Now, he is not as tall, doesn't have as much hair, and he is not as handsome as Chris Hemsworth who stars in that movie, but Layne Morris is the real deal.

(3/16/18 Partial Tr. 28:2-14, ECF 169-2.) At trial, the Court interpreted counsel's argument as drawing a comparison between Mr. Morris's first responder group and the first responder group in the movie. Counsel did not directly state that Mr. Morris's group was the subject of the movie or that Chris Hemsworth portrayed Mr. Morris. Accordingly, the Court finds Ms. Bird's argument that counsel improperly suggested that Mr. Morris was the subject of 12 Strong and portrayed by Chris Hemsworth unpersuasive. Further, counsel may properly reference a movie in closing argument. As the Tenth Circuit set forth in Whittenburg, closing "arguments may be forceful, colorful, or dramatic . . . [and] [c]ounsel may resort to poetry, cite history, fiction, personal experiences, anecdotes, biblical stories, or tell jokes." 561 F.3d at 1133 (internal quotations omitted).

This portion of the closing argument formed part of counsel's argument concerning Mr. Morris's credibility, which Ms. Bird attacks on other grounds. The Court recognizes that the jury does not have the benefit of the transcript and may not have parsed the argument the same way. Therefore, below, the Court will assume the impropriety of this portion of the closing argument.

2. Vouching/Bolstering

Ms. Bird also argues that during closing, West Valley Defendants' counsel "vouch[ed] for [Mr.] Morris's credibility and integrity, based on his irrelevant military experience." (Mot. 6, ECF No. 169.) Ms. Bird states that counsel also "teared up while arguing about how patriotic [Mr.] Morris is." (Id. at 7.) The relevant portion of the closing argument that Ms. Bird argues is improper states as follows:

Layne Morris is not a man who would lie. Look at his character. He has been a public servant. He has served this country and the citizens of West Valley City his entire life. You don't become a First Class Sergeant in the Green Beret unless you are a leader and a man of integrity. . . .

Did you see how emotional he got when I asked him about his oath to defend the Constitution? He knows by firsthand what it is to live and fight against a country, a leadership, a government, that doesn't have these constitutional rights. The Taliban. And he put his life on the line doing that.

But now you're asked to find that he would violate Karen Bird's Constitutional rights and he would lie in a United States Courtroom about it.

(3/16/18 Partial Tr. 27:22-28:2, 28:14-21, ECF No. 169-2.) The piece of the argument about 12 Strong falls right between these two paragraphs. (Id. at 28:2-14.)

Ms. Bird claims that Mr. Morris's military experience "has nothing to do with [Mr.] Morris' decision-making in his role at West Valley City, but was invoked (complete with counsel's tears) to play on the jury's sympathies." (Mot. 7, ECF No. 169.) Ms. Bird points out that she objected to these remarks, and the Court overruled that objection, but "the fact that the court allowed it signaled to the jurors that they were allowed to consider the evidence/argument." (Id. at 9.) Finally, she argues that the jury's decision in the West Valley Defendants' favor "suggest[ed] that the improper evidence and argument prejudiced [Ms.] Bird in her presentation of her case," since "no credible evidence" existed "that [Ms.] Bird was going to be fired absent the public relations problems [Mr.] Davis and [Mr.] Morris believed she created." (Id. at 9-10.)

The West Valley Defendants dispute that counsel "vouched for the credibility of Mr. Morris." (Opp'n 7, ECF No. 172.) They state that counsel "never expressed a personal belief in Mr. Morris' credibility and confined his argument to the evidence already presented to the jury regarding Mr. Morris'[s]" military service. (Id. at 8.) Specifically, the West Valley Defendants argue that counsel never used the word "I" when referring to Mr. Morris, so he did not vouch for Mr. Morris's credibility. (Id.) West Valley Defendants further state that counsel

appropriately used evidence of Mr. Morris' military record and his oath to defend the Constitution to bolster his already credible testimony that he fired

[Ms. Bird] for legitimate reasons and not in violation of her First Amendment rights.

(Id. at 10.)

In reply, Ms. Bird claims that counsel did not confine his closing argument to evidence in the record. (Reply 8, ECF No. 173.) She claims that no testimony exists in the record that Mr. Morris is a "First Class Sergeant" as counsel stated in his closing remarks and that Mr. Morris's testimony does not make clear that he is a "Sergeant first class." (Id.) Ms. Bird argues that even if counsel transposed the words to "First Class Sergeant," this transposition is "misleading, as it suggests some superior-ranking or award-winning sergeant." (Id.)

First, Mr. Morris testified during trial that he "retired as sergeant first class." (3/15/18 Trial Tr. 14:2-4, App. 5.) West Valley Defendants' counsel transposed the words when he said "First Class Sergeant" during his closing argument. "Closing arguments of counsel[] are seldom carefully constructed in toto before the event[] [and] improvisation frequently results in syntax left imperfect and meaning less than crystal clear . . .[,] [so] a court should not lightly infer that [an attorney] intends an ambiguous remark to have its most damaging meaning." Donnelly v. DeChristoforo, 416 U.S. 637, 646-47 (1974). The Court will not hold a minor change such as this against counsel given Mr. Morris testified as to his military rank during trial.

As to the substantive argument Ms. Bird advances, the Court notes that the parties use vouching and bolstering interchangeably. However, the Tenth Circuit treats them as distinct concepts. See United States v. Bowie, 892 F.2d 1494, 1499 n.1 (10th Cir. 1990) (stating that while "[a] number of courts appear to regard credibility-bolstering as no different from credibility-vouching, and merge the two concepts. . . . We consider these to be different issues." (citations omitted)). Vouching occurs where an attorney "personally vouched for the credibility of its witness", and bolstering occurs where an attorney "improperly bolstered the witness's credibility prior to any challenge to the witness's credibility, contrary to Rule 608." United States v. Lord, 907 F.2d 1028, 1030 n.2 (10th Cir. 1990).

The Court finds that certain of counsel's remarks during closing constitute vouching. The Tenth Circuit has held that

impermissible vouching occurs only when "the jury could reasonably believe that [an attorney] is indicating a personal belief in the witness's credibility, either through explicit personal assurances of the witness's veracity or by implicitly indicating that information not presented to the jury supports the witness's testimony."

United States v. Orr, 692 F.3d 1079, 1097 (10th Cir. 2012) (quoting Bowie, 892 F.2d at 1498). West Valley Defendants' counsel did not use phrases such as "I believe" or "I think" when addressing Mr. Morris's credibility—hallmarks of improper vouching—or directly insert himself into the argument. However, since no one testified that "Layne Morris is not a man who would lie" one can only interpret counsel's statement as a personal belief and assurance as to Mr. Morris's veracity. The same holds true for counsel's statement that "[y]ou don't become a First Class Sergeant in the Green Beret unless you are a leader and a man of integrity." Further, the fact that counsel choked up while addressing Mr. Morris's truthfulness and integrity gave his arguments a more personal tone. Thus the Court finds these statements constitute improper vouching in this context.

The Court also finds that some of counsel's remarks during closing constitute improper bolstering. While, as addressed above, the Court can admit testimony concerning military service as background evidence as it allows the jury to get to know a witness and establish that he or she is a stable person worthy of belief, counsel's use of that evidence during closing argument to suggest directly that Mr. Morris would not lie presents problems. See Roger Park & Tom Lininger, The New Wigmore, § 9.1(3) (stating that where "background evidence" is used to bolster a witness's credibility, this may run afoul of Federal Rule of Evidence 608). Federal Rule of Evidence 608(a) provides that "evidence of truthful character is admissible only after the witness's character for truthfulness has been attacked." Fed. R. Evid. 608(a). Ms. Bird did not directly attack Mr. Morris's veracity. Therefore, West Valley Defendants' counsel's use of Mr. Morris's military experience to suggest he would not lie crossed the line into improper argument.

The Court notes that other courts have found that military service does not necessarily afford witnesses a higher degree of credibility. See Howard v. Horn, 56 F. Supp. 3d 709, 727 (E.D. Pa. 2014) (stating that the petitioner "offered no support for the conclusion that referring to [witness's] military background would necessarily afford him higher credibility—and other courts have held that it does not."); Illinois v. Lane, 922 N.E.2d 575, 586 (Ill. App. 2010) ("[W]e do not believe that support for members of the military automatically accords them a higher degree of credibility as witnesses."). However, counsel's remarks directly linked Mr. Morris's military experience to his truthfulness thus removing any potential ambiguity about the purpose of the evidence.

Thus the Court finds certain of the closing remarks made by West Valley Defendants' counsel concerning Mr. Morris improper. The Court must now consider, using the factors set forth in Whittenburg, whether those improper remarks, in combination with the 12 Strong comments, warrant the extreme remedy of a new trial.

a. Extensiveness of Remarks

The first factor outlined by the Tenth Circuit—the extensiveness of the improper remarks, or lack thereof—weighs against granting a new trial in this case. Counsel's arguably improper remarks during closing argument concerning Mr. Morris's credibility were very brief, lasting less than two minutes during an almost hour-long closing argument. (See 3/16/18 Trial Tr. 7:20-37:11, attached as App. 6 (West Valley Defendants' entire closing argument).) Where improper closing remarks are brief, courts generally find a new trial unwarranted. See Ramsey, 738 F.2d at 1100 (finding that an arguably improper rebuttal argument during closing did not warrant reversal of the jury verdict because the remarks "consumed only a couple of minutes at the end of a full trial", and the district judge supervising the trial "did not believe that the argument unduly aroused the sympathy of the jury"); Garcia v. Sam Tanksley Trucking, Inc., 708 F.2d 519, 522 (10th Cir. 1983) (finding a new trial unwarranted where counsel improperly referenced the wealth of the parties during closing argument because the statements reflect "minor aberrations"); Canada Dry Corp. v. Nehi Beverage Co., 723 F.2d 512, 526-27 (7th Cir. 1983) (finding district court did not abuse its discretion in refusing to grant a new trial where counsel's improper vouching for the honesty and credibility of his client "occupied about one minute in a ninety minute closing statement").

In contrast, where improper remarks permeate the closing argument, courts will more likely grant a new trial. For example, in Whittenburg, the court found a new trial appropriate where, among other things, "counsel's improper comments were repeated and emphasized throughout closing argument" and in fact "were the heart and soul of the argument." 561 F.3d at 1131; see also Gilster v. Primebank, 747 F.3d 1007, 1010-13 (8th Cir. 2014) (finding new trial warranted in sexual harassment case where "improper vouching permeated counsel's rebuttal argument," and counsel introduced facts not in evidence when recounting her own similar experiences with sexual harassment).

Courts will also more likely grant new trials where counsel engages in improper conduct throughout trial. See Cadorna v. City & Cty. of Denver, 245 F.R.D. 490, 494-97 (D. Colo. 2007) (ordering a new trial where counsel engaged in "continual, contumacious conduct" throughout trial); Moody v. Ford Motor Co., 506 F. Supp. 2d 823, 831-47 (N.D. Okla. 2007) (ordering a new trial where plaintiff's counsel engaged in misconduct throughout trial, including violating in limine rulings, making personal attacks on defense witnesses and counsel, and asking the jury to place themselves in the plaintiff's position); Stollings v. Ryobi Techs., Inc., 725 F.3d 753, 758-763 (7th Cir. 2013) (finding new trial appropriate where counsel attacked the motivations of opposing counsel throughout trial, beginning with the opening statement and continuing through the closing statement).

Here, the only misconduct by West Valley Defendants' counsel that Ms. Bird raised occurred during a few brief minutes of closing argument. Therefore this factor weighs against the extreme remedy of a new trial in this case.

b. Curative Instructions

The second factor outlined by the Tenth Circuit—whether the Court gave curative instructions after the remarks—also weighs against granting a new trial. In Spahr, "the court g[a]ve[] weight to the fact that . . . the jury was instructed that attorney argument is not evidence on two occasions: once before the opening statements and once before the closing arguments." Spahr, 686 F. Supp. 2d at 1224. Further, the court provided each juror with a written copy of the instructions, allowing jurors to follow along while the court read them and take their copies to the jury room. Id. The court also stated that "[t]he Tenth Circuit has emphasized that such instructions can mitigate the effects of references to matters not in evidence." Id. (citing Whittenburg, 561 F.3d at 1131 ("[W]e have sometimes suggested that a general instruction at the close of trial, reminding the jury that counsels' arguments are not evidence, can help mitigate an improper closing argument.") (citation omitted)). In affirming the district court's decision in Spahr, the Tenth Circuit recognized "that the jury was instructed that 'statements and arguments of counsel are not evidence.' " 419 F. App'x at 806. Further, other courts have found that such instructions help mitigate improper attorney remarks during closing. See Canada Dry, 723 F.2d at 527 (finding district court did not abuse its discretion in refusing to grant a new trial where the improper remarks during closing were brief, and the trial judge reminded "the jury that statements of counsel are not evidence").

In this case, as in Spahr, the court instructed jurors both before and after trial that arguments of counsel are not evidence. (See Preliminary Instructions, Instruction No. 4, ECF No. 143 ("Statements, arguments and questions by lawyers are not evidence."); 3/12/18 Trial Tr. 7:16-19, attached as App. 2; Jury Instructions, Instruction No. 2, ECF No. 160 ("Statements and arguments of counsel are not evidence in this case."); 3/16/18 Trial Tr. 5:23-24, App. 6.) The Court also gave copies of the final instructions to the jurors, allowing them to follow along while the Court read the instructions, and to take them into the jury room. (Id. at 3:11-19.) Of course such an instruction may not always sufficiently mitigate improper remarks, depending on the context. Whittenburg, 561 F.3d at 1132 ("Here, where the improper comments were extensive and the district court expressly overruled a contemporaneous objection, we cannot say a general instruction, issued much later and merely reminding the jury that the lawyers' arguments are not evidence, is fairly scaled to the size of the problem."). However, in this case, similar to Canada Dry, the Court finds that these instructions, combined with the brevity of the arguably improper remarks, helped mitigate any prejudicial effect those comments may have had. Accordingly, the Court finds that this factor weighs against a new trial.

c. Influence on Verdict/Prejudicial Impact

The third factor outlined by the Tenth Circuit—the size of the verdict—is not directly applicable here since the jury found in favor of the West Valley Defendants. Nevertheless, the Court considers whether the counsel's misconduct clearly influenced the verdict or obviously prejudiced the opposing party. See Lambert v. Midwest City Mem'l Hosp. Auth., 671 F.2d 372, 375 (10th Cir. 1982) (stating that "even though an argument may be improper, a judgment will not be disturbed unless it clearly appears that the challenged remarks influenced the verdict"); Ramsey, 738 F.2d at 1100 (stating that a "'judgment should not be disturbed unless it clearly appears that the remarks in question unduly aroused the sympathy of the jury and thereby influenced the verdict.'" (quoting Julander, 488 F.2d at 842)); Smith v. Atl. Richfield Co., 814 F.2d 1481, 1488 (10th Cir. 1987) (indicating that a new trial is not warranted where counsel makes an improper argument during closing "unless it obviously prejudiced one of the parties"); Moody, 506 F. Supp. 2d at 835 (stating that a court "should consider the prejudicial impact of plaintiffs' counsel's statements when ruling on [a] motion for a new trial"). In considering this factor, the Court also considers the effect of its overruling Ms. Bird's counsel's objection to the 12 Strong argument. (3/16/18 Partial Tr. 28:2-14, ECF No. 169-2.) This factor also weighs against granting a new trial.

First, the verdict itself indicates that the jury did not find Mr. Morris fully, if at all, credible. Ms. Bird claims that the West Valley Defendants' closing argument had the prejudicial effect of forcing the jury to either side with Mr. Morris, "a patriot and war hero," or Ms. Bird. (Reply 2, ECF No. 173; see also Mot. 5, 10, ECF No. 169.) The parties stipulated that for purposes of establishing municipal liability this case, Mr. Morris was the final decision maker in Ms. Bird's termination, and accordingly, the Court instructed the jury that it "must consider Mr. Morris's motivation in terminating Ms. Bird in making decisions about West Valley City's liability." (Jury Instructions, Instruction No. 11, ECF No. 160.) At trial, Mr. Morris unequivocally testified that leaks to the press and played no role in his decision to terminate Ms. Bird's employment. (3/15/18 Trial Tr. 48:8-58:1, App. 5.) However, the jury found that Ms. Bird proved by a preponderance of the evidence that West Valley City's belief that she leaked information to the press regarding Andrea the cat was a "substantial or motivating factor" in its decision to terminate her. (Special Verdict Form, ¶¶ 2, 3, ECF No. 166); see Trant v. Oklahoma, 754 F.3d 1158, 1166 (10th Cir. 2014) (stating that to prove a First Amendment retaliation claim, "the employee must show that the speech was a 'substantial factor or a motivating factor in a detrimental employment decision.'" (quoting Brammer-Hoelter v. Twin Peaks Charter Acad., 492 F.3d 1192, 1203 (10th Cir. 2007))). Thus the jury's decision reflects that they did not find Mr. Morris's testimony credible. Therefore any arguably improper attempts to bolster or vouch for his credibility did not work, as the jury expressly disagreed with Mr. Morris's statements about his motive. Similarly, while a judge's overruling of an objection can make an error worse, Whittenburg, 561 F.3d at 1132, in this case the jury did not allow argument to drive its factual determinations concerning Mr. Morris's credibility.

The jury then went on to find that the West Valley City proved its defense by a preponderance of the evidence—that it would have terminated Ms. Bird regardless of the Andrea the cat incident. (Special Verdict Form, ¶ 4, ECF No. 166); see Trant, 754 F.3d t 1167 (stating that "if the employee establishes that his or her protected speech was a motivating factor in the adverse employment decision, 'the burden then shifts to the defendant, who must show by a preponderance of the evidence it would have reached the same employment decision in the absence of the protected activity' " (quoting Cragg v. City of Osawatomie, 143 F.3d 1343, 1346 (10th Cir.1998))). The trial record contains ample evidence concerning Ms. Bird's performance at West Valley City, including problems with her communication and management style, and her contentious relationship with and insubordinate conduct toward her supervisor Mr. Davis, much of which predates the October 2011 leaks to the press concerning Andrea the cat. (See, e.g., 3/13/18 Trial Tr. (Bird Testimony) 3:6-21:4, App. 3; 3/14/18 Trial Tr. (Davis Testimony) 7:7-31:12, App. 4; 3/14/18 Trial Tr. (George Testimony) 31:19-59:2, App. 4; 3/15/18 Trial Tr. (Morris Testimony) 14:20-32:8, 32:25-53:8, App. 5.) Thus a reasonable jury could have and ultimately did conclude that West Valley would have fired Ms. Bird in the absence of any belief that she leaked information concerning Andrea the cat to the press.

Shirlayne George served as the human resources manager at West Valley City.

Further, the Court recognizes that this case is, as Ms. Bird argues, a "close case" and that improper vouching may prove more damaging in close cases turning on the credibility of witnesses. However, as explained above, the arguably improper attempts to bolster or vouch for Mr. Morris's credibility during closing arguments did not unfairly prejudice Ms. Bird because the jury's verdict reflects that it did not find Mr. Morris credible. Accordingly, the close nature of this case does not weigh in favor of granting a new trial.

Second, Ms. Bird's counsel had an opportunity to address—and did in fact address—the remarks that West Valley Defendants' counsel made concerning Mr. Morris's credibility during her rebuttal argument. (3/16/18 Trial Tr. 40:9-25, App. 6.) She argued that while "[c]ounsel talked about that Mr. Morris wouldn't lie about these motivations," the recordings offered during trial "show both Mr. Davis's and Mr. Morris's motivations. That they were concerned about the negative information that was in the press." (Id.) That Ms. Bird's counsel had the opportunity to respond to the arguments West Valley Defendants' counsel made during his closing argument concerning Mr. Morris's veracity lessens any prejudicial impact those comments may have had on the jury. Cf. Gilster, 747 F.3d at 1011 (finding prejudice greater where counsel made improper comments "at the end of rebuttal closing argument, when they would have the greatest emotional impact on the jury, and when opposing counsel would have no opportunity to respond"). Thus this factor too weighs against granting a new trial.

***

Importantly, the Tenth Circuit indicated that its decision to grant a new trial in Whittenburg was "not based on any of these factors singly, but rather their combination after considering the argument as a whole." 561 F.3d at 1133. There, the court found that "the confluence of these three factors—the extensiveness of the improper remarks, the absence of any meaningful curative action, and the size of the verdict" required a new trial. Id.

Here, as addressed in detail above, the three factors weigh against a new trial. The improper and arguably improper remarks of West Valley Defendants' counsel during closing arguments lasted only a few minutes, the Court instructed the jury on multiple occasions that attorney arguments are not evidence, and there is no indication that these arguments clearly influenced the verdict or obviously prejudiced Ms. Bird. Thus the conduct at issue in this case falls well below the level needed to order a new trial. See Spahr, 686 F. Supp. 2d at 1224 (finding that even where "closing arguments in a few instances crossed the sometimes fuzzy line between proper and improper[,] . . . as a whole, the court is confident that the closing fell considerably and decisively short of the level of impropriety that would merit a new trial.") Accordingly, the Court finds a new trial unwarranted.

CONCLUSION

For the foregoing reasons, the Court DENIES Ms. Bird's Motion for New Trial.

DATED this 28th day of March, 2019.

/s/_________

EVELYN J. FURSE

United States Magistrate Judge

APPENDIX 1

FW: Case 2:12-cv-00903-EJF Bird v. West Valley City et al

Stanley Preston

to:

'utdecf_furse@utd.uscourts.gov', Lindsey_Pagel@utd.uscourts.gov

03/06/2018 10:00 AM

Cc:

"'HollingsworthLaw (april@aprilhollingsworthlaw.com)'", Kass Harstad, xerniafortson,

"Bryan M. Scott", Brandon Crowther

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From: Stanley Preston <sjp@prestonandscott.com> Sort List...

To: "'utdecf_furse@utd.uscourts.gov'" <utdecf_furse@utd.uscourts.gov>,

"Lindsey_Pagel@utd.uscourts.gov" <Lindsey_Pagel@utd.uscourts.gov>

Cc: "'HollingsworthLaw (april@aprilhollingsworthlaw.com)'"

<april@aprilhollingsworthlaw.com>, Kass Harstad <kass@utahjobjustice.com>,

xerniafortson <xerniafortson@gmail.com>, "Bryan M. Scott" <bms@prestonandscott.com>,

Brandon Crowther <btc@prestonandscott.com>

History: This message has been forwarded. Judge Furse, As the Court requested, the parties have now conferred about witnesses and the amount of time the parties will need to present their cases-in-chief. The parties have agreed that we will need to have extended trial days until 4:00 p.m. each day, including Tuesday, if that can be arranged. If we are done by 4:00 pm on Tuesday, that will allow me to make my other commitment that evening. Regards, Stan Stanley J. Preston
PRESTON & SCOTT
111 S. Main Street, Suite 1600
SLC, UT 84111
DD: 801-869-1623
Cell: 801-860-9239
Fax: 801-869-1621
sjp@prestonandscott.com
www.prestonandscott.com The information contained in this e-mail and any attachments is confidential and solely for the use of the intended recipient. If the intended recipient is our client, then this information is also a privileged attorney-client communication. Unauthorized use or disclosure of this information is prohibited. If you have received this communication in error, do not read it. Please delete it from your system without copying it, and notify the sender by e-mail or by calling 801-869-1620, so that our address record can be corrected. Thank you.

APPENDIX 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH CENTRAL DIVISION In re: KAREN BIRD, Plaintiff, vs. WEST VALLEY CITY, a political subdivision of the State of Utah, KELLY DAVIS, in his official and individual capacities, Defendants. Case No. 2:12-CV-903EJF

BEFORE THE HONORABLE EVELYN J. FURSE

March 12, 2018 Partial Transcript Excerpts from Trial Laura W. Robinson, RPR, FCRR, CSR, CP
351 South West Temple
8.430 U.S. Courthouse
Salt Lake City, Utah 84101
(801)328-4800

Appearances of Counsel:

For the Plaintiff: April L. Hollingsworth
Attorney at Law
Hollingsworth Law Office LLC
1115 South 900 East
Salt Lake City, Utah 84105 Kathryn K. Harstad
Attorney at Law
Strindberg & Scholnick LLC
Plaza 721
675 East 2100 South
Suite 350
Salt Lake City, Utah 84106 Xernia L. Fortson
Attorney at Law
2935 Duke Of Windsor
Atlanta, Georgia 84106 For the Defendants: Stanley J. Preston
Bryan M. Scott
Brandon T. Crowther
Attorneys at Law
Preston & Scott
111 E. Broadway
Suite 1200
Salt Lake City, Utah 84111

Salt Lake City, Utah March 12, 2018

(Whereupon, preceding portion of the trial were not transcribed.)

THE COURT: All right. So I am -- welcome back. I am going to read to you a number of preliminary instructions to give you some orientation about what you're going to hear and the rules you need to follow. And then following that, we will take a half hour break and you can grab some lunch. Then we will come back and we will hear opening statements at that time.

So preliminary instruction number one is members of the jury, we are about to begin the trial of this case. You have heard some details about this case during the process of jury selection. Before the trial begins, however, there are certain instructions I will give you to better understand what will be presented to you and how you should conduct yourself during the trial. These remarks are an introduction only and are not evidence in the case. I will give you some instructions now and some later. You are required to consider and follow all of my instructions. Keep an open mind throughout the trial.

At the end of the trial you will discuss the evidence and reach a verdict as a group. During the trial, you will hear me use a few terms that you may not have heard before. Let me briefly explain some of the most common to you.

You will sometimes hear me refer to counsel. Counsel is another way of saying lawyer or attorney. I will sometimes refer to myself as the court.

I will now give you some preliminary instructions to guide your participation in the trial. First I will explain the nature of the case then I will explain what your duties are as jurors and how the trial will proceed. At the conclusion of the evidence I will give you more detailed instructions on the required proof and how you should proceed to reach a verdict.

This case is a civil case. A party who brings a lawsuit in a civil case is called a plaintiff. In this action the plaintiff is Karen Bird. The party against whom a civil lawsuit is brought is called the defendant. In this action, the defendants are West Valley City which I or the parties may refer to as the City, and Kelly Davis is also a defendant. I or the parties may also sometimes refer to them collectively as the defendants.

To help you understand what you will see and hear, I will now explain the background of the case.

Karen Bird worked as a manager of the West Valley City Animal Shelter until her termination in November 2011. She worked directly for defendant Kelly Davis, the shelter's director of operations, who worked for Layne Morris, the director of West Valley City's Community Preservation Department.

On November 29th, 2011, Mr. Morris terminated Ms. Bird. Ms. Bird brought this lawsuit against West Valley City and Mr. Davis alleging that her termination was motivated by their belief that she was the source of leaks to the media about the animal shelter in violation of her First Amendment Right to free speech. West Valley City and Mr. Davis claim that Ms. Bird was terminated for legitimate reasons specifically for being insubordinate, discourteous, and uncooperative.

Preliminary instruction number two. Your duty is to find from the evidence what the facts are. You and you alone are the judges of the facts. You will then have to apply those -- apply to those facts the law as the court instructs you. You must follow that law whether you agree with it or not. Nothing that the court may say or do during the course of the trial is intended to indicate nor should be taken by you as any indication of what your verdict should be. Justice through trial by jury must always depend on the willingness of each individual juror to seek the truth as to the facts from the same evidence presented to all of the jurors and to arrive at a verdict by applying the same rules of law as given in the instructions of the court.

Generally speaking -- or preliminary instruction number three. Generally speaking, two types of evidence from which a jury may properly find the truth as to the facts of the case exist. One is direct evidence, such as testimony of an eyewitness. The other is indirect or circumstantial evidence which is proof of a chain of circumstances pointing to the existence or nonexistence of certain facts. The law makes no distinction between the weight to be given to either direct or circumstantial evidence but simply requires that the jury find the facts in accordance with the preponderance of the evidence in the case both direct and circumstantial. You may consider both direct and circumstantial evidence. Direct evidence is the testimony of one who asserts actual knowledge of a fact such as an eyewitness. Circumstantial evidence is proof of a chain of facts or circumstances indicating the existence or nonexistence of a particular fact, or the occurrence or nonoccurrence of a particular event.

For example, if someone walked into the courtroom wearing a raincoat covered with drops of water and carrying a wet umbrella, that would be circumstantial evidence from which you could conclude that it was raining.

Preliminary instruction number four. The evidence from which you will find the facts will consist of sworn testimony of witnesses, documents, and other things received into the record as exhibits, any facts the lawyers agree or stipulate to, and any applicable presumptions outlined by the court.

Certain things are not evidence and you must not consider them. I will list them for you now. Statements, arguments, and questions by lawyers are not evidence. When, however, the attorneys on both sides stipulate and agree as to the existence of a fact, the jury must, unless otherwise instructed, accept that stipulation and regard that fact as conclusively proved. Objections to questions are not evidence. Lawyers have an obligation to their clients to make an objection when they think opposing counsel has offered improper evidence under the rules of evidence. Neither the objection nor the court's ruling on it should influence you. If the court sustains the objection, ignore the question. If the question is overruled, treat the answer like any other. If the court instructs you that some item of evidence is received for a limited purpose only, you must only consider that evidence for that limited purpose.

Testimony that the court has excluded or told you to disregard is not evidence and you must not consider it. Anything you may have seen or heard outside of this courtroom is not evidence and you must disregard it. You are not to consider -- or sorry. You are to consider only the evidence in this case. However, in your consideration of the evidence, you are not limited to the bald statements of the witnesses. On the contrary, you may draw from the facts that you find have been proved such reasonable inferences as seem justified in light of your experience. An inference is a deduction or conclusion that reason and commonsense would lead you to draw from the facts that are established by the evidence in the case.

Preliminary instruction number five. This is a civil case. The plaintiff has the burden of proving its case by what is called the preponderance of the evidence. That means Ms. Bird has to prove -- has to produce evidence which considered in the light of all of the facts leads you to believe that what Ms. Bird claims is more likely true than not. To put it differently, if you were to put Ms. Bird's and the City and Mr. Davis's evidence on opposite sides of the scales, Ms. Bird would have to make the scales tip toward her side. If Ms. Bird fails to meet this burden, the verdict must be for the City and Mr. Davis.

A preponderance of the evidence is not alone determined by the number of witnesses, nor the amount of testimony or documentary evidence, but rather by the convincing character of the testimony and other evidence and the inferences reasonably drawn therefrom weighted by the impartial minds of the jury.

(Whereupon, the trial proceeded but was not transcribed.)

REPORTER'S CERTIFICATE

I, Laura W. Robinson, Certified Shorthand Reporter, Registered Professional Reporter and Notary Public within and for the County of Salt Lake, State of Utah, do hereby certify:

That the foregoing proceedings were taken before me at the time and place set forth herein and were taken down by me in shorthand and thereafter transcribed into typewriting under my direction and supervision;

That the foregoing pages contain a true and correct transcription of my said shorthand notes so taken.

In witness whereof I have subscribed my name this 12th day of March, 2019.

/s/_________

Laura W. Robinson

RPR, FCRR, CSR, CP

APPENDIX 3 BEFORE THE HONORABLE EVELYN J. FURSE

March 13, 2018 Partial Transcript Excerpts from Trial Laura W. Robinson, RPR, FCRR, CSR, CP
351 South West Temple
8.430 U.S. Courthouse
Salt Lake City, Utah 84101
(801)328-4800

Appearances of Counsel:

Salt Lake City, Utah, March 13, 2018

(Whereupon, the trial was held. Portions were not transcribed.)

(The following is an excerpt of Karen Bird's cross-examination by Mr. Preston.)

Q. (By Mr. Preston) Do you remember an investigation being done among employees at the shelter by Shirlayne George in 2005?

A. Yes.

Q. And you remember reading that, don't you, and thinking that you had reason to improve. Do you recall that?

MS. HOLLINGSWORTH: Objection. Your Honor, relevance.

THE COURT: Sustained. Or sorry, overruled. Go ahead.

Q. (By Mr. Preston) Did you hear the question?

A. Could you repeat it?

Q. Yes, certainly. You had an opportunity to review that investigation and when you read it you knew there were -- you needed to improve?

A. I had been a manager for about three years at that time so yes.

Q. All right. And, um, when you read the negative comments that were there, you took that 49 as

MS. HOLLINGSWORTH: Objection. Assumes facts not in evidence.

THE COURT: Um

MR. PRESTON: Could I just ask the question and then -- could I complete the question before the objection is made.

THE COURT: Okay. Go ahead and complete the question.

Q. (By Mr. Preston) Thank you. When you read the 2005 investigation, you understood that you were having problems as a manager, did you not?

A. I felt I needed -- that there was areas of improvement.

Q. And you were having problems with the employees that you supervised?

A. No, I don't feel so.

Q. Do you remember giving a deposition in this case?

A. Uh-huh (affirmative), yes.

MR. PRESTON: Your Honor, I would publish the deposition of Karen Bird.

THE COURT: Okay.

Q. (By Mr. Preston) Is this a transcript of the deposition you gave on January 8, 2014?

A. It says so on the front, yes.

Q. All right. And you know you were placed under oath when you gave that deposition?

A. Yes.

Q. Is that correct?

A. Yes.

Q. And would you agree with me that your memory was probably better when this was given than it is today about the events in question?

A. In 2014 is when I gave this. So, um, my memory does -- I have a good long term and just that immediate recall is sometimes hard for me.

Q. Okay. Well, let me direct you to Page 59, if you would, of your deposition. And I would like you to go to Line 11 of Page 59. Tell me when you're there.

A. I'm there.

Q. Okay. Would you follow along and make sure I read this accurately. Question, I'm asking about your performance as a manager and your relationship with the employees that you supervised. Based upon your review of this, and I'll represent we were looking at the 2005 investigation, did you believe it was an indication that you were having problems with the employees you supervised? And what was your answer?

A. Here it says yes.

Q. All right. That was your testimony in 2014, correct?

A. Yes.

Q. All right. Um, did you think you were negative about the employees at the shelter generally?

A. Did I think I was negative about the employees?

Q. Yeah. Did you have a negative attitude about the employees at the shelter?

A. No.

Q. Um, let me hand you what has been marked as Defendant's Exhibit 98. This is a two-page excerpt from typewritten journal entries that you prepared. Do you recognize it?

A. Yes.

MR. PRESTON: Your Honor, I would move the admission of Defendant's Exhibit 98.

THE COURT: Any objection?

MS. HOLLINGSWORTH: No objection.

THE COURT: It is admitted.

(Whereupon, Defendant's Exhibit 98 was received into evidence.)

Q. (By Mr. Preston) Can you bring that up, please. Okay. I want to read through some of this with you. It's dated January 23, 2008. You say, what a great year it is turning out to be again, in caps, exclamation, exclamation. Let me state the issues so far this year. Suzie needs a platelet transfusion or she will die. She called sick again today. Chris's medication that she has been on for five years is the wrong kind. She calls in sick constantly. Chris is late more days than not. Nate's going blind again. Then you talk about the kennels. And you go down, Kelly hired a 53-year old inexperienced man as the new officer. Skipping down, Denise, an officer, calls in sick all the time. She never does her work right, according to others, and is late every day. And then you list three or four things that are good. And then you state, I wish I could add more to this but I can't. I'll try but no promises. Then the next entry is several months later, August 15, 2008. A lot has happened of course -- of the course of the months. David quit, exclamation point. Were you happy about him quitting?

A. I didn't really have any opinion about it. He quit.

Q. Why did you put an exclamation point behind it?

A. I don't know.

Q. Kelly hired Issai. I'm not sure -- how do you pronounce Issai?

A. Issai.

Q. Thank you, paren Spanish, close paren. And Tom, and the other guy Steve, well not much good to say about him. He doesn't know how to age an animal. Everything he brings in is either feral or three years old. Tom is a child. He is too immature to handle an officer position.

Skipping down three lines. As always, Suzie is out again. This time she had to have her gallbladder removed.

And then we'll skip down to the last paragraph. On Tuesday morning Chris called in with a migraine headache in roll call. Denice said something about how stress contributes to them and Kelly made a comment that at some point we need to be responsible for ourselves. I took that as he was saying that it's our own fault for getting the migraines. Kathy said that she doesn't get them, I told her you don't work in the office either. She said she worked in the code office. I blew her off at that point. So the very next day when Chris came back in, her and Kelly were talking about her migraine and how about bad it was and Kelly told her that he knows that she couldn't do anything about it and that controlling stress isn't as easy to do. Talk about speaking out of your ass, exclamation point. Nate has been on light duty periodically due to his side and then his back. He is still going blind but for the moment he has his contacts right now. He was without driving privileges for a few months because of eye surgery and then because his contacts weren't ready. And then he hurt his back. But when you talk to him it seems pretty gloom and doom about his health. He is going to be blind and paraplegic before too long.

I see throughout this you're talking about people's health issues and it appears to me that you were rather impatient and critical of people's health issues. Would you agree with me?

A. There was a time at the shelter we had a total of 53 days the entire year of being full staffed because of people being out sick or positions not filled and it was stressful.

Q. Okay, I understand that but my question is, were you impatient with people's health issues and because it was creating a workload problem for you?

A. I was stressed about it.

Q. Um, you appear critical about it in this, wouldn't you agree with me?

A. I appear impatient or stressed about it like I said.

Q. But you didn't think you were being critical of these folks?

(Whereupon, the trial continued but was not transcribed.)

(Whereupon, the following is an excerpt of Karen Bird's cross-examination by Mr. Preston.)

Q. (By Mr. Preston) Okay. We'll talk about that. You understood, did you not, from the performance evaluation and from whatever, conversations with Layne Morris, you knew your job was in jeopardy at that point in time, did you not?

A. I didn't think I was -- it was in jeopardy at that time. I felt that I had a bad eval and because I had given Ed his eval and Kelly said well let's do yours now.

Q. All right. Well, let's look at the Memorandum of Understanding. Handing you what has been marked as Defendant's Exhibit 73.

MS. HOLLINGSWORTH: This is already in the record as Exhibit 28.

MR. PRESTON: Well, your exhibit has additional documents on it. I want mine in because it's just the Memorandum of Understanding.

THE COURT: Okay. So I take it there is no objection then?

MS. HOLLINGSWORTH: No objection.

THE COURT: All right. We'll go ahead and admit that.

(Whereupon, Defendant's Exhibit 73 was received into evidence.)

Q. (By Mr. Preston) This document is dated December 21, 2010, and this is the Memorandum of Understanding that Kelly wrote to you, correct?

A. Yes.

Q. All right. Let's go through this. "Dear Karen, over two years ago the Animal Services Division was faced with multiple issues that could have seriously affected the morale, efficiency, professionalism, image, and viability of its existence. As a result of this situation, a personnel investigation was begun. And at the conclusion of the investigation, a decision was made to provide training for the entire division and address the perception of lack of leadership. A training session was conducted by human resource director Paul Isaac where Paul specifically addressed a team oriented topic.

Layne Morris, the director of the department, decided that reorganization was necessary to bring more accountability to management and for management to address those internal behaviors that were affecting negatively upon the organization. As a result of the re-organization, I was re-assigned and tasked with focusing more on the Animal Services Division and relieved of my duties as it related to Code Enforcement. The direction given me was to begin solving the administration's concerns and directing the organization in a more positive direction."

So he is explaining here, is he not, what happened which led two years ago in 2008 to him coming out to the shelter and focusing on the animal shelter. Do you recall those events?

A. Paul coming out to the shelter?

Q. Kelly.

A. Oh, Kelly. Yes.

Q. Okay. Do you recall Paul coming out, having this meeting?

A. No.

Q. You don't recall that?

A. No.

Q. All right. Going down to the fourth paragraph. Within that time period you and I have had discussions where your views were expressed and our differences of opinions were aired. Decisions were ultimately made as a result of yours and others input. However, your implementation of those decisions lacked the appropriate support.

Consequently, the message sent by you to your staff undermined my authority. Specifically, when it came to the cleaning protocol and the level of priority placed on cleaning you were less than supportive. Consequently, I was forced with putting in writing a daily operation schedule outlining those priorities I expected you and your staff to meet. When working with the volunteer program, your actions and attitude was you didn't have the time to spend training and doing those things that would welcome the volunteers' efforts. My decision to lessen your involvement in the hiring process was met with resentment and what I believe to be a bias against those individuals that were hired when you were not involved.

When our shelter was under fire from animal rights groups regarding the carbon monoxide chamber, you being a member of management, I was surprised to find that your public feelings on the subject were not in line with what both Taylorsville and West Valley leadership had decided in regards to its use.

To this day you remain defiant even to the point where you have expressed to other staff members that you would not use the chamber yourself and in effect poisoned those staff members to decide for them as required in policy. As a manager of people, emphasis should be towards efficiency within the operation with compassion for those individuals tasked with the necessary job of euthanasia. The chamber is efficient, feasible, and humane to both operator and animal. For some reason you refuse to accept that.

So he is going through specific things here, is he not, where he felt you have been undermining his authority and resisting the direction he wants the shelter to go in. And you were on notice of these, correct?

A. This was on my desk, yes. I didn't have an opportunity to discuss this with him.

Q. Are you sure you didn't have an opportunity to discuss this with him?

A. I don't remember discussing the Memorandum of Understanding with him.

Q. Okay. If Kelly Davis were to testify otherwise, would you say he is not telling the truth?

A. His memory could be different than mine.

Q. But whether you had the discussion or not, this had to put you on notice of issues of insubordination regarding cleaning, regarding the volunteer program, regarding your resistance and defiance with respect to the euthanasia policy, your poisoning the well to other employees. You were aware of these things back on December, late December 2010 and he gave you notice of them in this memo of understanding, did he not?

A. He gave me this at the end of 2010, the first of 2011, yes.

Q. Let's look at the second to the last paragraph. As I reflect upon the entire operation and its ability to perform successfully as a team, I'm troubled that one of my managers is having difficulty accepting direction and implementing that direction with the proper spirit that will promote team building. There is a level of trust that is necessary between employee and supervisor and vice-versa. The same if not greater trust should be present with managers and their supervisor. I am sorry to say that I have lost the trust in your ability to administer the philosophy and vision of this organization. That is what he wrote then, correct?

A. That is what he wrote.

Q. So when your boss tells you that he has lost trust in you and that you're being insubordinate, you have to recognize that your job is in jeopardy, don't you?

A. He didn't tell me I was being insubordinate. He said he lost trust in the ability to administer the philosophy and vision.

Q. Do you mean to tell me that when he tells you that you're undermining his authority, when you are resisting the directions he is giving you, he didn't tell you that you were insubordinate?

A. No.

Q. Okay. Let's look at your 2010 Performance Evaluation. I know it is already in but I want to just have the single evaluation as an exhibit. It is Defendant's Exhibit 72.

THE COURT: Any objection?

MS. HOLLINGSWORTH: No objection.

THE COURT: We'll admit that.

(Whereupon, Defendant's Exhibit 72 was received into evidence.)

Q. (By Mr. Preston) This is your 2000 -- December 11, 2010 performance review, correct?

A. Yes.

Q. And if you look at the paragraph that begins Karen J, J is your middle initial; is that right?

A. Yes.

Q. Karen J. has been slow to adapt to some changes in her job or the work environment. Karen has difficulty accepting my role and responsibility as director since the re-organization. She frequently needs help in balancing competing demands on her time. Karen fails to recognize certain priorities that are important to her supervisor and focuses more on those job duties that are of a priority to her. She tends to not accept feedback or criticism as well as she could. Sometimes Karen J. encounters difficulties in adjusting her approach or method to best fit different situations. So you recall receiving that, correct?

A. Yes.

Q. Go to the top of the next page, second sentence. Karen has had difficulty either understanding direction given or chooses not to follow the direction given. Specific topics that demonstrate this are cleaning protocol, euthanasia policy, personnel evaluation, volunteer program. Then he states, I have noticed some improvement in those areas recently.

So you were aware that he was critical of you for not following his direction. You see that?

A. I can read what he wrote, yes.

Q. And you didn't think he was telling you that you were being insubordinate?

A. No.

Q. Okay. Go to the next paragraph, second sentence. However, she could do more to provide an environment that encourages open communication so that her subordinates feel free to discuss work problems. Feedback from her fellow employees has been she speaks down to them and walks away when employees respond. When conflicts arise, she sometimes loses her objectivity. Karen J. occasionally allows herself to express emotions in ways which are not helpful. Did you feel you had -- you needed to improve in some of these areas? Did you answer? I'm sorry, what?

A. Did I feel that I was what?

Q. Did you feel, based upon what's set forth in Performance Evaluation Exhibit 72, that you were being put on notice of things that you needed to improve on?

A. It was in my evaluation. It does say I need to improve in these areas, yes.

Q. Okay. Did you try to improve in them?

A. I believe I always tried to improve.

Q. Okay. You get this Performance Evaluation, you get the Memo of Understanding. Layne Morris tells you that he was ready to fire you. Kelly said he wanted to give you one more chance, gets you these documents. You knew at this point your job was in jeopardy, did you not?

A. I knew that Kelly wasn't happy with me.

Q. Let's look at Page 145 of your deposition. Actually go to 144, bottom of the page, line 19?

A. 144 line 19?

Q. Yes.

A. Okay.

Q. It says Exhibit 6 was marked. And I represent this is the Memorandum of Understanding. Did Kelly give this to you at or about the same time that he discussed the evaluation with you? You say yes. And on Page 145 I go on and I read from this and I said beginning on Line 19, after reading part of the Memorandum of Understanding to you, now you knew at that point that your job was probably in jeopardy, did you not? And you answered, I felt that it was.

So Ms. Bird, you have told the jury how much you loved this job. If you loved it so much, why didn't you try to improve your relationship with Kelly Davis?

A. I did try to improve it and it improved in 2011.

Q. Isn't it true that in 2011 it got to the point where you couldn't even stand to look at him?

A. After the list, yeah. When he threw the list back across the table at me, yes.

Q. Okay. Jon Andrus said he wadded it up and threw it in your face, you just said he threw it back at you. When you testified earlier, you said he slid it across the table to you. Which was it?

A. He was here (indicating) and when they gave it to him he slid it across the table to me.

Q. So he didn't throw it at you, did he?

A. He slid it across.

Q. Did he throw it at you, Ms. Bird?

A. No, he did not. He slid it.

Q. Did he wad it up and throw it in your face?

A. It didn't hit me in the face, no.

Q. Did he wad it up?

A. Not that I remember.

(Whereupon, the trial continued but was not transcribed.)

(Whereupon, the following excerpt occurred at the end of the trial day after the jury had been excused.)

THE COURT: And you may step down and you all may be seated.

All right. So Ms. Hollingsworth, do you have a general estimate on timeframes for the remainder of your case?

MS. HOLLINGSWORTH: Right. So for our -- for our case, depending on how long cross is, um, and I don't know if Mr. Preston or whoever is planning on doing their putting on their case at the same time because we're using the same witnesses, but for just what we need if we were allowed to just go through everybody tomorrow I think we would be done tomorrow. But like I said

THE COURT: By the end of the day tomorrow?

MS. HOLLINGSWORTH: Right.

MR. PRESTON: That is without me asking any questions?

THE COURT: Right.

MR. PRESTON: Is that what you're saying?

MS. HOLLINGSWORTH: Right.

MR. PRESTON: So that means that she is not going to finish her case until midday or later Thursday. I obviously have some cross-examination. She has 12 witnesses and she has done five and barely started with the sixth, that leaves basically seven witnesses to go.

I mean she has gone five and a half hours, 5 hours 10 minutes. I have used 2 hours 35 minutes. So I mean I think she has to really move her case along at this point if we're going to try to get done in four days.

THE COURT: Let me just ask you. So at this point in your case, sorry, you have got -- that is why okay so you -- you have got -- you have got Mr. Davis on the stand now. You have four other witnesses identified as will call. Do you still anticipate calling all four of them?

MS. HOLLINGSWORTH: Well, we were just talking about one of them that we conceivably may not but we want to -- we need to talk about that. At the moment, yes.

MR. PRESTON: There are six others, not four others.

THE COURT: Well, there are four other will calls and there are two other may calls. I was going to ask -- I'm asking about the will call first.

MS. HOLLINGSWORTH: Right now we are still planning on calling all of the witnesses on our list.

THE COURT: So the will and the may?

MS. HOLLINGSWORTH: Right. The last -- three of them will be very short, Wayne Paul, Tess Hartwell and Jay Breisch. So there is

THE COURT: Okay. So by very short, less than a half hour each?

MS. HARSTAD: Yes, for sure.

THE COURT: So more like 15 minutes each?

MS. HOLLINGSWORTH: Right.

THE COURT: Okay.

MS. HOLLINGSWORTH: So -- and the -- and these main witnesses that are still coming up, so obviously Kelly Davis, Shirlayne George, Layne Morris and Paul Isaac are also defendants' witnesses.

THE COURT: Right.

MS. HOLLINGSWORTH: But he is not a main -- he will be short.

THE COURT: And then your -- and then after that you only have one other witness who would not be included on that list; is that correct?

MR. PRESTON: Two.

THE COURT: You have two other witnesses, okay. Yeah, I see. Um, okay. So we -- the problem as I see it is we have had -- we have had the jury here for four days. We have had delay although we haven't talked about it I have submitted the court's jury instructions back to you which do show that any punitive damage award would need to be held -- would need to be -- that there would need to be evidence on that held after a deliberation from the jury.

And I am out of town all of next week so there is no possibility for me to run into next week. Um, as I understand it, um, Mr. Preston also has obligations. Do you have obligations on Friday as well, I'm trying to remember?

MR. PRESTON: Um, I settled that case. I will still probably have to appear in front of Judge Jenkins but hopefully it won't be very long.

THE COURT: Okay. All right. So right now our jurors are not planning on being here on Friday. So we need to do our best to get through as much as possible tomorrow because we will need to do -- obviously there will be time for closings, time for jury instruction. How much time, if you have an estimate now at this point, about closing argument.

MS. HOLLINGSWORTH: Probably an hour.

THE COURT: Probably an hour. Okay. And Mr. Preston, do you have any thoughts on that? I realize you haven't

MR. PRESTON: I would say 45 minutes to an hour.

THE COURT: Okay. All right. So I guess what I would ask you to do is if you can tonight to take -- to go through and see if there is any way you can tighten up your -- your direct exams on any of the folks that you're going to be calling so that we can move through as quickly as possible tomorrow. All right.

Any other concerns about witnesses, order of witnesses, time, things of that nature?

MR. PRESTON: No, Your Honor.

(Whereupon, the trial continued but was not transcribed.)

REPORTER'S CERTIFICATE

I, Laura W. Robinson, Certified Shorthand Reporter, Registered Professional Reporter and Notary Public within and for the County of Salt Lake, State of Utah, do hereby certify:

That the foregoing pages contain a true and correct transcription of my said shorthand notes so taken.

In witness whereof I have subscribed my name this 12th day of March, 2019.

/s/_________

Laura W. Robinson

RPR, FCRR, CSR, CP

APPENDIX 4 BEFORE THE HONORABLE EVELYN J. FURSE

March 14, 2018 Partial Transcript Excerpts from Trial Laura W. Robinson, RPR, FCRR, CSR, CP
351 South West Temple
8.430 U.S. Courthouse
Salt Lake City, Utah 84101
(801)328-4800

Appearances of Counsel:

Salt Lake City, Utah, March 14, 2018

(Whereupon, the trial was held but was not transcribed.)

(Whereupon, the following is an excerpt of a discussion held out of the presence of the jury between the Court and counsel for both parties.)

THE COURT: Okay. And then timing-wise, I am becoming concerned because tomorrow we have a six and a half hour day, if you take out the breaks. We will have an hour each for closing arguments, probably an hour of reading in the jury instructions, that takes us down to three and a half hours tomorrow. We have approximately four and a half hours left today.

MS. HOLLINGSWORTH: Okay. We expect to wrap up today. The only potential issue would be if our final witness, Jay Breisch, may have to come first thing in the morning. But we have eliminated one of our witnesses, well, two of our witnesses actually. We have agreed with counsel that a couple of exhibits will -- they have agreed that they can be admitted. We were bringing Tess Hartwell just to introduce a couple of exhibits so we're not going to use her or Paul Isaac. So remaining

THE COURT: But you're still going to need to call Paul?

MR. PRESTON: Yes, absolutely. This is the problem, Your Honor. Kelly Davis is our witness, he is my defendant. She has taken an hour-and-a-half with him, she is going to go another hour with him that is two and a half hours. What does that leave me? He is my witness. I need to put my case on. If I take anywhere near the time she is taking with my witnesses, this trial is not going to end on Thursday.

THE COURT: Yes. Um, and yeah, I -- and so my thought was to try and do an hour divide between the parties at this point, dividing the length of time and then it is up to you how you want to use them as far as which witness. But so with the three and a half hours from tomorrow, the four and a half hours from today, that's -- that's eight hours. So -- and given -- and then, um, the time -- let's see so

MR. PRESTON: Your Honor, the problem is she has already taken seven hours and I have taken two and a half hours.

THE COURT: Right.

MR. PRESTON: So now we're going to divide it evenly.

THE COURT: No, I did not say evenly.

MR. PRESTON: Okay. That is what I thought you said.

THE COURT: Give me a minute. I did not say evenly. So we have got eight hours to divide up and um

MS. HOLLINGSWORTH: Your Honor, I want to point out that we have the burden of proof and these are effectively our witnesses. They're using the same witnesses. So, um, if -- and I have offered Mr. Preston the opportunity if he wants to put on his direct at the same -- when he -- when I am done with Mr. Davis, for instance, but he hasn't answered me on that. So I don't know if that's what he intends or not.

THE COURT: Okay. Um, I still think it makes sense to divide up the hours because I think that the -- there is a significant risk that Mr. Preston ends up with, you know, two hours to put his case on which is clearly unfair.

So what I would say is that the plaintiff should plan to have their case finished within three hours. Now obviously, three hours of your time, so how you're using the time. That is not if Mr. Preston -- that does not include Mr. Preston's cross-examination or direct examination depending how he wants to use it so.

MS. HOLLINGSWORTH: Okay.

MS. HARSTAD: Your Honor, can I ask a clarifying question? So I understand that you intend to do punitive damages afterwards?

THE COURT: Right.

MS. HARSTAD: Can we put on more testimony at that stage?

THE COURT: We would, um, you would -- yes.

MS. HARSTAD: So we can recall witnesses for punitive damage purposes at that stage?

THE COURT: Correct.

MS. HARSTAD: Okay.

THE COURT: I take it there is no objection to that since that was your idea?

MR. PRESTON: That's absolutely correct, Your Honor.

THE COURT: Okay. So three hours of time left for plaintiffs, and then that would leave defendants five hours of time to put on their case. And obviously there is no obligation that you use all three hours. Anything else we need to cover before we bring the jury back in?

MR. PRESTON: No, Your Honor.

MS. HOLLINGSWORTH: No.

THE COURT: Okay. Thank you.

(Whereupon, the trial continued but was not transcribed.)

(Whereupon, the following is an excerpt of the cross-examination of Kelly Davis by Mr. Preston.)

Q. (By Mr. Preston) Okay. Um, you were handed Exhibit 71, I think that is in evidence. Do we have our copy of it that I can provide to the court.

THE COURT: It is.

MR. PRESTON: So here is Exhibit 71 which I understand is now admitted, Your Honor.

THE COURT: It is.

Q. (By Mr. Preston) This is the log that you prepared starting in June of 2010. Would you read the first entry, first paragraph?

A. Because of various difficulties in communication with Karen regarding decisions that have been made operationally, and after sitting down with Layne, Layne Morris, expressing my concerns with Karen where I felt she was actively trying to undermine my authority, I felt it necessary to sit Karen down and clarify each of our roles as managers.

Q. Then you go on to state that you discussed with her a series of topics, correct?

A. Right.

Q. And the first one has been covered, the fact that Ed Trimble had complained that Karen had told him not to use the chamber?

A. Yes.

Q. So you discussed that with her, she denied that. That was the end of that, correct?

MS. HOLLINGSWORTH: Objection, leading.

THE WITNESS: Yes.

MR. PRESTON: Your Honor, this is background. It has been covered.

THE COURT: Okay. If you could keep it short.

MR. PRESTON: Yeah. When it is substantive, I make sure I don't lead, Your Honor.

THE COURT: Okay.

Q. (By Mr. Preston) What was the next topic that you discussed with her?

A. Disgruntled staff.

Q. And what was that about?

A. Three particular employees had come in and complained to me about the frustration they were having about Karen's approachability. They felt that she was hard -- they had a hard time explaining things to her, that she was curt, that her responses to them were short, and also that in their opinion that Karen was favoring a particular employee.

Q. Who was that employee?

A. Tess.

Q. Hartwell?

A. Hartwell, yes.

Q. Did you receive complaints like that on other occasions?

A. Yes. Those kinds of complaints employees would make from time to time about favoritism or they felt like they were being treated unfairly or this person likes me better than that person, so to speak.

Q. Okay. The next topic is clinic time change. What did you discuss with Ms. Bird about that issue?

A. I had been -- we ran a clinic at the rear of our shelter every Wednesday, I'm not sure -- or no, every Monday. And that clinic was run by a vet, a licensed veterinarian and two of my staff people, a clerk and -- no, maybe it was just one of my staff because the veterinarian would bring in his own assistant.

So, um, I had those individuals, the veterinarian as well as my staff member come to me and ask if we could move the clinic date from a Monday to a Wednesday because Mondays were very difficult for not only the vet but also for the staff that we -- that was helping at the clinic. It shortened up our front clerk help. So I reviewed that with Karen and asked her -- asked her what she felt about that, how did she feel about the fact that there has been a request to move it to Wednesday. And I had -- I asked her what is your input? And her only input to me was we have always done it on Monday why can't we keep it on Monday. And I didn't feel like that that was a good enough reason to change it or not change it. So I decided to go ahead and change it to meet the -- the veterinarian's schedule as well as try to lessen the burden on my staff on Mondays.

Q. All right. And your last sentence, would you read the last sentence of that paragraph, or last two sentences?

A. Okay. Um, I decided to change the

Q. Beginning with "Karen was visibly"?

A. "Karen was visibly upset that I made that decision. Her facial expression to me at the time I informed her was of disgust and apathy."

Q. And the next topic you discussed with her was her role and your role. Is that -- is that the next item there?

A. Yes. Yes.

Q. Okay. Let me read this and follow along and make sure I have read it correctly. "Karen has had difficulty recognizing each of our roles since she returned to work after her traffic accident. Karen was out for over five months on short-term disability and then light duty. During her absence, I was responsible for the day-to-day operations and overall efficiency of the entire division. Decisions were made during this time that changed some procedures. When Karen returned, she had some difficulty accepting her limited responsibility. I felt Karen was not supporting my decisions on various situations with personnel or operational issues."

You go on to say, "we discussed specifics about her focus and job duties." You wrote out the expectations you had of her that needed to be addressed each day and her responsibility for ensuring that they get done. And you asked her to be more accessible and demonstrate a willingness to listen to employee concerns. Is that what you did with her?

A. Yes.

Q. And then the last sentence of that entry was, "the message I gave Karen was I encourage communication between myself and her but will not tolerate division. She would do herself a favor if she became more of a team player than just a conduit for dissension."

A. Yes.

Q. And those were concerns you had in 2010?

A. Absolutely, yes.

Q. Okay. Let's go to the third page, Bird 0404. There is a June 28, 2010 entry. And you have a person named Torrie, and do you remember the issue with Torrie that you were concerned about, a new volunteer?

A. Yes.

Q. What was that issue?

A. She came into my office, she sought me out, and came into my office to talk to me about her volunteering. She had just been volunteering there for a few days, I think it was two to three days. And I was surprised to hear that she was upset about the way she was being treated.

Q. And what was her complaint?

A. I wanted her to be candid with me, I wanted her to explain it because I wanted to know specifics regarding it because I felt it was important to have these volunteers in there helping us. And she said she was being treated as though she was not needed there, was not wanted.

Q. All right. And the second paragraph begins, "I have been concerned", if you would follow along, "I have been concerned in the past with other volunteers that this may be happening. I'm now documenting situations and will specifically address this concern with Karen. She is the manager and if she is not willing to make this program work, then she is the problem and not the solution." Did you have that discussion with Karen?

A. I certainly did on many occasions.

Q. This was an ongoing

A. More than one occasion.

Q. Was it a one time deal or an ongoing issue?

A. Torrie's complaint was an issue that I had heard in private -- in previous concerns. So this was not the first time that I had heard a volunteer or had a volunteer come in and express the fact that they felt like they were not wanted or that there was no time spent with them explaining things. So this was not the first time that it had happened.

Q. All right. Would you go to the next page, this is July 27, 2010, second paragraph, take a moment and read that if you would.

A. Okay.

Q. Do you remember that incident with the pit bull?

A. I do, yes.

Q. And you have testified before about the policy that a paramount issue was safety of the technician, correct?

A. Yes, or the employee conducting the euthanasia.

Q. Okay. Was this an example? I mean what -- how did you deal with this issue here?

A. Once it was brought to my attention, um, when you say how did I deal with it what do you mean? I am not sure what you mean.

Q. Did you have any discussions with Karen about the fact that the employees needed to have choice?

A. Oh, absolutely. As a matter of fact, I wanted to hear what Karen had to say in regards to that because right now at that point I only had Nate's side of the story and so I wanted to hear what Karen had to say in regards to it. And so we discussed the fact that safety was an issue with regards to the reason why this particular animal, the decision was made by Nate to do it that way instead of the other.

Q. All right.

A. And I confirmed that.

Q. And you confirmed that with Karen that the employee had that choice?

A. Absolutely, yes.

Q. And then on July 28th, 2010, it says that you were approached by Russ Cramer and Kathy Harris about a volunteer named Michelle. Is that Michelle Johnson that we have talked about?

A. Yes.

Q. And it says in the third sentence, Kathy says she has been told by Michelle on a couple of occasions to do things. Skipping down a sentence, Russ informed me about an instance where Michelle was rude to his mother when they were here visiting and Russ's wife overheard Michelle speaking poorly of Russ regarding a euthanasia incident. And you say you referred Russ to Karen and you were interested to see how Karen would handle that?

A. Yes.

Q. How did Karen handle it, do you recall?

A. I don't recall how she handled it.

Q. All right. August 25th, 2010, the bottom of the next Page 0406 you were -- you indicate that you had asked Karen to provide a list of activities. Do you see that?

A. Yeah. My request was basically to provide me with a list of those activities that we are involved in as a shelter, outside activities, because I was going to be presenting in the Taylorsville City Council meeting and I wanted to be able to show them or tell them what we were doing as a shelter in efforts of adoptions, going out there and doing the activities that we were doing to make adoptions more involved.

Q. And when you went back to Karen and asked her if it was done, what did she say?

A. Well, when I first asked her if she had got it done she hadn't. She said she hadn't had time or didn't -- had some reason -- she said -- well let me read it.

Q. Okay.

A. She did not have it done yet and she had other things that she was doing and would try to get to it. And that's when I informed her that it was important because I needed it at the Taylorsville meeting and it's not only that I needed it that night, Taylorsville needed the information prior to the meeting so that they could put it on the agenda. And so that's when I informed her I said I need that quickly, that needs to be a number one priority.

Q. All right. So throughout this -- we're not going to take the time to read all of these or go through them all, but were there a number of concerns you had about Karen's performance as documented here?

A. Yes. Yes.

Q. And, for example, if you go to 0409, the last own entry on October 4, 2010, it looks like you're talking about the volunteer issue again with Karen?

A. Yeah. I, like I said, I just had come back from vacation. I was approached by three different volunteers complaining to me about how they were being treated which was surprising to me because those three volunteers were pretty satisfied when I left. I mean they felt they had even told me on a couple of occasions that they loved it and we like what we're doing.

And so I asked them tell me what's going on, be specific, let me know what's going on. I don't want to just approach Karen on a nonspecific issue just that you were rude. I want to know what it is. And one of them said that Karen would not speak to her, didn't show her any respect. She said that she yells and is accusatory to her, she is rude and her instructions -- with her instructions and did not take the time to either explain or discuss what she wants done. And her perception of Karen's response to her, her perception was that Karen had no patience with those who were either volunteers or not full-time employees.

Q. If you had to summarize the issues where you felt you were having or Karen was resisting what you wanted done, what are the ones that come to mind to you?

A. Um, well obviously the volunteer program. That was a very valuable and important program that I felt was something that we needed to, we as managers, needed to make sure that was successful. Um, the cleaning procedures, those procedures that we -- since we're in new shelter I had put down certain parameters, certain priorities, and we needed to meet those priorities such as having a certain portion of the shelter where the public enters, that portion of the shelter needed to be clean and ready for the public when we opened the doors at 10:00.

Q. Okay. Let me -- let me stop you here because I want to delve into each of these and I see we're past the noon hour, Your Honor. Do you want to break now?

THE COURT: If you're good, we can -- the food is here, right?

THE CLERK: Yes.

THE COURT: We can break now if this is a good time.

MR. PRESTON: Why don't we do that now and then we'll pick this up.

THE COURT: Okay, we'll do that.

THE CLERK: All rise for the jury.

THE COURT: I would just remind you all not to discuss the case during your lunch break and we'll see you back here in a half hour.

(Whereupon, the jury left the courtroom.)

(Whereupon, the following is a portion of Cross-Examination of Kelly Davis by Mr. Preston.)

THE COURT: And Mr. Davis I will remind you you are under oath and Mr. Preston you may continue.

MR. PRESTON: Thank you, Your Honor.

Q. (By Mr. Preston) Kelly, when we broke you had mentioned two areas where you were concerned about Ms. Bird's attitude and your instructions. The first was the cleaning. I wanted to explore that a little bit. You said you wanted the office or the shelters cleaned by 10:00 a.m. Why was that important to you?

A. Well, I wanted the first -- the part of the shelter that was open to the public and cleaned by 10:00 a.m. and it was important to me because we wanted to be in a good situation with the public so that the animals were presented in a nice fashion instead of a dirty messy shelter. I wanted that shelter clean so that when the public had access to it they would see the environment and it was a receptive environment for the public.

Q. All right. And what was Ms. Bird's response when you discussed this issue with her. Well, this was not just a one time issue. This was an issue that we discussed for a number of days and months basically because we had moved into the shelter in 2007, and we were working through the process of making sure that we have that public area clean by a certain time. And so we had to progressively figure out how that was going to be done with the staff that we had. So overtime, um, we weren't getting it done it just wasn't happening. So I was conversing with Karen about we need to get it done by 10, what can we -- what are you going to do to try to make that happen. I was getting responses like, well we need more staff, we don't have the time to be able to do that. I was even coming in and, excuse me I thought you were going to say something. I was even coming in and viewing videotapes because we have video throughout the shelter, and I was even watching videotapes because my shelter techs started at 5:00 in the morning. And that was a reason why we wanted our shelter techs coming in at five was so they had that head start in the public areas.

Well, I was seeing video of my shelter tech never even entering the public area for cleaning, the cat area, until 7:00 in the morning. So there was two hours that this tech was somewhere in the building. And that was addressed with Karen. Karen, emphasize with your techs that that is where they need to start and do their work is in the public areas of the shelter so that we're completely done by 10:00.

We not only had the cats, we had the community cat rooms. We had the adoption dog areas and we had the regular dog kennels. So there was a lot to be done in that five hours before the public entered. And those conversations overtime just seemed to not happen. I mean it just wasn't getting done.

Q. I think you may have misspoke. You said we moved into the new shelter in 2007?

A. In the new shelter?

Q. That is what you said. Did you mean 2009 moving into the new shelter?

A. It could be. I thought it was September of 2007 could it have been -- it was 2009, you're right. Because I moved out to the old shelter in 2007. You're right.

Q. Okay. So did this problem persist throughout the period of time that Ms. Bird was the shelter manager?

A. It continued. I mean it wasn't an every day thing there were some days we were successful other days we weren't, but there was more often than not that particular issue was not being -- was not being addressed in the spirit that I felt it should be, in the importance that I -- that I tried to place on it.

Q. Okay. The second category you mentioned was the volunteers and I think you said training them. What was Ms. Bird's response when you talked to her about training the volunteers properly?

A. And again those are not like one time instances, this is over time. Um, Karen's response to me was well, I don't have the time, um, I am doing other things and my employees don't have the time to do it, my staff or her staff doesn't have the time to do it. Um, we need more people. And I tried to convince her that that is not going to happen. I mean we're not going to increase our staff so we have got to find ways to make sure that we utilize our volunteers in -- to the best way possible. And if they need that training which they do, they need to be oriented to the job, then we need to take that time to do it. Whether Karen did it or whether somebody within her staff did it, it needed to -- it needed to be done.

Q. Did you have budgetary limitations on how much staff you could hire?

A. Oh absolutely. I had no control over the hiring aspect of it. I couldn't just fill a position without that position being authorized by the City.

Q. Okay. Let me direct your attention to Exhibit 73 which Ms. Hollingsworth discussed with you. This is the Memorandum of Understanding. I am going to direct your attention to a portion of that on the second page that was not read to you or pointed out to you regarding the euthanasia process and the chamber. If you go down six lines there is a sentence that begins, "to this day." Do you see that?

A. Yes.

Q. Okay. This is Bird 0401. "To this day you remain defiant even to the point where you have expressed to other staff members that you would not use the chamber yourself and in effect poisoned those staff members to decide for them as required in policy." Um, what -- why was that a concern for you?

A. Well, it was disrupting the organization. Obviously the employees themselves that felt like they were being intimidated were now unable basically to have their option. They felt like they would be retaliated against or would -- there would be pressure placed on them if Karen, the supervisor, would give them -- give them bad looks and, you know, treat her -- treat them improperly because of their use. So it caused problem in that area.

Q. Did you receive complaints from any officers that were under Nate Beckstead about this issue?

A. Yeah. All of the officers realized that that was a tool for them. And so yeah, I had complaints from officers that were saying well, you know, she is looking at me this way or she will be pissed off or whatever it may be and -- if I use it. So, yes, I had those kinds of complaints.

Q. You heard Ms. Bird testify yesterday about using I think she called it a squeeze gate if you're using injection with a ferocious animal. Was a squeeze gate in the new animal shelter?

A. No. That was in the old shelter.

Q. All right. So if you had a ferocious animal, what was the choice that the employees could use to euthanize that animal?

A. Well, because of the policy, the only options that they had was either injection or carbon monoxide unless it was a vicious animal. So they had that third choice to make a decision as to which one they were to use. And so if it was a vicious animal, then they could choose on how they wanted to euthanize that animal.

Q. If they wanted to inject it, what would it require?

A. It would require more help obviously or it would require a potential injury, place them in a potential hazardous environment.

Q. Okay. Did you have concerns about animals being carried out into the front of the shelter?

A. Well, my concern of that was one, it was a directive from City that we wouldn't have animals wondering around in the front of the shelter in the public area where the lobby is. But -- but so -- but we did, there was the fact that when we adopted an animal, that animal was brought, after the adoption process was completed, the paperwork was done and the payment was made, then the animal was brought out to that owner at that time which was in the lobby. And then they would walk out the front door.

That was an appropriate time for an animal to be in the lobby. But it wasn't an appropriate time to have animals out from the kennel just in the lobby area either wandering around or being with -- up there with the clerks.

Q. Was that a topic of discussion with Karen?

A. Yes. That was not only a topic with me, but she was very well aware of that requirement that the City had made when we were building the shelter.

Q. Did you receive employee complaints about Karen and how she was treating them?

A. Treating them individually or personally.

Q. Yes?

A. Yes. I would get complaints from various employees that they felt like she was rude to them or she, you know, would walk away from them and didn't listen to them, you know, felt like they were worthless. Those kinds of things.

Q. Do you remember any of the employees who complained?

A. He -- well I know Sandra Bayne complained about it. Wes complained about it. Um, Ed Trimble complained about it. Um, that's what comes to mind right now.

Q. All right. We won't have you go through all your notes. But did there come a time when Mr. Morris approached you about initiating disciplinary action against Karen because of insubordination issues?

A. Layne come to me about that?

Q. Yeah?

A. No. He has never -- he never confronted me about input in regards to insubordination or anything.

Q. Okay. Didn't he at the end of 2010 didn't you and didn't he talk to you about getting -- releasing her at that point in time?

A. Well, yeah. Back then when he said well he wanted to fire her for insubordination, he mentioned it back then in 2010.

Q. I wasn't talking about 2011 I wanted to direct your attention to the incident in 2010?

A. Okay, I'm sorry.

Q. I wasn't very clear with that. Sorry. So what did you tell him when he approached you about that?

A. Well, at that time I -- I told him I wanted to think about it. I wanted to -- because frankly it was something that I didn't expect him to say. So I said well let me think about it. And so I, you know, I did. I thought about it but I don't know how long it was, a day or two or whatever it may have been, but then I came back with the -- with the suggestion and the recommendation that let me take time to sit down with her, draft a memorandum that explains everything up to this point, get her so that she is understanding where we are right now this time in our lives in the shelter, and how we got there, and then I want to be able to provide her with an evaluation so that she is aware of it, and then observe her for the next year and see how things progress because I don't want -- I wanted her to -- I wanted her to change and I wanted her to know exactly what the issues were so that that opportunity would present itself with her.

Q. Okay. If you would turn to Page 0412 of your log Exhibit 71 which should be still up there?

A. Okay.

Q. There is an entry December 7, 2010?

A. Okay.

Q. Does this describe what in more detail what you have just told us about?

A. 2007.

Q. Maybe I -- I think I directed you to the right page. But down to 2013, it's on that page.

A. That's not what we were just discussing.

Q. Right. You say after much thought and consideration I spoke with Layne and

A. Right.

Q. -- and Layne agreed with this suggestion; is that right?

A. Yeah. Yeah. That is when I had discussed with him after thinking this over that this is the direction that I would like to go first and he accepted that.

Q. Okay. And then Exhibit 72 is that the performance evaluation you gave her and discussed with her?

A. Yeah. That is -- yes, that's the one.

Q. And you have the Memorandum of Understanding. Did you discuss that with her as well?

A. Yes, I did.

Q. Now, there was some questioning about having documentation. Why did you require your supervisors and/or yourself to have documentation if you're grading someone below a "meets expectations"?

A. Well, it is a way to help them as a manager and supervisor to be able to document it on an evaluation. In other words, it helps remind them of those situations that you're evaluating them on. And in some instances you had documentation that covered the evaluation. Other instances you did. If you did, you -- you transposed those concerns on the evaluation. And if you didn't, then you didn't have any concerns in the evaluation.

Q. All right.

A. So it was more of an administrative tool for the supervisor to assist them in filling out the evaluations since we only do one a year.

Q. All right. So you said this is an administrative aid to the supervisor, it is meant to be shown to the employee necessarily?

A. No, it is -- it is for the supervisors. It is a tool for the supervisor to help them put an evaluation together.

Q. Okay. And you mentioned you did have back up documentation because of the log you prepared; is that correct?

A. Yeah, my documentation for this was the log, yes.

Q. But in addition to the log, you also gave Ms. Bird a Memorandum of Understanding?

A. Yeah, in addition.

MS. HOLLINGSWORTH: Objection, leading.

THE COURT: Sustained.

Q. (By Mr. Preston) Did you give her a Memorandum of Understanding?

A. Yes, I did. I provided her with that Memorandum of Understanding which began before the evaluation period too. It was to bring her up to where we were basically.

(Whereupon, the trial continued but was not transcribed.)

(Whereupon, the following is excerpts of the Direct Examination by Mr. Preston of Shirlayne George.)

MR. PRESTON: All right.

Q. (By Mr. Preston) Do you recognize Defendant's Exhibit 70?

A. Yes, I do.

Q. What is it?

A. It's my notes to the investigation on the animal shelter.

Q. All right. And when was that done?

A. Um, in 2005.

Q. All right. And do you remember what prompted you to go out there?

A. I was having lots of -- several complaints from employees and so I went out to the shelter to take a look for myself to see what was going on.

Q. Okay. And how would you characterize this? Was this your first real investigation out at the animal shelter?

A. It was.

Q. Did that provide any sort of background for you and if so, what was it?

A. Well, it was a starting focal point, um, for issues that went -- continued to go on in the shelter. It was a good basis for me since I continued to get complaints over the next several years.

Q. Did this investigation in any way provide you with a background or context to understand things that were going on?

A. It did. Because the things that I got in that initial investigation seemed to continue throughout the years.

Q. Okay. And did you provide this to anyone when it was done?

A. I did. At this point I think it would have gone to Paul.

Q. And if you will look at the last page, the last paragraph, do you address something to Paul there?

A. Yes.

MS. HARSTAD: Your Honor, I am -- this has all been very leading so I'm going to object to leading.

THE COURT: Okay. If you could modify your questions going forward.

MR. PRESTON: Your Honor, it would be nice if she thinks I ask a leading question if she would object to it then so I can determine whether I think it is leading. It's not appropriate for her to say all of those questions are leading.

THE COURT: Well, okay. I am

MR. PRESTON: And so I will be careful

THE COURT: Thank you.

MR. PRESTON: -- going on. Your Honor, we would move the admission of Defendant's Exhibit 70 based on the testimony of Ms. George to -- not for the truth thereof but what her perceptions were going forward based on what -- based on her investigation.

MS. HARSTAD: And I object to the admission. I would like a sidebar.

THE COURT: Okay. We can have a sidebar.

(Whereupon, a sidebar conference was held.)

MS. HARSTAD: Your Honor, the 2009 investigation has the -- has who said what. The 2011 those notes that I admitted says who says what. We don't know out of the 2005 investigation, we don't know who was interviewed, how many employees were there. There is nothing -- there is nothing saying who was interviewed or who said what at all.

And so I think it absolutely is hearsay. It doesn't follow the exception because we don't know who said anything and I don't -- it lacks indicia of any reliability whatsoever.

MR. PRESTON: Well, it is clearly a business record. This is what she does. She goes out and does investigations. So I think it is an exception to the hearsay any way. But this is her starting point. This is the context she used and reviewed things. So when she is criticized for not doing something with Tess Hartwell, there is reason for that. She goes back and she has all this other information. This is passed up the line. This is institutional knowledge that the City has as to problems that Ms. Bird had out at the City.

We are testifying why we terminated her. This is part of what people rely upon. It is information dating back to 2005, the entire employment history. Whether it is true or not it is what the City had and what they relied on.

MS. HARSTAD: And I mean, so did the -- the thing is that I can't cross-examine anything in here because it is not associated with anybody.

MR. PRESTON: You could ask her if she recalls.

THE COURT: That's right. So okay, um, I need you if -- to get this exhibit in I need you to lay the business record exception foundation for this document which I don't think -- you have laid it generally but not particularly for this document just yet. So if you can do that, then the hearsay within the document, um, I will allow that in but not for the truth of the matter and we will -- I will instruct the jury on -- that the interim doesn't come in for the truth of the matter and because we have had this instruction on a couple of things I think it is something that we should probably include in instructions to the jury for when they go into deliberation about what that means when something is not for the truth of the matter.

MR. PRESTON: Okay.

THE COURT: Thank you.

(Whereupon, the sidebar conference concluded.)

Q. (By Mr. Preston) Ms. George, in your position as the Human Resource Manager, do you do investigations as part of your duties and responsibilities?

A. Yes, I do.

Q. And do you take notes of those investigations?

A. Yes.

Q. What do you do with those notes? Do you type them up?

A. I type them up and give them to the supervisor or to the Human Resource Director or both.

Q. And this is what you -- and this is -- would you call this a primary duty you have as a human resource manager?

A. Yes.

Q. And are these notes stored within the business records of West Valley City?

A. If it is a formal investigation, yes.

Q. And this was a formal investigation

A. Yes, it was.

Q. -- in 2005? And so did the City maintain this record in this particular investigation in its records of work done by Human Resources?

A. Yes.

Q. In the normal course of its business?

A. Yes.

MR. PRESTON: I would move the admission, Your Honor, at this time as a business record.

MS. HARSTAD: I do have one voir dire question, Your Honor.

THE COURT: I'll allow that.

MS. HARSTAD: Can I just do it from here?

THE COURT: You can.

VOIR DIRE EXAMINATION

BY MS. HARSTAD:

Q. So Ms. George it says on here it is August 1st to August 4th of 2005. Do you know how long thereafter you did that investigation? How long thereafter you actually typed up these notes?

A. It would have been right away.

MS. HARSTAD: Okay. No further questions.

THE COURT: Okay, thank you. There has been a previous objection to this exhibit. That is noted and I will admit the exhibit over the objection.

(Whereupon, Defendant's Exhibit 70 was received into evidence.)

CONTINUED DIRECT EXAMINATION

BY MR. PRESTON:

Q. Okay. I want to ask you about some of the notes that you took here. First let me direct you to the last page. What did you write in your note to Paul in the last paragraph. Could you read that?

A. Paul, Tess

Q. Yes, go ahead.

A. "Paul, Tess is ruthless. She is protecting Karen as if she were her young. I did not even include some of the things she said about others because it was obvious she was trying to discredit those that don't seem to be on Karen's perceived favorite list. There is no doubt in my mind that she has her favorites, but I do agree that most of the problems out there are just because they are under a lot of pressure and working in conditions that most would not put up with. If you have any questions, call me. And if I don't answer I will be accessing my messages."

Q. And you can use this document to refresh your recollection, but did you get a number of complaints about Tess being treated differently because she was one of Karen's favorites?

A. Yes, I did.

Q. And did you receive complaints about Karen's ability as a manager?

THE COURT: I just want to make clear, I should instruct for the jury, that I -- that the document I have admitted as a business record there are statements inside of it that are made by people who are not in the courtroom and so I am allowing the document to be considered but it's not for the truth of the matter asserted it is to show the state -- the perception of Ms. George and where she then proceeded. And Ms. Harstad did you

MS. HARSTAD: I want to object to the question as leading.

THE COURT: Okay. If you

MR. PRESTON: I will ask it this way. I will withdraw it and ask it another way. I was trying to move this along.

Q. (By Mr. Preston) Did you form concerns about Karen Bird's management style based on this investigation?

A. Yes, I did.

Q. What were those concerns?

A. Concerns that she had anger issues, concerns that she treated the employees, some of them, unfairly. But because it was my first investigation I didn't feel -- well it wasn't for me to determine whether it needed to go further than it did. That was up to her supervisor. But it did -- it did cause me to have concerns.

Q. All right. And following this investigation, did you continue to get complaints about Karen Bird in her management style?

A. Yes, I did.

Q. I want to talk just briefly about Plaintiff's Exhibit 4 which was the 2009 investigation and that will be in the binder there if you want to look at that for a moment.

A. Okay.

Q. So I want you to tell me, you have touched upon this, but I want you to tell me what -- tell me about your meeting with Mr. Davis. You said he became emotional. What took place there when you reported this to him?

A. I was very straightforward with Kelly. Um, and told him the things that I felt that he needed to work on. I told him that if his actions didn't change that I felt like as a human resource manager that he could be terminated if not severely disciplined and that he had to make changes or there was going to be some severe consequences. And we talked about some of the things that his employees were saying that he was doing, um, and he was very -- very humble about it and said that he wanted to change and I did see a change in Kelly. Was he a perfect supervisor? No, but I have worked with lots of supervisors and there is no such thing as a perfect supervisor but he tried. I counselled Karen and I never got -- I never saw an effort for her to make those kinds of changes.

Q. Did you spend quite a bit of time counseling with Karen in her relationship with Kelly?

A. Not -- I tried to but I never felt like she was receptive to it.

Q. Okay. Did you think that you had held Kelly responsible for his conduct with the meeting you held with him?

A. I felt like -- I felt like there were changes.

Q. Well, so you talked about his problem you say that you thought he improved. What do you base that on?

A. I got fewer complaints.

Q. And you talk about doing an investigation in 2011?

A. Yes.

Q. All right. I want to go through that in detail with you. So let's look at that exhibit, Plaintiff's Exhibit 34. I want to lay the foundation. You look -- you have seen Exhibit 34 it is in the binder there. This is the e-mail on October 24. And once you received this, did you contact Karen and if so what did you say?

A. I asked her if she wanted me to do a formal investigation. I told her what it would entail, that I would have to talk to all of the employees and she said yes.

Q. Okay. Then if you look at Plaintiff's Exhibit 35, is that the formal complaint that you received?

A. Yes.

Q. And did you in connection with that you have mentioned a CD. What was the CD she gave you?

A. Okay. There were two CDs. There was the one that she did in my office where we talked about the cat, and then there was the one that she did in Kelly's office. So I think this one was the one that she did in my office where we talked about the cat.

Q. Well, look at Defendant's Exhibit 78. I'll -- I think I will hand it up here. Do you remember you talked about an e-mail you sent and you said it was dealing with the CD?

A. Okay. That was the one in my office with the cat.

Q. Well, didn't she tell you and give you a CD of a meeting she had with Kelly where she told you it was -- it showed how belittling and bullying he was of her?

A. Yes.

Q. Okay. And you told her you would listen to it; is that right?

A. Okay, yeah. I'm a little foggy here.

Q. All right. So lets's see what you said in your e-mail. This is Defendant's Exhibit 78 and it has already been admitted. Sorry. I know I promised you that I would get right back with you, but I have had a hard time making connections with the right people and it has taken me a while for me to listen to the CD you provided. I have looked at the information you have left with me and I have now listened to the CD. What did she tell you the CD was going to do? I'll stop there and ask you that question?

A. That it was going to show that Kelly was belittling her.

Q. Was it a long audio recording?

A. Yes.

Q. And did you listen to the whole thing?

A. Yes, I did.

Q. And what opinion did you form after you listened to it?

A. That Kelly was trying to counsel her not belittle her. That he was trying to help her.

Q. Did it cause you concern that you're listening to this CD, Karen is telling you it's an example of how much she is being bullied and belittled and you don't see that? What conclusions do you draw from that?

A. I was very concerned about that because at that point I had a hard time wondering how I could help Karen because -- because it seemed like she didn't -- she didn't want to accept any help. It seemed like she had reached a point where there was nothing else that we could do to help her. Um, I even -- even in the e-mail where I had said to her let me help you with your communication, that led to nowhere. And so it was just like I was hitting my head against a wall. I just didn't know what to do to help her any more.

THE COURT: Mr. Preston, I appreciate you are trying to speed us along, but if you could ask open-ended questions that would be helpful.

MR. PRESTON: All right.

Q. (By Mr. Preston) So did you -- you mentioned that you had a meeting with her I think it's on November 3, 2011. You were played a portion of that. I want to play another portion of that that is our Exhibit 93 which is already in the record. And I have a transcript that will be on the screen there you could -- actually I'll just given you a copy here.

So let me hand you this before they start playing this. Tell me if you remember this.

(Whereupon, the video was played for the jury.)

Q. (By Mr. Preston) I'll take that back. Do you recall that conversation with her now that you have heard it?

A. Yes, I do.

Q. What was the concerns, if any, that you had having heard her say that?

A. As a Human Resource Manager it broke my heart because I didn't know what else I could do to help her. I felt like Kelly was making efforts to change and I didn't feel like she was. I didn't know what else to do for her.

Q. Did she ever offer any resolution to you?

A. No.

Q. As a Human Resource Manager, is it healthy to have this sort of relationship between a department -- a director of a division and the manager under you, is that healthy or unhealthy?

THE COURT: If you could rephrase in an open-ended question, please.

Q. (By Mr. Preston) Is this the sort of relationship that you would like?

THE COURT: Mr. Preston, open-ended questions, please.

Q. (By Mr. Preston) What sort of relationship would you like a supervisor to have?

A. They have got to be able to communicate together. They have got to -- so that is something that reflects on their staff. Um, supervisors like that can't have an effective relationship with their staff if they can't communicate together and work together. It just doesn't work.

Q. So how do you deal with it if there is that situation?

A. You try and work with them. You try and get them help. Um, we hold classes, we brought in -- we brought in the Employee Assistance Program and had them hold classes for the entire staff for the entire division. I believe that they did a class on communication.

Q. This was in the past?

A. In the past, uh-huh. So there are things that we could do to try and help.

Q. Right. You have been shown the handwritten exhibits or notes you took of the 2014 or November 14, 2011 investigation. I am going to hand you now what has been marked as Defendant's Exhibit 76 and ask you if you recognize those?

A. Yes, I do.

Q. What are they?

A. Those are my notes that I typed up after my investigation of the shelter staff.

Q. Okay. So

A. Supervisory staff, excuse me.

Q. Is this the investigation that you wanted to look at the entire shelter and all of the supervisors?

A. Yes, it is.

Q. Why did you want to do that?

A. Because of what was going on because I had been getting complaints from so many of the employees that I wanted to just get an overall picture so that I could have a good idea of what was going on out there so that I could be fair.

Q. And did you type these notes up as part of your duties as the Human Resource Manager?

A. I did immediately following the investigation.

Q. And do you remember who you gave the investigation to?

A. Layne Morris.

Q. Layne Morris. Had you had any discussion with him about conducting this investigation or informed him about it?

A. Yes. I told him I was going to do the investigation.

Q. What was his response to you?

A. He was grateful. I mean he knew there were issues out there and he felt the same way that I did, that it would be a good idea to get to the bottom of it.

Q. Did you approach this with a preconceived idea as to what you would find?

A. No. No. I tried to be very open-minded. Um, as a Human Resource Manager you have to do that.

Q. Were you surprised at what you discovered when you did the investigation?

A. Not really.

Q. What were the conclusions that you formed at the end of the investigation?

A. That the issues with Karen were severe to the point that I didn't know if they could be fixed. Um, that there were still issues with both Kelly and Nathan, the other two supervisors, but that they were not as severe as the ones that we were having, I felt, with Karen.

Q. Did what you found out there in this investigation did that cause you to form any perception about how Kelly Davis was doing?

A. I felt like he was doing better.

Q. Why did you reach that conclusion?

A. Because there were fewer complaints in this investigation about him.

Q. Who received the most complaints in this investigation?

A. Karen Bird.

Q. Was it a large disparity or a small disparity?

A. It was large.

Q. Let's go through the investigation.

MR. PRESTON: Your Honor, I would move the admission of Defendant's Exhibit 76.

MS. HARSTAD: No objection.

THE COURT: We'll admit that.

(Whereupon, Defendant's Exhibit 76 was received into evidence.)

Q. (By Mr. Preston) All right. You say that in this third sentence, I summarized the comments due to the fact that they were all about the same. Do you see that?

A. Yes.

Q. And let's go to the second point here where it says, was extremely harsh, really mean to Ed Trimble, Steve Hulse. What is that referencing?

A. They were both issues I believe that happened in roll call. They were both complaining about things that happened in roll call where Karen had yelled at them in roll call.

Q. Okay. You state in the next line, roll call is very uncomfortable due to the tension between Kelly and Karen. They tend to antagonize each other. Do you see that?

A. Yes.

Q. And then you state she, who is the she you are referring to?

A. Karen.

Q. Wants to save animals by doing what is best for them, does not follow protocol. Was that a complaint that you had received?

A. Yes, it was.

Q. Skipping down, Karen's tone of voice is usually very abrasive. I'm always afraid when I do anything because if she does not like it everybody knows about it?

A. Yes.

Q. The next one, Karen hates the gas chamber. Whenever I have to put an animal down I go to Kelly to get the key because I do not like the way she makes me feel bad for using it. Did employees inform you of that?

A. Several employees.

Q. Several employees?

A. Yes.

Q. And another one, we all walk on egg shells when talking about our using the gas chamber because of her reaction. The next comment, she was heard telling her employees not to work with the officers, yet she expected the officers to help her out when she needs it. Do you remember that comment?

A. Yes.

Q. Does she supervise the officers?

A. No, she did not.

Q. Those are the Animal Control Officers in uniform that go out into the City?

A. Yes. Yes.

Q. Does that give you any concerns that these sort of comments are being made by a supervisor?

A. Definitely.

Q. Why?

A. Well, because it's insubordinate. And when they hear -- when employees hear a supervisor talking like that, um, then it just causes contention.

Q. Okay. The next one, she belittles staff in roll call calling them by name and pointing out their mistakes. Is that another comment made?

A. Yeah. That would be in regards -- along with the Ed Trimble and Steve Hulse issue.

Q. All right. One employee mentioned Karen and Tess talking bad about Kelly in front of the staff while waiting for him to show up for roll call. It was inappropriate and uncomfortable.

Do you have concerns about a manager of the shelter engaging in that conduct?

A. Yeah. There again, yeah, insubordination and conduct.

Q. Next point, when Kelly's office was changed to the shelter, Karen's personality changed, paren more argumentative, close paren?

A. Yeah. I think things got worse when they had offices in the same building.

Q. Then states, Karen claims that Kelly yells at her using a very loud tone of voice. Only one employee claims that they have witnessed that kind of behavior. Do you know who that was?

A. I don't remember.

Q. You don't recall if it was Tess?

A. I would have to go back to my handwritten notes.

Q. All right. Let's go to the next page. Third paragraph, third point down. Karen has two employees that have not had the euthanasia training doing euthanasia on a weekly basis. This person brought up the liability issue to the shelter and the City. Do you know if that was a violation of policy to have untrained employees doing euthanasia?

A. I -- I can't say for sure that it was but I'm pretty positive that it was. It was a great concern.

Q. Skip down to the paragraph that begins, Karen is letting the rescue groups take animals that could be adopted through the city. This action takes money away from the city shelter. Next one, Karen is hard to work with because you never know from day-to-day what her mood will be.

A. That was also an issue that came up in the 2005 investigation.

Q. Next, the volunteers are under-supervised -- are under-supervised and asked to do things that they have not been trained to do or sensitive things that should be done by an employee. Is that a complaint you heard?

A. Yes.

Q. Skipping down, Karen has been known to load up the euthanasia schedule on the days the officers are scheduled to put the animals down. Next, she extends the time pit bulls are kept. Actual knowledge of some being kept for longer than six months. Is that a complaint you heard?

A. Yeah. Employees felt like she liked the pit bulls the best so she wouldn't put them down.

Q. Another paragraph we were told by Jake Arslanian, who is Jake Arslanian?

A. He was the facilities manager for the entire City.

Q. Okay. That animals were not allowed in the lobby of the shelter. Kelly has tried to reinforce this but Karen and Tess take them in, quote, just to piss Kelly off, close quote.

A. Several employees told me that same thing. I called Jake myself and asked him if that was actually a policy that he had made for that building and he told me yes, it was.

Q. Skip down. Karen has belittled me in front of others for the tiniest of mistakes. At one point she said to me, quote, you ought to think about if you should stay or not, close quote. This was all over an issue of her techs not updating the I.D. cards on the kennels and a kitten was put down that should not have been. I got yelled at over something that was not my fault.

Skipping down, everyone always leaves roll call in a bad mood because of the interaction between Kelly and Karen. Next one, I was belittled in roll call by Karen because I scan all animals for chips and she thought it was unnecessary.

Next, there is definitely a division between the officers and the techs. I feel that it is all because of the bad attitudes of Kelly and Karen. Next, I think that the communication problem between Kelly and Karen stems from the fact that she gives him no input, does not support him, and does not make an attempt to communicate.

The last one on the bottom of that page, Karen comes into roll call in a defensive mood. Do you see that?

A. Yes.

Q. Let's go to the next page. Kelly asked Karen to give him a memo stating what supplies she needed for the shelter. She gave him a typed list and was upset because he would not accept it because it was not in memo format. She argued with him in front of the staff. He finally told her that they would discuss it after roll call.

Next, Karen has been heard many times saying nothing in the chamber. She does not like it. Next, she is aggressive and demeaning to her staff. She is hard to talk to because she is always so defensive. She is never happy and it shows on her face. This brings the whole staff down. Did you accurately type these up from the notes and the comments that were made to you.

A. Yes, I did.

Q. If we go to the next page, these are the comments that you took regarding Kelly and Nate. Are there less comments for them?

A. Yes, there are.

Q. Looking down on the fourth one that says, Kelly's temper has subsided immensely in the last two years. Is that your perception?

A. Yes, it is. Can I -- can I clarify that?

Q. Yes.

A. Um, that was a -- that was not my perception. That was a comment that was made by an employee.

Q. Right. But did you have a perception that he had changed?

A. Yes, I did.

Q. That's what I was asking. Thank you for clarifying that.

A. Okay.

Q. Did Layne consult you regarding what discipline he would impose?

A. No, he did not.

Q. Who had the responsibility to make that decision under the way the City is organized?

A. Layne did.

Q. Did you see through this history you've had with the animal shelter that there was any similarity between Kelly and Karen's management styles?

A. I thought it was very similar.

Q. In what way?

A. They both had -- I called it gruff personalities. Um, they didn't have real good communication skills, so similar -- similar those were kind of the big ones that kind of jumped out at me.

Q. What was any difference if there was any between Karen and Kelly?

A. Well, like I said before, when I -- when I tried to help them, Kelly at one point welcomed that, whereas I never felt like Karen did.

Q. How would you evaluate their efforts to change their management styles?

A. Kelly welcomed the help. When I suggested that we bring in the Employee Assistance Program he really welcomed that. When I suggested that we sit down and talk about things that he could do to change, he really welcomed that. So he was just more receptive to getting help.

Q. How was Karen in that regard?

A. I never -- I never -- she never took the opportunity to let me help her. We talked a lot, um, but there was never -- when I tried to help her she was always very defensive, always jumps to place blame instead of okay, what can I do to make things better. So I had a hard time trying to help her.

Q. Did you ever get any reports about Kelly being insubordinate?

A. No, not that I recall.

MR. PRESTON: Your Honor, if I might have a moment, I think I'm about done.

THE COURT: Sure.

(Brief pause in proceedings.)

MR. PRESTON: Those are all of the questions I have, Your Honor.

THE COURT: All right. Cross?

(Whereupon, the trial continued but was not transcribed.)

(Whereupon, the follow excerpt contains discussion between the court and counsel at the end of the day.)

THE COURT: You said Exhibit 4.

MR. PRESTON: I'm sorry, instruction four. Sorry. And you know it's frustrating to me we have spent 35 minutes on ratification which I think is something that is clearly we shouldn't even waste our time on. And this is critical to our case. We have the Supreme Court, they're instructing in their case law what it means to be in the absence of a belief particularly where there is mixed motives. And they're very clear on the fact that there could be some retaliatory animus. And the jury is not going to be -- that is not going to be put to the jury and that is the law.

THE COURT: I beg to differ. I think it is very clear that we say even if you find that there is a -- that this is a substantial motive. We have a separate instruction which say if they prove that they had a basis to fire her in the absence of that motive, then they're not liable. I will let you argue that.

MR. PRESTON: I want to argue that.

THE COURT: So let's come back then tomorrow morning. If we had from 7:30 to 8:30, does that give you enough time to put that on the record.

MR. CROWTHER: The doors downstairs don't open until 7:30 so we wouldn't be up here

THE COURT: At 7:30. So shortly after that.

MR. CROWTHER: I was just making the court aware.

THE COURT: I appreciate that. I would not have known. So if we -- if you could all -- so shall we say 7:45?

MR. PRESTON: Yes.

THE COURT: Does that give you enough time and with an opportunity

MR. PRESTON: Everything yes. Sure. And I get to put my key witness on, my whole case rests on. Judge, you know I'm very frustrated with how this trial has gone and I'm sorry if it is showing. But I got two hours today, they got four. They have 25 minutes left total examination from them. They're going to use that 25 minutes and then they're going to expect that they can cross-examine my witnesses.

I mean right now they have used twice as many hours in front of this jury questioning than I have had. It is simply not fair. And that has got to be on the record at some point.

THE COURT: I do understand that.

MR. PRESTON: They have the choice on what they want to emphasize.

THE COURT: Okay. I -- I have thoughts about how to address that in order to -- in order to be fair to your -- to you and your client.

MR. PRESTON: I mean I rushed through Shirlayne George tonight and I forgot to get in a key exhibit with her and she has gone back to St. George because I was rushing to get it in and I forgot.

THE COURT: Well, that -- I'm not -- I'm going to take responsibility for that.

MR. PRESTON: But that's what happens when I feel I have to rush through something.

THE COURT: And I understand that. But our court reporter has an appointment that she has to get to.

MR. PRESTON: So we need to get out of there then. We don't want to keep Laura waiting.

THE COURT: Right. So 7:45 tomorrow morning. We will address this jury instruction issue. And I will tell you both, I would tell plaintiffs you need to be prepared to finish your case in the time that you have left and we will talk about timing before we start the day and what we might need to do to address this issue.

MS. HOLLINGSWORTH: Okay. Okay, yup. So what is the court's calculation of our time?

THE COURT: How much time? Right it is the -- I don't have -- I don't have it up. So we have 38 minutes left for the plaintiffs.

MS. HOLLINGSWORTH: So did you -- did the court count my redirect against our time?

THE COURT: We did because the time has been counted for defendants when they have been crossing as well.

MS. HOLLINGSWORTH: Okay.

MR. PRESTON: By my record, it is 9 hours and 32 minutes for them and 4 hours and 30 minutes for me. So that is five more hours they have had.

MS. HOLLINGSWORTH: Your Honor, but we have and they have like two witnesses left so

MR. PRESTON: Well, I have four witnesses maybe five.

THE COURT: Right. And I mean there is obviously there is no way that I can -- we can't talk about this now. We have to get the court reporter out. We'll talk about it tomorrow. Thank you. We'll be in recess.

(Whereupon, the hearing concluded at 6:28 p.m.)

REPORTER'S CERTIFICATE

I, Laura W. Robinson, Certified Shorthand Reporter, Registered Professional Reporter and Notary Public within and for the County of Salt Lake, State of Utah, do hereby certify:

That the foregoing pages contain a true and correct transcription of my said shorthand notes so taken.

In witness whereof I have subscribed my name this 13th day of March, 2019.

/s/_________

Laura W. Robinson

RPR, FCRR, CSR, CP

APPENDIX 5 BEFORE THE HONORABLE EVELYN J. FURSE

March 15, 2018 Partial Transcript Excerpts from Trial Laura W. Robinson, RPR, FCRR, CSR, CP
351 South West Temple
8.430 U.S. Courthouse
Salt Lake City, Utah 84101
(801)328-4800

Appearances of Counsel:

Salt Lake City, Utah March 15, 2018

(Whereupon, the trial was held but was not transcribed.)

(Whereupon, the following is an excerpt with counsel regarding a timing issue.)

MS. HOLLINGSWORTH: And Your Honor, we have been talking about this and we haven't really discussed it, um, and we haven't addressed this with opposing counsel, but I would like to just throw it out there would it be possible to ask the jury if they would be okay coming for closing arguments in the morning?

THE COURT: Yes, it would be okay to ask that.

MS. HOLLINGSWORTH: Okay.

MS. FORTSON: Take the victory dance.

THE COURT: Yes, it would be okay to ask that. Um, would -- I did want to talk about timing, um, do -- do we need to ask Mr. Preston to come back or are we okay

MR. CROWTHER: I mean I talked to Mr. Preston about this. Our big concern is we do not want the jury to feel like this is our fault. It is our case that is going to be dragging it into the next day, but that's because of how long the plaintiffs have taken on their case. And if the jury feels like we're the ones keeping them in overtime, I'm not sure they will react favorably.

THE COURT: Do you have a proposal as to how you would like me to prevent that?

MR. CROWTHER: We might have to wait for Mr. Preston on that one. I can express his concern, I'm not sure I can express his proposal.

THE COURT: Not sure if you can tell me how to fix it. Okay. All right. Well, so this -- I'll tell you as I was thinking about it last night, even just looking at -- so with the times that we gave yesterday for each side, um, plaintiff had 38 minutes remaining, defendant has three hours and 4 minutes remaining -- and actually here is Mr. Preston now so I'll restate.

We just started talking about timing. And, um, Ms. Hollingsworth asked if we could ask the jury if they would be -- if they would be able to come back tomorrow morning for closing -- for closing arguments and I said yes and that's -- that is in my contemplation. And then I did hear the concerns obviously about that not reflecting on you folks. I'm open to your suggestions about how to prevent that, if there is a way in which I present it in order to prevent that or something I would like to hear about that.

MR. PRESTON: So what if they can't?

THE COURT: Um, well, I guess -- I think they anticipate that that might be where this is going. I think they recognize that you haven't had a chance to put on your case yet and it is Thursday morning. And I do think that

MR. PRESTON: What about today as far as time restrictions?

THE COURT: Right. So that is what I was going to get to. That's just where I was. So right now where we are is plaintiff with 38 minutes remaining, defendant with 184 minutes remaining which would be about three hours and four minutes. What I -- and as noted, well, I guess it wasn't quite noted, it was started to be but my -- while I can put constraints on plaintiff's ability or timeframes I certainly think I would be crossing over in to due process if I didn't give plaintiff the opportunity to cross-examine a witness.

So I don't think I can do that and with 38 minutes remaining and you yet to call your witnesses I think that is unlikely. So my theory -- my theory is that plaintiffs will have 38 minutes to finish their case today. You can begin your case and what I would like is to have the witnesses finished by the end of today so that tomorrow morning we can come in and do jury instructions and closing arguments and send the jury to deliberate. And then as far as restrictions on cross-examination, that plaintiff's cross-examination of any witnesses be limited to no more than half the time spent on direct.

MR. PRESTON: You know I think with the restrictions you have talked about, I'm -- I think we could still get it done today.

THE COURT: With instructions and closing argument?

MR. PRESTON: Um, yeah. I mean we're ready to do it all. I mean I think we ought to try and do it. I think you can ask them, but I think we ought to try to do it.

THE COURT: I'm happy to try and do it. You know what you're putting on better than I do. So that is why I don't know where you're

MR. PRESTON: Right. But you know make a decision they have 38 minutes until they rest right so that is direct and redirect.

MR. CROWTHER: The court said 32, I think.

MS. HOLLINGSWORTH: Your Honor, if -- if counsel is telling us after saying all this time they have got five witnesses to put on and it is going to take so long which frankly I knew all along they're using the same witnesses so that's just not correct. We have the burden of proof. My client has waited six years for this trial and we should be entitled to put on our entire case. And if they can do this today, they're saying that they don't have that much left, can I please have more than 38 minutes for the remaining two witnesses? We're only going to put on Layne Morris who was the decision maker, and one final volunteer who will be short. But I would, you know I was telling my volunteer last night, okay, I have got maybe eight minutes. It is kind of impossible to really adequately address those final witnesses and I am just asking for another half hour.

THE COURT: Okay. So you would like to have

MR. PRESTON: There is no we'll finish. It is going to be tight now as it is. But there is no way to do it if you give her more time. I mean she has made decisions all the way along how much time she spends and that -- and just -- and I think I see this all the time. It's well, I don't care what the plaintiff's have to do the judge will give me more time and that's what they do and they just monopolize the time.

THE COURT: Well, so I would like to -- I would like to put on the record that we -- it is the parties who tell the court how long is needed for trial. The court was told it would be four days. We talked about this when we came here on the pretrial that it was -- that that was going to be tight but that the parties thought we could do it if we did full days. So we extended from doing an 8:30 to 2:00 schedule to an 8:30 to 4:00. That increased by there is a break that gets added when you increase it to that so that increased by an hour and 45 minutes the time every day.

Last night we stayed an extra hour. We got the jury -- we got the jury selected and seated about as quickly as I think you can. So you have have had all of the time that you told me would be needed for the entire case. That's a problem. I mean it's your case. I don't know what that is. I can only go on the representations of counsel.

When we asked the jury to stay late, counsel is right it does -- there is this idea that the last person has made them stay. There is also the potential that you may want to call a rebuttal witness. Then that's more time. These concern me. We start -- we talked about on Wednesday morning when we came or sorry it was Thursday -- or Tuesday night we talked about we have got to tighten this up, we have to get this to them.

So we have -- we have that issue. Um, then we came in yesterday morning and by the time we got to I think it was our 11:00 break, we were still not through a significant amount. And so we then put time limits in place. And I understand your thoughts that you have your case to put on, but it has been your case. You have had the opportunity to do everything that you wanted to do. We have given warnings about time, um, and I do think there is concern about it going over.

MS. HOLLINGSWORTH: Your Honor, I am happy to take the blame. You can tell the jury it's my fault, that's fine.

THE COURT: Okay. So how would you propose I do that?

MS. HOLLINGSWORTH: That plaintiff underestimated how long it would take to put on her case. Plaintiff's attorney. You can put it on me.

THE COURT: Okay. Mr. Preston, what are your thoughts about my asking the jury if that -- about their ability to go into Friday morning and saying plaintiff's attorney has underestimated the time it would take on her case. We anticipate being able to finish witnesses today, but we will need to go into tomorrow morning to do closing arguments and jury instructions are you available if we do it in that fashion and then plaintiff only would get an additional half hour so it would be she would have one hour and 8 minutes to rest her case.

MR. PRESTON: Well, I am -- it is not my first choice to go on tomorrow, but I think that the court -- I understand the position the court is in so I'll agree to that. I really don't think they should get an extra half hour. They chose yesterday and they took two-thirds of the time yesterday. It went on and on. And as I said, I had a witness who had to go back to St. George, I had to put her on, I rushed through it, made the jury stay. I mean it's just not fair to me. And so I think she should do it in the 38 minutes to make sure we get done. So I think you should see how it goes.

THE COURT: Okay. So you're -- so I think, um, I'm inclined to allow the extra half hour so then as far as talking to the jury about tomorrow, is it your preference to instruct them about the need for tomorrow why that has happened only once it becomes obvious that that is what we need to do? Or would you do it, if I'm going to give the extra half, do that this morning?

MR. PRESTON: Do it this morning.

THE COURT: Okay.

MR. PRESTON: That's fine.

THE COURT: Okay.

MS. HOLLINGSWORTH: Your Honor, just one more thing. In addition to blaming it on me, and I am fully willing to take that, but I would also ask for a curative instruction that it is not to be construed against Ms. Bird herself.

THE COURT: I mean there is no world in which they are allowed to consider, you know, the statements of counsel or the acts of counsel against the client and we have that instruction.

MS. HOLLINGSWORTH: Okay.

THE COURT: Okay. All right. We haven't had a chance to talk about verdict form yet and we do need to do that. Um, let's see how the morning goes. I might be asking you all if you can bring your lunch in the courtroom to talk about verdict form if it looks like we're getting close. All right. Let's go ahead and bring the jury in.

THE CLERK: All rise for the jury.

(Whereupon, the jury returned to the courtroom.)

THE COURT: Good morning. Before we get started with testimony this morning, I would like to ask you folks about your schedules. We are on what was the scheduled last day for the trial, the fourth day. Um, plaintiff's counsel has underestimated the length of time it would take to put on her case and so we are not sure we're going to be able to finish up today. We are going to try, but we're not sure that we're going to be able to do that.

There is a chance if we can't get finished with everything to get the deliberation to you today that we would need to come back tomorrow morning and in the morning we would finish with testimony today and then in the morning have the instructions read to you, hear closing arguments, and then you would deliberate at the close of that. Does that pose a hardship for any of you? Okay.

JUROR #6: As long as I get notice. I gave my work until today so as long as I know for tomorrow I'm fine.

THE COURT: Yes, we can do that.

JUROR #12: Same here.

JUROR #11: Yes.

THE COURT: We can -- we will do that for everyone so that you all have it whether you need it or not. We will make sure that you have that. Thank you very much for your willingness and ability to be flexible. We appreciate that. All right. And with that we will get started. Ms. Hollingsworth, if you could call your

(Whereupon, the trial continued but was not transcribed.)

(Whereupon, the following is an excerpt of Layne Morris's examination by Mr. Preston.)

Q. (By Mr. Preston) And Kelly's responsibility with his skill set?

A. That was Kelly's skill set. And in addition to running a division which he had an extensive experience at the police department, he also had a level of professionalism gained through experience so that he was able to explain to people no, you know, you can't do this, or you can't do that and hold people accountable in ways that he was used to doing that could get those people to be able to perform as a team and do so professionally where it would cut down on some of the little complaints that had gone to HR during that time.

Q. I forgot to ask you one question about your military experience. What rank did you obtain?

A. I retired as a sergeant first class.

Q. So you were a noncommissioned officer?

A. That's the only way to go.

MR. PRESTON: Your Honor, would this be a convenient time to stop, to break for our morning break?

THE COURT: Do we have our stuff here? We actually don't have our treats for the jury here yet.

MR. PRESTON: I thought after an hour-and-a-half we were -- a recommendation but that is fine, I am happy to go forward.

(Whereupon, the trial continued but was not transcribed.)

(Whereupon, the following excerpt is a portion of Layne Morris's trial testimony.)

Q. (By Mr. Preston) Okay. So do you remember a time when -- let me ask this question. When the new -- when the division was moving into this new shelter, did that create any challenges for the division?

A. Yes. It was -- there was a lot of growth in the division. We were hiring people. The end result was the Code Enforcement Animal Services Division prior to splitting had a total of like eight people and, um, and the Animal Services Division alone went from that up to double that. I think right now we have got, I don't know, 18 people in the Animal Services Division so we were hiring officers, hiring shelter personnel to run the -- run the shelter itself so there was all kinds of change that of necessity had to occur.

Q. Do you recall that Karen Bird was off work for several months with an auto accident, do you recall that event?

A. Yes. It was an -- it was a tragic, a tragic accident and we all felt badly for Karen.

Q. When she came back, did you notice any tension between her and Kelly?

A. Yes. I think that tension had started before, prior to her accident, but it was certainly exacerbated by -- after her accident or increased or the level was accelerated after the accident.

Q. Okay. And tell me about what you perceived that tension to be?

A. Well, my perception was based on just visits from Karen and visits from Kelly. And so, you know, after the accident, Karen would come over about, I don't know, starting out maybe once every six months and just generally complain that she didn't like working for Kelly, he didn't listen to her, he treated her ideas as if they were not good ideas and didn't -- didn't follow any of his suggestions -- or her suggestions, and she was just generally unhappy with his leadership of the shelter and any of the changes that he continued to make there.

So those -- those visits with Karen were, you know, started out at six months and by the time I ended up holding the hearing, we were down to, you know, every week or biweekly visits from Karen to complain about Kelly and the things that had gone on.

Q. So what did you do to try to remedy this tension?

A. Well, you know, these two had history before -- before I got there. They had worked together successfully as a team for like eight years. And so as I said, um, I looked at Karen as a high performer and part of the management team. And so when, you know, when Karen would come over and just make these complaints about Kelly, um, I would explain to Karen because most of the things she would complain about are things that Kelly and I had discussed as him being my direct report. And so he and I had made a decision on that and he would tell me, um, what Karen thought about it and sometimes we agreed, sometimes we didn't. And so my observations were based on my interactions directly with Karen. And would then go to Kelly and say hey Kelly, you know, just FYI Karen came over to me see me and we talked about these couple of issues, she gave me some information I didn't know, what do you think about this and then we would make a decision.

And that -- frankly as that relationship started to deteriorate, and Karen's visits to my office became more frequent, at one point I said to Kelly, Kelly, whether or not Karen is right or wrong about any particular issue, she doesn't feel like you listen to her and give her any acknowledgment to knowing what she is talking about and she doesn't feel like she is part of your management team. And it is part of your job to make her feel as if she is part of your management team. So you need to work on that. And to Kelly's credit he did try and work on that. Um, I observed that firsthand.

So during this time, I would meet with Kelly individually, I would meet with Karen individually, I would meet with them both together. At one point I met together with both of them. And as this situation continued to deteriorate and I told them both, guys this is -- this -- I need you both -- we have to get this job done and Kelly you need to listen to Karen. Karen, you need to do what Kelly tells you to do and he is the boss, he needs to take input from you and you need to give him input. And despite -- regardless of the fact whether he never accepts anything you have to say, it is still your responsibility to provide him that input so he can make a good decision. And I'm very happy if you guys can't come up with a decision yourself and you want to come run it by me, I'm happy to sit down and be the tiebreaker or whatever it takes. But my problem was that this manager and subordinate relationship was deteriorating for whatever reason, and the only one who appeared to be trying to salvage it or make it work was Kelly. And all I got from Karen was the complaints that I don't -- I don't, you know, I don't like Kelly, Kelly doesn't like me, and he wants to fire me. And at one point after I had told Kelly, Kelly this has gone far enough, we need to have -- we need to have -- I need to do a disciplinary hearing with Karen but I want you to be on board with that, he said okay, I'll go home and think about it. And it was over the weekend and he came back on Monday and said I just I don't want to -- I don't want to go that far yet. And it wasn't I think the next day Karen was in my office complaining about Kelly's behavior again.

And I finally bluntly said to Karen, Karen you need to understand here I just told Kelly that we've got to fire you last week and he came back and said I don't want to do that. So I understand you think Kelly doesn't like you and he wants to be all that, but Kelly has just been your biggest benefactor here over the last week because if it was up to me, if I had to work with you on a daily basis under the conditions that you're both describing to me, um, when I have you both in my office and you can't even speak to Kelly, you can't even look at Kelly Davis, the loathing is so strong coming from you, that it is -- it is clear that this relationship is completely broken and we can't run a division where frankly people are being forced to choose. Do I support the big boss Kelly Davis or do I support the littler boss Karen. And people were at a point where they all felt like they had to make that decision and people were treading between those two land mines of how do I keep Karen happy but not let Kelly know that I'm not doing what Kelly said to do. And so it was an untenable -- it was literally and I should have frankly I should have taken action about a year and a half earlier, um, but it was Kelly's division. I was trying to -- you know his management style is his management style. If he wants to try and make a division work with this conflict where people are in open conflict, well I'll let that go for a little while. But at some point, you know, it is my department and I'm going to make sure that division runs like it's supposed to. And we quickly got to that point by 2011 where when Kelly declined to fire Karen that it was very quickly after that where I -- I made the decision myself and, you know, frankly I didn't at that point I didn't care what Kelly wanted to do. I had to make a decision.

Q. So you're talking about the ultimate termination in November of 2011 at this point?

A. Right.

Q. So to be clear, you're describing a process that just did it continue to deteriorate and get worse and worse?

A. It did. It got -- we would try, we would meet together and we would talk about an issue. And, you know, 2000 -- whatever 2009, 2010 they could at least be in the same room and discuss their different perspectives. Um, but by 2011, like I said, she couldn't even stand to be in the same room as Kelly and he is her boss. And frankly, I was, you know, I mean I guess I'm a military guy and chain of command is important, but I don't -- I don't think that is asking too much in any organization to say, you know, when your boss finally tells you you're going to do this, then you need to jump on board and make it happen.

Q. Why is chain of command important to you?

A. Well, you know, I don't necessarily think it is any more important to me than it is to anybody else.

Q. Okay.

A. But certainly I see the evidence on a daily basis in any -- in all of the organizations I have been a part of, that we have got to have that continuity from where the rubber meets the road, that shelter technician, those animal services officers all the way up to me, that we're all on the same page. That's how you get an efficient and well run organization where people understand their role and they're happy to operate with that role and be successful. And until Kelly physically moved out to the shelter, um, I thought that was Karen.

Q. Okay. The event where you suggested that you thought it was time -- first time to do some disciplinary action towards Karen and you described how you went to Kelly and he wanted to think about it, do you remember the day of that?

A. I don't, sorry.

Q. I think the record reflects it was the end of December of 2009?

A. Um

Q. I'm sorry, 2010. I apologize. Are you -- did Kelly say that he -- that he wanted to give her another chance?

A. He did. He did. He said let me -- I want to try a couple of things, um, and I think that was the -- where he -- where he -- wanted to try and get on the same page with Karen and I think he asked her to write down, you know, take some time and write down what you think your job description is.

I mean he tried -- he tried to do a couple of things to engage Karen in a constructive way that they could have something to discuss, to resolve this whatever this was between them so that they could -- they could be successful like they had been for about eight years or something.

Q. All right. Do you recall him doing a memorandum of understanding and a performance evaluation to assist her in knowing what she needed to do? Did you ever see those documents?

A. I -- I saw -- I saw them. I'm pretty vague on it.

Q. Sure. When you sat down, we actually have a recording by the way of a meeting where you informed

A. I had no idea about all these recordings.

Q. Karen never told you she was recording all these conversations?

A. No. Never.

Q. When you had this discussion I believe it was January 12 or 13 of 2011, so it was right after that performance review, how did she respond when you're putting her on notice that, you know, there are problems, you were considering disciplinary action, Kelly essentially saved her job, what was her response to that?

A. You know, I am -- I was always from day -- from 2009 I was always looking for Karen for something along the lines of hey, I know he's my boss and I need to -- I need to do what he says and I need to work with him and I can do better at this. And I just never got anything other than Kelly Davis is the problem and it is -- you know I felt like she was telling me it is your job to provide me with a supervisor that's acceptable to me. And, you know, I wish we all had that. But my current boss is great, I just want to say that.

But -- but, you know, it -- it's not -- it's not -- it's not always possible. So I told both of them look frankly I don't really care if you guys don't like it each other, you're not best buddies, but you have to get along and we need to be professional about this. And Karen, you need to -- you need to do what Kelly says. And Kelly, you know, you need to make Karen feel like she is part of the team. And I always felt Kelly, any time I had those conversations with him, would make an effort to reach out to Karen to find -- try and find ways to compromise with her that would make her feel as though the things that she wanted to do mattered and try and do them. Many of the things that Karen wanted to do were just not possible for a variety of reasons and to try and explain that to her. So I always got that from Kelly that he was trying. And I never, right up until the end, even when I gave Karen that disciplinary notice, and she said you know I just listened to this I didn't realize it was being recorded either, but I said, you know, that this is -- this is broken and I am going to -- I'm going to do -- I'm going to act. And she said well I just don't, you know, feel like he ever listens to me and he is trying to make me feel like he is the boss and I said well, he is the boss. And she said well, I know, but well there is no -- there is no but there. He is the boss and you might not like it. Typically when people have had enough of their boss, they quit and go get a job where they do like the boss. But Karen's attitude seemed to be, this is just my perspective, that she felt like because she loved animals the most, that anything she wanted to do was right and anything else that somebody else wanted to do was secondary to that, and we all needed to just get on board. And like I said, um, we need people like that, I want people I'm always looking for people like that, but they need to be able to understand the parameters that we're operating under.

Q. So if you recall in towards the end just prior to the decision being made by you to terminate her, getting a CD from Shirlayne George? Does that ring a bell with you?

A. Yes.

Q. Tell me about that?

A. Well I -- when I -- when I decided that I was going to -- I was going to conduct the -- do a pre-disciplinary hearing I called HR, that is the -- that is the policy, you know. You need to coordinate those things. So I called HR and said hey, I need to do a disciplinary hearing for Karen Bird and Shirlayne George said to me, you know she made a complaint, formal complaint here a couple of days ago about Kelly Davis. And I said no, I didn't know that. She said yes, she has a recording she has surreptitiously made of Kelly Davis that she says is evidence of Kelly's misbehavior and harsh and rude treatment of her. And so at that point I said well, great, I would love if it is possible for me to hear that. You know, you HR you got to do whatever it is you do in these investigations, but I would love to hear that if that's possible. And Shirlayne said sure, I'll make you a copy of it. And so I wanted to use that because that was going to help me in my hearing with Karen. I wanted to hear her side of it. Um, I had never heard Kelly speak in that manner to Karen and so if there was, you know, regardless of how she obtained it, if there was that hard evidence that Kelly was behaving that way, then that would certainly be a factor in my decision on what to do.

So I got that CD and listened to the whole thing. And frankly by the time I was done with it, I wanted to go pat Kelly on the back and say, wow, you are a man of patience and I'm very impressed especially since you didn't know you were even being taped. But to me it was -- it was hard evidence not only of Kelly Davis's patience and attempt to work with Karen, but the fact that Karen viewed that as evidence of what a terrible person Kelly was, was indicative to me of how far off base Karen was and her perspective of how the world ought to work was just really out of whack.

Q. Let me show you what has been marked and entered as Exhibit 78. Are my exhibits over here? This is an e-mail that Ms. George wrote to Karen Bird on November 9th, 2011. Take a moment and just read that, it's a short e-mail and it's already an exhibit.

A. Okay.

Q. Did you -- do you see that Ms. George says here that

MS. HOLLINGSWORTH: Your Honor, I just object to this questioning because he hasn't established this witness has any personal knowledge of the e-mail.

MR. PRESTON: Well, we have already seen it. I won't comment.

THE COURT: Okay. Um, let's go ahead and I'll wait for -- at this point I don't see a problem.

MR. PRESTON: All right.

Q. (By Mr. Preston) What I'm asking you this for, Mr. Morris, is I wanted to -- did you talk to Shirlayne and get her opinion about that as well?

A. About the

Q. The CD?

A. No.

Q. Okay. Were you aware that she sent this e-mail. What I want to know is she states in here that I've determined you have not been placed in a hostile work environment. Are there problems? Yes. Skipping down, I listened to the recording. I felt as though he was really trying to help you. Did you share a similar or a different view of that CD than Ms. George expresses in this e-mail?

A. No, I didn't. I mean I probably didn't put it in that nicely. It was a long -- it was a long meeting and yeah, frankly as a manager by the time it was over I was frustrated. You know, I -- I didn't have -- I guess I don't have the patience that Kelly does under -- under those circumstances because I wouldn't have handled it quite that gently.

Q. Were you aware of an investigation in 2009 into Kelly Davis and anger management issues raised against him?

A. I believe so.

Q. Ms. George testified that you were given a copy of that investigation. Do you recall receiving it?

A. Yes.

Q. What was -- had you ever seen Mr. Davis act in an angry or yelling or unprofessional manner?

A. No.

Q. Did you trust that investigation?

A. At that point I didn't. I didn't. I remember seeing that investigation and it was fairly dramatic I guess. And, um, at that point I felt like that division was pretty strongly split and so there was lots of I guess drama going on. So, you know, if I remember right the -- the -- I think Shirlayne had -- the conclusion she came to -- had come to was that Kelly had an issue with his temper and he lost it and he had lost it on occasion and spoken loudly or more loudly than he should have. And so I -- I took that with a grain of salt I guess is the best way to say it. I mean Kelly is an ex-police officer so, you know, he is not a wilting personality, you know, he is a strong personality and so he had to get his point across. I'm sure he speaks -- his voice tends to get elevated. I have the same problem myself. And so I would not characterize that as a man who is on the verge of losing his temper or behaving inappropriately, but yeah sometimes we all need to get a hold of ourselves and say all right maybe I was a little too strong with -- or spoke a little bit I didn't need to get to -- reach that decibel level.

Q. Okay. You said that there was a split in the division in your perception. What did you mean by that?

A. Well, like I -- well the employees were really essentially forced to decide who am I going to make happy today? Kelly or Karen. Because Kelly is telling me one thing in our staff meeting, our daily staff meeting, here is what is going on, you know, I want this guy assigned to do that. Animal services there is -- because there are, you know, animals have got to get fed and so it is one of the only divisions where you show up and you might be the office clerk but since somebody was sick that day you end up having to clean kennels. Or if you are an Animal Services Officer and you're used to being out on the road, maybe you have got to come in and cover for a clerk. So there is a daily briefing that goes on there to kind of get organized for the day. And so when you have got Kelly making decisions based on who is there and what we're going to do today and who needs to do what and how they need to do it, and when that meeting is over and employees go their own way and now it is just them and Karen and Karen is telling them well no, we need to do -- I want you to do this instead. Now an employee is forced to chose all right well, you know, I got Karen right here telling me one thing, and I know that's different than what Kelly wants me to do, but, you know, I don't want -- I don't want to get in trouble with either one of them so how do I -- how do I -- I've got to pick a side. And the people that had more interaction with Karen picked Karen. And the people that had more interaction with Kelly I think picked Kelly.

Q. Is that healthy for the division?

A. No, obviously you can't run a -- you can't run a division based on two people where one refuses to recognize the legitimacy of the other one as the -- as the boss. And so it was literally tearing that division apart. And so, um, when people are asked by HR, you know, their opinion of what's going on, um, you get a wide swing in what people think.

Some people think Karen is the most terrible person on earth, and some people think Kelly. And I think it was much closer to the middle. So I took that investigation with a little bit of a grain of salt.

MR. PRESTON: Your Honor, would now be a convenient time?

THE COURT: It would be.

THE CLERK: If the jury could rise. Or sorry, if we could all rise for the jury.

(Whereupon, the jury left the courtroom.)

THE COURT: The jury can rise, too. We'll have a 15-minute break.

MR. PRESTON: Thank you, Your Honor.

THE COURT: Thank you.

(Recess.)

(Whereupon, the trial continued but was not transcribed.)

(Whereupon, the following excerpt is a portion of Examination of Layne Morris by Mr. Preston.)

Q. (By Mr. Preston) You will see the last statement on this says someone writes back, "West Valley sure likes to murder." Are those the sorts of comments that you would get when these statements would go out?

A. Exactly.

Q. Anybody ever suggest that you use the chamber on yourself?

A. Probably.

Q. So in this meeting, what did you observe about the way Kelly and Karen interacted on October 31, the meeting that you had?

A. That was when I -- that was when I realized that this was a completely broken relationship. I mean I really had been operating too long in my opinion in hindsight but I had been operating on the -- on the premise that these two had gotten along famously for, you know, eight years, and that whatever was -- whatever was occurring now they would get over it and get back to operating efficiently like they had been.

So this was the meeting when I realized, looking back that Karen had gone just over the last six months from someone who could at least comment and in a civilized way comment or address Kelly or talk to him in my presence. She, in that meeting, she literally she couldn't even look him in the eye, she refused to look, even glance his direction. She would look at me and talk at me and talked over him. But I mean the -- like I said it before, the loathing was so strong that it was obvious to me that this is not going to get better, this is one of those ugly divorces, and Kelly is trying and Karen is not trying. And I really didn't think I had much choice.

Q. Okay. So the next day did you talk to Karen about that after your meeting with Karen and Michelle. Do you remember that?

A. I believe so.

Q. Okay. This would be a November 1 meeting. Let me hand you what has been marked as Exhibit 92. It is a brief clip. There is a transcript here.

A. It's another recording.

Q. Yes, it's another recording that was made and. This is just a clip from it but you will see a transcript right here (indicating) and we'll ask Mr. Crowther if you will play that for us and you can follow along.

(Whereupon, the video was played for the jury.)

(Whereupon, the trial continued but was not transcribed.)

(Whereupon, the following is an excerpt of examination of Layne Morris by Mr. Preston.)

Q. (By Mr. Preston) Thank you. Mr. Morris when we broke, when I last had you on the stand, we were just talking about the November 1 meeting and there had been the clip played about you telling Karen that you didn't know how this was going to work out, that they were -- that their planets were different, were in separate orbits. Do you recall that testimony?

A. I do.

Q. Now, did you meet with her again on November 9th?

A. Would that have been my pre-disciplinary meeting or

Q. No, it was before that. Do you remember having a meeting with her talking about whether or not her relationship was broken with Kelly?

A. Right.

Q. Okay. We have, again, a recording of this conversation. What do you recall -- why were you meeting with her on that occasion, November 9th, if you recall? We can pull the recording out if you don't.

A. I'm sorry I don't remember. So this would have been after we had had the conversation where I had remarked to her that it appeared to me to be irretrievably broken?

Q. No, this would be that conversation.

A. Okay.

Q. Tell me about that conversation?

A. I think it was -- this was my informing Karen that I was going to take disciplinary action. Is that what we're talking about?

Q. Yes. Yeah, November 9th. So from November 1, okay you had the meeting on October 31, you observed how they were, you talked to her about that the next day after the meeting with Michelle.

What was your thought process leading up to November 9th when you informed her about a disciplinary process?

A. That was really I think it solidified it in my mind was based on that prior meeting where, as I said, she couldn't even interact with Mr. Davis in any -- in any way.

Q. Okay. And you mentioned that there was something about the relationship being broken. Did you have that discussion with Karen?

A. Yeah, I believe she has got a recording of that. I think I told her, Karen, it appears to me just from our meeting the other day that this is irretrievably -- it's broken. You can't do it. Kelly can't do it. This relationship is not going to -- not going to work any longer. And if I remember right, she agreed and said yeah, you're right, it is broken.

Q. Did she -- she didn't deny that it was broken?

A. No.

Q. Let me hand you what's been marked as Exhibit 94. This is an audio clip of a meeting on November 9th. It's a short clip. The meeting isn't all that long and the document is already in so you can follow along in the transcript and Brandon if you would please play that.

(Whereupon, the Audio Clip 94 was played for the jury.)

Q. (By Mr. Preston) Did she ever explain what those perspectives were, that you recall?

A. Not in this meeting but I knew what her -- what her perspective was.

Q. And how did you know that?

A. Because we had been talking about it for at least a year at varying -- varying frequencies and intensities.

Q. And what did you understand her perspective was?

A. Well, her perspective was that Kelly was a bad manager and she didn't like to work with him and he didn't do things the way she wanted them done or thought was her -- it was her right to do them how she wanted to do them. I mean there was a whole litany of issues where she just didn't -- she just chaffed at his leadership in general, the way he directed and the way he approached her and the things that he wanted her to do or not to do. And she just didn't like it and thought it needed to change.

Q. Did she ever suggest to you how it should change?

A. Um, no. No, not that I -- that I recollect. It was more just that Kelly is wrong.

Q. Did she ever recognize that she might be at fault here somehow?

A. No, which was one of the troubling things to me. I mean if you are going to -- if you're going to level allegations that your supervisor should be fired or terminated or you can't work with him and you need somebody you can work with, um, there ought to be some of that that you could sit down and talk about and we can kind of reason these things out and a willingness to say look I recognize that I'm -- that I'm the subordinate here and, um, his decisions, even though I might not agree with them, I'll implement what he wants me to do but I don't like it. And I sure appreciate a second set of eyes on it. And we didn't get that very often.

Q. Did you, sitting here today, I know it has been a long time ago you have a lot of responsibilities, but can you think of some of the instances where you felt she was being resistant to him or not doing the things that he wanted done?

A. Sure. Things like personnel schedules, um, care of the animals, feeding schedules, what you can afford to purchase for the animals. Simple things like do we spend some money on buying toys for the dogs to play with in the kennels or do we spend it on blankets for the dogs in the kennels or better food. Do we buy wet food versus dry food? I mean just a what I would say is purely an opinion based -- opinion based decisions where there is -- there is not necessarily a right or a wrong answer, it is all of us got together and here's what after taking input from everybody we decided that we needed to do.

Q. Okay. So once you had made the -- informed her of a disciplinary process, did you come to find out that Ms. George was, in fact you may have mentioned this earlier in your testimony, that she was conducting an investigation at the shelter?

A. Right. Right. I, um, prior to having that I needed to check in with HR and legal just to let them know what I was -- what my intentions were, what I was doing. And when I called Shirlayne to tell her Shirlayne said oh, you know that Karen made a formal complaint, I think is how she put it, about Kelly, I think it was about Kelly not just that shelter, about Kelly specifically here, you know, a couple of days ago or something.

Q. And did she -- what did she tell you she was doing in response to that?

A. She said I'm going to do -- I told Karen that I would do an investigation and it wouldn't just be Kelly, it would be -- I was going to -- I was going to really talk to everybody at the animal shelter and get their opinion of it. And I think at that point is when she told me that as part of Karen's complaint, Karen had submitted this long -- this recording that she had secretly taped of a conversation between her and Kelly that she said was demonstrable of Kelly's abuse towards her.

Q. Okay. And did she conduct that investigation?

A. She did.

Q. And did she provide you with a copy of that?

A. She did.

Q. Let me hand you what has been marked as exhibit -- Exhibit 76. It's already in evidence.

Do you recognize that as the investigation that Ms. George did?

A. It looks like it.

Q. Okay. So when you read through this, you might take a moment just to look at it and let me give you just a few minutes to glance through it. And if there is anything that comes to mind that was significant to you, would you please let us know.

A. Well, and I think I mentioned before, that the -- the things being referred to are -- are -- they're either, um, it's evident going through this that everybody out there in the -- at the shelter was taking a side, you know. There was no -- there was no neutral -- no neutrality there. Um, and to me that was a -- I have seen other -- other investigations before and typically you have a whole bunch of people that are pretty neutral, don't care one way or another, and some people are then pretty vociferous about it and others are one way and the others are the other way. So this was kind of striking that it was so clearly divided.

Q. Do you remember recalling against whom most of the complaints were levelled?

A. Um, most of them were about Karen.

Q. And did -- so when you saw that, what did -- what did you take away from it? What were the conclusions you drew or how did it affect this process that you're going through as trying to decide what discipline, if any, you will institute?

A. Well, I mean from my own experience with -- with Karen and Kelly, that was for me the decision-making or the decider that I needed to take disciplinary action against Karen. That was based on me.

In this investigation many of these items I kind of heard about from other employees, but, um, not in any kind of specificity. I mean I knew that the place was tearing itself apart because I got that on a near weekly basis from both Karen and Kelly. So when I saw this and how human resources their investigations kind of identified Karen as a huge part of the problem, that simply gave me a reason to say well I better include this as part of my disciplinary action with Karen. So I included that, some of these items that I thought were legitimate and worth talking about with Karen.

Q. And you have already been shown your -- your pre-disciplinary letter where you identified five potential policy violations. Do you recall that?

A. I do.

Q. And so following up with this then did you have a pre-disciplinary meeting with Ms. Bird?

A. I did. From the investigation and my personal experience with Ms. Bird is how I came up with the notice of the pre-disciplinary hearing. There was -- there was things in the HR investigation that I frankly just dismissed either because I thought it was hopelessly biased one way or another and I didn't consider it. I forget what the word is but legit, I guess.

Q. So how long was this pre-disciplinary meeting with Karen Bird, do you remember?

A. Um, I bet it was -- I bet it was an hour. I'm sure there is a recording of it out there somewhere.

Q. There is. I think it goes like an hour and 40 minutes, something like that. Does that sound about right?

A. Sure.

Q. And what was the purpose of this meeting?

A. The purpose of this meeting is for Karen to explain her side of the story, so to speak, to give me mitigating factors that will help me make a decision on what to do in her case. I had a lot of options, it doesn't have be to termination, it could be any -- a whole bunch of different types of discipline. And so it was my chance to get her side of it regarding all of these allegations I listed in there. And if I remember right, we went through Shirlayne's investigation just point by point and I wanted to get her comment on everything that was listed there just to help me out to where she was coming from.

Q. Had you formed a decision, made a decision as to whether termination would be prior to this pre-disciplinary hearing?

A. No.

Q. And I think your letter says -- your notice says that you were going to hold it on November 21. But from the termination letter it says that the meeting actually took place on November 22. So it was about six days after you had delivered this pre-disciplinary notice to her that you met with her. So what was your take away from that meeting with Karen, after you heard what she had to say about it?

A. I didn't -- I didn't feel that there was again any way that she could co-exist in Animal Services with Kelly and she never took any kind of ownership of any of the problems in Animal Services or her role in them. It was just a complete denial that there was any issue with her at all. It was all Kelly, it was all Kelly's fault. And if -- if it wasn't for Kelly everything would be great. And if we could just go, you know, back to that situation where it was just her it would be wonderful. Um, you know, it has been a few years I haven't -- I haven't listened to that recording so I -- I'm kind of going from my memory, but I did not hear any mitigating factors that I thought gave me any room to say let's continue this situation with Karen as an employee.

Q. Did she offer to change in the meeting?

A. Not that I remember.

Q. Did she -- well, in this courtroom she has testified under oath that she did not do anything wrong in her employment. Would you agree with that?

A. I would not agree with that.

Q. Why wouldn't you agree with that?

A. Because of my personal experience with Karen. You know I think I have said people have asked me well give me an example of her insubordination. In my opinion she was in a state of insubordination for a couple of years frankly, and it was really simply a matter of how much do you want to tolerate. And Kelly's tolerance for that insubordination went beyond what mine was.

So yeah, that was my -- that was my -- that was my problem in a nutshell. It was -- this is a situation where one employee is just continually insubordinate in her attitude, in her words, in her actions, everything that I observed. And even though she has a lot of great qualities, loves those animals and we need that, you know, that doesn't -- that doesn't give you the right to just ignore your boss or deliberately try and undermine him.

Q. Okay. So who made the decision to terminate Karen Bird?

A. I did.

Q. Did you consult with Kelly Davis about it?

A. I didn't. I mean at that point I was frankly probably I was irritated with Kelly, um, because this should have happened probably a year earlier in my opinion. And so, you know, I had been working with Kelly to try and get him to the point where he could -- where he could be on board with me disciplining Karen. I don't need his permission to discipline Karen, but I wanted his acknowledgment and support that it needed to be done. And until it finally just got to the point with that earlier meeting we just talked about where I no longer cared what Kelly thought about the situation and I was going to -- I was going to fix my department.

Q. So you believe that Karen Bird was given opportunities to correct her behaviors and her deficiencies?

A. Karen Bird was given too many opportunities frankly.

Q. So did Kelly Davis participate in any way personally in this decision to terminate?

A. No. I am not -- I am not even sure how Kelly found out about it. I mean I -- I discussed some of my options with Human Resources and legal and probably the City manager, but Kelly wasn't involved in those discussions at all.

Q. Did he recommend that you terminate her?

A. I don't think Kelly ever recommended. One time he -- he was vocal about he wanted to work with her some more. Um, I don't ever remember Kelly saying to me, other than that one time where I said I think we need to discipline her he said all right well let me think about it. And that was on a Friday. And Monday he came back and said no, I want to -- I -- let me try a couple of things. But I don't ever remember Kelly saying to me I think we need to discipline her, I think you need to discipline her.

Q. Okay. So sitting here today in front of the jury, please articulate for the jury what was the motivation, your reason, for terminating her at this point?

A. It was almost solely I think in my -- in the big long list that Shirlayne had and the list that I included that things that I would consider, the only thing I found was her insubordination. And as part of that, probably being -- not being nice to people.

But the only thing that I had personal experience with and frankly the only thing that mattered to me is do I have a functioning team over there. And by Kelly and Karen's admittance that it was a non -- it was broken and neither one of them had a solution as to -- as to how to fix it, and so, um, I had to fix it. And I was happy -- I was happy to fix it. I knew that something needed to be done long before I actually did something as far as the discipline. But the only reason Karen Bird was terminated was because of that insubordination, that just -- that just complete refusal to acknowledge that there was any problem on her part and that she had a, from her perspective, she had a manager that she didn't like and she seemed to think that we owed her a manager that she liked. And there was some perfect situation out there that she was going to continue to agitate for until she got. And, you know, you just can't do that.

Q. What role did your personal observations of the interactions of them together play in your reaching this decision?

A. Well, like I said it was a -- it was a gradual thing over -- we're talking about over a year where it starts out back in 2009 where Karen had expressed this fear that she was going to be fired because I didn't need her or want her there. Or Kelly didn't need her or want her there. At that point, you know, we could all three sit down as the management team of Animal Services and make decisions and accomplish things. So we went from that situation all the way to the point where to get them in the same room together was difficult. And when they were in the same room together, Karen was unable to function with Kelly in any way at all and barely with me in trying to probably because she was recording our conversations is why she was reluctant to say anything, but it was difficult to get her to make a statement, to give us her opinion, to tell us what she -- what she thought should happen.

And so it was -- it was tough to have any kind of a communication with somebody who has that kind of I guess underlying motive going on and they're second guessing everything they want to say or should or shouldn't say. And so it made it very difficult to even figure out what Karen wanted other than she wanted something to change and it just wasn't her.

Q. Let me hand you two letters. Start with Plaintiff's Exhibit 16. It's already in the record.

This is a letter you wrote to Karen Bird dated November 30th, 2011, informing her of the termination. Do you recall this letter?

A. I do.

Q. Here is where you say, "thank you for attending the disciplinary hearing last Tuesday, November 22, 2011." And then in the second paragraph, "after careful consideration of our discussion and your input, it is my decision to terminate your employment for cause with West Valley City effective November 29, 2011." You don't specify what the cause was there, do you?

A. No.

Q. So let me hand you what was -- what is marked as Plaintiff's Exhibit 19. And is this a subsequent letter you wrote to Karen?

A. Yes.

Q. It is dated December 12, 2011 and you state in the second paragraph here, "as per the voicemail I left you on November 29th, 2011," and you informed her of the decision. Did you try to call her to tell her personally what the decision was?

A. Yeah. I think at first I tried to meet with her and couldn't -- couldn't -- I mean you know you never want to terminate somebody over the phone but we couldn't get a hold of her if I remember right. And so I couldn't have a meeting. So, um, I think I left her several voicemails and didn't hear back from her. And so finally I didn't feel like I had any choice but to do it by voicemail because she wasn't answering the phone.

Q. Okay. And here you do say -- state, "due to insubordination and failure to be courteous or cooperative with the public or fellow employees." And you state that "the termination is effective November 29, 2011." Were those the sustained grounds in the five listed in your pre-disciplinary letter that you sustained?

MS. HOLLINGSWORTH: Objection, leading.

THE COURT: Sustained.

Q. (By Mr. Preston) Mr. Morris, what were the two grounds you used. I mean you know we can -- we have got to at least do this when this is substantive, Your Honor. I am trying to move this along.

A. To terminate due to insubordination and failure to be courteous or cooperative with the public or a fellow employees. I think I wrote the second one because, just moving this along here, I wrote the second one because I wrote the first one and I think somebody in legal or HR reviewed it and said no, you've got to put -- you've have to put the specific things you found there and so I re-wrote the letter.

Q. Okay. So you listed five policy violations?

A. In the pre-disciplinary letter.

Q. And how many did you sustain?

A. Um, really one. I think it reads as two, insubordination and failure to be courteous or cooperative with the public or fellow employees. But yeah, those -- the insubordination which in my mind included that failure to be courteous because she was not courteous with Kelly.

Q. Do you feel the termination was justified?

A. Entirely and overdue.

Q. Are you being honest with the court and the jury telling them this was the reason?

A. I am.

Q. Now, in this case, Ms. Bird is claiming that the decision to terminate her was based on a desire to retaliate against her because you believed she was passing on information about the shelter to the press. What is your response to that?

A. Um, I guess I would say two things. I didn't believe that. I certainly didn't know it, I didn't even believe it, number one.

And number two, you know, frankly we got enough bad press all on our own we didn't need any more help. It wasn't a matter of if things at that point were going to get any better in that immediate situation, to terminate somebody based on that would be would be silly.

Q. Is that something that you would do?

A. No. We needed to take our licks on the failed euthanasia of Andrea the Cat and I was happy to stand up and say yeah, we screwed that up, um, and I didn't blame any of our people for any of the negative publicity surrounding that event. Um, when that -- when that -- when that publicity changed to out of control wild and crazy things like we reviewed earlier, that's when I knew I had to -- I had to fix that. That was a problem that needed to be -- needed to be fixed. And so I took the action that I thought was necessary to fix it.

And frankly, it did. After I had had the meeting with Karen and Michelle kind of put that shot across the bow that this had to stop, I don't recollect that being a further issue where we had people making these wild accusations.

Q. So was your decision based in any way on retaliation because of anything Karen Bird was stating?

MS. HOLLINGSWORTH: Objection.

THE COURT: Sustained.

Q. (By Mr. Preston) Was -- Well, I stated the statement here that you -- the allegation is that she was the victim of free speech retaliation. What is your response to that?

A. My response to that is that there was no retaliation, there was nothing to retaliate against. There is no secrets, you know. Nobody has a security clearance at the shelter. We don't have secrets. So, um, when bad things happen and we have made a mistake we need to own up to that and say yup, here is where we went wrong and we need to fix that. But nobody leaked anything. It's just a terrible word. No, it is not -- there is nothing leaked. Um, did we have some communication that was hurting us, absolutely. And we need to get that communication where it's helping us, where it's positive. The animal shelter we need to focus on the positives we're doing there. And so my only -- my concern there I know Kelly and I don't blame him because Kelly was getting drug through the mud in the press as if he was the embodiment of all evil at the shelter and loved to kill every -- I mean that is not good for the City to -- to have that reputation that they have an employee who is out there, you know, killing everything that he possibly can any time they have. So I needed to stop that. But my -- my efforts in doing that was not to find somebody who was doing it deliberately, I was thoroughly unconvinced that someone was doing it deliberately.

Now some of those that were crazy enough makes you start to wonder especially when given the -- given the circumstances, but that was not my focus to find, you know, somebody who had done something wrong and punish them. My focus and I think it is in the -- in the recorded meeting, is that I'm just interested in how we can fix this as a team to get ourselves on a better standing with the public. And so to say that I fired Karen based on that is -- is deeply troubling to me.

Q. When you joined the Army did you make an oath?

A. I did.

Q. What was that oath?

A. To obey -- uphold the Constitution against all enemies foreign and domestic.

Q. Do you believe in the Constitution?

A. I do.

Q. Would you knowingly violate anyone's rights under the Constitution?

MS. HOLLINGSWORTH: Objection, leading.

Q. (By Mr. Preston) Would you violate rights under the Constitution?

A. I would not. And that was a consideration. I am not an attorney. I know that there are limits on people's right to free speech and I think I say that over and over again that I -- I'm not trying to dictate to people how they should feel and what they should say but it needs to be the truth and we need to uphold the truth in this matter. And that's -- that's important to have people feel that they can -- that they can speak the truth. But, um, but we ought to be able to find a way to do that that is beneficial to both parties, the City, the Division and the person. And whether they are a volunteer or an employee, um, I think that responsibility is the same.

Q. Did you blame Karen Bird for these false statements that were being -- that you were receiving?

A. I did not. And if I had to take a stab at it I would have thought it was Michelle, the volunteer. But again, it wasn't really my focus of trying to fix the problem. I was trying to fix the problem not go backwards, we're trying to go forward. We just all had been through a traumatic event, and, you know, we got to get -- let's get past this and get back on track and move forward not spend the next, you know, how ever many days, months, and weeks trying to count up scores and find people to punish or to blame. I was happy to take the blame for that. It was my Division and it was screwed up on my watch and I accept that.

Q. These negative calls, were they disruptive to the Animal Services Division?

MS. HOLLINGSWORTH: Objection, leading.

THE COURT: Sustained.

Q. (By Mr. Preston) When you received all these calls, how did that impact the division?

A. It stresses everyone out. I mean all these employees, I mean they have got to go home every night and hear from their family, their extended family, their friends. Oh, you work at the shelter? How many kittens did you strangle today? No one -- I mean these people work at the shelter because they love animals and they want to -- they want to help them and assist them. And it's -- it's so unfair to them to be painted with that brush that they don't care, that they're callus murderers or that anybody that works there is. And so, yeah, it's horrible for moral, it's horrible for those interpersonal relationships especially if people think that these are coming from inside the shelter. Now everyone is even further afraid to even interact with each other because they don't know, you know, who the problem is or who is saying what. It's a -- it's just -- it was a terrible situation and that was what needed to get fixed, not -- not finding out who said what, where or who told, you know, four and five phone calls down the line how it got translated out. We just had to come up with a way to be able to communicate amongst ourselves and especially with all of the various partners we have out there in the community in ways that portray us in a positive light and make people want to help us and want to work with us. A rescue agency doesn't want to come and help you out if they think you're killing all of the animals for no reason.

(Whereupon, the trial continued but was not transcribed.)

(Whereupon, the following excerpt is a sidebar conference between counsel and the court.)

MR. PRESTON: Could I have a quick sidebar with the court?

THE COURT: Sure.

MR. PRESTON: So are the time limits are in place now.

THE COURT: Um, so yes. Yes. I would be happy to hear from both of you on this particular one. The witness is you calling in your case in chief. The time limit is going to be the time that you use. Since this was Ms. Hollingsworth -- since this one -- since Ms. Hollingsworth called this witness, um, I would be interested in hearing both your thoughts on how long for cross. Do you have an estimate on how long you think you need?

MS. HOLLINGSWORTH: Um, and my guess is half an hour but I never am quite right on that.

MR. PRESTON: Well, I understood she had -- you gave her an extra half an hour but all of that is gone though.

THE COURT: Right. I did give her the extra half hour and that is gone. And so, um, but we talked about this issue of the -- of the cross-examination. If I -- if I don't allow counsel to cross a witness I think we run into a problem. So do you have a recommendation on a timeframe and I will say, um, I would ask you to keep careful track that you are crossing.

MS. HOLLINGSWORTH: Okay. Only new evidence.

MR. PRESTON: I'll go with whatever the judge decides. It would be nice if we could let the jury out a little early today, I guess that's my only point since we're bringing them back. We have three witnesses to call.

THE COURT: Okay. I am going to -- I am going to go with -- limit the cross to half an hour.

MR. PRESTON: Thank you, Your Honor. Three

THE COURT: Three more to go?

MR. PRESTON: We have three witnesses.

(Whereupon, the sidebar conference concluded.)

(Whereupon, the trial continued but was not transcribed.)

(Whereupon, the following is an excerpt regarding timing held during examination of Layne Morris and where plaintiff and defendant rest their cases and argument on motion.)

Q. (By Ms. Hollingsworth) I'm asking what the reasons were that you were going to do a Loudermill?

A. Because I was going to discipline her.

Q. Why were you going to discipline her?

A. Because it needed to be done. She needed discipline. I'm not sure how to answer that. I had made a decision that this was a situation that needed discipline. I just had been to a meeting with her where she was unable, unwilling, or whatever to even function as a -- as a -- as an involved human being let alone the shelter manager in our -- in our discussion and come to any kind of meaningful resolution where I felt she was an activity participate instead of a reluctant I don't want to be here participant. And yeah, and that is the point where I told her in that follow-up meeting it is -- it is pretty clear this isn't working and it is not going to work.

Q. And would you turn quickly to Exhibit 69, Your Honor.

MR. PRESTON: Your Honor, I am going to object. This is a -- we're past

THE COURT: I think we're close to -- I think we're at the point to finish on this witness.

MS. HOLLINGSWORTH: Okay. Um, can I have one more question?

THE COURT: One more question with no follow up.

MS. HOLLINGSWORTH: Okay.

Q. (By Ms. Hollingsworth) Um, you talked with Mr. Preston about all of the false allegations that were out there?

A. Yes.

Q. So if there were false allegations out there, why -- why didn't you just -- why didn't the City just issue a press release to straighten out the facts?

A. I think we did multiple. We -- it was not just -- this wasn't just Layne against the world. I mean the City, like I said, this was kind of front and center for the whole city. So yeah, we had our people working on that around the clock. You know, they would go onto the website, and, you know, we're looking for all of the terrible comments people would leave and react to those. So I was not alone in trying to fix this problem. I was trying to fix this problem with my people. But there certainly were other people engaged in trying to turn this ship around, so to speak.

MS. HOLLINGSWORTH: Okay.

THE COURT: Thank you. Mr. Preston, how much time do you anticipate needing for redirect?

MR. PRESTON: I just have a couple of questions.

THE COURT: Wonderful. We'll go ahead with that then.

MR. PRESTON: Thank you, Your Honor.

REDIRECT EXAMINATION

BY MR. PRESTON:

Q. Mr. Morris, you were directed to your testimony at the Employee Appeals Board Hearing and a snippet was read. I wanted to get a more complete response. Do you still have that Employee Appeals Board Hearing in front of you?

A. Yeah. And I messed up the pages though.

Q. We'll be back at pages 319, 320?

A. Okay.

Q. And there was questioning about in the middle starting on Line 12 about whether Karen was disseminating negative information about the City. Did you think Karen was. And skipping down to Line 24, you state, "so it could very well be an inadvertent comment that anyone makes. It could be Kelly. It could be -- it could be me in the way I deal with people." And then the question is asked on Line 12. "Okay, let me ask you again, did you believe that that information was coming from Karen? Answer, I thought it was a possibility it was coming from Karen or Kelly or a number of employees. Question, okay, is that one of the basis for her termination?" What was your answer?

A. No.

Q. Do you stand by that today?

A. I do.

MR. PRESTON: Thank you, Your Honor. That's all I have.

THE COURT: All right. Um, Ms. Hollingsworth, do you rest?

MS. HOLLINGSWORTH: Yes.

THE COURT: Okay. In that case if we could stand for the jury we'll take a break now.

(Whereupon, the jury left the courtroom.)

THE COURT: You may be seated and you may be excused, Mr. Morris. Thank you.

THE WITNESS: Thanks.

THE COURT: Mr. Preston, did you want to make a motion.

MR. PRESTON: I did, Your Honor. Defendants at this point, now that the plaintiff has rested, move for judgment as a matter of law on this entire case for a variety of reasons which I can articulate now or later at the court's convenience.

THE COURT: I think it would be helpful if I could have a brief summary now and hear a more complete argument later but just so that I can have that in mind.

MR. PRESTON: Thank you, Your Honor.

First, Your Honor, under the first element of the Garcetti-Pickering, with respect to the Andrea the Cat statement the testimony is undisputed that -- I don't know how much detail you want I can get going and I will talk too much, I'm sorry, but Andrea the Cat we think fails under the first element because it is done with authorization. And both Ms. Bird admitted that and so did Mr. Morris and it's on the recordings. He knew it was going to get out. It gets out and he was fine with that. So -- she -- that was part of her duty to talk to vets, talk to rescue groups. She admitted it was part of her duties. And so this is done in the official performance of her duties at the direction and with the authorization of the department head. So it is not protected speech. And the Andrea the Cat should be taken from the jury.

With respect to the what I have always considered based on the summary judgment motion and the complaint, the complaint was framed entirely in terms of leaks to the press. The jury instructions we got leaks to the press. And the example given and the only evidence of it in the record is the October 26th really should be 27th entry of Mr. Davis about the false information. Now, there has been lots of oral testimony building upon that.

That testimony about mass execution and about failing to starve all those things is false information. It was disruptive. The employer has the right to try to prevent false information as it is disruptive to the City and its operations from being spread. And so that is the third element. And when you -- when you weigh the protected speech, the assumed or believed speech, false statements are not entitled to any protection under the First Amendment. The City certainly has the right to -- in the balancing the court has to do we think it fails the third test. And I submit that is really the only other argument. And I understand while I was out this morning they have now put forward an amorphous statement about, what was it, some statements of the use of the gas chamber and her speech to the people she worked with and issues about the AVMA and the rescues. Well, what's -- this has never been part of the case what she is saying about the gas chamber. If she is talking about statements in public hearings, well nobody believes she was doing that. There is no evidence she was doing that and which ones are we talking about. I'm very troubled if that is going to be an issue that goes forward.

So I submit, Your Honor, that as to the -- I think no reasonable jury can conclude that Mr. Morris believed that she was the source of this which was the first prong that they would have to establish under the fourth factor. No reasonable jury can conclude that it was a substantial or motivating factor. But even if they did, no reasonable jury could conclude that the City would not have fired her in the absence of any such belief that she was the one passing this information on.

And regardless, this is a case of overwhelming evidence of a valid reason to terminate. It's built up on a head for many months, it comes to a head at around the same time as all of these events, but that's when Mr. Morris is meeting with Ms. Bird, he sees this relationship is completely gone and he feels now finally he has to step in and stop it.

If you have a supervisor, a manager, who refuses to engage with, work with her supervisor, who loathes him and can't even look him in the eye, which she herself admits repeatedly she could not, that's a legitimate reason to get rid of her when you have had an ongoing dialogue with her and she has done nothing to change it. So I don't think -- I think there is a legitimate reason to do this. And on that basis, the decision must be upheld. If you just articulate that also so I don't mess it up.

MR. CROWTHER: No problem. So for their third basis that she actually spoke against the gas chamber, that is an actual speech by plaintiff and yesterday they represented to us and the court they're only pursuing a belief of I guess statements that she didn't make. So that would be a complete change of theory of claim and we would be dealing with something entirely new.

MR. PRESTON: That is not really fair to us. So that, I'm sure, is a lot more than you wanted. I apologize.

THE COURT: That is helpful. If I could just ask Ms. Pagel did they have their snacks?

THE CLERK: Yes.

THE COURT: All right. So I -- I obviously will want to hear from defendant and I would like to hear more, but I think in the interest of finishing, we'll go -- I'll take -- we'll take -- hear argument on this later. We'll go ahead with your case. And how long -- how long have we had them out? Why don't we take a 10 minute break ourselves and come back.

MR. PRESTON: Your Honor, could I just say I apologize for speaking over the court and when I was saying I hope the court didn't think I was instructing the court to be quiet. I was trying to tell my client to because he was speaking over you and then I end up speaking over you. So I am very sorry.

THE COURT: Thank you. I appreciate that.

(Recess.)

MR. PRESTON: Your Honor, I had not anticipated this at all but we feel very good how this ended. I've talked to my client at length and I don't think -- I think to take another couple of hours to put these last three witnesses on will be, if anything, cumulative. So we're willing -- we are going to rest when the jury comes in without calling any more witnesses.

THE COURT: All right.

MR. PRESTON: So that might give us some time to do the jury instructions without staying up until midnight again tonight.

THE COURT: I think it might.

MR. PRESTON: But having an opportunity, I mean if you want to do that, hold them and do it, I mean if you want to do closings I'll do closings right now, too, whatever you prefer to do.

THE COURT: I would like to -- I mean we have I think between the jury and the parties we have all invested substantial time. I would like to make sure the jury instructions are good. And so I think it is best to let them go for the day, let us make sure we get a good set, and get all of the objections whatever they are on the record, and, um, then have a 208 nice clean morning with

MR. PRESTON: What time will we be coming back? Do you want us here 8:00?

THE COURT: 8:30. In the morning?

MR. PRESTON: Yeah.

THE COURT: Unless there are other recommendations.

MR. PRESTON: Whatever you want.

THE COURT: Let's do 8:30 tomorrow morning. Okay. So in that case, let's get the jury back in and we'll let them know that they can leave for the day.

MS. HOLLINGSWORTH: Your Honor, can I tell the jury that I judged it right after all?

THE COURT: I do not think so. I do not think that would be a good idea.

MS. FORTSON: She had to ask. She had to ask.

THE COURT: I understand.

THE CLERK: All rise for the jury.

(Whereupon, the jury returned to the courtroom.)

(Whereupon, the trial continued but was not transcribed.)

REPORTER'S CERTIFICATE

I, Laura W. Robinson, Certified Shorthand Reporter, Registered Professional Reporter and Notary Public within and for the County of Salt Lake, State of Utah, do hereby certify:

That the foregoing pages contain a true and correct transcription of my said shorthand notes so taken.

In witness whereof I have subscribed my name this ___ day of __________, 2019.

/s/_________

Laura W. Robinson

RPR, FCRR, CSR, CP

APPENDIX 6 BEFORE THE HONORABLE EVELYN J. FURSE

March 16, 2018 Partial Transcript Excerpts from Trial Laura W. Robinson, RPR, FCRR, CSR, CP
351 South West Temple
8.430 U.S. Courthouse
Salt Lake City, Utah 84101
(801)328-4800

Appearances of Counsel:

Salt Lake City, Utah, March 16, 2018

*** * * * ***

(Whereupon, the trial was held but not transcribed.)

(Whereupon, the following is a trial excerpt dealing with final jury instructions.)

THE CLERK: All rise for the jury.

(Whereupon, the jury returned to the courtroom.)

THE COURT: All right. Welcome back. We have given you all a copy of the jury instructions and I'm going to be reading those into the record, reading those to you and into the record shortly. You're welcome to follow along. You don't have to follow along, it's up to you. It is just there for your -- you should listen to me no matter what, but you don't have to follow along on the written instructions. And it's just if that's easier for you.

And then one other housekeeping matter. I had on two of the exhibits that you're going to -- you're going to get all of the exhibits that have been introduced with you back in the jury room. On two of those during the trial I had ruled that you should only -- that you should not consider them for the truth of the matter. We have discussed that further and I have now ruled that you can consider all of the exhibits for the truth of the matter. So you don't need to worry about which those were but those were Exhibits 4 and 70 you can consider them just as any other exhibits.

All right. So with that, I will read you the jury instructions. Instruction number one, now that you have heard the evidence and are about to hear the argument, my duty is to give you the instructions of the court concerning the law applicable to this case. Your duty as jurors is to follow the law as stated in the instructions of the court and to apply the rules of law to the facts as you find them from the evidence in this case. You are not to single out one instruction alone as stating the law but must consider all -- consider the instructions as a whole. Neither are you to concern yourself with the wisdom of any rule of law stated by the court regardless of any opinion you may have as to what the law is or ought to be. You would violate your sworn duty as judges of the facts to base a verdict upon any thing but the law as I instruct you and the evidence in this case.

You should not take anything I say in these instructions as an indication that I have any opinion about the facts of the case or what that opinion is. My function is not to determine the facts. That function is yours as jurors. Justice through trial by jury depends on the willingness of each individual juror to seek the truth as to the facts from the same evidence presented to all of the jurors and to arrive at a verdict by applying the same rules of law as given in these instructions. You must perform this duty without bias or prejudice as to any party. Our system of law does not permit jurors to allow sympathy, prejudice, or public opinion to influence their verdict. Both the parties and the public expect that you will carefully and impartially consider all of the evidence in the case, follow the law as stated by the court, and reach a just verdict regardless of the circumstances.

Instruction number two. The evidence in this case consists of the sworn testimony of the witnesses, all exhibits received in evidence, all facts that may have been admitted or stipulated, and the applicable presumptions that will be stated in these instructions. Statements and arguments of counsel are not in -- are not evidence in this case. When, however, the attorneys on both sides stipulate or agree as to the existence of a fact, the jury must, unless otherwise instructed, accept that stipulation and regard that fact as conclusively proved.

During the course of trial, counsel has the duty to make objections when needed. You should not consider or be influenced by the fact that counsel objected to something. You must entirely disregard any evidence to which counsel objected and the court sustained the objection and any evidence that the court ordered stricken.

Do not try to do any research or make any investigation about the case on your own. You must not try to get information from any source other than what you saw and heard in the courtroom.

It's natural to want to investigate a case but you may not use any printed or electronic sources to get information about this case or the issues involved. This includes the internet, reference books or dictionaries, newspapers, magazines, television, radio, computers, Blackberries, I-Phones, smart phones, PDAs or any social media or electronic device. You may not do any personal investigation. This includes visiting any of the places involved in this case, using internet maps or Google Earth, talking to possible witnesses or creating your own experiments or re-enactments. You must entirely disregard anything you may have seen or heard outside of this courtroom because it is not evidence. You may consider only the evidence in this case. However, in your consideration of the evidence you are not limited to the bald statements of the witnesses. On the contrary, you may draw reasonable inferences from the facts that you find have been proved such as seem justified in light of your experience. Any influence is -- sorry, any inference is a deduction or -- sorry, let me try that again. An inference is a deduction or conclusion that reason and commonsense would lead you to draw from the facts that are established by the evidence in the case.

(Whereupon, the trial continued but was not transcribed.)

(Whereupon, the following is West Valley's closing argument and rebuttal closing.)

THE COURT: And Mr. Preston, you may proceed.

MR. PRESTON: Thank you, Your Honor. May it please the court and Ms. Hollingsworth and counsel. On behalf of my clients, I want to thank you for the close attention you have paid throughout this process. This is a very important case to both sides and so we appreciate it, you taking the time to be here.

I have a few moments where I can tell you how I think the pieces of the mosaic fit together and I'm going to start again with three key points. They're the same three key points that I talked about in my opening, I have kind of reversed the order because that's how you'll deal with them on the special verdict form.

First, Layne Morris's decision to terminate Karen Bird was not based on free speech retaliation. And I'll explain in detail why I believe the facts show that. Second, Mr. Morris had legitimate appropriate reasons to terminate Ms. Bird, insubordination being the primary concern in his mind. And third, Kelly Davis did not participate -- personally participate in the termination decision.

So, um, let's talk about the free speech retaliatory firing. Ms. Bird claims she was fired based on a belief, not that she actually did it, but a belief that she leaked two pieces of information to the press. First is the Andrea the cat incident; and second, is the allegation that Kelly Davis ordered a mass execution at the shelter in late October of 2011. Those are the two free speech issues at issue here. It's not -- it has nothing to do with the AVMA guidelines and regulations on the carbon monoxide chamber, it has nothing to do with her statements at work to people about the gas chamber, as they frame it. These are the two statements and you saw that in the court's jury instruction number 11.

In this case, Ms. Bird alleges West Valley City deprived her of her rights under the First Amendment to the Constitution when it allegedly terminated her employment because it believed she leaked information to the press about one, Andrea the cat, and two, a mass execution at the animal shelter allegedly ordered by Mr. Davis. That is what your focus needs to be. That's what she has to prove that that was the reason that the city fired her in accordance with the instructions that the court will give you.

I want to deal with the second alleged free speech statement, the mass execution first. The first question you will be asked in the special verdict form that you have to answer questions on is did Mr. Davis order a mass execution in October 2011. So is that a -- is this statement that was allegedly passed onto the press a true statement or a false statement that Mr. Davis ordered this.

So let's look at some of the evidence on that. You recall the phone call from the reporter came in the morning of October 27th, the day before there was this roll call meeting. And what took place in that roll call meeting, if you look at Exhibit 71, page 419, that is the key date in the log, and Mr. Davis explains what happened that day. And he states that they had a number of animals, he goes through what his normal questioning is. He said it was the second highest animals since moving into the new facility. Said we need to get it down to a reasonable number. He doesn't say we need to do that by a mass execution. He asks -- talks to Ms. Bird about the due out list. So that's where they each week this committee goes over the animals, tries to determine how long they have been there, what are the chances of adoption, how is the animal doing, and they discuss that. And she goes through eventually and talks about a number of dogs that are on that. And she gives explanations which he finds reasonable and accepts. Two border collies, some labs, and thinks there are chances to move them. Great. They're not moved to the euthanasia list. He asks her for the list. Karen Bird puts together the euthanasia list. The final euthanasia list generated by Karen, and approved by Karen, was a total of eight cats and one dog. Two of the cats on the list were for time/space reasons, the remainder were either feral or sick. The one dog on the list was for time/space.

This is the normal process they go through. Layne Morris, you heard him testify, that this would be an accumulation. This isn't a daily number but an accumulation of a week or two animals that are being euthanized. So what do you find absent in there? No reference to a mass execution. We're talking about nine animals out of 156. Karen puts together the list. The animals she doesn't want on the list are removed from the list. And that's the list that is approved.

So Karen Bird claims he says that all the time, refers to a mass execution of animals. Now, Ms. Bird has taped hours and hours and hours and hours of conversations. What about this key roll call meeting? Where is that tape where he allegedly said "I order a mass execution"? That tape doesn't exist. Ms. Bird says oh, the recording didn't work that day. How convenient. You know Kelly wants to save these animals, you could see that from how he dealt with this, he was trying to save animals. He wasn't just killing them right and left as some people have alleged here. The other evidence they have for this is what Michelle Johnson said, the volunteer. And you will recall I submit that Ms. Johnson is not a credible witness. She made false statements to Mr. Morris. We do have that recording. That's Exhibit 52 at the five minute forty-two second to the six minute twenty-seven section of that Exhibit 52. And could we have -- switch this to Brandon and let him play that little clip for us.

(Whereupon, Exhibit 52 was played for the jury.)

MR. PRESTON: It's not something that I'm saying, these are not facts coming from me. Go back to my slide. So she told Layne Morris she was not spreading this information. And then we showed you Defendant's Exhibit 100 which was a post she did on October 26. And this blows up, it is a little tough to read, but "the big man says bring down the numbers now. He wants them dead today." That was what she was saying. So she is not a credible witness. Do you remember I also said that, you know, this is available for the public? She says oh, no, it is private. Only my friends can see it. I said well, do you know Brandon Crowther? Oh, yeah, he is a friend of mine, he works in a rescue shelter. And I said, well, let me induce you to Brandon Crowther, he's my partner in this firm. I mean she had an answer and then when I said that oh, I must have put it on public then. You know, I just submit she is not a credible witness on this point. And how does she say she heard it? I was walking down the hall and I just overheard Mr. Davis say loudly I want a mass execution that day. Again, I'll leave it to you to decide who was telling the truth in this.

And finally, Mr. Morris and Mr. Davis both assert it is a false statement. He never ordered that. And there was no mass execution. There were only nine animals accumulated over an extensive period of time, a week maybe two weeks, that were -- that were put down that day. So that is not a true statement. So is it false? Yes. The next question that you need to think about with respect to the mass execution is did Layne Morris believe Karen leaked this statement to the press? That's what you have to have proven to you by a preponderance of the evidence that Layne Morris believed that she leaked -- that Karen Bird leaked that information to the press. And when you look at what Mr. Morris said, he said I wasn't spending time investigating who said these things, that wasn't my concern. His concern was, what he wanted to stop, was false information going out. He didn't say it was Karen. He never formed any opinion on that. He was very adamant about that point. What he said, remember he said what he thinks could have happened, he doesn't think it is malicious it could be innocent, it could come from anybody. Do you remember he mentioned the telephone game. Somebody says something that gets passed on and by the time you get a few down the row it becomes a very inflammatory statement. That is -- so his way to stop this is he is talking to Karen in that meeting and to Kelly in October 31 how do we -- how do we deal with this, how do we make sure as an organization the right message is being communicated to our shelter, to our volunteers, so that we don't have this problem. He said it could have been Kelly, it could have been any employee, he said it could have been me. I say something and it gets blown out of proportion. There is no evidence that Layne Morris believed it and he told you he did not believe that she was doing that. That wasn't his concern. That wasn't what he was looking at.

Then the question you have to ask is if so, if this was a belief that he had, was it a substantial or motivating factor for the decision to terminate. And Mr. Morris adamantly denies that that had anything to do with his decision, he is the final decision maker, he is the one who made the decision alone as to what would happen here. And he had other reasons to terminate her, legitimate reasons, valid reasons, and we'll talk about that in a moment.

And let's look at the Andrea the cat information that got out. Does Mr. Morris believe Karen leaked this statement to the press? There was nothing to leak. You remember he said the shelter made a mistake with Andrea. He took that as his responsibility. He said, we made a mistake, I made a mistake and we pay the price for it. He specifically authorizes Karen to go out to the vets and to the rescues and to get that story out there because that might save that cat.

And if we could switch it to Brandon, and Brandon if you could show us Exhibit 90, just the transcript, we won't play everything. And let's go to -- let's go to the bottom of the third page. Ms. Bird talks about getting it to a rescue. Going over to the next page, they're going to get the story out. This is Ms. Bird talking. And then of course the rescue they would probably get a story out to try to find it a home because that's how rescues get adoptions and get publicity to come in to find the homes. You get it to the vet and the rescues, they're going to publicize it because that gets donations for them. And Mr. Morris, I'm okay with that. We can survive that. Ms. Bird, skipping down, I just don't want it to be like I'm causing problems. Mr. Morris yeah no, I have got no problem with that Karen. I think that's a well deserved thing for this cat. So what was there to leak? He authorized her, tells her get it -- get the story out, talk to the vets and the rescues knowing she tells him this will become public. Rescues will get it out. And he says I'm fine with that. So he didn't believe she was leaking anything to the press and that's what you're asked to determine. So then the question is was that belief a substantial or motivating factor in the decision to terminate. In his mind, is that a substantial factor, a factor that motivates him to want to terminate her? He is the one who authorizes it. He is not firing her for that and he specifically testified on the stand that he was not.

So if though you were to find that, then we have a defense, the employer has a defense. That's set forth in jury instruction number 14. And that instruction states, "West Valley City asserts as a defense in this case that the City would have terminated Ms. Bird even in the absence of the speech at issue. If you find that West Valley City proved by a preponderance of the evidence that the City would have made the same decision and terminated Ms. Bird's employment, even in the absence of the speech issue, you must return a verdict for the City and Mr. Davis."

So that gets to the issue of why Layne Morris terminated Ms. Bird's employment. And he explains it in detail why he terminated her. He had been concerned about her insubordination for a long time. He said it was based primarily on my personal observations. When he is in these meetings in October and late October and early November, he sees that this relationship has gotten to the point where she can't even work with Mr. Davis. She can hardly stand to be in the room with him. She loathes him. When Mr. Davis asked her a question, she looks over to Mr. Morris and responds and has a difficult time engaging with him. He says this relationship is broken. Isn't it interesting you heard a couple of times Shirlayne George in her meeting with Karen Bird on November 3, three days after this meeting, where Layne Morris observed this, and what does she say six times? I can't even stand to look at him. There is a personality conflict here, for whatever reason, that has -- it has nothing to do with a perception that she's leaking information to the press about Andrea the cat or a mass execution, they are like oil and water. Layne Morris said they're like two planets and they won't get in the same orbit. She even confirms to him on November 9th that the relationship is broken. He says this relationship is broken. She does not deny it, she says yes but we believe it is broken for different reasons. It is a broken relationship. It is causing division in the animal shelter and Mr. Morris steps in to do something about it. She could not work with Davis. She tells Ms. George the same thing that's Defendants' Exhibit 93 and as I said, she admits the relationship is broken.

You can also look at Exhibit 70. And if we could switch to Brandon, and Brandon if you could bring up Exhibit 70 and go to the third page. Now, this is the 2005 investigation that Shirlayne George did. As the court instructed at the outset today, you can now accept this document for the truth of the matter stated therein. If you go down to the second half, you heard a lot of some testimony and allegations about Tess Hartwell and how supportive she was of Karen. These are complaints about Karen in her favoritism of Tess. Karen favors Tess. I have seen her reaction when people complain about her. Another statement, we are all afraid to express an opinion or complain about something or make suggestions because if Karen does not like it, we all pay. We just quit bringing up issues to keep the peace. Third from the bottom, Karen shows blatant favoritism. She is degrading in her talk, she questions and reprimands in front of others. I reported something that one of her favorites had done and Karen then had this person follow me around and critique my work. She then rode my butt for two weeks.

Go to the next page, Brandon, if you will. Second point. I have seen Karen stomp her feet and clinch her fists when she gets mad to the point that her face gets all red like a 10 year old. Go down to the bottom, third from the bottom. Every one is scared of her. When she is in a bad mood you want to run and hide.

If you go to the last page, last paragraph, first couple of lines there, Shirlayne reports to Paul Isaac, Tess is ruthless. She is protecting Karen as if she were her young. I did not even include some of the things that she said about others because it was obvious she was trying to discredit those that don't seem to be on Karen's perceived favorite list.

So they want to use Tess in absentia and Ms. Hollingsworth in her closing planted the seed in your mind that she didn't want to come here because she is afraid to lose her job. You heard Mr. Davis said he promoted her. She still works there. The plaintiffs subpoenaed her and they chose not to call her. So I reject her suggestion to you there is no evidence in the record that she was afraid of her job and that's why she didn't sit on the stand. She was subpoenaed, they chose not to call her. But what this does is it shows longstanding problems with Ms. Bird and her employment. This is, of course, backed up by the 2011 investigation and that's Defendants' Exhibit 75 and 76. 75 is the handwritten notes Shirlayne George did. 76 is the typewritten notes. And they contain a lot of, again, complaints against Karen. That's the bulk of the complaints.

Let's talk for a moment about some of the defenses Ms. Bird has offered. They have said repeatedly throughout the trial that she had never had any notice that she had problems as an employee. No one put her on notice. Look at Defendants' Exhibit 71, Davis's log. Lots of times he documents talking to her about issues. Look at the 2010 performance evaluation. A year before she is terminated, puts her on notice of things that need improvement. Look at the Memorandum of Understanding that Mr. Davis wrote at the same time. Puts her on notice of problems that he thinks she is undermining his authority. Then you have Mr. Davis or Mr. Morris, excuse me, talking to her in January of 2011 saying, you know, Kelly really saved your job. I was ready to initiate discipline and he said I want to give her another chance, I want to give her an opportunity. Mr. Morris said he talked to her at length about these issues. She herself admitted that after that event she knew her job was in jeopardy. So to say that she didn't think she had any notice about her problems is inaccurate. And remember in the opening when Ms. Hollingsworth said if you don't remember anything else remember that she never received any discipline under the personnel file policy. Well, let's look at that policy for a moment. This is Exhibit 2, and Brandon if you could bring that up, please, to the page. Actually, I think I have it here, just a second. I'll just bring it up here, sorry, so we can switch it back to me. Thanks, Lindsey.

This is the page on the personnel policy that was shown to you as Plaintiff's Exhibit 2. This is the section I want you to look at. "Employees whose conduct constitute grounds for disciplinary action are subject to one or more of the following." Now, it doesn't say you have to go through these progressively. You can do one and jump to four. You can go straight to four depending on the circumstances. But look at number one. Informal warning. That is a form of disciplinary action. What does that consist of? An oral or informal written warning. So an oral warning is discipline that is documented by the department. These things are documented and kept by the department.

She received numerous warnings and discussions that go on for a long period of time. So to say that she has no notice, I mean you have heard these gentlemen testify they worked and worked with her. You heard Shirlayne testify she counseled her frequently about these issues, what she needed to do, what she could do, what Kelly needed to do. Layne says I talked to them separately, I had them both in my office. I talked to them continually and it increased and increased over time. And yet she says I had no idea there were problems.

Now what I warned you at the outset that they would try to shift the focus to Kelly Davis. Well Kelly Davis had problems too, he didn't get terminated. It is an apples to oranges comparison for several reasons. Yes, the 2009 investigation created significant concerns about his anger management and Shirlayne George sat down with him and told him -- warned him if it continued his job was in jeopardy. He said he was humble, he received her advice, and he said I'm going to work on it. And he did work on it as shown by the 2011 investigation, two years later, there were not these complaints. Shirlayne George said he was trying to do better. Layne Morris said he improved. He was given another chance and he improved. He was receptive to her counsel. The difference is Karen, she may change for a little while, but she didn't fundamentally change even though she had notice of these insubordination issues. That is the key difference and it's backed up by this CD that Ms. Bird gave to Shirlayne George in November, early November of 2003. She said here is a tape I have of a meeting on October 12th, 2011 a few weeks earlier. Listen to it. It shows just how mean and belittling and bullying Mr. Davis is for me. Shirlayne listens to an hour of this. She says Karen he is just trying to help you. He is pointing out things you need to do. She has this perception that's why she can't stand him. Anything he says she just tunes out. You can't have a manager doing that to her supervisor. It just cannot continue. As Layne Morris said it continued too long. But this is interesting. They have that recording. Did they introduce it into this court? You can bet if there was anything on that recording that showed Kelly Davis was bullying, intimidating, harassing, abusing Karen Bird you would have heard it. Did they play it for you? Did they play a moment of it? No. Now think of this. Karen Bird recorded hours and hours and hours and hours of recordings. Roll call meetings, one after the other. You have got a tiny fraction of the hours and hours of recordings she made. Have they played from this huge library a single snippet of a single recording where Kelly Davis was belittling or bullying? She is complaining about it daily. You haven't heard a single recording that shows that. This was a critical moment for Shirlayne George and Layne Morris. Layne Morris says oh, she has a recording of what he has done. Great, I want to hear it. I want to see if there is something to this. I haven't seen him be that way, but if there is something there and you can bet she is recording it secretly, probably hoping she can get something over the months, he said let me hear it. There is nothing there. That shows he is trying to help her. You have to take what Karen Bird says with a grain of salt, maybe more than a grain. Her perception is such that it doesn't correspond to reality. I don't know why but this is, I think, a fundamental problem with her case. She is claiming throughout months that Kelly is rude to her and belittles her. She wants him gone. Kelly saves her job. I want to give her another chance, continues to work with her. On October 12th, 2011, Shirlayne George, Layne Morris listened to that, yeah he is trying to work with you, he is trying to help her. Even then he is trying to help her. That has nothing to do with free speech. This is two people at loggerheads and one of them is trying to communicate, is willing to change, and the other one even in this courtroom says I did nothing wrong. I was never insubordinate. That is not an accurate picture. But again, that has nothing to do with free speech. But the focus is oh, it is Kelly Davis, he is just mean, aggressive, angry guy. Where is the recording? They claim Ms. Bird was a model employee. Ms. Hollingsworth in her opening said she is the type of employee we should all aspire to be. You might ask yourself if you would want her as a co-worker or your supervisor or your subordinate. She undermines Kelly Davis, she secretly records conversations without telling anybody, even her own co-workers. She admits she is doing it at least at the end for litigation purposes. That tells you a lot about Ms. Bird. She refuses to work with her supervisor. She claims she does nothing wrong. Claims that she is never subordinate. She never recognizes her problems. Now this is very important. Layne Morris spent all this time counseling with her. So did Shirlayne George. Shirlayne George said it was like butting my head against the wall trying to work with her. I would say well try this, do this. Let's try to solve this this way. No. The only way to solve this, according to Ms. Bird, was to get rid of Kelly Davis and get me a supervisor I liked or make me the supervisor. That's what's going on here. Layne Morris has these meetings with her November 1, November 9, November 22nd in the pre-disciplinary hearing. I asked him, how did she respond to being told there is all these problems? He said she never once recognized she was the problem or said she loved this job like she says and I'm sure she did, she loves the animals, nobody is questioning that. But why didn't she then say when she knew her job is in jeopardy 11 months before give me another chance. Why didn't she say to Mr. Morris, you know, I'm really sorry for everything that has happened. I'm going to turn over a new leaf. I'm going to change. He doesn't make a decision until he has met with her, until he has got the investigation, until he has listened to the take and until he has heard her story. When you start a disciplinary process that doesn't mean that you have determined as Ms. Hollingsworth said that you're going to discipline someone. I don't care what Paul Isaac said. Paul Isaac is not the guy who makes the decision. Layne Morris is. And Layne Morris said I feel there is something wrong. I'm going to start a disciplinary process because that means I will get material and I can evaluate it. Based on my personal observation, this is not working. I got to do something. So get me the information. Great, you're doing an investigation, Ms. George, I want to see it. Oh, you have a CD? Let me listen to it. I want to hear what Ms. Bird has to say. And only then, when he has all of that information, does he at the end of November does he make the decision one to discipline and two to terminate. That is due process. Throughout any point in that process Ms. Bird had the opportunity of saying give me another chance, I'm going to do X, Y and Z. She never does it. We all feel badly for her. But ladies and gentlemen, you get the chance, you have the opportunity and sometimes there are consequences to your actions. Nobody wants to fire her. She was a star employee. She had great attributes. Ms. Hollingsworth said well, I even got Mr. Morris to say she was a star employee. Mr. Morris said that absolutely, I thought she was a star. He was a big supporter. She comes -- Karen comes to Layne in -- when the new building they move into it, she says is my job in jeopardy? Of course not, Karen, we need you. We need you at this shelter. Even at the end he is telling them in that November 9th meeting, actually it's the November 1st meeting, hey, I need both of you folks there. How do I resolve this? That's what Shirlayne George asked on November 3rd? How can I resolve this Karen? How can we make this work? I can't even stand to look at his face. I can't even stand to look at his face. How do we resolve it? I don't know what resolution there is. Why not say ask him to do this, this, and this, I'll do this, this, and this. Give me a chance to solve -- to salvage this. She does none of that. Him or me, that's what she put Layne Morris into a position of. I can't work with him, I refuse to work with him, I can't stand him. What are you supposed to do? You can't let this continue. And their whole claim rests on the fact that it took place while these other events are going on and so that was the reason she was terminated. Free speech. She never said I will do better. The drama ceased when she was gone.

So let me show you an exhibit that we stipulated to. Exhibit 40. Brandon, if you could bring that one up and we'll switch the panel to him. This is Susie Ternoois, a letter she wrote to Shirlayne George when Shirlayne George was doing this later investigation December for the Workforce Services. Do you remember she said which investigation are you talking about? So this is like the second one. This is a pretty interesting letter about her concerns about Karen Bird. At the very bottom it says, I have to add that since Karen has been gone, rest staff has all changed. It is working more as a team. And that tension that had been there between the officers and the shelter sides is getting better.

Kelly Davis testified we have to get the cleaning done, we have to do this by 10 a.m. But Ms. Bird says it can't be done, I need more staff. Do you remember when they played her -- or they showed him his testimony at the EAB hearing? He said all those excuses that it can't be done, I can't do it were gone the. The problem ceased once Karen was done because the rest of the people fell in line and did what Kelly wanted. She resisted that. These are the tensions that were building up. If I can go back to my screen, please.

The third point I wanted to make is Kelly Davis did not participate in the decision. Kelly Davis hired her, he promoted her, he allowed her to be insubordinate for years. He saved her job and gave her a second chance. The old saying no good deed goes unpunished now he has been a defendant for six years.

They are seeking punitive damages for malicious conduct against Kelly Davis. That's what Ms. Hollingsworth has asked you to do. He wasn't even involved in the decision because Layne Morris said I've got to step in and fix this. He never even contacted Kelly, got input from him. He testified Kelly never recommended I terminate her. They want to say that Kelly was upset, he wanted to stop these leaks. Well, who wouldn't when your name is being plastered through out the community as being somebody who is killing animals right and left with no regard for them. But Kelly doesn't make the decision. Layne does. And he's the one who initiates it and who follows it through and he doesn't make the decision until November 22nd.

Jon Andus. I think the first and the last witnesses you heard in this case are appropriate bookends. Jon Andus was a volunteer. He was -- you saw how combative and defensive he was on the stand. I think you saw how he embellishes the truth. Perfect example, we're in this meeting and Kelly wants a list of items to be purchased and Karen writes it and slides it to him. And according to Jon Andus, Kelly Davis wadded that up and threw it at her face. And you saw what Ms. Bird said happened. He slid it back across the table. Jon Andus is not a credible witness. He has some agenda here, he is going after somebody. But several times he told us oh, I have nothing against Kelly Davis. Me thinks he protests too much as Shakespeare would say.

What was Kelly Davis's explanation of this? I told the employees I needed it in a memo which lists the items to be purchased, I needed it prioritized, and I needed the amounts so I could determine when the request comes to me whether I would have the funds to purchase. That is what a responsible manager who is trying to live within his budget does. They make it sound like he is just some bully. He was doing what he should be doing. But again, this gets perceived as something that it was not. Jon Andus said that in his EAB hearing he says, do you know why she was terminated? Oh yes, I do. And he says, Kelly told me she was the mole and that's why she is being terminated. That is November 10th. Kelly knows nothing about it. Is it credible to you that a police officer of 20 plus years service who has been a manager for years, who has been an officer rising to the rank of lieutenant, would go to a volunteer and talk about the personnel managers -- problems of one of his subordinates. You don't do that. You don't spread information like that. Kelly Davis absolutely denies it. He did not make that statement. But on the stand, Mr. Andus doubles down. So not only did he say that, but then later in this day now none of this is in the Post-It Note that he posted that he testified that he tried to put everything in so he wouldn't forget it, but later in the day he hears Kelly Davis say I'm going to do everything I can to get rid of her. So six years later suddenly he comes up with another embellishment.

Not even Ms. Bird believes she was fired for her free speech issues. Remember, when I had her review her deposition, I said why did Kelly Davis want to get rid of you? He is the guy you sued, why did he want to get rid of you. He gave several reasons. He wanted to get rid of me because his secretary was forced to resign after I accused her of theft. Mr. Davis wanted to get rid of me because I was disagreeing with him. Mr. Davis wanted to get rid of me because I do not want to use the CO chamber. Another reason he wanted to get rid of me was because after my car -- while I was off work after my car accident, some of Hitler responsibilities he had to take over and do. Now this deposition is taken in 2014, she has heard John Andus and all this stuff, not once did she say he fired me because he believed I was leaking information to the press. Not even she thinks it's a substantial or motivating factor for her termination. How can you find that if she doesn't think it?

Brandon can you bring up the special verdict form, please. I want to show you the verdict form you're going to have to fill out and talk to you for just a moment about that. So as I indicated, the first question you will be asked to respond to is did Kelly Davis order a mass execution at the West Valley City Animal Shelter in October 2011. I submit that allegation is false and the answer should be no.

Second, do you find that Karen Bird has proven by a preponderance of the evidence that West Valley City's belief that she leaked information to the press regarding Andrea the cat and/or a mass execution at the animal shelter allegedly ordered by Kelly Davis was a substantial or motivating factor in the decision to terminate her employment? I submit that for the reasons I told you that the answer should be no. If the answer is no, do not answer any remaining questions. Have the foreperson sign this form and turn it in.

If you do find it was a substantial or motivating factor, you will be asked to decide which one was it or was it both of them. And then you will be asked the question on question four, this is on the second page, do you find that West Valley City has proven by a preponderance of the evidence that it would have terminated Karen Bird's employment in the absence of any belief that she leaked information to the press regarding these two incidents? Absolutely they had grounds to terminate her. Had nothing to do with this. If that answer is yes, do not answer any remaining questions and have the foreperson sign the verdict form and return it. I submit that the farthest you need to go in this special verdict form is the fourth question. And I submit it should be done after dealing with the second question.

Credibility of witnesses. For you to find that the City acting through the final decision-maker who was Layne Morris terminated her because of a free speech retaliation motive, you have to find that Kelly Davis was lying, that Shirlayne George was lying, and that most importantly that Layne Morris is lying to you. Layne Morris is not a man who would lie. Look at his character. He has been a public servant. He has served this country and the citizens of West Valley City his entire life. You don't become a First Class Sergeant in the Green Berets unless you are a leader and a man of integrity. There is a movie out called 12 Strong. It's about one group of the first special forces responders that was sent to Afghanistan right after 9-11.

MS. HOLLINGSWORTH: Your Honor, I'm going to object to improper vouching about the

THE COURT: You may proceed.

MR. PRESTON: Thank you, Your Honor. Kelly Davis -- I'm sorry, I got off here. Layne Morris was one of the first responders in the Green Berets to go out there as a special forces man to go to Afghanistan. Now, he is not as tall, doesn't have as much hair, and he is not as handsome as Chris Hemsworth who stars in that movie, but Layne Morris is the real deal. Did you see how emotional he got when I asked him about his oath to defend the Constitution? He knows by firsthand what it is to live and fight against a country, a leadership, a government, that doesn't have these constitutional rights. The Taliban. And he put his life on the line doing that. But now you're asked to find that he would violate Karen Bird's Constitutional rights and he would lie in a United States Courtroom about it. That is not what this case -- that is not why she was terminated. I'm going to play you a brief clip which shows why she was terminated.

(Whereupon, an audio clip was played for the jury.)

MR. PRESTON: He is just -- Kelly Davis is just trying to show me he is the boss. Layne Morris says Karen, he didn't say it rudely, he said Karen, he is the boss. I know that. That's why she was terminated. She refused to accept Kelly Davis as her boss. Thank you very much for your time and attention.

THE COURT: Ms. Hollingsworth? Do you need to switch the computers Ms. Hollingsworth or

MS. HOLLINGSWORTH: No.

MR. PRESTON: Let me unplug my stuff.

MS. HOLLINGSWORTH: Ladies and gentlemen, Mr. Preston talked to you about a recording that Ms. Bird had presented to Ms. George that was from October 12, 2011. And on October -- from that recording on October 12th, Ms. George determined that Mr. Davis was simply trying to help Ms. Bird. So I want to ask you what happened then after October 12th? And we have Tess Hartwell's e-mail to Ms. George saying -- as of November 1st saying Kelly's bullying of Ms. Bird has gotten so much worse in the last two weeks. And what happened was the articles came out in the newspaper about Andrea the Cat and then a reporter called Mr. Davis about a mass execution. And to the point that Mr. Morris had authorized the leaks to the press for -- about Andrea the Cat that simply is not correct. What he said was, you can go to the vet and you can talk to the vet and I'll accept the consequences. But he specifically said in this November 1st meeting, I don't have the recording up but I have the transcript from the meeting and you heard this clip where he said, and he was talking to Michelle in that November 1st meeting, he said, I explained to Karen that it's her job to make it stop. She needs to be telling that story like she did to Channel 4 the other day. She needs to be telling our story and defending us and giving out the good information like a loyal employee.

So Mr. Morris was okay when he thought the Andrea the Cat story through the vet might be about a miracle cat, but the debate became about the gas chamber and its effectiveness and its use by the shelter. And then there was subsequent information out of the shelter about a mass execution. And so the debate was not positive as Mr. Morris had hoped and he clearly thought that Ms. Bird had gone beyond what he had authorized to talk to the media herself.

Mr. Preston said there's -- there's not -- there wasn't any statements about a mass execution on -- in late October. We have many sources to support that although we don't and wish we had the recording of the October 24th meeting. Obviously, if we had the recording and it disproved the allegations then defense would have brought it up. Ms. Bird testified that recording was lost or inadvertently deleted. But what we have from that meeting was Mr. Davis's notes which reflect that he said the numbers in the shelter were high and that he needed to get them down. We have Michelle Johnson's simultaneous Facebook post saying the big man says we got to get the numbers down, he wants them all dead. We have Jon Andus who testified that he was in that meeting and he heard the mass execution statement made in that meeting. Not only that, he had heard it several times before.

So we have several sources that confirm what was said in that meeting not to mention the fact that a reporter called Mr. Davis on an anonymous tip and Mr. Davis's notes reflect that he didn't say that's not true, he said I'm concerned about how this information is getting out. So there is all kinds of information to support that that's what was said. And as counsel pointed out, on your verdict form the very first question you're asked is, "did Kelly Davis order a mass execution in October of 2011?" And while that statement doesn't go to the liability that you are to determine, it's something that figures into what the court has to decide later.

Counsel talked about that Mr. Morris wouldn't lie about these motivations. What we have is recordings that show both Mr. Davis's and Mr. Morris's motivations. That they were concerned about the negative information that was in the press. And we have Mr. Morris's boss on November 10th saying, you're going to be placed on leave and we'll figure out -- we'll send you a letter about why but it -- let's just say it's because of your opposition to the gas chamber. That's a violation of policy. And he says even if I were to think that people crossing the road outside our building might get killed, I can't say anything about that because it would be against policy. So these officials have a really skewed view of what the First Amendment protects but it's clear from all of the evidence that that was their motivation.

Mr. Morris, when I asked him why he would recommend terminating an employee who had never been disciplined, he said what do you think that's a get out of jail free card, our disciplinary process? No, it's the process that the defendant uses to terminate employees or discipline employees when they're going about it for legitimate reasons. They have a process in place because that's what makes sense. And when you -- when you have an employee with problems, then you document those problems so that they have notice of what the problem is and so that they can improve. That never happened in this case and that's because the -- the problems that were attributed to Ms. Bird were made up after the fact to legitimize an illegitimate termination that they knew they needed to cover up because it was based on a violation of the First Amendment.

The defendant wants you to believe that a tenured employee was terminated without any discipline for giving away a bag of dog food with maggots in it, or maybe for cleaning protocols that weren't figured out but that Mr. Morris testified were actually figured out long before this, or maybe for her discipline of Ed Trimble who we know was gone for many months before the events that are at issue in this case. That is simply not credible.

Instead we have a number of witnesses who testified as to what was going on in the shelter. We have Jon Andus to start with who might, I grant you, be a bit unhinged, but he had no reason to lie about what was going on at the shelter. We had Michelle Johnson to testify about the reasons she put out the Facebook post when she did. And when challenged on whether or not Mr. Davis had said do you want them all dead? She said yes, that is exactly what I heard.

We had Ms. Bird's testimony which wasn't impeached on any point. We have the fact that the defense could not put on a single witness to validate the concerns that they had about them, about Ms. Bird, except for Mr. Davis and Mr. Morris whose only information was through Mr. Davis.

We had finally Mr. Breisch, the volunteer, who had no dog in this fight but happened to have made a recording of Mr. Davis telling him he was not welcome as a volunteer in the shelter any more because he had exercised his First Amendment Rights. And although Mr. Davis attributed it to negative attention that a Facebook page was getting, Mr. Breisch told you he had just as we established 10 days earlier with his girlfriend testified at City Council about the problems that the gas chamber was having.

So these are officials who did not want the truth of what they were doing getting out. So they fired everybody including volunteers but including a long-term exceptional employee of the animal shelter who volunteers referred to as Mother Earth. That is a tragedy for our entire community and I ask now that you set this right.

And I made one promise to Ms. Fortson that I would tell you something so I'm going to do that. The formatting on our PowerPoint was messed up because we had to switch I-Pads and that put it into a different program. So we do know how to hyphenate words. So if there was an R at the bottom of the page on November, for instance, it was due to computer problems. So thank you.

THE COURT: All right. Thank you very much. All right. At this time if I could have the Courtroom Deputy swear in the Court Security Officer.

THE CLERK: Please raise your right hand.

(Whereupon, the Court Security Officer was given an oath.)

THE COURT: Thank you. All right. And I will instruct you to go into the jury room and begin your deliberations. Would you all rise for the jury, please.

(Whereupon, the jury left the courtroom.)

(Whereupon, the trial continued but was not transcribed.)

REPORTER'S CERTIFICATE

I, Laura W. Robinson, Certified Shorthand Reporter, Registered Professional Reporter and Notary Public within and for the County of Salt Lake, State of Utah, do hereby certify:

That the foregoing pages contain a true and correct transcription of my said shorthand notes so taken.

In witness whereof I have subscribed my name this 13th day of March, 2019.

/s/_________

Laura W. Robinson

RPR, FCRR, CSR, CP

Bird v. W. Valley City

Opinion

MEMORANDUM DECISION AND ORDER DENYING PLAINTIFF'S MOTION FOR NEW TRIAL (ECF NO. 169)

BACKGROUND

LEGAL STANDARD

DISCUSSION

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CONCLUSION

APPENDIX 1

APPENDIX 2

BEFORE THE HONORABLE EVELYN J. FURSE

Appearances of Counsel:

Salt Lake City, Utah March 12, 2018

REPORTER'S CERTIFICATE

APPENDIX 3

BEFORE THE HONORABLE EVELYN J. FURSE

Appearances of Counsel:

Salt Lake City, Utah, March 13, 2018

REPORTER'S CERTIFICATE

APPENDIX 4

BEFORE THE HONORABLE EVELYN J. FURSE

Appearances of Counsel:

Salt Lake City, Utah, March 14, 2018

VOIR DIRE EXAMINATION

CONTINUED DIRECT EXAMINATION

REPORTER'S CERTIFICATE

APPENDIX 5

BEFORE THE HONORABLE EVELYN J. FURSE

Appearances of Counsel:

Salt Lake City, Utah March 15, 2018

REDIRECT EXAMINATION

REPORTER'S CERTIFICATE

APPENDIX 6

BEFORE THE HONORABLE EVELYN J. FURSE

Appearances of Counsel:

Salt Lake City, Utah, March 16, 2018

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REPORTER'S CERTIFICATE

Bird v. W. Valley City

Bird v. W. Valley City

Case Details

CitationsCopy Citation

Citing Cases

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Citations